Norman J. Fleeman v. Eastern Associated Coal Company and Peabody Energy Corporation (Board decision, November 30, 2022)

BRB final decision. This unpublished decision is not precedent. The Benefits Review Board affirmed the award of black lung benefits to Norman Fleeman on his subsequent claim and held Eastern Associated Coal Company and Peabody Energy Corporation responsible for payment. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Norman Fleeman received black lung benefits after a judge found complicated pneumoconiosis arising from 27.29 years of coal mine work. Eastern Associated Coal and Peabody Energy did not challenge those entitlement findings on appeal. They argued that liability should pass to the Black Lung Disability Trust Fund because Eastern was later transferred to Patriot Coal, which became authorized to self-insure and then went bankrupt. The Board held that Patriot's later self-insurance authorization did not release Peabody Energy from liability for this claim. It affirmed the benefits award and the designations of Eastern as responsible operator and Peabody Energy as responsible carrier.

Decision snapshot

• Authority: Complicated pneumoconiosis under 30 U.S.C. § 921(c)(3) and carrier liability under 20 C.F.R. § 725.495.
• Outcome: Subsequent-claim benefits award and Peabody Energy's carrier liability affirmed.
• Key point: Patriot's later self-insurance authorization did not relieve Peabody Energy of liability for this claim.

Full text (DOL BRB public release)

U.S. Department of Labor Benefits Review Board 200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 22-0086 BLA

NORMAN J. FLEEMAN
)
)
Claimant-Respondent
)
)
v. )
)
EASTERN ASSOCIATED COAL
)
COMPANY
)
)
and
)
) DATE ISSUED: 11/30/2022
PEABODY ENERGY CORPORATION
)
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Party-in-Interest
) DECISION and ORDER

Appeal of the Decision and Order Awarding Benefits of Theresa C. Timlin, Administrative Law Judge, United States Department of Labor.

Joseph E. Wolfe and Brad A. Austin (Wolfe Williams & Reynolds), Norton, Virginia, for Claimant.

Paul E. Frampton and Fazal A. Shere (Bowles Rice LLP), Charleston, West Virginia, for Employer and its Carrier.

Olgamaris Fernandez (Seema Nanda, Solicitor of Labor; Barry H. Joyner, Associate Solicitor), Washington, D.C., for the Director, Office of Workers’ Compensation Programs, United States Department of Labor.
Before: BOGGS, Chief Administrative Appeals Judge, BUZZARD, and GRESH, Administrative Appeals Judges.

PER CURIAM:

Employer and its Carrier (Employer) appeal Administrative Law Judge (ALJ) Theresa C. Timlin’s Decision and Order Awarding Benefits (2018-BLA-06037) rendered on a subsequent claim filed on December 8, 2016,1 pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).

The ALJ found Eastern Associated Coal Company (Eastern) is the responsible operator and Peabody Energy Corporation (Peabody Energy) is the responsible carrier. She also found Claimant established 27.29 years of coal mine employment and determined he suffers from complicated pneumoconiosis arising out of that employment. 20 C.F.R.
§§718.304, 718.203. Thus, the ALJ found Claimant invoked the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act and thereby established a change in an applicable condition of entitlement,2 and therefore awarded benefits. 30 U.S.C. §921(c)(3) (2018); 20 C.F.R. §725.309.

On appeal, Employer argues the ALJ erred in finding Peabody Energy is the liable carrier.3 Claimant responds in support of the award of benefits. The Director, Office of

1 Claimant filed a previous claim on October 19, 2010, which the district director

denied on June 6, 2011, for failure to establish any element of entitlement. Director’s Exhibit 1; Decision and Order at 2. Claimant filed another claim which was withdrawn, and thus is considered not to have been filed. See 20 C.F.R. §725.306(b); Director’s Exhibit 2; Decision and Order at 2.
2 When a miner files a claim for benefits more than one year after the denial of a

previous claim becomes final, the ALJ must deny the subsequent claim unless he finds that “one of the applicable conditions of entitlement . . . has changed since the date upon which the order denying the prior claim became final.” 20 C.F.R. §725.309(c); White v. New White Coal Co., 23 BLR 1-1, 1-3 (2004). The “applicable conditions of entitlement” are “those conditions upon which the prior denial was based.” 20 C.F.R. §725.309(c)(3). Because the district director denied the Miner's prior claim for failure to establish any element of entitlement, Claimant must submit new evidence establishing at least one element to warrant a review of his subsequent claim on the merits. See White, 23 BLR at 1-3; Director's Exhibit 1.
3 We affirm, as unchallenged on appeal, the ALJ’s findings that Claimant has 27.29

years of coal mine employment, he invoked the irrebuttable presumption of total disability due to pneumoconiosis at 20 C.F.R. §718.304, his complicated pneumoconiosis arose out 2
Workers’ Compensation Programs (the Director), responds, urging rejection of Employer’s arguments.

The Benefits Review Board’s scope of review is defined by statute. We must affirm the ALJ’s Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.4 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C.
§932(a); O’Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359 (1965).

Responsible Carrier

Employer does not challenge the ALJ’s findings that Eastern is the correct responsible operator and it was self-insured by Peabody Energy on the last day Eastern employed Claimant; thus, we affirm these findings.5 See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 711 (1983); 20 C.F.R. §§725.494(e), 725.495, 726.203(a); Decision and Order at 7, 14. Rather, it alleges Patriot Coal Corporation (Patriot) should have been named the responsible carrier and thus liability for the claim should transfer to the Black Lung Disability Trust Fund (the Trust Fund).

Patriot was initially another Peabody Energy subsidiary. Director’s Exhibit 38. In 2007, after Claimant ceased his coal mine employment with Eastern, Peabody Energy

of coal mine employment, he established a change in an applicable condition of entitlement, and thus is entitled to benefits. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983); 30 U.S.C. §921(c)(3) (2018); 20 C.F.R. §§718.203, 718.304, 725.309; Decision and Order at 3, 23-24. In addition, we affirm as unchallenged the ALJ’s exclusion of deposition testimony and evidence relevant to liability that Employer failed to submit before the district director. See Skrack, 6 BLR at 1-711; Evidentiary Order; Decision and Order at 2-3.
4 This case arises within the jurisdiction of the United States Court of Appeals for

the Fourth Circuit because Claimant performed his coal mine employment in West Virginia. See Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989) (en banc); Director’s Exhibit 6; Hearing Transcript at 26.
5 Employer argues there is no evidence of record that Peabody Energy Corporation

(Peabody Energy) was the self-insurer of Eastern Associated Coal Company (Eastern). Employer’s Brief at 4 n.1. However, the Notice of Claim specifically identifies Peabody Energy as Eastern’s self-insurer, Director’s Exhibit 22, and Employer’s other arguments tend to acknowledge that Peabody Energy was the self-insurer of Eastern at the time of Claimant’s last date of employment. See, e.g., Employer’s Brief at 5-6, 8 (e.g., framing the decision to name Peabody Energy liable instead of Patriot as involving a choice between Heritage’s “insurer on the date of last employment” and its “last insurer”).

3 transferred a number of its other subsidiaries, including Eastern, to Patriot. Id. That same year, Patriot was spun off as an independent company. Id. On March 4, 2011, Patriot was authorized to insure itself and its subsidiaries, retroactive to 1973. Id. Although Patriot’s self-insurance authorization made it retroactively liable for the claims of miners who worked for Eastern, Patriot later went bankrupt and can no longer provide for those benefits. Director’s Exhibit 38; Employer’s Brief at 15. Neither Patriot’s self-insurance authorization nor any other arrangement, however, relieved Peabody Energy of liability for paying benefits to miners last employed by Eastern when Peabody Energy owned and provided self-insurance to that company, as the ALJ held. Decision and Order at 11-12.

Employer raises several arguments to support its contention that Peabody Energy was improperly designated the self-insured carrier in this claim and thus the Trust Fund, not Peabody Energy, is responsible for the payment of benefits following Patriot’s bankruptcy: (1) the Department of Labor (the DOL) released Peabody Energy from liability; (2) 20 C.F.R. §725.495(a)(4) precludes Peabody Energy’s liability; (3) before transferring liability to Peabody Energy, the DOL must establish it exhausted any available funds from the security bond Patriot gave to secure its self-insurance status; (4) the Director is equitably estopped from imposing liability on the company; (5) because Patriot cannot pay benefits, Black Lung Benefits Act Bulletin Nos. 12-07 and 14-02 place liability on the Trust Fund; and (6) the DOL violated Employer’s due process rights by not maintaining adequate records with respect to Patriot’s bond and failing to comply with its duty to monitor Patriot’s financial health. Employer’s Brief at 6-22. Employer maintains that a separation agreement – a private contract between Peabody Energy and Patriot – released it from liability and the DOL endorsed this shift of complete liability when it authorized Patriot to self-insure.6 Employer’s Brief at 11-13.

6 Employer also alleges the ALJ erred in failing to require the Director to name the

Black Lung Disability Trust Fund (the Trust Fund) as a party to this claim, and that the district director failed to act on its request for reconsideration of the Proposed Decision and Order (PDO). Employer’s Brief at 3-5. The Director represents the Trust Fund’s interests and is a party to all claims under the Act. 30 U.S.C. §932(k); see also Boggs v. Falcon Coal Co., 17 BLR 1-62, 1-65-66 (1992); Truitt v. N. Am. Coal Corp., 2 BLR 1-199, 1-202 (1979); Director’s Brief at 11. Further, while Employer requested reconsideration of Peabody Energy’s designation as the responsible carrier in the district director’s PDO, it also requested that the district director forward the claim for a hearing before the Office of Administrative Law Judges (OALJ). Director’s Exhibit 38. The district director forwarded the claim to the OALJ as Employer requested. Director’s Exhibit 41.

4
The Board has previously considered and rejected these arguments in Bailey v. E.
Assoc. Coal Co., BLR , BRB No. 20-0094 BLA, slip op. at 3-19 (Oct. 25, 2022) (en banc); Howard v. Apogee Coal Co., BLR , BRB No. 20-0229 BLA, slip op. at 5-17 (Oct. 18, 2022); and Graham v. E. Assoc. Coal Co., BLR , BRB No. 20-0221 BLA, slip op. at 7-8 (June 23, 2022). For the reasons set forth in Bailey, Howard and Graham, we reject Employer’s arguments. Thus, we affirm the ALJ’s determination that Eastern and Peabody Energy are the responsible operator and carrier, respectively, and are liable for this claim.

Accordingly, we affirm the ALJ’s Decision and Order Awarding Benefits.

SO ORDERED.

JUDITH S. BOGGS, Chief
Administrative Appeals Judge

GREG J. BUZZARD
Administrative Appeals Judge

DANIEL T. GRESH
Administrative Appeals Judge