Harry J. Benson and Son, Inc. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor
| Citation | 59 F.3d 166 |
| Decision Date | 23 May 1995 |
| Docket Number | No. 93-1491,93-1491 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Harry J. BENSON and Son, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor; Eva Kearns, Widow of Edward A. Kearns, Respondents. . Submitted: |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
W. Randolph Fife, Douglas G. Lee, STEPTOE & JOHNSON, Clarksburg, WV, for Petitioner. Thomas S. Williamson, Jr., Solicitor of Labor, Donald S. Shire, Associate Solicitor, Patricia M. Nece, Counsel for Appellate Litigation, Jill M. Otte, UNITED STATES DEPARTMENT OF LABOR, Washington, DC, for Respondents.
Before HALL, WILKINSON, and MOTZ, Circuit Judges.
Harry J. Benson and Son, Incorporated (Benson), petitions for review of an order of the Benefits Review Board (Board) affirming the administrative law judge's (ALJ) decision to award black lung benefits to respondent Eva Kearns, the widow of Edward Kearns, a former coal miner. At issue in this appeal are the ALJ's finding that Benson failed to rebut the interim presumption of entitlement pursuant to 20 C.F.R. Sec. 727.203(b)(3) (1994), and the ALJ's decision to require Benson to secure the payment of the miner's benefits by posting security in the amount of $150,000 to the Treasurer of the United States.
Rebuttal is established under subsection (b)(3) where the party opposing entitlement to benefits establishes by a preponderance of the evidence that the miner's presumed totally disabling respiratory impairment did not arise in whole or in part out of coal mine employment. See 20 C.F.R. Sec. 727.203(b)(3) (1994). We have interpreted this language to require the party opposing entitlement to "rule out" any connection between disability and coal mine employment. See Thorn v. Itmann Coal Co., 3 F.3d 713, 718 (4th Cir.1993); Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 123 (4th Cir.1984). In this case, Benson's only potential rebuttal evidence consisted of Dr. Piccirillo's opinion that coal dust exposure did not significantly contribute to the miner's totally disabling respiratory impairment. While, on appeal, Benson challenges the ALJ's decision to discount Dr. Piccirillo's opinion on the grounds that his opinion was equivocal and hostile to the spirit of the Black Lung Benefits Act, we need not address these arguments because we agree with the Board's holding that Dr. Piccirillo's opinion is insufficient as a matter of law to establish subsection (b)(3) rebuttal.
Dr. Piccirillo conceded that coal dust exposure may have been partially responsible for the miner's disabling impairment. He testified that coal dust exposure played only a minor role, estimating it to be "under five percent." Nonetheless, however, as the Board correctly concluded, such findings simply do not "rule out" any connection between disability and coal mine employment. Dr. Piccirillo's report therefore could not establish subsection (b)(3) rebuttal even had the ALJ fully credited it. * Accordingly, the ALJ's award of benefits is affirmed.
Turning to the security bond issue, the ALJ ordered the posting of security in this case because, unlike most employers potentially facing the payment of black lung benefits, Benson did not possess an insurance policy for the payment of claims. Benson does not conduct strip mining operations, but is a trucking company engaged solely in the transportation of coal from various strip mining sites. The relevant statute does not require employers such as Benson to maintain insurance or otherwise guarantee its ability to pay benefits prior to a determination of benefit eligibility, but rather provides that, upon a determination of eligibility, "the Secretary may require such employer to secure a bond or otherwise guarantee the payment of such benefits to the employee." 30 U.S.C. Sec. 932 (1988).
The regulation which implements Sec. 932(b) requires transportation employers such as Benson, once eligibility has been established, to _________________________________________________________________
"take such action as may be appropriate to guarantee the discharge of such liability." 20 C.F.R. Sec. 725.494(b) (1994). The regulation further provides that, in order to ensure the employer's ability to pay, the relevant adjudication officer "may require a deposit of security in accordance with Sec. 725.606." Id. Section 725.606 reiterates that an adjudication officer possesses the authority to require an employer to make a security deposit where he "deems it advisable," but further states that such officer "shall require the deposit of security pursuant to this section in any case where an operator or other liable employer is uninsured or has failed to secure the payment of benefits." 20 C.F.R. Sec. 725.606 (1994).
In his initial decision, the ALJ found that "[u]nder Sec. 725.606 this Office must require an uninsured employer who is found liable to post security." Then, in his decision on reconsideration, the ALJ further found that "[s]ince no evidence of insurance exists and 20 C.F.R. Sec. 725.606 mandates posting of security in such an instance, Harry J. Benson and Sons is ordered to post security in the amount of $150,000 to the Treasurer of the United States as security for the award of benefits."
In this appeal, both Benson and the Director, Office of Workers' Compensation Programs (Director), argue that the ALJ erred by construing section 725.606 to require the posting of security where an employer is uninsured. On this issue, a majority of the Board held that the ALJ "acted within the discretion granted him under Sections 725.494(b) and 725.606 in requiring employer to post a security bond in the amount of $150,000." The Board further stated that the ALJ "provided an adequate rationale for his findings based upon his determination that...
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