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Aberry Coal, Inc. v. Fleming

United States Court of Appeals, Sixth Circuit

December 1, 2016

Aberry Coal, Incorporated; Arrowpoint Capital Inc., c/o Underwriters Safety & Claims, Petitioners,
v.
Joseph Fleming; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

         On Petition for Review of an Order of the Benefits Review Board. No. 14-0329 BLA.

         ON BRIEF:

          John R. Sigmond, Nathaniel Dale Moore, PENN, STUART & ESKRIDGE, Bristol, Virginia, for Petitioners.

          Joseph Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton, Virginia, for Respondent Fleming.

          Before: BATCHELDER and KETHLEDGE, Circuit Judges; LEVY, District Judge. [*]

          OPINION

          JUDITH E. LEVY, District Judge.

         Under the Black Lung Benefits Act ("BLBA"), an Administrative Law Judge ("ALJ") must determine, using a reasonable method of calculation and based on substantial evidence, how long a coal worker was employed in coal-mine work. If the length of employment was more than fifteen years, the worker is entitled to a presumption of total disability under the BLBA. The ALJ who heard Joseph Fleming's claim determined that Fleming established over sixteen years of coal-mine employment, and was entitled to that presumption. The Benefits Review Board of the Department of Labor ("the Benefits Review Board") affirmed that determination, and awarded Fleming BLBA benefits.

         The evidence presented at the hearing, however, did not and could not have established that Fleming had over sixteen years of coal-mine employment, or even the fifteen necessary for the presumption of total disability. Accordingly, we vacate the Board's award of benefits, and remand for rehearing consistent with this opinion.

         I. Background

         Fleming, like many coal workers, had a sporadic work history in the coal industry. Between 1970 and 1991, Fleming worked for twenty-five different coal-mine employers. (App. at 781-82.) On July 19, 2010, Fleming filed an application for BLBA benefits. (Id. at 706.) On September 20, 2011, the Department of Labor's Office of Workers' Compensation issued findings of fact and conclusions of law determining that Fleming was employed as a coal miner for nine and one-quarter years between 1970 and 1991, and that he had contracted pneumoconiosis as a result of his coal-mine employment. (Id. at 374.) Aberry Coal was designated as the coal-mine operator responsible for payment of benefits. (Id.)

         On October 11, 2011, Aberry Coal requested a formal hearing in front of an ALJ. The hearing was held on October 16, 2012, and the ALJ issued a Decision and Order awarding benefits on January 24, 2013. (Id. at 706-14.) In that order, the ALJ dedicated two pages to an analysis of the length of Fleming's coal-mine employment. (Id. at 708-10.) The ALJ determined that there were "at most 16 different years in which claimant could have worked as a coal miner (1970 through 1991 minus four years due to injury minus 1 year in Florida)." (Id. at 708.)

         The ALJ then compared Fleming's Social Security Earnings Record ("SSER") to the daily average earnings of coal miners for each year Fleming worked, as provided by the Bureau of Labor Statistics, to determine how many weeks Fleming worked each year. (Id. at 709.) The ALJ determined that Fleming could show he had worked 273.50 weeks in the coal-mining industry between 1970 and 1991, or about 5.25 years. (Id.) The ALJ then determined that Fleming was credible and established that he had either been paid under the table or without proper records having been kept during his career. (Id. at 710.) Based on that determination, the ALJ found that Fleming engaged in coal-mine employment "for at least 15 years." (Id.) This entitled Fleming to the presumption of total disability under the BLBA, 30 U.S.C. § 921(c)(4), and the ALJ determined that Fleming was owed benefits dating from July 2010. (Id. at 710, 713.)

         On December 17, 2013, the Benefits Review Board, which has appellate jurisdiction over ALJ decisions, reversed and remanded the Decision and Order to "reconsider whether [Fleming] has established fifteen years of underground coal-mine employment sufficient to invoke the [BLBA total disability] presumption." (Id. at 746.) The Benefits Review Board determined that the ALJ had neither explained how he resolved the conflict between Fleming's "not [being] a good historian" and the ALJ's crediting of Fleming's testimony, nor resolved the conflicting evidence regarding the years in which Fleming engaged in coal-mine employment. (Id.)

         On May 19, 2014, following additional comments from Aberry and Fleming, the ALJ issued a second Decision and Order again awarding benefits to Fleming. (Id. at 780-86.) That Decision and Order again found that Fleming worked more than fifteen years in coal-mine employment. (Id. at 785.) Fleming's employment was based on records that he ...


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