Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rockwood Casualty Insurance Company v. Director

United States Court of Appeals, Tenth Circuit

March 5, 2019

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?

          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 out of coal mine employment." 30 U.S.C. § 902(b); see 20 C.F.R. § 718.201(a)(2) ("This definition includes, but is not limited to, any chronic restrictive or obstructive pulmonary disease arising out of coal mine employment."). To show legal pneumoconiosis, a claimant therefore "must satisfy both the Disease and Disease causation elements" of a BLBA claim. Blackburn, 857 F.3d 817. Legal pneumoconiosis encompasses "a broader class of lung diseases that are not pneumoconiosis as the term is used by the medical community." Andersen v. Dir., OWCP, 455 F.3d 1102, 1104 (10th Cir. 2006). In other words, a claimant may have legal pneumoconiosis without ever receiving a formal medical diagnosis of "pneumoconiosis." See id.

         c. The 10-year presumption and disease causation

         The 15-year presumption establishes the second element of a BLBA claim-the pneumoconiosis arose out of coal mining employment. See Blackburn, 857 F.3d at 822. The second element also may be established under the BLBA's 10-year presumption. See 30 U.S.C. § 921(c)(1).

         "Arising out of coal mine employment" means the relevant lung disease or impairment is "significantly related to, or substantially aggravated by, dust exposure in coal mine employment." 20 C.F.R. § 718.201(b). "If a miner who is suffering or suffered from pneumoconiosis was employed for ten years or more in one or more coal mines there shall be a rebuttable presumption that his pneumoconiosis arose out of such employment." 30 U.S.C. § 921(c)(1); see 20 C.F.R. § 718.203(b). The 10-year presumption overlaps with the 15-year presumption because both presumptions shift the burden to the employer to submit evidence to disprove that a claimant's pneumoconiosis arose out of coal mine employment. Because the 15-year presumption addresses the element of disability causation in addition to disease causation, however, the 10-year presumption is effectively subsumed by the 15-year presumption.

         d. Total disability

         One of the elements to establish the 15-year presumption is proof of total disability from a respiratory or pulmonary condition. A miner is considered "totally disabled" if he or she has "a pulmonary or respiratory impairment which," on its own, prevents the miner from (i) "performing his or her usual coal mine work" and (ii) "engaging in gainful employment in the immediate area of his or her residence requiring the skills or abilities comparable to those of any employment in a mine or mines in which he or she previously engaged with some regularity over a substantial period of time." 20 C.F.R. § 718.204(b)(1).

         The BLBA regulations provide that a miner can qualify for a total disability determination by submitting evidence from (1) pulmonary function tests, (2) arterial blood gas tests, or (3) medical evidence of right-side congestive heart failure. 20 C.F.R. § 718.204(b). In addition, when total disability cannot be shown by these three categories of testing, the regulations provide that "total disability may nevertheless be found if a physician exercising reasoned medical judgment, based on medically acceptable clinical and laboratory diagnostic techniques, concludes that a miner's respiratory or pulmonary condition prevents . . . the miner from engaging in [the claimant's usual] employment." 20 C.F.R. § 718.204(b)(2). Arterial blood gas studies and medical opinions provide the key evidence of "impairment" in this case.

         The BLBA regulations provide standards for evaluating arterial blood gas studies. See 20 C.F.R. pt. 718, App. C. These standards are depicted in "Appendix C," which "contains three tables of 'qualifying' values for arterial-blood gas studies . . . . A test that produces 'qualifying' values is deemed, in the absence of contrary evidence, indicative of a totally disabling respiratory or pulmonary impairment." Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act: Determining Coal Miners' and Survivors' Entitlement to Benefits, 77 Fed. Reg. 19456, 19464 (Mar. 30, 2012).

         Appendix C incorporates three categories of data: (1) the altitude at which the test was taken, (2) a partial pressure of oxygen ("PO2") reading, and (3) a partial pressure of carbon dioxide ("PCO2") reading. See 20 C.F.R. pt. 718, App. C. First, Appendix C consists of three charts, each based on a different altitude range and each with a different set of PO2 and PCO2 values: (1) 0 to 2, 999; (2) 3, 000 to 5, 999; and (3) 6, 000 or more feet above sea level. Id. Second, Appendix C compares the blood's carbon dioxide pressure levels (PCO2) with the oxygen pressure levels (PO2) to determine how fast the subject's lungs are producing oxygen. See id.; Suppl. App. 17-18. Third, at each PCO2 reading in the chart, Appendix C sets a "qualifying" PO2 value, below which the miner will be deemed impaired in the absence of contrary evidence. Id. For example, in the 3, 000-to-5, 999-foot altitude range, a claimant with a PCO2 level of 26 would qualify as "impaired" if his or her PO2 level was 69 or lower. We reproduce the chart for the 3, 000-to-5, 999 category below:

         (2) For arterial blood-gas studies performed at test sited 3, 000 to 5, 999 feet above sea level:

Arterial PCO2 (mm Hg)
Arterial PO2 equal to or less than (mm Hg)

25 or below....................................................

70

26 ...................................................................

69

27...................................................................

68

26 ...................................................................

67

29 ...................................................................

66

30 ...................................................................

65

31 ...................................................................

64

32 ...................................................................

63

33 ...................................................................

62

34 ...................................................................

61

35...................................................................

60

36 ...................................................................

59

37...................................................................

58

38 ...................................................................

57

39 ...................................................................

56

40-49 .............................................................

55

Above 50 .......................................................

(2)

2 Any value.

20 C.F.R. Pt. 718, App. C.

         3. Procedures for Claims Under the BLBA

         Claims under the BLBA are subject to three levels of administrative review.[3]First, the OWCP district director[4] receives and develops documentary evidence and issues a proposed decision and order ("PDO") regarding benefits and liability. 20 C.F.R. §§ 725.414, 725.418. Second, if a party wishes to challenge the PDO, it may request a hearing before an ALJ who reviews evidence-including oral testimony-and issues a "decision and order." Id. §§ 725.419(a), 725.476. Third, a party dissatisfied with the ALJ's decision may appeal to the BRB, which reviews the hearing record for error and issues its own decision. 33 U.S.C. § 921(b)(3); 20 C.F.R. § 725.481. Aggrieved parties-in-interest may appeal BRB orders to an appropriate circuit court. See 33 U.S.C. § 921(c); 30 U.S.C. § 932(a); 20 C.F.R. § 725.482.

         a. District director review

         Once a miner files a claim for benefits under the BLBA, the OWCP district director investigates the claim and determines whether one or more operators are potentially liable. 20 C.F.R. § 725.407(a). The district director then notifies each potentially liable operator of the claim and sends "a copy of the claimant's application and a copy of all evidence obtained by the district director relating to the miner's employment." Id. § 725.407(c).

         Each notified operator has 30 days to accept or contest its designation as a potentially liable operator. Id. § 725.408(a)(1). "If the operator contests its identification, it shall . . . state the precise nature of its disagreement" in its response. Id. § 725.408(a)(2). The operator may submit documentary evidence in support of its disagreement within 90 days of receiving the OWCP notice. Id. § 725.408(b)(1). The regulations further provide, "No documentary evidence relevant to [the operator's potential liability] may be admitted in any further proceedings unless it is submitted within" the 90-day time limit. Id. § 725.408(b)(2).

         After receiving a potentially liable operator's response, the district director develops and reviews the relevant medical evidence and issues a "schedule for the submission of additional evidence" ("SSAE"), which includes a preliminary determination of the miner's entitlement to benefits. Id. § 725.410(a). The SSAE also states which of the potentially liable operators has been identified as the responsible operator for the claim. Id. § 725.410(a)(3). Once identified, the designated responsible operator has 30 days to accept or contest its designation. Id. § 725.412(a)(1). If the operator accepts its responsible operator designation or fails to file a timely response, the operator "shall be deemed to have accepted the district director's designation with respect to its liability, and to have waived its right to contest its liability in any further proceeding conducted with respect to the claim." Id. § 725.412(a)(2).

         At the end of this initial level of proceedings, the district director makes a final recommendation of entitlement to benefits, designates the responsible operator, and issues a written proposed decision and order ("PDO"). 20 C.F.R. § 725.418(d). When it issues the PDO, the district director must "dismiss, as parties to the claim, all other potentially liable operators." Id.

         b. Administrative law judge proceedings

         Parties-in-interest who wish to contest a PDO's findings or conclusions may request a hearing before an ALJ. Id. § 725.419(a). Upon receiving a party's request, the district director refers the case to the Office of Administrative Law Judges. Id. An ALJ then holds a formal hearing and may take oral testimony. Id. § 725.455. With one exception not relevant here, "[t]he district director may not notify additional operators of their potential liability after a case has been referred to the Office of Administrative Law Judges." Id. § 725.407(d).

         "Except as otherwise provided in this section, the hearing shall be confined to those contested issues which have been identified by the district director or any other issue raised in writing before the district director." Id. § 725.463(a) (citation omitted). One exception is critical here:

An administrative law judge may consider a new issue only if such issue was not reasonably ascertainable by the parties at the time the claim was before the district director. Such new issue may be raised upon application of any party, or upon an administrative law judge's own motion, with notice to all parties, at any time after a claim has been transmitted by the district director to the Office of Administrative Law Judges and prior to decision by an administrative law judge. If a new issue is raised, the administrative law judge may, in his or her discretion, either remand the case to the district director with instructions for further proceedings, hear and resolve the new issue, or refuse to consider such new issue.

20 C.F.R. § 725.463(b) (emphasis added).

         After the hearing, the ALJ issues a decision and order resolving the claim. Id. § 725.476.

         c. Proceedings before the BRB

         "Any party dissatisfied with a decision and order issued by an [ALJ] may . . . appeal the decision and order to the [BRB.]" Id. § 725.481. The BRB does not receive new evidence. 33 U.S.C. § 921(b)(3); 20 C.F.R. § 802.301(b). Instead, a panel of three ALJs considers the record and issues a decision. See 20 C.F.R. §§ 802.301-802.309. The panel may hold oral argument, but it need not do so. Id. § 802.304. The Secretary of Labor has discretion to review the BRB's decisions. Id. § 726.317(a).

         B. Proce ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.