Shepherd v. Incoal, Inc.
| Decision Date | 27 April 2022 |
| Docket Number | 20-0429 BLA |
| Parties | IMOGENE SHEPHERD (Widow of TRAMBLE SHEPHERD) Claimant-Respondent v. INCOAL, INCORPORATED and AMERICAN BUSINESS & MERCANTILE INSURANCE MUTUAL, INCORPORATED 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UNPUBLISHED OPINION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 on Remand of Peter B. Silvain, Jr., Administrative Law Judge, United States Department of Labor.
Evan B. Smith (AppalReD Legal Aid), Prestonsburg, Kentucky, for Claimant.
Laura Metcoff Klaus (Greenberg Traurig, LLP), Washington, D.C., for Employer and its Carrier.
Jeffrey S. Goldberg (Seema Nanda, Solicitor of Labor; Barry H. Joyner, Associate Solicitor; Christian P. Barber, Acting Counsel for Administrative Litigation and Legal Advice) Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: BOGGS, Chief Administrative Appeals Judge, ROLFE and GRESH, Administrative Appeals Judges.
DECISION AND ORDER
ROLFE and GRESH, Administrative Appeals Judges
Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Peter B. Silvain, Jr.'s Decision and Order Awarding Benefits on Remand (2009-BLA-05618) 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 August 27, 2008, [1]and is before the Benefits Review Board for the third time.[2] The relevant issue is whether Claimant may invoke the rebuttable presumption that the Miner's death was due to pneumoconiosis.[3] 30 U.S.C. §921(c)(4) (2018).
In Shepherd v. Incoal, Inc., BRB No. 17-0081 BLA (Nov 27, 2017) (unpub.), the Board vacated the ALJ's finding that Claimant established 15.07 years of coal mine employment and modified his determination to reflect the Miner had only 14.75 years. Based on this recalculation, the Board held Claimant was unable to invoke the Section 411(c)(4) presumption. 30 U.S.C. §921(c)(4) (2018). Further relying on the ALJ's unchallenged findings that the evidence was insufficient to establish the Miner's death was due to pneumoconiosis pursuant to 20 C.F.R. §§718.202(a), 718.204(c), the Board reversed the award of benefits.
Claimant appealed and the United States Court of Appeals for the Sixth Circuit[4]vacated the Board's decision. The court held that the ALJ and the Board erred in calculating the Miner's length of coal mine employment under 20 C.F.R. §725.101(a)(32)[5]and further erred in failing to consider Claimant's account of the Miner's work history which, if credited, would establish additional coal mine employment between 1962 and 1963, and 1967 and 1973. Shepherd v. Incoal, Inc., 915 F.3d 392, 401-02, 407 (6th Cir. 2019). The court remanded the case for the ALJ to first resolve the conflict in the evidence as to the periods of time that the Miner performed coal mine employment and then determine whether he accumulated the fifteen years of coal mine employment necessary to invoke the Section 411(c)(4) presumption of death due to pneumoconiosis. The court directed the ALJ, in calculating the Miner's length of coal mine employment, to give full effect to the four alternative calculation methods provided in 20 C.F.R. §725.101(a)(32). Id. at 407.
On remand, the ALJ found Claimant established the Miner worked in qualifying coal mine employment for at least fifteen years and therefore invoked the Section 411(c)(4) presumption. As the Board had previously affirmed his finding that Employer failed to rebut the presumption, the ALJ again awarded benefits.
On appeal, Employer requests that the Board hold this case in abeyance pending the United States Supreme Court's decision in California v. Texas, 593 U.S., 141 S.Ct. 2104 (2021). Employer also contends the ALJ erred in crediting the Miner with at least fifteen years of coal mine employment. Claimant responds in support of the ALJ's award of benefits. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited response, urging the Board to reject Employer's assertions that the Sixth Circuit's interpretation of 20 C.F.R. §725.101(a)(32) is dicta. Employer replied, reiterating its previous contentions.
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. 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).
Constitutionality of the Section 411(c)(4) Presumption
Citing Texas v. United States, 945 F.3d 355 (5th Cir. 2019), and Texas v. United States, 340 F.Supp.3d 579, decision stayed pending appeal, 352 F.Supp.3d 665, 690 (N.D. Tex. 2018), Employer contends the Affordable Care Act (ACA), which reinstated the Section 411(c)(4) presumption, Pub. L. No. 111-148, §1556 (2010), is unconstitutional and argues the case should be held in abeyance pending the Court's decision on the constitutionality of the ACA. Employer's Brief at 22 n.9 (unpaginated). Employer cites the district court's rationale in Texas that the ACA requirement for individuals to maintain health insurance is unconstitutional and the remainder of the law is not severable. Id. Employer's arguments with respect to the constitutionality of the ACA and the severability of its amendments to the Black Lung Benefits Act are now moot. California v. Texas, 141 S.Ct. at 2120.
Length of Coal Mine Employment
Claimant bears the burden to establish the number of years the Miner worked in coal mine employment. 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 if it is based on a reasonable method of calculation and supported by substantial evidence. Muncy v. Elkay Mining Co., 25 BLR 1-21, 1-27 (2011); Dawson v. Old Ben Coal Co., 11 BLR 1-58 (1988) (en banc).
The ALJ provided alternative length of coal mine employment calculations. Initially, the ALJ assessed only the periods when beginning and ending employment dates could be ascertained and applied the following presumptions: 1) if the Miner worked at least 125 days in or around the coal mines, the ALJ presumed he worked one year in coal mine employment; and 2) if a coal mining company employed the Miner for a calendar year, the ALJ presumed that absent evidence to the contrary, he worked at least 125 days and therefore may be credited with one year of coal mine employment. Decision and Order at 6-7 (referencing 20 C.F.R. §725.101(a)(32)(i), (ii)).
The ALJ found Claimant's statement, which she certified as true and correct to the best of her knowledge, that the Miner worked for Hueysville Coal Company (Hueysville) for ten months between July 1962 and May 1963 to be uncontradicted; therefore, he found the Miner worked "over 125 days" for Hueysville and credited him with one year of coal mine employment from 1962 to 1963. Decision and Order at 7; Director's Exhibit 4. Based on the Miner's employment history form and Social Security Earnings Statements (SSES) reflecting consecutive years of employment as a welder with R & S Truck Body Company (R & S) between the second quarter of 1969 and third quarter of 1973, the ALJ credited the Miner with four years of coal mine employment. Decision and Order at 6; Living Miner's Claim (LM) at 387; Director's Exhibit 7 at 3. Based on the employment dates outlined in correspondence from coal companies that employed the Miner, the ALJ credited the Miner with another nine full calendar years and 2.88 partial years of coal mine employment with: Hite Preparation Company (Hite) between September 15, 1973, and February 28, 1977 (3.94 years); Incoal Incorporated sporadically between March 1, 1977, and December 12, 1984 (6 full years and 1.4 partial years); and Trojan Mining Company between February 18 and May 6, 1985, and June 10 and 26, 1985 (0.54 year). Decision and Order at 6 n.17, 7 n.20; LM at 380-82. The ALJ thus found the Miner had 16.88 years of coal mine employment from 1962 to 1963 and 1969 to 1985.[6] Decision and Order at 7.
With regard to his second calculation, the ALJ applied 20 C.F.R. §725.101(a)(32)(iii) to determine the number of days that the Miner worked in coal mine employment from 1963 through 1985.[7] He divided Claimant's yearly earnings as reported in his SSES by the coal mine industry's average yearly earnings for 125 days of employment, as reported in Exhibit 610 of the Coal Mine (Black Lung Benefits Act) Procedure Manual. For each year in which the Miner's earnings met or exceeded the Exhibit 610 average "yearly" earnings, the ALJ credited him with a full year of coal mine employment. For the years in which the Miner's earnings fell short, the ALJ credited him with a fractional year, calculated by dividing his annual earnings by the average yearly earnings. Applying this method, the ALJ credited the Miner with sixteen years of coal mine employment between 1969 and 1984 and 3.12 partial years from 1963 to 1968 and in 1985; therefore, he found Claimant established the Miner worked for 19.12 years in coal mine employment. Decision and Order at 8-9. The ALJ ultimately concluded this latter method was the "most credible" because "the beginning and ending dates could not be ascertained for all of the Miner's coal mine employment." Id. at 9. Thus, the ALJ found Claimant established at least fifteen years of coal mine employment and invoked the Section 411(c)(4) presumption.
Employer contends the ALJ improperly ignored the beginning and ending dates of the Miner's employment, as indicated in the...
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