Wyant v. Peabody Coal Co.
| Decision Date | 31 October 2002 |
| Docket Number | BRB 02-0424 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | THELMA D. WYANT Widow of LEONARD E. WYANT Claimant v. PEABODY COAL COMPANY Employer-Petitioner and S.K. GROSE/STEVE & SON, INCORPORATED Employer DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order and Order Denying Motion for Reconsideration of Daniel L. Leland, Administrative Law Judge, United States Department of Labor.
W William Prochot (Greenberg Traurig, LLP), Washington, D.C for, employer.
Barry H. Joyner (Eugene Scalia, Solicitor of Labor; Donald S Shire, Associate Solicitor; Rae Ellen Frank James, Deputy 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: SMITH, McGRANERY, and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer Peabody Coal Company, appeals the Decision and Order and Order Denying Motion for Reconsideration (01-BLA-0385) of Administrative Law Judge Daniel L. Leland awarding benefits on a claim filed pursuant to the provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the Act).[1] Initially, the administrative law judge found that employer was the responsible operator because it satisfied all of the relevant regulatory criteria and because claimant's two more recent employers were ineligible for designation; the most recent, S.K.
Grose/Steve & Son, Incorporated (hereinafter, Grose), had not employed claimant to perform qualifying coal mine employment and the next most recent, Triple J Trucking, was no longer in existence.[2] Next, the administrative law judge adjudicated the survivor's claim pursuant to 20 C.F.R. Part 718 and found the evidence of record sufficient to meet the statutory and regulatory criteria for invoking the irrebuttable presumption of death due to pneumoconiosis at Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3), as implemented by 20 C.F.R. §718.304, see also 20 C.F.R. §718.205(c)(3). Accordingly, benefits were awarded.
Employer filed a motion for reconsideration, contending that, in finding that Triple J Trucking was no longer in existence, the administrative law judge relied on information which the Director, Office of Workers' Compensation Programs (the Director), had provided after the hearing and which was not in the record. The administrative law judge issued an Order Denying Motion for Reconsideration, holding that:
Although the evidence regarding Triple J's status should have been, introduced into evidence prior to filing of the Director's [post-hearing, brief], the information is uncontroverted and its consideration does not, prejudice [employer]. It would be illogical to exclude this information, and to resolve the responsible operator issue on an incomplete record.
Consideration of this evidence does not require a remand nor interfere, with the efficiency of the administrative process. On appeal, employer contends that the administrative law judge erred in finding that employer was the responsible operator liable for the payment of benefits. The Director, as a party-in-interest, has filed a Motion to Remand, contending that the administrative law judge erred in finding that employer was the responsible operator liable for the payment of benefits.[3]
The Board's scope of review is defined by statute. If the administrative law judge's findings of fact and conclusions of law are supported by substantial evidence, are rational, and are consistent with applicable law, they are binding upon this Board and may not be disturbed. 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 Associates, Inc., 380 U.S. 359 (1965).
The regulation at 20 C.F.R. §725.492 (2000), applicable to the instant claim, see 20 C.F.R. §725.2(c), establishes certain criteria employer must meet in order to be considered a responsible operator. See 20 C.F.R. §725.492 (2000).[4] If employer does not meet these criteria, then the responsible operator shall be considered the next employer with whom the miner had the most recent periods of employment of not less than one year pursuant to 20 C.F.R. §725.493(a)(4) (2000); 20 C.F.R. §725.2(c), see Director, OWCP v. Trace Fork Coal Co. [Matney], 67 F.3d 503, 19 BLR 2-290 (4th Cir. 1995); Eastern Associated Coal Corp. v. Director, OWCP [Patrick], 791 F.2d 1129 (4th Cir. 1986); see also Cole v. East Kentucky Collieries, 20 BLR 1-50 (1996). Pursuant to Section 725.492(a)(4) (2000), one of the criteria employer must meet in order to be considered a responsible operator is that the operator and/or the employer shall be capable of assuming liability for the payment of benefits. See 20 C.F.R. §§725.492(a)(4) (2000), 725.493(a)(4) (2000); 20 C.F.R. §725.2(c). Additionally, an employee must have been employed as a "miner" for his employer to be appropriately considered a responsible operator. See 30 U.S.C. §§932(b), (c), 902(d); see generally 20 C.F.R. §§725.490(a), 725.101(a)(19), 725.202(b) ().
Both employer and the Director contend that the administrative law judge erred in finding that the miner's most recent work with Grose as a coal truck driver did not constitute qualifying coal mine employment. At the hearing, claimant testified that the miner's work as a coal truck driver at Grose entailed hauling both unprocessed coal to the tipple and processed coal from the tipple, but admitted that she never observed the miner's work at Grose, Hearing Transcript at 7-8, 14-15, 20-21. The owner of Grose testified at the hearing that the miner's work as a coal truck driver entailed hauling coal, "probably" both unprocessed and processed, from the tipple to a river barge; he did not haul coal to the tipple, Hearing Transcript at 29-30, 33.
The administrative law judge found the testimony of the owner of Grose that the miner hauled coal only from the tipple to a loading point on the river more credible than claimant's testimony that the miner hauled coal from the mine to the tipple, as claimant did not observe the miner at work, Decision and Order at 4. The administrative law judge held, without explanation, that hauling coal from the tipple to a loading point on the river does not constitute coal mine employment, citing decisions issued by the United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, in Norfolk & Western Ry. Co. v. Director, OWCP [Schrader], 5 F.3d 777, 18 BLR 2-35 (4th Cir. 1993) and Norfolk & Western Ry. Co. v. Roberson, 918 F.2d 1144, 14 BLR 2-106 (4th Cir. 1990), cert. denied, 500 U.S. 916 (1991).
In order to determine whether the duties performed by the miner as a coal transportation worker with Grose satisfy the definition of a miner, see 30 U.S.C. §902(d); 20 C.F.R. §§725.101(a)(19), 725.202(b), claimant must satisfy a two-pronged situs-function test, see Glem Co. v. McKinney, 33 F.3d 340, 341, 18 BLR 2-368, 2-371 - 2-372 (4th Cir. 1994); Director, OWCP v. Consolidation Coal Co. [Krushansky], 923 F.2d 38, 41, 14 BLR 2-139, 2-143 (4th Cir. 1991); Roberson, 918 F.2D at 1147, 14 BLR at 2-111. To satisfy the "situs" requirement, claimant must establish that the work the miner performed was performed in or around a coal mine or coal preparation facility, and, to satisfy the "function" requirement, claimant must establish both that the miner's work was integral to the extraction and preparation of coal, id., and that the coal around which the miner worked was still in the course of being processed, see McKinney, 33 F.3d 341 n. 1, 18 BLR 2-371 n. 1. It is for the administrative law judge to determine whether a miner's activities at a mine site are necessary to the coal production process, see Price v. Peabody Coal Co., 7 BLR 1-671 (1985).
Employer contends that the administrative law judge erred in crediting the testimony of the owner of Grose over claimant's testimony regarding whether the miner hauled coal exclusively away from the tipple, because claimant did not observe the miner at work. Employer contends that this was error because there is no evidence that the owner of Grose observed the miner at work while claimant's testimony was based on the miner's statements.
The administrative law judge, as the trier-of-fact, has broad discretion to assess the evidence of record and draw her own conclusions and inferences therefrom, see Maddaleni v. The Pittsburg & Midway Coal Mining Co., 14 BLR 1-135 (1990); Lafferty v. Cannelton Industries, Inc., 12 BLR 1-190 (1989); Stark v. Director, OWCP, 9 BLR 1-36 (1986), and the determination of which testimony is credible is the prerogative of the administrative law judge, see Elswick v. Eastern Associated Coal Corp., 2 BLR 1-1016, 1-1018 (1980). Thus, inasmuch as the Board is not empowered to reweigh the evidence nor substitute its inferences for those of the administrative law judge, if rational and supported by substantial evidence, see Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989); Worley v. Blue Diamond Coal Co., 12 BLR 1-20 (1988), the administrative law judge's crediting of the testimony of the owner of Grose, that the miner only hauled coal from the tipple, over claimant's contrary testimony, is affirmed as rational and supported by substantial evidence.
Employer further contends, however, that as the uncontradicted testimony of both claimant and the owner of Grose establish that the miner hauled unprocessed...
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