James T. Gregory v. Island Creek Coal Company (Board decision, September 30, 2025)

BRB final decision. The Benefits Review Board affirmed the administrative law judge's black lung benefits award after holding that the employer had not shown the claim was untimely. 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

James Gregory filed a later claim for black lung benefits, and Island Creek Coal contested only whether he filed it in time. The employer argued that a 1985 Kentucky workers' compensation award and older medical records had already notified Gregory that he was totally disabled by pneumoconiosis, starting the three-year filing period. The Board held that the state award itself was not a physician's diagnosis and that the earlier medical opinions did not expressly find total disability. It also upheld the judge's assessment that Gregory's inconsistent recollections did not prove such a diagnosis had been communicated to him. The employer failed to rebut the presumption of timely filing, so the Board affirmed the benefits award.

Decision snapshot

• Authority: Three-year filing period under 30 U.S.C. § 932(f) and 20 C.F.R. § 725.308.
• Outcome: Black lung benefits award affirmed.
• Key point: A state compensation award alone did not establish that a medical diagnosis of total disability due to pneumoconiosis was communicated to the miner.

Full text (DOL BRB public release)

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

BRB No. 25-0017 BLA

JAMES T. GREGORY
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Claimant-Respondent
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v. )
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ISLAND CREEK COAL COMPANY
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Self-Insured through CONSOL ENERGY
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INCORPORATED
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NOT-PUBLISHED
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Employer-Petitioner
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) DATE ISSUED: 09/30/2025
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 Benefits of Steven D. Bell, Administrative Law Judge, United States Department of Labor.

Ryan Driskill, Greenville, Kentucky, for Claimant.

Joseph D. Halbert and Adam O. Stanley (Halbert Legal, PLLC), Lexington, Kentucky, for Employer.1

1 Employer’s notice of appeal and brief were filed by its counsel when they were members of Shelton, Branham, & Halbert PLLC of Lexington, Kentucky. Employer’s counsel subsequently notified the Board they continue to represent Employer but are now members of Halbert Legal, PLLC of Lexington, Kentucky.
Jeffrey S. Goldberg (Jonathan Snare, Deputy Solicitor of Labor; Jennifer Feldman Jones, Acting Associate Solicitor; William M. Bush, Acting Counsel for Administrative Appeals), Washington, D.C., for the Acting Director, Office of Workers’ Compensation Programs, United States Department of Labor.

Before: GRESH, Chief Administrative Appeals Judge, JONES, Administrative Appeals Judge, and ULMER, Acting Administrative Appeals Judge.

PER CURIAM:

Employer appeals Administrative Law Judge (ALJ) Steven D. Bell’s Decision and Order Awarding Benefits (2021-BLA-05887) rendered on a subsequent claim filed on August 3, 2016,2 pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901- 944 (2018) (Act).

The ALJ found Claimant timely filed his claim. Further, accepting Employer’s concession, he found Claimant established all elements of entitlement.3 Thus, he awarded benefits.

On appeal, Employer argues the ALJ erred in finding the claim timely filed.4 Claimant responds in support of the award of benefits. The Acting Director, Office of

2 This is Claimant’s second claim for benefits. His first claim, filed on June 19, 1984, was denied on October 16, 1984, and the file was subsequently destroyed by the Federal Records Center. Director’s Exhibit 1. Because Claimant’s prior claim record is unavailable, the ALJ treated the prior claim as if Claimant did not establish any element of entitlement. Decision and Order at 2.
3 In a letter dated February 22, 2023, Employer stated it contested only the timeliness

of Claimant’s claim for benefits. Employer’s February 22, 2023 Letter. At the hearing, Employer agreed to the stipulation that “Claimant has satisfied all conditions of entitlement . . . but for the question of whether Claimant’s claim was timely filed.” Hearing Transcript at 5; Employer’s Post-Hearing Brief at 1.
4 We affirm, as unchallenged on appeal, the ALJ’s finding that Claimant established

entitlement to benefits. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983); Decision and Order at 6.

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Workers’ Compensation Programs (the Director), responds, urging the Benefits Review Board to reject Employer’s argument.

The 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.5 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 (1965).

Timeliness of the Claim

Section 422(f) of the Act provides that “[a]ny claim for benefits by a miner . . . shall be filed within three years after . . . a medical determination of total disability due to pneumoconiosis . . . .” 30 U.S.C. §932(f). The medical determination must have been “communicated to the miner or a person responsible for the care of the miner.” 20 C.F.R.
§725.308(a). A miner’s claim is presumed to be timely filed. 20 C.F.R. §725.308(b). To rebut this presumption, Employer must show by a preponderance of the evidence that the claim was filed more than three years after a “medical determination of total disability due to pneumoconiosis” was communicated to the miner. 30 U.S.C. §932(f); 20 C.F.R.
§725.308(a); see Zurich v. Am. Ins. Grp. v. Duncan, 889 F.3d 293, 299-300 (6th Cir. 2018); Peabody Coal Co. v. Director, OWCP [Brigance], 718 F.3d 590, 593-96 (6th Cir. 2013). The question of whether the evidence is sufficient to establish rebuttal of the presumption of the timely filing of a claim pursuant to Section 725.308(a) involves factual findings that are appropriately made by the ALJ. Clark v. Karst-Robbins Coal Co., 12 BLR 1-149, 1- 152 (1989) (en banc).

In considering whether Employer rebutted the presumption of timely filing, the ALJ considered the medical report and deposition of Dr. Powell, the medical report of Dr. Anderson, the deposition of Dr. Marshall, Claimant’s testimony before the Kentucky Workers’ Compensation Board, Claimant’s deposition and hearing testimony before the Office of Administrative Law Judges, the Opinion and Award of the Kentucky Workers’ Compensation Board, and the district director’s denial of Claimant’s prior claim. Decision and Order at 4-5.

Dr. Powell examined Claimant on January 13, 1984, and diagnosed “[c]ategory II/II Q/T coal workers’ pneumoconiosis.” Employer’s Exhibit 1 at 10. On February 6, 1984, Dr. Anderson issued a report diagnosing “[c]ategory [two] pneumoconiosis.” Id. at 15.

5 This case arises within the jurisdiction of the United States Court of Appeals for

the Sixth Circuit because Claimant performed his coal mine employment in Kentucky. See Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989) (en banc); Hearing Transcript at 7; Director’s Exhibit 3.

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Claimant testified before the Kentucky Workers’ Compensation Board on June 19, 1984, that he had been diagnosed with pneumoconiosis, but that no physician had assessed a permanent disability rating. Director’s Exhibit 21 at 9-11, 19. At a July 18, 1984 deposition, Dr. Powell reaffirmed his diagnosis of pneumoconiosis and opined that, based on Claimant’s pulmonary function testing, he had a mild pulmonary impairment. Director’s Exhibit 18 at 21, 25, 30. Dr. Marshall testified at a July 18, 1984 deposition and stated he diagnosed Claimant with “[a]dvanced complicated pneumoconiosis,” “[t]ype q/r,
[c]ategory 3/4 profusions.” Id. at 10-11. On October 16, 1984, the district director denied Claimant’s prior claim for benefits under the Act. Director’s Exhibit 1. On October 14, 1985, the Kentucky Workers’ Compensation Board issued a decision finding Claimant established “Coal Miners’ Pneumoconiosis” and that “considering his education, age, and work he is [one hundred percent] occupationally disabled.” Director’s Exhibit 25 at 2.

Employer first deposed Claimant for the present claim on August 28, 2017.
Director’s Exhibit 40. Claimant testified he underwent a screening while working as a foreman in the mines and was informed he had “second-stage black lung”; however, he also testified that the first physician to diagnose pneumoconiosis was Dr. Anderson and that Claimant did not recall any physician having told him he was disabled or had complicated pneumoconiosis. Director’s Exhibit 40 at 10-11, 23-26. Employer deposed Claimant again on January 25, 2022. Employer’s Exhibit 2. In response to a question asking whether Claimant knew if his Kentucky Workers’ Compensation Board award of benefits was “based on an understanding that [he was] totally disabled,” Claimant responded “[y]eah, as far as I know.” Id. at 10. At the April 13, 2023 hearing, Claimant testified all the physicians who examined him for his state claim told him he was totally disabled due to pneumoconiosis. Hearing Transcript at 11. He further testified, however, that he did not talk to the physicians after his examinations and that he did not remember the physicians’ reports or the results of their examinations; he only recalled that he had been diagnosed with pneumoconiosis, not what stage it was or any further information. Id. at 13-14.

The ALJ observed that the medical reports and depositions of Drs. Powell, Anderson, and Marshall do not expressly state Claimant was disabled and that Claimant’s deposition and hearing testimony is contradictory as to whether it was his understanding that the physicians had diagnosed total disability due to pneumoconiosis. Decision and Order at 4. Thus, he found these medical opinions insufficient to trigger the statute of limitations. Id. Further, because the district director denied Claimant’s prior claim for benefits after the dates of the medical reports and depositions on which the Kentucky Workers’ Compensation Board award of benefits was based, the ALJ found the findings of total disability due to pneumoconiosis rendered by the Kentucky Workers’ Compensation Board constituted a misdiagnosis. Id. at 5. Finally, because the record contains no evidence that Claimant was informed he was totally disabled due to pneumoconiosis in the 4 years between the issuance of the Kentucky Workers’ Compensation Board’s decision and the date on which he filed his current claim, the ALJ found Employer failed to rebut the presumption that the claim was timely filed. Id.

Relying on the United States Court of Appeals for the Sixth Circuit’s decision in Brigance, Employer contends the ALJ erred by not finding the October 14, 1985 Kentucky Workers’ Compensation Board’s decision triggered the statute of limitations. Employer’s Brief at 2-4 (citing Brigance, 718 F.3d at 594). It asserts receiving the award put Claimant on notice that he had been diagnosed with total disability due to pneumoconiosis and that his testimony establishes he knew that the physicians who evaluated him for his state workers’ compensation claim had diagnosed total disability due to pneumoconiosis. Id. at 2-5. The Director responds that Employer’s assertion misconstrues Brigance, as the court expressly held Section 725.308 may only be rebutted with evidence showing the miner received a diagnosis of totally disabling pneumoconiosis from a medical professional trained in internal and pulmonary medicine and the Kentucky Workers’ Compensation Board is not such a medical professional. Director’s Response Brief at 3 (quoting Brigance, 718. F.3d at 593-94). Further, the Director contends the ALJ acted within his discretion in not finding Claimant’s testimony sufficient to rebut the presumption of timeliness. We agree with the Director’s position.

As the Director asserts, the court in Brigance did not hold that the mere existence of a state workers’ compensation award for pneumoconiosis triggered the statute of limitations in that case. Director’s Response Brief at 3. Rather, the court held the statute of limitations is triggered “when a diagnosis of total disability due to pneumoconiosis by a physician trained in internal and pulmonary medicine is communicated to the miner.” Brigance, 718 F.3d at 594; 30 U.S.C. §932(f); 20 C.F.R. §725.308(b). Thus, in that case, the statute of limitations began running because the opinions underlying the workers’ compensation award stated the miner was totally disabled due to pneumoconiosis and the miner admitted he had received and understood those opinions as diagnosing him with total disability due to pneumoconiosis. Brigance, 718 F.3d at 592, 596. As the Kentucky Workers’ Compensation Board is not a physician, let alone a physician trained in internal or pulmonary medicine, its decision awarding benefits did not start the statute of limitations running in this case. See id. at 594.

We further agree with the Director’s argument that the ALJ correctly found the medical opinions underlying the Kentucky Workers’ Compensation award did not trigger the statute of limitations. Director’s Response Brief at 3. As the Director asserts, the opinions of Drs. Powell, Anderson, and Marshall do not expressly state they diagnosed total disability. See Director’s Exhibit 18 at 10-11; 21, 25, 30; Employer’s Exhibit 1 at 10,

15. The ALJ likewise correctly observed that, while Claimant testified at the April 13,
    2023 hearing that all the physicians who examined him for his state claim told him he was
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    totally disabled due to pneumoconiosis, he further testified he did not talk to the physicians after his examinations and he did not remember the physicians’ reports or their results; he only recalled that he had been diagnosed with some stage of pneumoconiosis. Hearing Transcript at 11, 13-14. Claimant also testified at his August 28, 2017 deposition that he did not recall any physician telling him he was disabled or had complicated pneumoconiosis. Thus, contrary to Employer’s contention, we see no error in the ALJ’s determination that Claimant’s contradictory testimony is insufficient to establish that he understood these physicians’ opinions as diagnosing total disability. See Jericol Mining, Inc. v. Napier, 301 F.3d 703, 713-14 (6th Cir. 2002); Tenn. Consol. Coal Co. v. Crisp, 866 F.2d 179, 185 (6th Cir. 1989); Decision and Order at 4-5; Employer’s Brief at 4 (unpaginated).

    Further, even assuming diagnoses of total disability due to pneumoconiosis could
    be inferred from these physicians’ opinions, the ALJ permissibly found that because they were issued before the district director denied Claimant’s prior claim they would constitute misdiagnoses that would not have triggered the statute of limitations. See Brigance, 718 F.3d at 595; Arch of Ky., Inc. v. Director, OWCP [Hatfield], 556 F.3d 472, 483 (6th Cir. 2009); Decision and Order at 5; Director’s Exhibit 18.

    Employer’s arguments amount to a request to reweigh the evidence, which the
    Board is not empowered to do. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1- 113 (1989). Thus, we see no error in the ALJ’s conclusion, based on Claimant’s hearing and deposition testimony, the Kentucky Workers’ Compensation Board decision, and the medical opinions, that Employer did not affirmatively establish a medical determination of total disability due to pneumoconiosis was communicated to Claimant more than three years prior to filing his claim. Decision and Order at 4-6. We therefore affirm the ALJ’s finding that Employer has not rebutted the presumption that Claimant’s application for benefits was timely filed.

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

SO ORDERED.

DANIEL T. GRESH, Chief
Administrative Appeals Judge

MELISSA LIN JONES
Administrative Appeals Judge

GLENN E. ULMER
Acting Administrative Appeals Judge

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