Zurich Am. Ins. Grp. v. Duncan ex rel. Duncan

Decision Date03 May 2018
Docket NumberNo. 17-3625,17-3625
Citation889 F.3d 293
Parties ZURICH AMERICAN INSURANCE GROUP, Petitioner, v. Joanna DUNCAN, widow of and ON BEHALF OF Raymond DUNCAN ; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
CourtU.S. Court of Appeals — Sixth Circuit

ON BRIEF: Cheryl Lynn Intravaia, FEIRICH/MAGER/GREEN/RYAN, Carbondale, Illinois, for Petitioner. Gary K. Stearman, Ann Marie Scarpino. UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent.

Before: MOORE, CLAY, and KETHLEDGE, Circuit Judges.

MOORE, J., delivered the opinion of the court in which CLAY, J., joined, and KETHLEDGE, J., joined in the result. KETHLEDGE, J. (pp. 306-08), delivered a separate opinion concurring in the judgment.



Raymond Duncan, a veteran of the U.S. Air Force, was born in 1947 and was a long-term resident of Middlesboro, Kentucky. He worked in the coal-mining industry for over twenty years and developed severe respiratory issues. Raymond filed a claim for benefits under the Black Lung Benefits Act, but he died while his claim was still pending. Raymond's claim was consolidated with a claim for survivor's benefits submitted by his widow, Joanna Duncan. The administrative law judge ("ALJ") awarded benefits to Joanna, on both Raymond's behalf and as his surviving spouse. The Benefits Review Board ("Board") affirmed. Zurich American Insurance Group ("Zurich American"), the insurer of Straight Creek Coal Resources, now petitions this court to review the award. For the following reasons, we DENY its petition.

A. Statutory and Legal Framework

The Black Lung Benefits Act ("BLBA"), 30 U.S.C. § 901 et seq. , provides benefits to coal miners who are totally disabled due to pneumoconiosis caused by prolonged exposure to coal dust. Pneumoconiosis, commonly called black lung disease, is a "chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment." 30 U.S.C. § 902(b). The BLBA's implementing regulations recognize two forms of pneumoconiosis : clinical and legal. Brandywine Explosives & Supply v. Dir., Office of Workers' Comp. Programs , 790 F.3d 657, 661 (6th Cir. 2015). Clinical pneumoconiosis"consists of those diseases recognized by the medical community as pneumoconioses," 20 C.F.R. § 718.201(a)(1), whereas legal pneumoconiosis"includes any chronic lung disease or impairment and its sequelae arising out of coal mine employment," 20 C.F.R. § 718.201(a)(2). Federal regulations also recognize that pneumoconiosis—clinical and legal—is a "latent and progressive disease which may first become detectable only after the cessation of coal mine dust exposure." 20 C.F.R. § 718.201(c) ; Sunny Ridge Mining Co. v. Keathley , 773 F.3d 734, 739 (6th Cir. 2014).

To establish entitlement to benefits under the BLBA, a person must show that (1) he or she is a miner (2) who suffers from pneumoconiosis (3) arising out of coal mine employment, which (4) contributes to (5) his or her total disability. 20 C.F.R. § 725.202(d) ; Big Branch Res., Inc. v. Ogle , 737 F.3d 1063, 1069 (6th Cir. 2013). If a miner was employed for at least fifteen years in "one or more underground coal mines," or "in a coal mine other than an underground mine" with "substantially similar" conditions to that of an underground mine, and "demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis, that his death was due to pneumoconiosis, or that at the time of his death he was totally disabled by pneumoconiosis."1 30 U.S.C. § 921(c)(4). "Thus, after a showing that the miner (1) was employed for at least fifteen years in underground coal mines [or in coal mines with "substantially similar" conditions] and (2) is totally disabled due to a respiratory or pulmonary impairment, then the rest of the elements outlined in 20 C.F.R. § 725.202(d) are presumed and the burden shifts to the employer to rebut them." Ogle , 737 F.3d at 1069. The employer may rebut the fifteen-year presumption by establishing that: "(1) the miner has neither clinical nor legal pneumoconiosis, or (2) the miner's respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine." Cent. Ohio Coal Co. v. Dir., Office of Workers' Comp. Programs , 762 F.3d 483, 487 (6th Cir. 2014) ; 30 U.S.C. § 921(c)(4).

B. Factual History

Raymond began working as an electrician in a strip mine in 1974, and worked in coal mines in a variety of occupations until 1999—except for a period between January 1992 and August 1993. Pet'r App'x at A105 (Emp't Hist. at 1). His last job in the coal industry was as a heavy-equipment operator and electrician for Straight Creek Coal at a coal preparation plant from 1998 to 1999. Id. In a handwritten letter, Raymond described working "under some of the worst condition[s] ever." Id. at A219 (Duncan Oct 1, 2009 Ltr. at 1); id. at A41 (ALJ Dec. at 4). Raymond explained his job responsibilities at Straight Creek Coal: "I ran a dozer on a coal pile ten to twelve hours a day full of coal dust, shoveled spilt coal in tunnels three to four times a night, [and] helped clean tipples2 full of coal dust." Id. at A219 (Duncan Oct 1, 2009 Ltr. at 1); id. at A41 (ALJ Dec. at 4). He wrote that "I've had to breathe coal dust all my work in the mines...." Id. at A219 (Duncan Oct 1, 2009 Ltr. at 1); id. at A41 (ALJ Dec. at 4). Joanna, Raymond's widow and claimant in this case, testified that when Raymond came home from work he was so covered in dust that "you could only see the color of his eyes." Id. at A85 (May 2, 2014 Hr'g Tr. at 11). She said that she would have to wash his clothes "several times to even get them clean and they still wouldn't come clean." Id.

Raymond, a non-smoker, suffered from severe respiratory problems. Id. Raymond explained: "Right now [October 2009], I can't walk to the end of the street I live on without having to rest and catch my breath." Id. at A219 (Duncan Oct 1, 2009 Ltr. at 1); id. at A41 (ALJ Dec. at 4). Joanna testified that her husband's breathing "was awful" and "[h]e couldn't even go down the road without taking a breath. We would go to the doctor's office and it would take us 30 minutes to get into the doctor's office because he had shortness of breath." Id. at A85–86 (May 2, 2014 Hr'g Tr. at 11–12). Raymond had to use a CPAP machine, oxygen, and a nebulizer. Id. at A87 (May 2, 2014 Hr'g Tr. at 13). Joanna testified that her husband had been diagnosed with pneumoconiosis, as well as non-alcoholic steatohepatitis potentially arising from exposure to chemicals in the mines. Id. at A87–88 (May 2, 2014 Hr'g Tr. at 13–14).

Raymond died on August 29, 2011. Id. at A365 (Death Certificate). His causes of death were listed as cirrhosis, non-alcoholic steatohepatitis, obesity, and pneumoconiosis. Id.

C. Procedural History

Raymond filed his claim for benefits on May 28, 2009. Id. at A100–03 (Claim for Benefits). On March 8, 2010, the District Director awarded benefits on Raymond's claim. Id. at A230–42 (Mar. 8, 2010 Proposed Dec. & Order). Zurich American—Straight Creek Coal's insurer—contested the Department of Labor's findings and requested a formal hearing before an ALJ. Id. at A187–88 (Identification of Potentially Liable Responsible Operator); id. at A243 (Mar. 13, 2010 Request for Hr'g).

Following Raymond's death in August 2011, Joanna filed a claim for survivor's benefits. Id. at A313–314 (Survivor's Claim for Benefits). The District Director subsequently awarded her benefits. Id. at A316–324 (Nov. 14, 2011 Proposed Dec. & Order). Zurich American contested the award of survivor's benefits, requested a formal hearing before an ALJ, and asked for the miner's and claimant's claims to be consolidated. Id. at A325–26 (Nov. 21, 2011 Request for Hr'g).

The ALJ held a hearing on May 2, 2014, at which Joanna testified. Id. at A74–96 (May 2, 2014 Hr'g Tr.). The ALJ issued a decision awarding benefits on March 30, 2016. Id. at A38–73 (ALJ Dec.). The ALJ concluded that: (1) Zurich American had not rebutted the presumption that Raymond had timely filed his claim for benefits; (2) Raymond "had over fifteen years of qualifying coal mine employment"; (3) because Raymond had over fifteen years of qualifying coal mine employment and Zurich American conceded that he was totally disabled due to a respiratory condition, the fifteen-year rebuttable presumption applied; (4) Zurich American had not rebutted this presumption; and (5) Joanna was entitled to benefits on behalf of Raymond from May 2009 to July 2011, and to survivor's benefits commencing in August 2011. Id. at A44, A46, A48, A68–71 (ALJ Dec. at 7, 9, 11, 31–34).

Zurich American appealed the ALJ's decision to the Board. Id. at A20 (Board Dec. at 2). Reviewing the ALJ's decision under the substantial-evidence standard, id. at A21 (Board Dec. at 3), the Board affirmed the award of benefits to the miner and the claimant, id. at A32–33 (Board Dec. at 14–15). This petition for review followed.

A. Standard of Review

In black-lung-benefits cases, we review the decisions of the Board under a mixed standard. "[W]e review the Board's legal conclusions de novo." Ogle , 737 F.3d at 1068. "While we must affirm the Board's decision unless the Board has committed legal error or exceeded its scope of review, our review actually focuses on whether the ALJ's decision is supported by substantial evidence." Island Creek Ky. Mining v. Ramage , 737 F.3d 1050, 1056 (6th Cir. 2013). The ALJ must have correctly applied the germane law to reach a conclusion supported by substantial evidence. Id. "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Ogle , 737 F.3d at 1068–69 (quoting Kolesar v. Youghiogheny & Ohio Coal Co. , 760 F.2d 728, 729 (6th...

To continue reading

Request your trial
74 cases
  • Island Creek Coal Co. v. Bryan
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • September 11, 2019
    ...was not recorded—"would have been qualifying." But he bears the burden of proving total disability. See Zurich Am. Ins. Grp. v. Duncan , 889 F.3d 293, 297 (6th Cir. 2018). A missing MVV result does not do the job.Third , Cunningham says Island Creek stipulated that his tests showed total di......
  • Walsh v. Chevron Mining, Inc.
    • United States
    • U.S. District Court — Western District of Kentucky
    • June 21, 2021
    ...(3) arising out of coal mine employment, which (4) contributes to (5) his or her total disability." Zurich Am. Ins. Grp. v. Duncan, 889 F.3d 293, 296 (6th Cir. 2018). This initial determination of eligibility is processed and decided by the District Director. 20 C.F.R. § 725.401. Next, a fo......
  • Groves v. Arch On The Green, Inc., BRB 20-0170 BLA
    • United States
    • Court of Appeals of Black Lung Complaints
    • May 20, 2021
    ... ... §718.305(b)(2); see Zurich v ... Am. Ins. Grp. v. Duncan , 889 F.3d ... "rel[ied] on the preamble rather than the ... ...
  • Barr v. Fairfield Southern Co.
    • United States
    • Court of Appeals of Black Lung Complaints
    • January 27, 2021
    ... ... §718.305(b)(2); see Zurich v ... Am. Ins. Grp. v. Duncan , 889 F.3d ... ...
  • Request a trial to view additional results
1 books & journal articles
    • United States
    • FNREL - Special Institute Nat. Res. Dev. & the Admin. State: Navigating Fed. Agency Regul. & Litigation (FNREL)
    • Invalid date
    ...than the liberal judges.").[134] Id. at 1515.[135] Id. at 1516 (footnote omitted).[136] Zurich Am. Ins. Grp. v. Duncan ex rel. Duncan, 889 F.3d 293, 308 (6th Cir. 2018) (Kethledge, J., concurring in the judgment). [137] Tenn. Hosp. Ass'n v. Azar, 908 F.3d 1029, 1050 (6th Cir. 2018) (Kethled......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT