Rockwood Casualty Insurance Company v. Director, Office of Workers' Compensation Programs, 030519 FED10, 18-9520

Docket Nº:18-9520
Opinion Judge:MATHESON, CIRCUIT JUDGE.
Party Name:ROCKWOOD CASUALTY INSURANCE COMPANY, insurer of Hidden Splendor Resources, Inc., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; TONY KOURIANOS, Respondents. Arterial PCO2 (mm Hg) Arterial PO2 equal to or less than (mm Hg) Exhibit/ Date of Test Physician Altitude (feet) PCQ2 PO2 Qualify?
Attorney:Cheryl L. Intravaia, Feirich/Mager/Green/Ryan, Carbondale, Illinois, for Petitioner. Victoria S. Herman (Joseph E. Wolfe, with her on the brief), Wolfe Williams & Reynolds, Norton, Virginia, for Tony N. Kourianos, Respondent. William M. Bush (Kate S. O'Scannlain, Solicitor of Labor, Kevin Lyskows...
Judge Panel:Before BRISCOE, MATHESON, and BACHARACH, Circuit Judges.
Case Date:March 05, 2019
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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ROCKWOOD CASUALTY INSURANCE COMPANY, insurer of Hidden Splendor Resources, Inc., Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; TONY KOURIANOS, Respondents.

No. 18-9520

United States Court of Appeals, Tenth Circuit

March 5, 2019

Petition for Review from an Order of the Benefits Review Board (Benefits No. 17-0323 BLA)

Cheryl L. Intravaia, Feirich/Mager/Green/Ryan, Carbondale, Illinois, for Petitioner.

Victoria S. Herman (Joseph E. Wolfe, with her on the brief), Wolfe Williams & Reynolds, Norton, Virginia, for Tony N. Kourianos, Respondent.

William M. Bush (Kate S. O'Scannlain, Solicitor of Labor, Kevin Lyskowski, Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, and Rita A. Roppolo, Attorney, on the brief), U.S. Department of Labor, Washington, D.C., for Director, Office of Workers' Compensation Programs, Respondent.

Before BRISCOE, MATHESON, and BACHARACH, Circuit Judges.

MATHESON, CIRCUIT JUDGE.

Congress enacted the Black Lung Benefits Act ("BLBA"), 30 U.S.C. §§ 901-944, in 1969 to compensate miners with pneumoconiosis, commonly known as "black lung disease." Antelope Coal Co./Rio Tinto Energy Am. v. Goodin, 743 F.3d 1331, 1335 (10th Cir. 2014). The BLBA provides benefits to coal miners who become totally disabled from pneumoconiosis caused by their mining work. Id.

Tony N. Kourianos worked as a coal miner for more than 27 years before filing a claim for benefits under the BLBA. His claim was reviewed through a three-tiered administrative process. Ultimately, the Benefits Review Board ("BRB") found that he was entitled to benefits. The BRB also found that Mr. Kourianos's last employer, Hidden Splendor Resources, Inc. ("Hidden Splendor"), was the "responsible operator" liable for paying those benefits. Hidden Splendor's insurer, Rockwood Casualty Insurance Company ("Rockwood"), petitions this court for review of the BRB's decision. Along with Mr. Kourianos, the Director of the Office of Workers' Compensation Programs ("OWCP" or "Director") is a respondent in this case. See 20 C.F.R. § 725.360(a)(5) (stating that the Director will be a party "in all proceedings relating to a claim for benefits").

Rockwood challenges the BRB's decision on two grounds. First, it argues the BRB incorrectly affirmed the administrative law judge's ("ALJ") decision prohibiting Hidden Splendor from withdrawing its responsible operator stipulation. Second, it argues the BRB incorrectly found that Mr. Kourianos was totally disabled and entitled to benefits.

Exercising jurisdiction under 30 U.S.C. § 932(a) and 33 U.S.C. § 921(c), we deny Rockwood's petition.

I. BACKGROUND

We describe the legal framework governing Mr. Kourianos's claim for benefits and then recount the specific factual and procedural history of his case.

A. Legal Background

A claim for BLBA benefits contemplates two critical questions. First, which operator is responsible for paying benefits under the BLBA? Second, is the claimant entitled to benefits under the Act? The following presents the law applicable to these two questions and the Department of Labor's three-tiered administrative process for deciding BLBA claims.

1. The Responsible Operator Determination

The BLBA provides that individual coal mine operators are liable for a miner's benefits if the miner's disability or death arose "at least in part" from coal mine employment with the operator. 30 U.S.C. § 932(c); 20 C.F.R. § 725.494(a).1 To ensure coal mine operators can pay their miners' benefits, Congress imposed workers' compensation insurance requirements on them. 30 U.S.C. § 933(a); 20 C.F.R. § 726.1. As a fallback alternative, Congress created the Black Lung Disability Trust Fund, which assumes liability for miners' benefits if "there is no operator who is liable for the payment of such benefits." 26 U.S.C. § 9501(d)(1)(B).

To implement the BLBA, Congress directed the Department of Labor to promulgate regulations "for determining whether pneumoconiosis arose out of employment in a particular coal mine or mines." 30 U.S.C. § 932(h). Under the regulations, a coal mine operator is a "potentially liable operator" if (i) the miner's disability or death arose out of employment with the operator; (ii) the entity was an operator after June 30, 1973; (iii) the miner worked for the operator for at least one year; (iv) the miner's employment with the operator included at least one working day after December 31, 1969; and (v) the operator is financially capable of assuming liability for the claim. 20 C.F.R. § 725.494(a)-(e). The regulations state that the "operator responsible for the payment of benefits . . . shall be the potentially liable operator . . . that most recently employed the miner." Id. § 725.495(a)(1).

The BLBA defines a miner as "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); see also 20 C.F.R. § 725.202(a). To meet the statutory definition of a "miner," the claimant must establish that he or she (1) worked "in or around a statutorily defined coal mine (the 'situs' test)," and (2) performed "duties involv[ing] the extraction or preparation of coal, or involv[ing] appropriate coal mine construction or transportation (the 'function' test)." Falcon Coal Co. v. Clemons, 873 F.2d 916, 921 (6th Cir. 1989) (citing 30 U.S.C. § 802(h)(2) and surveying case law).2

In sum, under the BLBA, the responsible operator is the last coal mine operator to have employed the claimant as a "miner" for more than one year. 20 C.F.R. §§ 725.494(c), 725.495(a)(1).

2. The Benefits Determination

To obtain benefits under the BLBA, a claimant must prove (1) he or she suffers from pneumoconiosis (disease),

(2) the pneumoconiosis arose out of coal mining employment (disease causation),

(3) he or she is totally disabled due to a respiratory or pulmonary impairment (disability), and

(4) pneumoconiosis is a substantially contributing cause of the total disability (disability causation).

Energy W. Mining Co. v. Estate of Blackburn, 857 F.3d 817, 822 (10th Cir. 2017); see also 30 U.S.C. §§ 902, 921; 20 C.F.R. §§ 725.202(d)(2), 718.204(c)(1).

Below, we discuss four additional aspects of a BLBA claim: (a) the "15-year presumption," (b) the difference between clinical and legal pneumoconiosis, (c) the 10-year presumption and the disease causation element, and (d) the showing necessary to demonstrate a "total disability."

a. The 15-year presumption and rebuttal

The BLBA created a rebuttable "presumption that a miner is disabled due to pneumoconiosis when he or she has worked for 15 years in underground coal mines or substantially similar conditions and is totally disabled from a respiratory or pulmonary condition (the '15-year presumption')." Antelope Coal, 743 F.3d at 1335; see 30 U.S.C. § 921(c)(4). "In other words, a miner who proves 15 years of coal mine work and total disability is entitled to a presumption that the remaining elements of his claim are established." Antelope Coal, 743 F.3d at 1335; see Blackburn, 857 F.3d at 822 (stating that a claimant's burden is "soften[ed]" when he has worked for at least 15 years as a miner).

The party opposing an award of benefits under the BLBA may rebut the 15-year presumption by establishing that (1) the claimant does not have pneumoconiosis or (2) pneumoconiosis did not cause any part of the miner's respiratory or pulmonary total disability. 20 C.F.R. § 718.305(d). In other words, once a claimant establishes the 15-year presumption, the operator must rebut the existence of (1) the disease, or (2) the disease or disability causation. Blackburn, 857 F.3d at 822. "The presumption must not be considered rebutted on the basis of evidence demonstrating the existence of a totally disabling obstructive respiratory or pulmonary disease of unknown origin." 20 C.F.R. § 718.305(d).

b. Clinical and legal pneumoconiosis

"The BLBA recognizes two types of pneumoconiosis: clinical and legal." Antelope Coal, 743 F.3d at 1335. The 15-year presumption applies to both classifications of the disease. Consolidation Coal Co. v. Dir., OWCP, 864 F.3d 1142, 1144 (10th Cir. 2017).

Clinical pneumoconiosis refers to diseases the medical community has recognized as pneumoconiosis, including "conditions characterized by . . . the fibrotic reaction of the lung tissue to . . . deposition [of particulate matter] caused by dust exposure in coal mine employment." 20 C.F.R. § 718.201(a)(1).

Legal pneumoconiosis, on the other hand, is defined as any "chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising...

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