Hill v. Presley Trucking Co.
| Decision Date | 16 September 2021 |
| Docket Number | BRB 20-0123 BLA |
| Parties | ROY E. HILL Claimant-Respondent v. PRESLEY TRUCKING COMPANY, INCORPORATED Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Court of Appeals of Black Lung Complaints |
UNPUBLISHED OPINION
Appeal of the Decision and Order Granting Benefits of Francine L Applewhite, Administrative Law Judge, United States Department of Labor.
Joseph E. Wolfe and Brad A. Austin (Wolfe Williams & Reynolds) Norton, Virginia, for Claimant.
Catherine A. Karczmarczyk (Penn, Stuart & Eskridge) Johnson City, Tennessee, for Employer.
Stefan Babich (Seema Nanda, Solicitor of Labor; Barry H. Joyner, Associate Solicitor; Michael J. Rutledge, Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: BOGGS, Chief Administrative Appeals Judge, ROLFE and GRESH, Administrative Appeals Judges.
DECISION AND ORDER
ROLFE, ADMINISTRATIVE APPEALS JUDGE
Employer appeals Administrative Law Judge Francine L. Applewhite's Decision and Order Granting Benefits (2017-BLA-05615) rendered on a claim filed pursuant to the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2018) (Act). This case involves a subsequent claim filed on December 4, 2012.[1]
The administrative law judge found Employer is the properly designated responsible operator. She credited Claimant with 13.25 years of coal mine employment, and thus found he could not invoke the rebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act. 30 U.S.C. §921(c)(4) (2018).[2] Considering entitlement under 20 C.F.R. Part 718, she found Claimant established clinical pneumoconiosis and legal pneumoconiosis in the form of respiratory impairments arising out of coal mine employment. 20 C.F.R. §§718.202(a), 718.203(b). She further found Claimant is totally disabled due to pneumoconiosis and awarded benefits. 20 C.F.R. §718.204(b)(2), (c).
On appeal, Employer argues the administrative law judge erred in finding it is the responsible operator. It also contends the administrative law judge erred in calculating the length of Claimant's coal mine employment and cigarette smoking history. It further asserts she erred in finding Claimant established clinical and legal pneumoconiosis and total disability due to pneumoconiosis. Although Claimant did not invoke the Section 411(c)(4) presumption, Employer nonetheless challenges the constitutionality of the presumption.[3]
Claimant responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited response asserting the Benefits Review Board should affirm the administrative law judge's responsible operator determination, there is no merit to Employer's constitutional arguments, and any error the administrative law judge committed on the issue of disability causation is harmless.
The Board's scope of review is defined by statute. We must affirm the administrative law judge's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.[4] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965).
Responsible Operator
The responsible operator is the potentially liable operator that most recently employed the miner for a cumulative period of not less than one year.[5] 20 C.F.R. §725.495(a)(1). The district director is initially charged with identifying and notifying operators that may be liable for benefits, and then identifying the "potentially liable operator" that is the responsible operator. 20 C.F.R. §§725.407, 725.410(c), 725.495(a), (b). Once the district director designates a potentially liable operator, that operator may be relieved of liability only if it proves either that it is financially incapable of assuming liability for benefits or that another "potentially liable operator" that is financially capable of assuming liability more recently employed the miner for at least one year. 20 C.F.R. §725.495(c).
Employer argues the administrative law judge erred in finding it is the responsible operator, contending she mistakenly found Claimant's work for it constitutes the work of a miner. Employer's Brief at 7-15.
A "miner" is "any individual who works or has worked in or around a coal mine or coal preparation facility in the extraction or preparation of coal." 30 U.S.C. §902(d). The implementing regulation provides "a rebuttable presumption that any person working in or around a coal mine or coal preparation facility is a miner." 20 C.F.R. §725.202(a); see also 20 C.F.R. §725.101(a)(19). The United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this cases arises, has held duties that meet situs and function requirements constitute the work of a miner as defined in the Act. See Director, OWCP v. Consolidation Coal Co. [Krushansky], 923 F.2d 38, 41 (4th Cir. 1991); Amigo Smokeless Coal Co. v. Director, OWCP [Bower], 642 F.2d 68, 70 (4th Cir. 1981); Collins v. Director, OWCP, 795 F.2d 368, 372-73 (4th Cir. 1986). Under the situs requirement, the work must take place in or around a coal mine or coal preparation facility; under the function requirement, the work must be integral or necessary to the extraction or preparation of coal. Krushansky, 923 F.2d at 41-42.
The administrative law judge summarized Claimant's testimony with respect to the nature and location of his work for Employer. Decision and Order at 4. Claimant stated he worked for Employer as a mechanic maintaining trucks that were used to haul coal from strip mine sites to a tipple. Hearing Tr. at 24-25; Director's Exhibit 2 at 166-167. Specifically, he maintained trucks by changing flat tires, fixing brakes, and "greas[ing]" the trucks with oil. Hearing Tr. at 24, 26. He did this work at a repair shop called "the pad," which was on the property of the Red River/Humphrey Enterprises coal mine. Id. at 25-26, 29. The property was several thousand acres, with four to five coal extraction sites at any given time. Id. at 37. The repair shop was located between ten to fifty miles from the extraction sites, which typically moved around, and between one-half and one mile from the tipple. Id. at 58, 62-63; see also Director's Exhibit 2 at 166-167.
Claimant testified he was exposed to dust when working at the repair shop because the wind blew dust all over the mine site, and it came off the trucks when he worked on them. Hearing Tr. at 27, 62; Director's Exhibit 67 at 45. In addition, he would leave the repair shop to replace flat tires on trucks either at the tipple or at an extraction site. Hearing Tr. at 26-27; Director's Exhibit 67 at 49-50. He travelled to the tipple every day to change tires because the bad road conditions around the tipple frequently caused flat tires. Hearing Tr. at 26-27; Director's Exhibit 67 at 49-50. Further, he testified that at the end of a workday, he was covered in black dust, and coughed and spit up black mucous. Hearing Tr. at 28; Director's Exhibit 67 at 45.
The administrative law judge found Claimant's testimony credible and sufficient to establish both the situs and function prongs required for his work duties to constitute the work of a miner. Decision and Order at 5.
We first reject Employer's argument that the administrative law judge erred in finding Claimant's testimony credible. The administrative law judge, in her role as fact-finder, evaluates the credibility of the evidence of record, including witness testimony. Westmoreland Coal Co. v. Stallard, 876 F.3d 663, 670 (4th Cir. 2017); Lafferty v. Cannelton Indus., Inc., 12 BLR 1-190, 1-192 (1989). She permissibly found Claimant's testimony credible with respect to the nature and location of his work with Employer. Stallard, 876 F.3d at 670; Lafferty, 12 BLR at 1-192; Decision and Order at 5. Although Employer argues Claimant's testimony is not credible because he was inconsistent in recounting his smoking history and the number of coal mine companies he worked for, Employer's Brief at 12, we consider this argument to be a request that the Board reweigh the evidence, which we are not empowered to do. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-113 (1989).
We further reject Employer's contention that Claimant's work did not meet the function prong. Employer's Brief at 13-15. As the administrative law judge found, "truck drivers who work at mine sites transporting coal are miners under the Act." Decision and Order at 5, citing Roberts v. Weinberger, 527 F.2d 600, 602 (4th Cir. 1975); Stroh v. Director, OWCP, 810 F.2d 61, 63-64 (3rd Cir. 1987). Moreover, mechanics maintaining equipment at a repair shop are also miners under the Act, so long as their work took place in or around a coal mine. See Director, OWCP v. Consol. Coal Co. [Petracca], 884 F.2d 926 (6th Cir. 1989). The administrative law judge rationally found Claimant's work maintaining trucks met the function prong because the "trucks would not be able to operate and the coal would not be able to be transported from the extraction site" absent Claimant's work duties. Decision and Order at 5; see Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949 (4th Cir. 1997); Krushansky, 923 F.2d at 41-42.
Employer also argues the administrative law judge erred in finding Claimant's work met the situs prong. Employer's Brief at 9-13. The administrative law judge found Claimant's testimony establishes he "worked at a mine site" the "entire time" he worked for Employer as a maintenance worker. Decision and Order at 5. She specifically noted "[s]ome parts of the work day he worked near the...
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