Potter v. Mountaineer Coal Dev.
| Decision Date | 31 October 2022 |
| Docket Number | BRB 21-0563 BLA,21-0564 BLA |
| Parties | HAROLETTA POTTER (o/b/o and Widow of WILLIAM POTTER) Claimant-Respondent v. MOUNTAINEER COAL DEVELOPMENT d/b/a/ WOLF CREEK COLLIERIES COMPANY and SHELL MINING COMPANY Employer/Carrier-Petitioners 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UNPUBLISHED OPINION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 Awarding Benefits in the Miner's Claim and Decision and Order Awarding Benefits in the Survivor's Claim of Larry S. Merck, Administrative Law Judge, United States Department of Labor.
Joseph E. Wolfe and Brad A. Austin (Wolfe Williams & Reynolds) Norton, Virginia, for Claimant.
Carl M. Brashear (Hopkins Law Offices, PLLC), Lexington, Kentucky for Employer.
Sarah M. Karchunas (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, BUZZARD and GRESH, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals Administrative Law Judge (ALJ) Larry S. Merck's Decision and Order Awarding Benefits in the Miner's Claim and Decision and Order Awarding Benefits in the Survivor's Claim (2020-BLA-05440 and 2020-BLA-05454) pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §901-944 (2018) (Act). This case involves a miner's claim filed on August 6, 2018, and a survivor's claim filed on November 27 2018.[1]
The ALJ found Employer is the correctly named responsible operator. He further found the Miner had 22.25 years of qualifying surface coal mine employment and a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). Therefore he determined Claimant invoked 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] The ALJ further found Employer did not rebut the presumption and awarded benefits in the miner's claim. Because the Miner was entitled to benefits at the time of his death, the ALJ determined Claimant is automatically entitled to survivor's benefits under Section 422(l) of the Act, 30 U.S.C. §932(l) (2018).[3] On appeal, Employer challenges the constitutionality of the Affordable Care Act (ACA) and its reinstatement of the Section 411(c)(4) presumption and automatic survivor entitlement under Section 422(l). It also challenges its designation as the responsible operator, the ALJ's findings that the Miner had at least fifteen years of qualifying coal mine employment, and his determination that it failed to rebut the presumption. Claimant responds in support of the awards of benefits. The Director, Office of Workers' Compensation Programs (the Director), responds, urging the Board to affirm the ALJ's finding that Employer is the properly designated responsible operator, and to reject Employer's challenges to the constitutionality of the ACA and to the ALJ's finding that the Miner had at least fifteen years of qualifying coal mine employment.[4]
The Benefits Review 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.[5] 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359, 361-62 (1965).
Employer summarily contends the ACA, which reinstated the Section 411(c)(4) and 422(l) presumptions, Pub. L. No. 111-148, §1556 (2010), violates Article II of the United States Constitution. Employer's Brief at 2. We agree with the Director that Employer's bare assertion does not sufficiently raise the issue for the Board to consider it. See 20 C.F.R. §802.211(b); Samons v. Nat'l Mines Corp., 25 F.4th 455, 466-67 (6th Cir. 2022) (); Cox v. Benefits Review Board, 791 F.2d 445, 446-47 (6th Cir. 1986); Sarf v. Director, OWCP, 10 BLR 1-119, 1-120-21 (1987).
Nonetheless, we note Employer's assertion with respect to the constitutionality of the ACA is now moot. California v. Texas, 593 U.S., 141 S.Ct. 2104, 2120 (2021).
The responsible operator is the potentially liable operator[6] that most recently employed the miner. 20 C.F.R. §725.495(a)(1). Once the district director designates a responsible operator, that operator may be relieved of liability only if it shows either it is financially incapable of assuming liability for benefits or another potentially liable operator that is financially capable of assuming liability more recently employed the miner for at least one year.[7] 20 C.F.R. §725.495(c)(2).
Employer contends the ALJ erred in finding it is the properly designated responsible operator because Bizzack Construction, LLC (Bizzack) more recently employed the Miner as a coal miner for at least one year.[8] Employer's Brief at 3. Employer asserts Bizzack is a "road construction company" that Id.
To meet its burden of establishing another potentially liable operator more recently employed the Miner in coal mine employment, Employer must point to evidence he "was employed as a miner after he . . . stopped working for the designated responsible operator and that the person by whom he . . . was employed is a potentially liable operator within the meaning of [20 C.F.R.] §725.494." 20 C.F.R. §725.495(c)(2). Although it is undisputed that the Miner worked for Bizzack after his employment with Employer ended, the ALJ found "[t]he problem with Employer's assertion regarding Bizzack's potential role as responsible operator is that there is no evidence to support it, just the Employer's assertion." Decision and Order at 13. We see no error in this finding, nor does Employer identify specific error with it.[9] See Samons, 25 F.4th at 466-67. Consequently, we affirm the ALJ's finding that Employer failed to establish Bizzack more recently employed the Miner as a coal miner and that Employer, therefore, is the properly designated responsible operator. 20 C.F.R. §725.495(c)(2); Decision and Order at 14.
To invoke the Section 411(c)(4) presumption, Claimant must establish the Miner had at least fifteen years of "employment in one or more underground coal mines," or coal mine employment in conditions that were "substantially similar to conditions in an underground mine." 30 U.S.C. §921(c)(4). The "conditions in a mine other than an underground mine will be considered 'substantially similar' to those in an underground mine if the claimant demonstrates that the miner was regularly exposed to coal-mine dust while working there." 20 C.F.R. §718.305(b)(2); see Zurich Am. Ins. Grp. v. Duncan, 889 F.3d 293, 304 (6th Cir. 2018); Brandywine Explosives & Supply v. Director OWCP [Kennard], 790 F.3d 657, 663 (6th Cir. 2015); Cent. Ohio Coal Co. v. Director, OWCP [Sterling], 762 F.3d 483, 489-90 (6th Cir. 2014); Bonner v. Apex Coal Corp., 25 BLR 1-279, 1-282-84 recon. denied, (May 24, 2022) (Order) (unpub.).
In addressing whether the Miner was regularly exposed to coal mine dust in his surface coal mine work,[10] the ALJ considered the occupational history the Miner provided to Dr. Green at the time of his evaluation, the Miner's Form CM-911a Employment History Form, and Claimant's testimony. Decision and Order at 11.
The Miner reported to Dr. Green that he worked in surface mining and on the tipple where he had "heavy coal and rock dust exposure." MC Director's Exhibit 13 at 2. On his CM-911a Employment History Form, the Miner stated that all of his surface mining positions exposed him to dust and fumes. MC Director's Exhibit 3. Claimant testified that the Miner "came home dirty" after his coal mine shifts Hearing Transcript at 20-21. She recounted she had to wash his work clothes "twice" to get them clean sometimes before he "finally" rented uniforms that were cleaned for him. Id. at 21. The ALJ found the Miner's statements on his CM-911a form and to Dr. Green concerning his regular coal mine dust exposure consistent and uncontradicted by any record evidence. Decision and Order at 11. Further finding Claimant's testimony as to her husband's dust exposure at work credible, the ALJ determined Claimant established 22.25 years of qualifying employment for purposes of invoking the Section 411(c)(4) presumption. Id. at 11-12.
Employer asserts the ALJ erred in finding at least fifteen years of qualifying coal mine employment because none of the Miner's statements or Claimant's testimony the ALJ credited establishes the "regularity" of dust exposure that is substantially similar to underground coal mine work. Employer's Brief at 4. But this is not the standard. Claimant need only establish the Miner's working conditions "regularly" exposed him to coal mine dust.[11] 20 C.F.R. §718.305(b)(2); Bonner, 25 BLR at 1-282-4 (); see Duncan, 889 F.3d at 304 (...
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