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Brandywine Explosives & Supply v. Director, Office of Workers' Compensation Programs

United States Court of Appeals, Sixth Circuit

June 15, 2015

BRANDYWINE EXPLOSIVES & SUPPLY; KENTUCKY EMPLOYERS MUTUAL INSURANCE, Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS; RICHARD DEAN KENNARD, Respondents

Argued March 6, 2015.

Page 658

[Copyrighted Material Omitted]

Page 659

On Petition for Review of a Decision and Order of the Benefits Review Board. No. 13-0442 BLA.

ARGUED:

Mark E. Solomons, GREENBERG TRAURIG, LLP. Washington, D.C., for Petitioners.

Rebecca J. Fiebig, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent.

Evan B. Smith, APPALACHIAN CITIZENS' LAW CENTER, Whitesburg, Kentucky, for Respondent Kennard.

ON BRIEF:

Mark E. Solomons, Laura Metcoff Klaus, GREENBERG TRAURIG, LLP. Washington, D.C., for Petitioners.

Sean G. Bajkowski, Rita A. Roppolo, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent.

Evan B. Smith, APPALACHIAN CITIZENS' LAW CENTER, Whitesburg, Kentucky, for Respondent Kennard.

Before: GRIFFIN and STRANCH, Circuit Judges; STEEH, District Judge.[*]

OPINION

Page 660

JANE B. STRANCH, Circuit Judge.

Brandywine Explosives & Supply, along with its workers' compensation insurer, seeks review of the findings by an Administrative Law Judge (ALJ) that its former employee Richard Kennard is entitled to benefits under the Black Lung Benefits Act, as amended, 30 U.S.C. § § 901, et seq. As described below, the findings were supported by substantial evidence. We accordingly DENY the petition for review.

I. FACTS

In August 2009, Kennard filed for black lung benefits. He underwent a number of medical tests and examinations. After the claims examiner initially recommended that his claim be denied, he sought a hearing before the Department of Labor Office of Administrative Law Judges. The ALJ concluded that Kennard was entitled to a rebuttable presumption that he had pneumoconiosis and that the disease caused his total disability because he had worked in conditions that were substantially similar to those in an underground mine. The ALJ further held that Brandywine successfully rebutted the presumption that Kennard had clinical pneumoconiosis. The employer failed, however, to rebut the presumption of legal pneumoconiosis or the presumption that Kennard's disability was caused by his employment in a coal mine. Brandywine appealed to the Benefits Review Board, arguing that the 15-year presumption should not apply to Kennard and, if the presumption did apply, the company had successfully rebutted it.

Between 1977 and 2009, Kennard worked for more than 21 years as a blaster on strip mines, sometimes directly for a coal company and sometimes for contractors. At the administrative hearing and in a deposition, Kennard testified about the environmental conditions of his blasting work:

Q: So, was there any rock dust or coal dust that you were exposed to?
A: Yeah, plenty of it. You couldn't get away from it. Most time, you'd be right on the shot. You didn't have an air conditioner. You just had to work right there close to it. All the dust was flying and you was breathing it.
. . . .
There's a lot of dust flying and it wasn't self-contained. I mean, [the drill cover] couldn't contain all of it. You got some coming out.
. . . .
Q: And whenever you would blast the holes in which were drilled, what would happen then?
A: A whole lot of dust. Dust would be flying because you're putting off a charge in the ground and you got a whole lot of dust comes in the air.
Q: Was that mainly rock dust or coal dust or --
A: Rock dust, coal dust, everything you could get.
. . . .
Whatever was in the ground. If you're drilling through little coal seams, sometimes you'd drill through little seams five or six inches thick and then when you shoot that, it's all like a big cloud of smoke.

Tr. at 17:8-13, 1719; 18:1-7, 12-15.

Q: And doing the blasting aspect of that job would you be exposed to coal, rock, sand or other types of dust?
A: Yes. Exposed to you know rock dust, coal dust and everything you know.
Q: Obviously though when the shot is set off you are well ...

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