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Spring Creek Coal Co. v. McLean

United States Court of Appeals, Tenth Circuit

February 5, 2018

SPRING CREEK COAL COMPANY, Petitioner,
v.
SUSAN McLEAN, o/b/o of Bradford McLean, deceased; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents.

         ON PETITION FOR REVIEW OF A DECISION AND ORDER OF THE BENEFITS REVIEW BOARD UNITED STATES DEPARTMENT OF LABOR (No. BRB 16-0108 BLA)

          William S. Mattingly, Jackson Kelly PLLC, Lexington, Kentucky, appearing for Petitioner.

          Sean G. Bajkowski, Counsel for Appellate Litigation (Nicholas C. Geale, Acting Solicitor of Labor, Maia S. Fisher, Associate Solicitor, and Rita A. Roppolo, Attorney, with him on the brief), United States Department of Labor, Washington, DC, appearing for Respondent, Director, Office of Workers' Compensation Programs, United States Department of Labor.

          Jared L. Bramwell, Kelly & Bramwell, P.C., Draper, Utah, appearing for Respondent Susan McLean.

          Before BRISCOE, LUCERO, and BACHARACH, Circuit Judges.

          BRISCOE, Circuit Judge.

         Spring Creek Coal Company (Spring Creek) petitions for review of a decision by the Department of Labor (DOL) awarding survivors' benefits to Susan McLean under the Black Lung Benefits Act (BLBA), 30 U.S.C. §§ 901-944. The DOL concluded that Bradford McLean, Mrs. McLean's deceased husband, became disabled and died from his exposure to coal dust during the course of his employment at Spring Creek's surface coal mine. Exercising jurisdiction pursuant to 33 U.S.C. § 921(c) and 30 U.S.C. § 932(a), we deny Spring Creek's petition.[1]

         I

         Factual background

         Bradford McLean was born in Sheridan, Wyoming, on November 23, 1943. In October 1977, Mr. McLean began working for Wyoming-based Big Horn Coal Company (Big Horn). During his time with Big Horn, Mr. McLean worked as a shop laborer, plant laborer, utility oiler, drill helper, drill operator, and truck driver. In the summer of 1986, Mr. McLean left his employment with Big Horn and began working for Montana-based Spring Creek. At Spring Creek, Mr. McLean worked as a utility person, an assistant driller/shooter, and a driller shooter. It is undisputed that all of Mr. McLean's work occurred above ground in open pit coal mines.

         In approximately 2001, Mr. McLean for the first time "noted running out of breath with heavy physical exertion." Joint App. at 10. Mr. McLean did not immediately seek a medical evaluation of his condition, and instead waited until approximately 2003 to discuss the matter with his primary care physician. "[B]y 2006 he was unable to complete the requirements of employment and eventually was unable to complete activities of daily living . . . ." Id. at 21. In 2006, Mr. McLean was referred to Dr. Robert Merchant, a pulmonologist in Billings, Montana. According to Mr. McLean, he was told by Dr. Merchant "that only 29% of his lungs were working" and Dr. Merchant diagnosed him as suffering from chronic obstructive pulmonary disease (COPD). Id. at 10.

         Mr. McLean stopped working in or around coal mines on March 31, 2006, at the advice of his doctor. On September 28, 2006, Mr. McLain was approved for long-term disability. At that time, Dr. Merchant concluded that Mr. McLain was suffering from "severe lung disease from a combination of tobacco use and coal mine dust exposures." Id. at 9. Dr. Merchant further concluded that Mr. McLain was "severe[ly] impair[ed]" and "totally disabled." Id. On October 1, 2008, Mr. McLean transferred from long-term disability to retirement.

         In addition to his exposure to coal dust during his employment, two other factors potentially contributed to his COPD. First, Mr. McLean's childhood home lacked electricity and, therefore, "food was cooked on a wood or coal burning stove."Id. at 21. "Such an activity is associated with a very high risk for the development of chronic obstructive pulmonary disease . . . ." Id. Second, Mr. McLean smoked for most of his adult life. More specifically, between the ages of twenty and sixty-four, he smoked approximately 1.5 packs of cigarettes per day. He ultimately quit smoking in May of 2008.

         Procedural background

         a) The submission and initial processing of the claim

         On September 7, 2010, Mr. McLean submitted a claim for benefits under the BLBA. Mr. McLean died on June 11, 2011, while his claim for benefits was pending. Mr. McLean's wife, Susan McLean, succeeded him as the claimant.

         The DOL's "District Director approved the claim, because the evidence established the elements of entitlement that Mr. . . . McLean had [coal worker's pneumoconiosis] and was totally disabled due to pneumoconiosis." Id. at 242.

         On July 21, 2011, Spring Creek requested a hearing before an administrative law judge (ALJ). Consequently, the case was referred to the Office of Administrative Law Judges for a formal hearing. The case was assigned to a specific ALJ on June 27, 2013. On September 23, 2013, the ALJ held an evidentiary hearing in Denver, Colorado. Both Mrs. McLean and her son testified about Mr. McLean's experiences as a coal miner. Spring Creek presented its own witnesses who testified about the working conditions at the mine where Mr. McLean was employed.

          b) The ALJ's decision and order

         On October 6, 2015, the ALJ issued a decision and order awarding benefits to Mrs. McLean under the BLBA. In doing so, the ALJ first found "that for at least 15 years of his coal-mine employment at Spring Creek . . ., Mr. McLean worked in dust conditions substantially similar to those found in underground mining." Id. at 247. The ALJ explained that "[e]ven though Mr. McLean worked inside a cab with an attached dust collector, he was regularly exposed to coal dust when he worked for Spring Creek." Id. "Furthermore, " the ALJ noted, "Mr. McLean's wife's and son's testimony of his daily appearance after work suggest[ed] Mr. McLean was regularly exposed to dust." Id. As for the evidence submitted by Spring Creek regarding the dust exposure that Mr. McLean likely encountered during his employment, [2] the ALJ concluded that it was "insufficient to show that Mr. McLean was not regularly exposed to coal mine dust." Id. The ALJ therefore concluded that "the first condition necessary to invoke the [applicable statutory and regulatory] presumption of total disability due to pneumoconiosis" had been met. Id. The ALJ in turn noted that "[t]he parties stipulated that [Mr. McLean] had a totally disabling pulmonary or respiratory impairment." Id. at 247-48. Thus, the ALJ concluded that Mrs. McLean "ha[d] established the applicability of the rebuttable presumption that [Mr. McLean] was totally disabled due to pneumoconiosis." Id. at 248.

          To rebut this presumption, the ALJ noted, Spring Creek was required to show either (1) that Mr. McLean "did not have any form of pneumoconiosis under the pertinent statutory and regulatory standards, " i.e., that he did not suffer from either "clinical pneumoconiosis" or "legal pneumoconiosis, "[3] or (2) "that 'his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.'" Id. (quoting 30 U.S.C. § 921(c)(4)). Addressing the evidence in the record, the ALJ found "that the x-ray evidence and Dr. [Peter] Tuteur's medical opinion establish[ed] that [Mr. McLean] did not have clinical pneumoconiosis." Id. at 251. And, "[t]here being no evidence to the contrary, " the ALJ "f[ou]nd that [Spring Creek] . . . disproved the existence of clinical pneumoconiosis pursuant to Section 718.305(d)(1)(i)(B)." Id. As for legal pneumoconiosis, however, the ALJ found "that the medical opinion evidence [offered by Spring Creek][wa]s insufficient to disprove the existence of legal pneumoconiosis." Id. More specifically, the ALJ found that "[t]here [wa]s simply no well-reasoned, documented opinion, consistent with the regulatory standards and their scientific bases, establishing that [Mr. McLean] did not suffer from legal pneumoconiosis." Id. at 258. Thus, the ALJ concluded that Spring Creek "failed to establish by a preponderance of the credible medical evidence that [Mr. McLean] d[id] not suffer from pneumoconiosis." Id. at 259.

         The ALJ in turn found that Spring Creek "ha[d] failed to rebut the presumption that [Mr. McLean] was totally disabled due to legal pneumoconiosis." Id. Consequently, the ALJ concluded that Mrs. McLean "[wa]s entitled to benefits under the Act." Id. at 260. Because it was unclear from the record when Mr. McLean "became totally disabled due to pneumoconiosis, " the ALJ ordered that "benefits sh[ould] commence from September 2010, the month in which [Mr. McLean] filed the claim." Id.

         c) The Board's decision and order

         Spring Creek appealed the ALJ's decision to the DOL's Benefits Review Board (the Board). Spring Creek asserted two general arguments: (1) that the ALJ "erred in finding that [Mr. McLean] established at least fifteen years of qualifying coal mine employment, " and in turn erred in finding that Mr. McLean "invoked the Section 411(c)(4) presumption"; and (2) that the ALJ "erred in finding that [Spring Creek] did not rebut the presumption." Id. at 264. On February 16, 2017, the Board issued a written decision and order rejecting Spring Creek's arguments and affirming the ALJ's decision. In doing so, the Board first rejected Spring Creek's argument that the ALJ "applied an incorrect standard" in deciding to credit Mr. McLean "with at least fifteen years of qualifying coal mine employment." Id. at 267. The ALJ, the Board noted, "applied the correct standard, requiring claimant to establish that [Mr. McLean's] surface coal mine employment regularly exposed him to coal-mine dust." Id. The Board in turn rejected Spring Creek's argument that the ALJ "erred in finding the evidence established that [Mr. McLean] was regularly exposed to coal- mine dust while working at his surface coal mine employment." Id. at 268. Thus, the Board in turn affirmed the ALJ's "determination that claimant invoked the rebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(4)." Id. Finally, the Board rejected Spring Creek's argument that the ALJ "erred in finding that [Spring Creek] failed to establish that [Mr. McLean] did not have legal pneumoconiosis." Id. at 269. In doing so, the Board concluded ...


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