Johnson v. Peabody Coal Co.

Decision Date14 November 2022
Docket NumberBRB 20-0075 BLA
CourtCourt of Appeals of Black Lung Complaints


Appeal of the Decision and Order Awarding Benefits of Larry A Temin, Administrative Law Judge, United States Department of Labor.

Wes Addington (Appalachian Citizens' Law Center, Inc.) Whitesburg, Kentucky, for Claimant.

H Brett Stonecipher and Tighe A. Estes (Reminger Co., L.P.A.) Lexington, Kentucky, for Employer and its Carrier.

Cynthia Liao (Seema Nanda, Solicitor of Labor; Barry H. Joyner, Associate Solicitor), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.

Before: BOGGS, Chief Administrative Appeals Judge, ROLFE and JONES, Administrative Appeals Judges.

ROLFE and JONES, Administrative Appeals Judges

Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Larry A. Temin's Decision and Order Awarding Benefits (2018-BLA-05540) 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 survivor's claim filed on April 22, 2016.

The ALJ initially found Peabody Coal Company (Peabody Coal), self-insured through its parent company, Peabody Energy Corporation (Peabody Energy), is the responsible operator liable for the payment of benefits. He also found Claimant established the Miner had at least twenty-nine years of underground coal mine employment and a totally disabling respiratory or pulmonary impairment at the time of his death. 20 C.F.R. §718.204(b)(2). He therefore found Claimant invoked the presumption that the Miner's death was due to pneumoconiosis at Section 411(c)(4) of the Act,[1] 30 U.S.C. §921(c)(4) (2018). He further found Employer did not rebut the presumption and awarded benefits.

On appeal, Employer argues the district director, the Department of Labor (DOL) official who initially processes claims, is an inferior officer who was not appointed in a manner consistent with the Appointments Clause of the Constitution, Art. II § 2, cl. 2.[2] It also asserts the district director's duties create an inherent conflict of interest that violates its due process rights. It further argues the ALJ erred in finding it liable for the payment of benefits. Additionally, Employer argues the ALJ erred in calculating the length of the Miner's coal mine employment and in finding the Miner was totally disabled at the time of his death, thereby invoking the Section 411(c)(4) presumption. Finally, it argues the ALJ erred in finding it did not rebut the presumption.

Claimant[3] responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), responds, urging the Benefits Review Board to reject Employer's Appointments Clause and due process challenges. The Director also contends the ALJ properly determined Employer is responsible for the payment of benefits.

The Board's scope of review is defined by statute. We must affirm the ALJ'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 &Grylls Assocs., Inc., 380 U.S. 359 (1965).

Responsible Operator/Carrier

Employer does not directly[5] challenge the ALJ's findings that Peabody Coal is the correct responsible operator and it was self-insured by Peabody Energy on the last day Peabody Coal employed the Miner; thus we affirm these findings. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 711 (1983); 20 C.F.R. §§725.494(e), 725.495, 726.203(a); Decision and Order at 5. Patriot Coal Corporation ("Patriot") was initially another Peabody Energy subsidiary. Director's Exhibits 3-6, 26, 41. In 2007, after the Miner ceased his coal mine employment with Peabody Coal, Peabody Energy transferred a number of its other subsidiaries, including Peabody Coal, to Patriot. Id. That same year, Patriot was spun off as an independent company. Id. On March 4, 2011, Patriot was authorized to insure itself and its subsidiaries, retroactive to 1973. Director's Exhibit 41 at 59-60. Although Patriot's self-insurance authorization made it retroactively liable for the claims of miners who worked for Peabody Coal, Patriot later went bankrupt and can no longer provide for those benefits. Director's Exhibits 15, 41. Neither Patriot's selfinsurance authorization nor any other arrangement, however, relieved Peabody Energy of liability for paying benefits to miners last employed by Peabody Coal when Peabody Energy owned and provided self-insurance to that company, as the ALJ held. Decision and Order at 3-6.

Employer raises several arguments to support its contention that Peabody Energy was improperly designated the self-insured carrier in this claim and thus the Black Lung Disability Trust Fund (the Trust Fund), not Peabody Energy, is responsible for the payment of benefits following Patriot's bankruptcy. Employer's Brief at 10-27 (unpaginated). It argues the ALJ erred in finding Peabody Energy liable for benefits because: (1) the district director is an inferior officer not properly appointed under the Appointments Clause; [6]and (2) the regulatory scheme, whereby the district director must determine the liability of a responsible operator and its carrier when the DOL also administers the Trust Fund, creates a conflict of interest that violates its due process right to a fair hearing. The Board has previously considered and rejected these arguments in Bailey v. E. Assoc. Coal Co., BLR, BRB No. 20-0094 BLA, slip op. at 3-19 (Oct. 25, 2022) (en banc); Howard v. Apogee Coal Co., BLR, BRB No. 20-0229 BLA, slip op. at 5-17 (Oct. 18, 2022); and Graham v. E. Assoc. Coal Co., BLR, BRB No. 20-0221 BLA, slip op. at 7-8 (June 23, 2022). For the reasons set forth in Bailey, Howard, and Graham, we reject Employer's arguments.

Further, in support of its assertion that Peabody Energy is not the liable insurance carrier, Employer submitted documentary evidence to the ALJ identified as Employer's Exhibits 1 through 7 that the ALJ excluded. October 3, 2018 Order. Employer argues the ALJ erred in excluding some liability evidence from the record. Employer's Brief at 2226 (unpaginated). It only identifies three specific pieces of evidence that it alleges the ALJ improperly excluded: an October 22, 2007 Separation Agreement between Peabody Energy and Patriot; a March 4, 2011 Decision granting Patriot authority to act as selfinsurer; and a March 4, 2011 letter from the DOL to Patriot acknowledging Patriot's authority to act as self-insurer. Employer's Brief at 25 (unpaginated); see Director's Exhibit 41; Employer's Exhibits 1, 2. As the Director correctly argues, the ALJ admitted these three specific exhibits insofar as he admitted Director's Exhibits 1-50, and Director's Exhibit 41 includes these three pieces of evidence. Director's Brief at 4, 6, 9; Hearing Tr. at 8-9. Thus Employer's evidentiary arguments are moot.[7] See Shinseki v. Sanders, 556 U.S. 396, 413 (2009) (appellant must explain how the "error to which [it] points could have made any difference"); Larioni v. Director, OWCP, 6 BLR 1-1276, 1-1278 (1984).

The ALJ correctly found Employer did not present any evidence that Peabody Energy is unable to assume liability for the Miner's benefits. [8] Decision and Order at 5-6; 20 C.F.R. §§725.494(e), 725.495(a)(3).

As Employer raises no additional arguments, we affirm the ALJ's determination that Employer is liable for this claim.

Invocation of the Section 411(c)(4) Presumption Coal Mine Employment

To invoke the Section 411(c)(4) presumption, Claimant must establish the Miner worked at least fifteen years in underground coal mines, or in "substantially similar" surface coal mine employment. 20 C.F.R. §718.305(b)(1)(i). Claimant bears the burden to establish the number of years the Miner worked in coal mine employment. See Kephart v. Director, OWCP, 8 BLR 1-185, 1-186 (1985); Hunt v. Director, OWCP, 7 BLR 1-709, 1-710-11 (1985). The Board will uphold an ALJ's determination on length of coal mine employment if it is based on a reasonable method of calculation that is supported by substantial evidence. Muncy v. Elkay Mining Co., 25 BLR 1-21, 1-27 (2011).

Employer argues the ALJ erred by rendering indefinite and inconsistent coal mine employment findings. Employer's Brief at 2-3 (unpaginated). It contends the ALJ first stated the Miner had "at least" twenty-nine years of coal mine employment, but then found he had "over" twenty-nine years of coal mine employment. Id. Employer does not, however, challenge the ALJ's finding that the Miner had at least fifteen years of underground coal mine employment; thus, we affirm this finding. Skrack, 6 BLR at 1-711; Decision and Order at 15. Employer has therefore failed to demonstrate how a more definite length of coal mine employment finding would have made any difference to the ALJ's decision to find the Miner's more than fifteen years of coal mine employment was sufficient to invoke the Section 411(c)(4) presumption. See Shinseki, 556 U.S. at 413; see also Muncy, 25 BLR at 1-27-28.

Total Disability

A miner was totally disabled if his pulmonary or respiratory impairment, standing alone, prevented him from performing his usual coal mine work and comparable gainful work. 20 C.F.R §718.204(b)(1). A claimant may establish total disability based on...

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