Hurley v. Fools Gold Energy Corporation
| Decision Date | 29 June 2021 |
| Docket Number | BRB 20-0271 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | RONALD S. HURLEY Claimant-Respondent v. FOOLS GOLD ENERGY CORPORATION and KENTUCKY EMPLOYERS MUTUAL INSURANCE Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION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.
Lee Jones and Denise Hall Scarberry (Jones & Walters, PLLC) Pikeville, Kentucky, for Employer and its Carrier.
Before: BOGGS, Chief Administrative Appeals Judge, BUZZARD and GRESH, Administrative Appeals Judges.
Employer and its Carrier (Employer) appeal Administrative Law Judge Francine L. Applewhite's Decision and Order Granting Benefits (2018-BLA-06163) rendered on a claim filed pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C §§901-944 (2018) (Act). This case involves a subsequent claim filed on November 29, 2016.[1]
The administrative law judge found Employer is the properly designated responsible operator. She credited Claimant with nineteen years of underground coal mine employment and found he established a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). She therefore found Claimant invoked the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, [2]30 U.S.C. §921(c)(4) (2018), and thereby established a change in an applicable condition of entitlement. 20 C.F.R. §725.309(c). She further found Employer did not rebut the presumption and awarded benefits.
On appeal, Employer argues the administrative law judge erred in finding it is the responsible operator. It also contends she erred in finding Claimant is totally disabled and, therefore, invoked the Section 411(c)(4) presumption. It further asserts she erred in finding it failed to rebut the presumption. Claimant responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs, has not filed a response brief.
The Benefits Review 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. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
The responsible operator is the potentially liable operator that most recently employed the miner.[3] 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).
Before the administrative law judge, Employer argued Claimant worked for Cavalier Mining (Cavalier) for a cumulative period of more than one year after he worked for Employer. Decision and Order at 4-5; Employer's Post-Hearing Brief at 5-7. Therefore it argued Cavalier should have been named the responsible operator. Id.
In support of its argument, Employer contended the administrative law judge should calculate Claimant's employment with Cavalier by applying the method of calculation at 20 C.F.R. §725.101(a)(32)(iii).[4] Employer's Post-Hearing Brief at 5-7. Doing so, Employer maintained, would establish Claimant had 189 working days with Cavalier between the years 2005 and 2006. Id. Citing the holding of the United States Court of Appeals for the Sixth Circuit in Shepherd v. Incoal, Inc., 915 F.3d 392, 402 (6th Cir. 2019), Employer asserted if a miner has at least 125 working days with an operator, the miner has worked for a year of coal mine employment with the operator regardless of the actual duration of the miner's employment for the year. Employer's Post-Hearing Brief at 5-7.
The administrative law judge rejected this argument. Decision and Order at 4-5. She summarily found Claimant worked for Cavalier "from July 2005 to April 2006," less than the "required one calendar year." Id. She further found "Employer has not submitted any evidence to demonstrate [Claimant] worked for [Cavalier] for at least one calendar year, and has not submitted any evidence it does not possess sufficient assets to secure the payment of benefits or that another potentially liable operator did possess such assets." Id.
Employer argues the administrative law judge erred in determining the length of Claimant's employment with Cavalier.[5] Employer's Brief at 5-8. We agree. Based on our review of the administrative law judge's Decision and Order, we are unable to ascertain the basis of her finding Cavalier employed Claimant for less than one year. Because the administrative law judge did not explain her finding, consider relevant evidence, or render necessary credibility findings, her responsible operator finding does not satisfy the Administrative Procedure Act (APA).[6] 30 U.S.C. §923(b) (); see Sea "B" Mining Co. v. Addison, 831 F.3d 244, 252-53 (4th Cir. 2016); Director, OWCP v. Rowe, 710 F.2d 251, 254-55 (6th Cir. 1983) (); Wojtowicz v. Duquesne Light Co., 12 BLR 1-162, 1-165 (1989); McCune v. Cent. Appalachian Coal Co., 6 BLR 1-996, 1-998 (1984).
The record in this case contains conflicting evidence as to the length of Claimant's employment with Cavalier. Claimant's Social Security Administration (SSA) earnings record reflects he earned $20, 637.22 in the year 2005 and $12, 660.20 in the year 2006 with Cavalier. Director's Exhibit 8. Paystubs from Cavalier set forth Claimant's weekly earnings from July 2005 to April 2006. Director's Exhibit 7. A paystub for the dates July 18, 2005 to July 23, 2005 indicates Claimant earned $736.00 in the pay period and $736.00 in the year 2005 to date. Id. The final paystub for the dates April 10, 2006 to April 15, 2006 indicates Claimant's year to date earnings of $11, 155.20. Id. On an employment history form attached to Claimant's Kentucky state workers' compensation application, Claimant listed his period of employment with Cavalier as July 2005 to May 2006. Director's Exhibit 52 at 12.
Claimant also testified in multiple depositions, a hearing for his state claim, and the hearing for this claim. He testified in an August 23, 2017 deposition that he "probably" worked with Cavalier for a full year, indicating he "was there for a long time." Director's Exhibit 39 at 51. Later in the same deposition, Claimant stated he worked for Cavalier for "three years, maybe four years," but admitted he did not have a good recollection of his employment history. Id. at 58. In an October 25, 2017 deposition, Claimant testified he worked for Cavalier "[p]robably a year, maybe two years," and that he "probably did" work more than 125 days. Director's Exhibit 56 at 38-39, 45. At a July 20, 2009 hearing in his state claim, he testified he worked for Cavalier "almost two years." Director's Exhibit 52 at 19. He also stated his last day with Cavalier was May 16, 2006. Id. at 21. In the hearing for this underlying federal claim, he initially stated he worked for Cavalier "probably eight, nine years." Hearing Transcript at 28. After reviewing his SSA earnings record, Claimant conceded he was not sure if he had been employed at Cavalier for more than one year. Id. He agreed, however, that he had worked for Cavalier for more than 125 days. Id.
The administrative law judge did not discuss this evidence, render any credibility findings as to this evidence, or explain her basis for finding the evidence establishes Claimant worked for Cavalier from July 2005 to April 2006. 30 U.S.C. §923(b); Addison, 831 F.3d at 252-53; Rowe, 710 F.2d at 254-55 (); Wojtowicz, 12 BLR at 1-165; McCune, 6 BLR at 1-998.
The administrative law judge also erred in finding Employer failed to establish Cavalier is financially capable of assuming liability. Decision and Order at 4-5. If the responsible operator that the district director designates is not the operator that most recently employed the miner, the district director is required to explain the reasons for such designation. 20 C.F.R. §725.495(d). If the reasons include the most recent employer's inability to assume liability for the payment of benefits, the record must include a statement that the Office of Workers' Compensation Programs (OWCP) has no record of insurance coverage for that employer or of its authorization to self-insure. Id. In the absence of such a statement, "it shall be presumed that the most recent employer is financially capable of assuming its liability for a claim." Id.
The record in this case includes no statement from OWCP pursuant to 20 C.F.R. §725.495(d). Thus Cavalier is presumed to be financially capable of...
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