Shell v. Scott's Branch Coal Co.

• Decision Date: 24 April 2017
• Docket Number: BRB 16-0335 BLA
• Court: Court of Appeals of Black Lung Complaints
• Parties: RAY SHELL Claimant-Respondent v. SCOTT'S BRANCH COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in Interest

RAY SHELL Claimant-Respondent
v.
SCOTT'S BRANCH COAL COMPANY Employer-Petitioner

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in Interest

BRB No. 16-0335 BLA

Court of Appeals of Black Lung

April 24, 2017

UNPUBLISHED OPINION

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

Joseph E. Wolfe (Wolfe Williams & Reynolds), Norton, Virginia, for claimant.

Paul E. Jones (Jones, Walters, Turner & Shelton PLLC), Pikeville, Kentucky, for employer.

Rita Roppolo (Nicholas C. Geale, Acting Solicitor of Labor; Maia Fisher, 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: HALL, Chief Administrative Appeals Judge, BUZZARD and ROLFE, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM.

Employer appeals the Decision and Order Awarding Benefits (2012-BLA-05448) of Administrative Law Judge Larry W. Price, rendered on a claim filed pursuant to the provisions of the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012) (the Act). This case involves a subsequent miner's claim filed on August 22, 2010.^[1]

Applying Section 411(c)(4), 30 U.S.C. §921(c)(4), ^[2] the administrative law judge credited claimant with twenty-eight years of underground coal mine employment, as stipulated by the parties, and found that the evidence established that claimant has a totally disabling respiratory or pulmonary impairment pursuant to 20 C.F.R. §718.204(b)(2). Therefore, the administrative law judge found that claimant demonstrated a change in an applicable condition of entitlement pursuant to 20 C.F.R. §725.309, and invoked the rebuttable presumption of total disability due to pneumoconiosis pursuant to Section 411(c)(4). The administrative law judge further determined that employer failed to rebut the presumption. Accordingly, the administrative law judge awarded benefits.

On appeal, employer contends that the administrative law judge erred in finding that the claim was timely filed. Employer also argues that the administrative law judge erred in identifying it as the responsible operator. Further, employer asserts that the administrative law judge erred in finding that the evidence established total disability pursuant to 20 C.F.R. §718.204(b)(2), and therefore erred in finding that claimant invoked the Section 411(c)(4) presumption. Employer also asserts that the administrative law judge erred in finding that it did not rebut the presumption. Claimant responds, urging affirmance of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), responds in support of the administrative law judge's identification of employer as the responsible operator.

The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is rational, supported by substantial evidence, and in accordance with applicable law.^[3] 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).

I. TIMELINESS

Section 422(f) of the Act, 30 U.S.C. §932(f), and its implementing regulation at 20 C.F.R. §725.308(a), provide that a claim for benefits must be filed within three years of a medical determination of total disability due to pneumoconiosis that has been communicated to the miner. The regulation at 20 C.F.R. §725.308(c) provides a rebuttable presumption that every claim for benefits filed under the Act is timely filed. 20 C.F.R. §725.308(c). The “burden falls on the employer to prove that the claim was filed outside the limitations period.” Peabody Coal Co. v. Director, OWCP [Brigance], 718 F.3d 590, 595-96, 25 BLR 2-273, 2-283 (6th Cir. 2013). The question of whether the evidence is sufficient to establish rebuttal of the presumption of timeliness involves factual findings that are appropriately made by the administrative law judge. Clark v. Karst-Robbins Coal Co., 12 BLR 1-149, 1-152 (1989) (en banc).

Employer asserts that because claimant testified at the September 9, 2015 hearing that he had been informed of the existence of a totally disabling respiratory impairment due to pneumoconiosis “seven or eight years ago, ” his claim, filed on August 22, 2010, is untimely. Employer's Brief at 12, quoting Hearing Tr. at 17. We disagree. The administrative law judge specifically considered claimant's testimony and correctly found that because the hearing was held on September 9, 2015, the seven or eight years before the hearing to which claimant referred would be September 9, 2007, or September 9, 2008. See Clark, 12 BLR at 1-152; Decision and Order at 10. Because the administrative law judge properly found that either of those dates would be within three years of the August 22, 2010 filing date of the instant claim, the administrative law judge's finding that the instant claim was timely filed is affirmed. See 20 C.F.R. §725.308.

II. RESPONSIBLE OPERATOR

We next address employer's challenge to the administrative law judge's responsible operator determination. The responsible operator is the “potentially liable operator, as determined in accordance with [20 C.F.R.] §725.494, that most recently employed the miner.”^[4] 20 C.F.R. §725.495(a)(1). Once a potentially liable operator has been properly identified by the Director, that operator may be relieved of liability only if it proves either that it is financially incapable of assuming liability for benefits, or that it is not the potentially liable operator that most recently employed the miner. See 20 C.F.R. §725.495(c)(1), (2). Such proof must include evidence that the miner was employed as a miner after he stopped working for the designated responsible operator. 20 C.F.R. §725.495(c)(2).

The administrative law judge reviewed the evidence, claimant's testimony, and the arguments of the parties and determined that employer is the properly designated responsible operator. Decision and Order at 10-12. The administrative law judge found that claimant was more recently employed as a security guard at mining properties by two companies: Bull Creek Coal Corporation (Bull Creek) and Pinkerton, Incorporated (Pinkerton). Decision and Order at 11; Hearing Tr. at 22-23, 25. The administrative law judge further found that claimant's work as a security guard for Bull Creek and Pinkerton did not constitute the work of a miner.^[5] Decision and Order at 12. Thus, the administrative law judge found that employer failed to meet its burden to prove that it is not the potentially liable operator that most recently employed claimant as a miner. Id.

Employer contends that claimant's work as a security guard and night watchman with Bull Creek and Pinkerton was the work of a miner because, by preventing theft and damage to the coal mining properties, claimant's work was integral to the extraction and preparation of coal. Employer's Brief at 10-11. Employer also asserts that the administrative law judge's acceptance of the parties' stipulation to the twenty-eight years of coal mine employment found by the district director, which included 1.04 years with Bull Creek, supports the conclusion that claimant's employment with Bull Creek was covered coal mine employment. Id. at 10. Employer asserts that it therefore should be dismissed as the responsible operator and liability should be transferred to the Black Lung Disability Trust Fund. Id. at 11. We disagree.

Under the Act, 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); see 20 C.F.R. §§725.101(a)(19), 725.202(a). The United States Court of Appeals for the Sixth Circuit, within whose jurisdiction this case arises, has adopted a situs-function test in determining whether an individual is a “miner” under the Act. Director, OWCP v. Consolidation Coal Co., [Petracca], 884 F.2d 926, 931, 13 BLR 2-38, 2-41-42 (6th Cir. 1989). The situs portion of the test requires that a person's work occur in or around a coal mine or coal preparation facility. Id. An individual meets the function requirement if his or her work was necessary and integral to the extraction or preparation of coal. Id. The Sixth Circuit has also held that “[t]hose whose tasks are merely convenient but not vital or essential to production and/or extraction are generally not classified as ‘miners.'”^[6] Falcon Coal Co. v. Clemons, 873 F.2d 916, 922, 12 BLR 2-271, 2-278 (6th Cir. 1989). There is no dispute that claimant's work as a security guard and night watchman occurred in and around coal mine facilities, and thus satisfies the situs requirement. The issue in this case is whether that work also satisfies the function requirement.

The administrative law judge rationally concluded that claimant's work as a security guard and night watchman did not satisfy the function requirement and thus did not meet the regulatory definition of a miner. The administrative law judge noted that claimant described his duties as a security guard and night watchman for Bull Creek as patrolling the property to prevent theft or vandalism. Decision and Order at 11; Hearing Tr. at 25-26; Director's Exhibit 3. Claimant indicated that he did not perform other job duties, the mine was not in operation when he was on duty, and he did not enter the mine or the preparation plant. Decision and Order at 11; Director's Exhibit 3. Further, the administrative law judge noted that claimant described performing similar duties as a security guard and night watchman for Pinkerton, such as making sure no unauthorized persons entered the various coal mine properties he was assigned to patrol. Decision and Order at 11; Hearing...