PETITION FOR REVIEW OF A DECISION AND ORDER OF THE BENEFITS
REVIEW BOARD UNITED STATES DEPARTMENT OF LABOR (No. BRB
William S. Mattingly, Jackson Kelly PLLC, Lexington,
Kentucky, appearing for Petitioner.
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.
L. Bramwell, Kelly & Bramwell, P.C., Draper, Utah,
appearing for Respondent Susan McLean.
BRISCOE, LUCERO, and BACHARACH, Circuit Judges.
BRISCOE, Circuit Judge.
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.
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.
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.
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.
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.
The submission and initial processing of the claim
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.
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
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.
The ALJ's decision and order
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,  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.
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, " 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.
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."
The Board's decision and order
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 ...