Estate of Danny D. Justice v. Damco, LLC (Board decision, May 13, 2025)

BRB final decision. The Benefits Review Board affirmed an award of medical benefits for treatment of a miner's pneumoconiosis, with specified prescriptions excluded. 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

The estate of Danny Justice sought reimbursement for medical expenses related to his pneumoconiosis. An administrative law judge found that most of the expenses treated a pulmonary disorder related to the disease and awarded $35,706.71, excluding certain prescriptions. The employer argued that the judge improperly relied on an opinion addressing legal pneumoconiosis because the earlier benefits award rested on complicated pneumoconiosis. The Board rejected that argument because complicated pneumoconiosis is also a chronic dust disease within the broader legal pneumoconiosis category. It affirmed the medical benefits award and the exclusion of the specified prescriptions.

Decision snapshot

• Authority: Medical benefits under 20 C.F.R. § 725.701.
• Outcome: $35,706.71 medical benefits award affirmed, with specified prescriptions excluded.
• Key point: Treatment for a pulmonary disorder is presumed related to pneumoconiosis unless rebutted, and the employer did not rebut that presumption for the awarded expenses.

Full text (DOL BRB public release)

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

BRB No. 24-0410 BTD

The Estate of DANNY D. JUSTICE
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Claimant-Respondent
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v. )
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DAMCO, LLC
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and
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KENTUCKY EMPLOYERS’ MUTUAL
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INSURANCE
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Employer/Carrier-
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Petitioners
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NOT-PUBLISHED
) and
) DATE ISSUED: 05/13/2025
CAM MINING LLC
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and
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ROCKWOOD CASUALTY INSURANCE
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Party-in-Interest/Carrier )
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DIRECTOR, OFFICE OF WORKERS’
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COMPENSATION PROGRAMS, UNITED
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STATES DEPARTMENT OF LABOR
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Party-in-Interest
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DECISION and ORDER
 Appeal of the Decision and Order Awarding Medical Benefits of Steven D.
Bell, Administrative Law Judge, United States Department of Labor.

Joseph E. Wolfe and Donna E. Sonner (Wolfe Williams & Austin), Norton, Virginia, for Claimant.

W. Barry Lewis (Lewis and Lewis Law Offices), Hazard, Kentucky, for Employer and its Carrier.

Before: GRESH, Chief Administrative Appeals Judge, BOGGS and ROLFE, Administrative Appeals Judges.

PER CURIAM:

Employer and its Carrier1 (Employer) appeal Administrative Law Judge (ALJ) Steven D. Bell’s Decision and Order Awarding Medical Benefits (2022-BTD-00001), awarding certain medical expenses related to the treatment of the Miner’s2 pneumoconiosis in connection with a claim filed on May 19, 2010, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).

In a June 21, 2016 Decision and Order Awarding Benefits, ALJ Lee J. Romero, Jr. found the Miner established the presence of complicated pneumoconiosis and thus invoked the irrebuttable presumption of total disability due to pneumoconiosis at Section 411(c)(3) of the Act. 30 U.S.C. §921(c)(3) (2018); 20 C.F.R. §718.304. 3 Further, he found the

1 We note Joseph D. Halbert of Halbert Legal, PLLC in Lexington, Kentucky, also

filed a Notice of Appearance on behalf of CAM Mining LLC, as insured by Rockwood Casualty Insurance, as the Miner also had a state claim for benefits involving Rockwood Casualty. Director’s Exhibits 4; 5; 7; 10; 11; 15; 16; 18; 19.
2 The Miner died on July 23, 2021, five years after his award of benefits became

final. Miner’s Death Certificate; June 21, 2016 Decision and Order Awarding Benefits.
3 Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3), provides an irrebuttable presumption that a miner is totally disabled due to pneumoconiosis if he suffers from a chronic dust disease of the lung which: (a) when diagnosed by x-ray, yields one or more large opacities greater than one centimeter in diameter that would be classified as Category A, B, or C; (b) when diagnosed by biopsy or autopsy, yields massive lesions in the lung; or (c) when diagnosed by other means is a condition that would yield results equivalent to (a) or (b). 30 U.S.C. §921(c)(3); 20 C.F.R. §718.304.

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Miner’s complicated pneumoconiosis arose out of his coal mine employment. 20 C.F.R.
§718.203. Employer did not appeal the award.

On July 12, 2016, the district director requested reimbursement from Employer to the Black Lung Disability Trust Fund (Trust Fund) for $36,031.88 in medical expenses paid on the Miner’s behalf and $1,103.23 for diagnostic examinations and related travel. Director’s Exhibit 2. After repeated demands for reimbursement and objections from Employer, the claim was forwarded to the Office of Administrative Law Judges (OALJ) for a hearing at Employer’s request. Director’s Exhibits 2; 6; 8; 12-14; 21.

The case was assigned to ALJ Larry S. Merck, who found the record did not contain the medical bills or related treatment records sufficient to render a decision and remanded the case to the district director to develop the record on the medical benefits issue. Director’s Exhibit 23 at 7-8. On remand, the parties submitted the Miner’s treatment records, documents of related medical expenses, and prescriptions from February 2012 to May 2016. Director’s Exhibits 35; 38. Thereafter, the district director returned the case to the OALJ and it was assigned to ALJ Steven D. Bell (the ALJ).

In the Decision and Order Awarding Medical Benefits that is the subject of this appeal, the ALJ found the medical expenses were related to the Miner’s treatment for a pulmonary disorder and, therefore, Claimant invoked the rebuttable presumption at 20 C.F.R. §725.701(e) that the disorder was caused or aggravated by the Miner’s pneumoconiosis and the expenses were necessary for the treatment of the disease.4 He further found a preponderance of the evidence establishes all of the medical expenses were required to treat the Miner’s pneumoconiosis, except for certain prescriptions for Azithromycin, Levofloxacin, Methylprednisolone, and Promethazine. Thus, considering the evidence as a whole, the ALJ found Claimant is entitled to medical benefits in the amount of $35,706.71.

4 Where a miner establishes entitlement to benefits under the Act, the responsible

operator, or where there is none, the Trust Fund, must furnish to the miner such medical services and treatments for such periods as the nature of the miner’s pneumoconiosis and disability requires. 20 C.F.R. §725.701(a)-(b). If a miner receives a medical service or treatment for any pulmonary disorder, “there will be a rebuttable presumption that the disorder is caused or aggravated by the miner’s pneumoconiosis.” 20 C.F.R. §725.701(e).

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 On appeal, Employer challenges the ALJ’s finding that the relevant medical expenses were related to treatment of the Miner’s pneumoconiosis.5 Claimant’s counsel responds, urging affirmance of the ALJ’s decision. The Acting Director, Office of Workers’ Compensation Programs (the Director), declined to file a response brief.

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.6 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, 361-62 (1965).

Rebuttal of the Section 725.701 Presumption

Because Claimant invoked the presumption at 20 C.F.R. §725.701(e), the burden shifted to Employer to “rebut the presumption by producing credible evidence that the medical service or treatment provided was for a pulmonary disorder apart from those previously associated with the miner’s disability, or was beyond that necessary to effectively treat a covered disorder, or was not for a pulmonary disorder at all.” 20 C.F.R.
§725.701(e)(2); see 65 Fed. Reg. 79,920, 80,022 (Dec. 20, 2000). Employer “cannot rely on evidence that the miner does not have pneumoconiosis or is not totally disabled by pneumoconiosis arising out of coal mine employment to defeat a request for coverage of any medical service or treatment under this subpart.” 20 C.F.R. §725.701(e)(3).

The ALJ considered the medical opinions of Drs. Thomas, Broudy, and Dahhan.
Decision and Order at 2-3, 6. Dr. Thomas opined that the challenged medical expenses were all related to the Miner’s airways disease caused by coal mine dust exposure. Dr. Broudy opined that none of the prescriptions or services rendered are “reasonable or necessary” because there is no treatment or cure for pneumoconiosis except lung transplantation or “unless the patient develops respiratory failure requiring oxygen therapy.” Employer’s Exhibit 1. Dr. Dahhan opined there is not enough information to determine if the August 31, 2015 and December 30, 2015 office visits were related to the

5 We affirm, as unchallenged on appeal, the ALJ’s determination that Claimant invoked the presumption at 20 C.F.R. §725.701(e). See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983); Decision and Order at 2.
6 The Board will apply the law of the United States Court of Appeals for the Sixth

Circuit because the Miner performed his last coal mine employment in Kentucky. See Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989) (en banc); Director’s Exhibit 1 at 26.

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Miner’s pneumoconiosis, that the May 14, 2015 computer tomography (CT) scan7 was conducted to follow-up on the removal of a lesion unrelated to pneumoconiosis, and that the Spiriva, Advair, and Proair prescriptions were unnecessary because they only provide temporary relief.8 Employer’s Exhibit 2.

The ALJ found Dr. Thomas’s opinion reasoned and consistent with the regulations.
Decision and Order at 7-10. He determined Dr. Broudy’s opinion that “there is no treatment or medications effective for pneumoconiosis” antithetical to the Act as the regulations specifically state miners are entitled to palliative care. Decision and Order at 11; see 20 C.F.R. §725.701(c). Further, he found Dr. Dahhan’s opinion unpersuasive because the Miner’s treatment notes referenced pneumoconiosis, chronic respiratory symptoms and crackles, and “shortness of breath,” and discredited the doctor’s opinion regarding the prescriptions because the regulations do not require that treatments provide a cure or lasting relief. Decision and Order at 13-14. Consequently, the ALJ found all the medical expenses are related to the Miner’s treatment for pneumoconiosis. Id. at 15.

Employer’s only argument on appeal is that the ALJ erred in crediting Dr. Thomas’s opinion because it is based on the Miner having legal pneumoconiosis9 and, because the award of benefits is based on a finding of complicated pneumoconiosis, it was improper for the ALJ to consider whether the Miner also had legal pneumoconiosis. Employer’s Brief at 8-14; see Employer’s Closing Arguments at 8-9. While the ALJ made a finding that the Miner had legal pneumoconiosis, he also made the permissible alternative determination that complicated pneumoconiosis fits the definition of legal pneumoconiosis. Decision and Order at 10; see Cent. Ohio Coal Co. v. Director, OWCP

7 The ALJ also noted Dr. Dahhan identified a June 30, 2015 CT scan as unrelated

to the Miner’s pneumoconiosis; however, he found the Director only submitted a report of an outpatient visit to Dr. King on that date with no CT scan. Decision and Order at 14.
8 Drs. Broudy and Dahhan also opined the prescriptions for Azithromycin, Levofloxacin, Methylprednisolone, and Promethazine were unrelated to the Miner’s pneumoconiosis. Employer’s Exhibits 1; 2. The ALJ credited this portion of their opinions and found the prescriptions were not related to the Miner’s pneumoconiosis. Decision and Order at 11-15. As this finding is unchallenged, we affirm it. See Skrack, 6 BLR at 1-711.
9 “Legal pneumoconiosis” includes any chronic lung disease or impairment and its sequelae arising out of coal mine employment. 20 C.F.R. §718.201(a)(2). The definition includes “any chronic pulmonary disease or respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment.” 20 C.F.R. §718.201(b).

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[Sterling], 762 F.3d 483, 486 (6th Cir. 2014) (“’legal pneumoconiosis’ is a broader and less definite term that refers to any chronic lung disease that was caused in this instance by exposure to coal dust”); Big Branch Resources, Inc. v. Ogle, 737 F.3d 1063, 1071 n.5 (6th Cir. 2013); Island Creek Coal Co. v. Compton, 211 F.3d 203, 210 (4th Cir. 2000); 20 C.F.R.
§§718.201(a)(2), 718.304 (“complicated pneumoconiosis” is a “chronic dust disease of the lung which” is established by specific types of evidence). Thus we reject Employer’s argument that the ALJ erred in crediting Dr. Thomas’s opinion. Decision and Order at 10.

Further, because Employer does not challenge the ALJ’s finding the opinions of Drs. Broudy and Dahhan are not credible, we affirm it. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983). As Employer raises no additional issues and failed to rebut the presumption, we affirm the ALJ’s finding the medical expenses were for the treatment of the Miner’s pulmonary disorder and are compensable, except for the expenses for Azithromycin, Levofloxacin, Methylprednisolone, and Promethazine. 20 C.F.R.
§725.701; Decision and Order at 15.

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Accordingly, the ALJ’s Decision and Order Awarding Medical Benefits is affirmed.

SO ORDERED.

DANIEL T. GRESH, Chief
Administrative Appeals Judge

JUDITH S. BOGGS
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge