KenWest Terminals v. Vickie Salyers

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 5, 2018
• Docket: 17-4058
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0498n.06

Case No. 17-4058

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED KENWEST TERMINALS, LLC, ) Oct 05, 2018 ) DEBORAH S. HUNT, Clerk Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE BENEFITS REVIEW ) BOARD VICKIE S. SALYERS; DIRECTOR, OFFICE ) OF WORKERS’ COMPENSATION ) PROGRAMS; UNITED STATES ) DEPARTMENT OF LABOR, ) ) Respondents. )

BEFORE: BATCHELDER, DONALD, and THAPAR, Circuit Judges.

THAPAR, Circuit Judge. KenWest Terminals, LLC appeals an award of federal black-

lung benefits to Vickie Salyers on behalf of her deceased husband, Lowell Salyers. We affirm.

I.

Lowell Salyers worked at a coal preparation facility for over two decades. The facility sat

at the intersection between the Ohio and Big Sandy Rivers in Catlettsburg, Kentucky, where barges

lined up to receive shipments of coal. Raw coal came to the facility “straight out of the mines.”

JA 136. And Salyers’s job was to get that raw coal prepared to ship and loaded onto the barges.

This required Salyers to crush and size raw coal every day. Case No. 17-4058 KenWest Terminals, LLC v. Salyers

By all accounts, the work was difficult. Coal dust was everywhere. In fact, Salyers often

left work so covered in dust that “you couldn’t see nothing but eyes and the rest of [him] was

black.” Id. at 100. The dust so overwhelmed the facility that it forced Salyers and his colleagues

to pause work at times. And when Salyers came home after work, he would often “cough up black

looking stuff.” Id. at 105.

While working at the facility, Salyers developed breathing problems. Whether from the

conditions at the facility or his avid smoking habit (up to multiple packs per day), Salyers found

himself increasingly “short-winded.” Id. at 102. A chest x-ray taken during his final years of work

revealed that he had “moderately severe” chronic obstructive pulmonary disease. Id. at 157. And

eventually, Salyers had so much trouble breathing at work that he had to quit. Unfortunately, his

health only worsened. A few years after leaving the facility, Salyers developed lung cancer, and

doctors had to remove one of his lungs. Complications from the procedure resulted in Salyers

developing a large, open wound in his chest. Subsequently, Salyers died.

Before his death, Salyers applied for federal black-lung benefits. And after many years, an

Administrative Law Judge (ALJ) finally awarded benefits. Because Salyers had died in the

interim, his wife, Vickie, received the award instead. KenWest Terminals, which is responsible

for paying out Salyers’s benefits, appealed. The Benefits Review Board (Board) affirmed the

award. KenWest now appeals.

We review the Board’s legal conclusions de novo and the ALJ’s factual findings for

substantial evidence. Cent. Ohio Coal Co. v. Dir., Office of Workers’ Comp. Programs, 762 F.3d

483, 488 (6th Cir. 2014). Substantial evidence is enough evidence that a “reasonable mind” would

find sufficient. Id. (quoting Kolesar v. Youghiogheny & Ohio Coal Co., 760 F.2d 728, 729 (6th

Cir. 1985)). The ALJ’s decision may be affirmed if it “rest[s] within the realm of rationality,”

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even if “we would have taken a different view of the evidence were we the trier of facts.”

Brandywine Explosives & Supply v. Dir., Office of Workers’ Comp. Programs, 790 F.3d 657, 664

(6th Cir. 2015) (internal citations and quotation marks omitted).

II.

KenWest first argues that Salyers is ineligible for black-lung benefits because he is not a

coal miner. But the plain text of the benefits statute refutes KenWest’s argument. The statute

defines a “miner” as “any individual who works or has worked in or around a coal mine or coal

preparation facility in the extraction or preparation of coal.” 30 U.S.C. § 902(d); see also id.

§ 932(a). We have held that this definition comprises two elements: the claimant must have

(1) worked in a coal mine, and (2) his duties must have included coal extraction or coal preparation.

Southard v. Dir., Office of Workers’ Comp. Programs, 732 F.2d 66, 69 (6th Cir. 1984) (citing

Amigo Smokeless Coal Co. v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor,

642 F.2d 68 (4th Cir. 1981)). A coal mine is “an area of land . . . used in, or to be used in, . . . the

work of extracting . . . coal . . . and the work of preparing the coal so extracted, and includes custom

coal preparation facilities[.]” 30 U.S.C. § 802(h)(2); see also Dir., Office of Workers’ Comp.

Programs, U.S. Dep’t of Labor v. Consolidation Coal Co., 884 F.2d 926, 932 (6th Cir. 1989)

(“[P]reparation facilities are still defined as ‘coal mines’ even though they may be geographically

remote from the site where coal is physically mined.”). The preparation of coal is defined as the

“crushing, sizing, . . . and loading” of coal. 30 U.S.C. § 802(i).

At KenWest, Salyers prepared raw coal every day by crushing and sizing it before loading

it onto barges for transport. Therefore, he satisfies both elements of the definition of a “miner”

under the benefits statute. See id. §§ 902(d), 802(h)(2). While KenWest points to a variety of

cases in this circuit and others to argue that Salyers is not a “miner,” those cases all address

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employees dealing with coal after preparation. But Salyers worked with coal before and during

preparation. KenWest’s cases are inapposite. See Ray v. Brushy Creek Trucking Co., Inc., 50 F.

App’x 659, 662 (6th Cir. 2002) (holding that a claimant was not a “miner” because he worked with

coal that had already been crushed); Eplion v. Dir., Office of Workers’ Comp. Programs, Div. of

Coal Mine Workers’ Comp., U.S. Dep’t of Labor, 794 F.2d 935, 937 (4th Cir. 1986) (“The coal

was already processed and prepared for market before [the claimant] had any contact with it.”);

Southard, 732 F.2d at 69–70 (finding that “the coal was extracted and prepared before” the

claimant worked with it).

III.

KenWest further contends that Salyers did not suffer from pneumoconiosis, or that even if

he did, he was not totally disabled because of it. To be eligible for black-lung benefits, a miner

must show that he has pneumoconiosis, i.e., “a chronic dust disease of the lung and its sequelae,

including respiratory and pulmonary impairments, arising out of coal mine employment.” 30

U.S.C. § 902(b); 20 C.F.R. § 725.202(d)(2)(i); Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1069

(6th Cir. 2013). Further, he must demonstrate that his pneumoconiosis at least contributed to him

being totally disabled. See 30 U.S.C. §§ 902(f)(1)(A), 932(a); 20 C.F.R. § 725.202(d)(2)(iii)–(iv);

Ogle, 737 F.3d at 1069, 1071.

In making these showings, however, a legal presumption aids disabled miners who have

worked for fifteen years or more in a coal mine or “substantially similar” environment and who

“demonstrate[] the existence of a totally disabling respiratory or pulmonary impairment.”

30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(b)(1)(i); Ogle, 737 F.3d at 1069. In such

circumstances, a miner is presumed to have pneumoconiosis that caused his total disability.

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30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(c)(1); Ogle, 737 F.3d at 1069. And here, the ALJ

concluded that the presumption should apply, a finding which KenWest does not dispute on appeal.

Thus, KenWest needed to rebut the presumption by showing that either (a) Salyers did not

have pneumoconiosis, or (b) his pulmonary condition did not arise out of his coal mining work.

See 30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305(d)(1)(i)–(ii); Ogle, 737 F.3d at 1069–70. The ALJ

determined that KenWest failed to rebut the presumption by either means.

Pneumoconiosis. To rebut the presumption of pneumoconiosis, KenWest offered

Salyers’s medical records and medical opinions from two doctors. The medical records showed

numerous pulmonary conditions, including anthracosis and “coal workers’ pneumoconiosis.”

Both diseases may qualify as “clinical pneumoconiosis”—specified lung diseases that the medical

community recognizes as pneumoconioses. 20 C.F.R. § 718.201(a)(1); Arch on the Green, Inc. v.

Groves, 761 F.3d 594, 597 (6th Cir. 2014). But only if they “aris[e] out of coal mine employment.”

20 C.F.R. § 718.201(a)(1). After reviewing Salyers’s medical records, one of the doctors

explained that Salyers had insufficient exposure to coal dust for his anthracosis to have arisen out

of his coal mining. Thus, the doctor determined that Salyers’s smoking, not his coal mining,

caused his anthracosis. And the insufficient coal dust in Salyers’s lungs also caused the doctor to

rule out coal workers’ pneumoconiosis. Based on this evidence, the ALJ found that KenWest

sufficiently ruled out clinical pneumoconiosis.

But ruling out clinical pneumoconiosis alone was insufficient to rebut the presumption that

Salyers had pneumoconiosis. That’s because the regulations divide pneumoconiosis into two

categories: clinical or “legal pneumoconiosis.” Id. § 718.201(a). And legal pneumoconiosis is

much broader than clinical pneumoconiosis. Legal pneumoconiosis refers to “any chronic lung

disease . . . arising out of coal mine employment”—including chronic obstructive pulmonary

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disease (COPD). Id. § 718.201(a)(2); Arch on the Green, Inc., 761 F.3d at 597 (defining legal

pneumoconiosis as “a remainder category including COPD.”). Neither medical opinion addressed

why Salyers’s COPD did not constitute legal pneumoconiosis. Therefore, the ALJ found that the

doctors’ evaluations were insufficient to show that Salyers’s COPD did not meet the broader

definition of legal pneumoconiosis.

KenWest challenges this finding, arguing that the doctors did not need to specifically

address Salyers’s COPD—ruling out coal workers’ pneumoconiosis sufficed. But coal workers’

pneumoconiosis is a type of clinical pneumoconiosis. 20 C.F.R. § 718.201(a)(1); Clinchfield Coal

Co. v. Fuller, 180 F.3d 622, 625 (4th Cir. 1999); cf. Martin v. Ligon Preparation Co., 400 F.3d

302, 306 (6th Cir. 2005). And so ruling out coal workers’ pneumoconiosis did not rule out legal

pneumoconiosis or account for why Salyers’s COPD did not qualify as legal pneumoconiosis. By

ruling out only clinical but not legal pneumoconiosis, KenWest failed to rebut the presumption

that Salyers’s COPD should be considered a form of pneumoconiosis. Brandywine Explosives,

790 F.3d at 668 (affirming ALJ decision to discredit doctor who “relied only on the lack of a

finding of clinical pneumoconiosis, providing no explanation for why he did not believe dust

exposure played a role in the [miner’s] COPD”); accord Cent. Ohio Coal Co., 762 F.3d at 492;

Ogle, 737 F.3d at 1074; cf. Westmoreland Coal Co. v. Amick, 123 F. App’x 525, 531–32 (4th Cir.

2004) (reversing ALJ decision for improperly discrediting medical opinions that expressly ruled

out miner’s COPD as possible pneumoconiosis).1

1 KenWest further argues that the ALJ improperly calculated Salyers’s smoking history. But Salyers’s smoking history had nothing to do with the ALJ’s determination that KenWest failed to rebut Salyers’s presumed pneumoconiosis. So any error in calculating Salyers’s smoking history is of no consequence to this issue. See Cent. Ohio Coal Co., 762 F.3d at 493. -6- Case No. 17-4058 KenWest Terminals, LLC v. Salyers

Arise out of. The ALJ further determined that KenWest failed to establish that

pneumoconiosis played no part in Salyers’s total disability. Since the doctors who evaluated

Salyers did not discuss legal pneumoconiosis and the impact of Salyers’s COPD on his disability,

the ALJ found their opinions unhelpful in considering the effect of that pneumoconiosis. This

reasoning makes sense. An opinion ignoring legal pneumoconiosis altogether cannot speak to the

effect that it had on Salyers’s total disability. Brandywine Explosives, 790 F.3d at 667–68

(affirming ALJ decision to discredit doctors’ opinions on causation “because they had not found

legal pneumoconiosis”); accord Lemarco, Inc. v. Helton, 559 F. App’x 465, 469 (6th Cir. 2014)

(citing Toler v. E. Associated Coal Co., 43 F.3d 109, 116 (4th Cir. 1995)). Perhaps, as the doctor

opined, Salyers’s disability had more to do with his lung cancer or smoking. But since the doctors

did not even consider whether Salyers’s COPD qualified as legal pneumoconiosis, their opinions

did not sufficiently rule out COPD as a cause of his disability. See Ogle, 737 F.3d at 1071

(explaining that once the burden is on the employer, it must prove that “the coal mine employment

played no part in causing the total disability”).

* * *

Thus, the ALJ’s finding that KenWest failed to rebut Salyers’s presumed pneumoconiosis,

and its presumptive contribution to his total disability, was supported by substantial evidence.

We affirm.

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