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Date: 02-12-2019

Case Style:

Imogene Shepherd v. Incoal, Inc.

Case Number: 19a0016p.06

Judge: MARTHA CRAIG DAUGHTREY

Court: UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Plaintiff's Attorney: Jeffrey S. Goldberg, Sean G. Bajkowski

Defendant's Attorney: Laura Metcoff Klaus
Evan B. Smith

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MARTHA CRAIG DAUGHTREY, Circuit Judge. More than ten years ago, claimant Imogene Shepherd filed for survivor’s benefits under the Black Lung Benefits Act (BLBA), 30 U.S.C. §§ 901–944, contending that her husband, a coal miner, died from respiratory complications exacerbated by exposure to coal dust during his years working in underground coal mines. To date, respondent Incoal, Inc., has continued to challenge that claim, insisting that Tramble Shepherd, the claimant’s deceased husband, should not be credited with 15 years of underground coal mine employment, a length of time that would call into play a statutory and regulatory presumption that would justify an award of survivor’s benefits to Imogene Shepherd. In its most recent decision in this litigation, the Benefits Review Board (BRB or Board) of the United States Department of Labor agreed with Incoal and denied Shepherd the relief she sought.
Despite the need to resolve this litigation, further factfinding by an administrative law judge is required to ensure that all relevant evidence regarding the propriety of the claim has been considered. We thus grant the petition for review and remand this matter to the administrative agency for further factual findings and determinations.
FACTUAL AND PROCEDURAL BACKGROUND
Tramble Shepherd (the miner) worked for various coal companies in Kentucky from no later than May 1963 until June 1985. Although Imogene Shepherd (the claimant) later testified under oath that her husband ceased his coal mine employment because “he was having a hard time breathing and he couldn’t catch his breath,” the miner’s 1987 claim for benefits under the BLBA indicated that he had stopped working in or around coal mines due to a back injury he suffered on the job approximately two years prior to his retirement. Indeed, the administrative law judge who first presided over the miner’s claim for benefits noted that “[t]he [miner] stated that his breathing problem was one reason for not returning to coal mining but that he quit in 1985, on the advice of his physician, due to a back injury.”
No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 3

In any event, in April 1987, the miner filed with the United States Department of Labor for benefits under the BLBA. An administrative law judge conducted a hearing and concluded that the evidence presented by the miner and by Incoal, Inc.—the last mining company with which the miner was employed for at least one year—supported the stipulation of the parties that the miner “ha[d] 17 years of qualifying coal mine employment.” Nevertheless, despite the administrative law judge’s conclusion “that the medical evidence established that the Miner suffered from coal workers’ pneumoconiosis[, h]e determined . . . that the evidence did not support a finding that the Miner was totally disabled by the disease.” Consequently, the administrative law judge denied the claim for benefits, and the miner chose not to appeal that determination.
After the miner’s death in July 2008, however, his widow, the claimant, filed with the Department of Labor for survivor’s benefits to which she claimed she was entitled. The District Director of the Department’s Office of Workers’ Compensation Programs agreed that such benefits were appropriate. Incoal appealed that ruling, and an evidentiary hearing on the claim was held before an administrative law judge in August 2011. Because the passage of the Patient Protection and Affordable Care Act (ACA) in 2010 had revived a “rebuttable presumption that a miner’s death was due to pneumoconiosis if he was totally disabled by a respiratory or pulmonary impairment and worked for at least 15 years in underground mines (or in substantially similar conditions),” a crucial aspect of the hearing involved the proper way in which to calculate the duration of the miner’s coal mine employment. In a 51-page “Decision and Order,” the administrative law judge found that the miner “had at least 15.25 years of underground coal mine employment” and thus was entitled to the presumption that his “death was due to pneumoconiosis if [his surviving spouse] can establish with medical evidence that the Miner suffered from a totally disabling respiratory or pulmonary impairment.” The administrative law judge then concluded that the claimant met that burden. Because Incoal failed to rebut the
No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 4

statutory and regulatory presumption, the administrative law judge ordered the company to pay survivor’s benefits to the claimant.1
As was its prerogative, Incoal then appealed the administrative law judge’s decision to the BRB. In its unanimous decision, the Board determined that the administrative law judge both failed to address all relevant evidence regarding the length of the miner’s coal mine employment and failed to explain adequately how he calculated the 15.25-year figure that justified application of the 15-year presumption. The Board thus remanded the matter for the required clarifications but specifically stated that “[i]f the administrative law judge finds that claimant has established that the miner had fifteen years of qualifying coal mine employment, he may reinstate his finding that claimant invoked the [15-year] presumption.” Furthermore, “[i]n the interest of judicial economy, and to avoid the repetition of any error on remand,” the BRB addressed other contentions of error put forth by Incoal and affirmed the administrative law judge’s determinations that the company failed to prove that the miner did not suffer from legal pneumoconiosis or “that the miner’s death did not arise out of, or in connection with, his coal mine employment.” Thus, as expressed by the Board, “if the administrative law judge again finds, on remand, that claimant has invoked the [15-year] presumption, he may reinstate the award of benefits.”
On remand, the administrative law judge explained that, when calculating a miner’s coal mine employment, he first should determine, if possible, the beginning and ending dates of any such employment. If those dates are not ascertainable, however, “an administrative law judge may use any reasonable means of calculating the length of the claimant’s coal mine employment. Clark v. Barnwell Coal Co., 22 B.L.R. 1-275, 1-280, 1-281, BRB Nos. 01-0876 BLA and 020280 BLA (Apr. 30, 2003).” For calendar years prior to 1978, the administrative law judge concluded that it would be reasonable to “count[ ] quarters [of years] in which the Miner’s Social Security earnings records show that he earned $50.00 or more, while not counting the quarters in which he earned less.” Doing so, and discounting any quarters in which the miner worked at
1Despite the fact that the parties previously had stipulated that the miner had 17 years of coal mine employment, the administrative law judge held that the stipulation no longer was binding on the parties, given the change in the applicable law resulting from passage of the ACA.
No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 5

jobs that were not related to coal extraction, the administrative law judge calculated that the miner should be credited with 27 quarters, or 6.75 years of coal mine employment prior to 1978.2
For years after 1977, the miner’s Social Security Earning Statement did not break down his earnings by quarters. Consequently, for those later years, when the evidence in the record was insufficient to establish the beginning and ending dates of any employment, the administrative law judge chose to “credit [the] Miner with a full calendar year of coal mine employment where the Miner’s yearly income, as reflected in Social Security earnings records, exceeds the yearly wage base as reported by Exhibit 609 of the Office of Workers’ Compensation Programs Coal Mine Procedure Manual, Wage Base History (‘Exhibit 609’).” When the evidence indicated that the miner was employed for less than the entire calendar year, however, the administrative law judge divided the miner’s “yearly income from coal mine employment by ‘the coal mine industry’s average daily earnings for that year, as reported by the Bureau of Labor Statistics.’ § 725.101(a)(32)(iii); see Exhibit 10 of the Office of Workers’ Compensation Programs Coal Mine Procedure Manual, Average Earnings of Employees in Coal Mining (Apr. 2012) (‘Exhibit 610’).” (Other citations and footnote omitted.) In applying that computational framework, the administrative law judge attributed an additional 6.33 years of coal mine employment to the miner for the years 1978–1985. Combined with the 6.75 years of coal mine employment that the administrative law judge found should be credited to the miner, the administrative law judge determined “that the Miner worked in coal mine employment for a total of 13.08 years.”
Because that figure fell short of the 15 years of coal mine employment that would justify application of the presumption applied in his earlier decision, the administrative law judge noted that the claimant bore “the burden of proving that the miner had pneumoconiosis that arose out of coal mine employment, and that his death was due to pneumoconiosis.” (Quotation marks and footnote omitted.) An analysis of medical evidence and opinions regarding the miner’s health and the effect that exposure to coal dust during coal mine employment might have had on it did 2In making the calculation of quarters worked by the miner in coal mine employment prior to 1978, the administrative law judge apparently failed to account for one quarter of such work in 1966 and another quarter in 1967. Consequently, a proper calculation of the quarters worked in coal mine employment in which the miner earned at least $50.00 could have yielded a sum of 29 quarters, or 7.25 years.
No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 6

not convince the administrative law judge that the miner suffered from pneumoconiosis, that any pulmonary conditions from which the miner suffered arose from his coal mine employment, or that the miner’s death was due to pneumoconiosis. Accordingly, the administrative law judge determined that the claimant was not entitled to survivor’s benefits.
The claimant filed a timely motion for reconsideration, arguing that additional qualifying quarters of coal mine employment should have been credited to the miner for his pre-1978 work and that the administrative law judge should have used “Exhibit 610 of the Office of Workers’ Compensation Programs Coal Mine Procedure Manual, Wage Base History instead of Exhibit 609 to compare the Miner’s actual earnings to the earnings he would be expected to make if he worked a full year.” Applying the formulas suggested by the claimant, the administrative law judge recalculated the miner’s years of coal mine employment and determined that the miner should have been credited with a total of 15.07 years of such work. Because the 15-year presumption of total disability due to pneumoconiosis once again was determined to be applicable, and because the BRB previously had held that “if the administrative law judge again finds, on remand, that claimant has invoked the [15-year] presumption, he may reinstate the award of benefits,” the administrative law judge ordered Incoal to “pay the Claimant all benefits to which she is entitled.”
Again finding itself liable for payment of benefits to the miner’s widow, Incoal petitioned the BRB for further review of the administrative law judge’s decision. Among the allegations of error raised by Incoal were claims that the administrative law judge accorded too much credit for the miner’s employment in calendar years 1963, 1964, and 1973. In each of those years, argued Incoal, the administrative law judge credited the miner with full quarters of work when the miner’s own listings of his dates of employment indicated that he had not worked for each of the three months in the contested quarters. The BRB agreed with Incoal that the miner could not be credited with a full quarter of coal mine employment when other evidence indicated that less time had been spent in qualified mine work. For example, the BRB noted:
The miner indicated that he worked for Allen Fork [Coal Company] from May of 1963 to July of 1963, and for Expert Coal from August of 1963 to November of 1964. Consequently, the miner’s self-reported and uncontradicted employment history reveals that he was not engaged in coal mine employment during the first
No. 17-4313 Shepherd v. Incoal, Inc., et al. Page 7

four months of 1963 or the last month of 1964. Thus, the miner was entitled to, at most, nineteen months (1.59 years) of coal mine employment from 1963 through 1964. Consequently, we hold that the administrative law judge, by crediting the miner with 1.75 years of coal mine employment during this period, overestimated the length of the miner’s coal mine employment by 0.16 of a year.
(Citations and footnotes omitted.)
Similarly, the administrative law judge credited the miner with 0.50 of a year for his coal mine employment in 1973 because the miner earned more than $50.00 in both the third and fourth quarters of that year. However, the miner’s own records indicated that he was not engaged in coal mine employment until September 1973, meaning that he “was entitled to, at most, 0.34 of a year of coal mine employment in 1973.” That 0.16 overage, in conjunction with the 0.16 overage from the 1963–1964 years, meant that the administrative law judge credited the miner with 0.32 years of coal mine employment that was unearned. Deducting 0.32 years from the 15.07 years of coal mine employment found by the administrative law judge meant that the miner had accumulated only 14.75 years of coal mine employment, three months less than necessary to justify application of the 15-year presumption that the miner died from pneumoconiosis brought on by exposure to coal dust during coal mine employment. Because the claimant had not challenged the earlier finding by the administrative law judge that, absent that presumption, she could not establish that the miner suffered from pneumoconiosis or that his death was due to that condition, the award of benefits was reversed. The claimant now petitions for review of that decision.

Outcome: Both the administrative law judge and the BRB failed to examine all evidence in the record when determining the duration of the miner’s coal mine employment. Consequently, we GRANT the claimant’s petition to review and REMAND the matter for appropriate consideration of all relevant evidence relating to the time spent by the miner working in underground coal mines.

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