Petition for Review of an Order of the Benefits Review Board.
Nos. 16-0057 BLA; 2011 BLA 5956.
Brett Stonecipher, FOGLE KELLER PURDY, Lexington, Kentucky,
E. Wolfe, M. Rachel Wolfe, WOLFE WILLIAMS & REYNOLDS,
Norton, Virginia, for Respondent Bowling.
K. Stearman, Jeffrey S. Goldberg, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for the Federal Respondent.
Before: MOORE, STRANCH, and DONALD Circuit Judges.
B. STRANCH, CIRCUIT JUDGE.
Bowling worked as a coal miner for close to three decades.
There is no dispute that he is eligible for benefits under
the Black Lung Benefits Act. The question is who should pay
the benefits to this disabled miner given that the
responsible mine operator and the company that insured that
operator are both insolvent. Two options exist-the federal
Trust Fund and the Kentucky Insurance Guaranty Association
(KIGA). The administrative law judge (ALJ) and Benefits
Review Board (Board) both concluded that KIGA should provide
benefits. We affirm the determination of the
Factual History of Bowling's Employment
worked as a coal miner for over 29 years. He spent most of
that time as a foreman and substantially all of his work was
underground. Bowling's last job was working for Island
Fork Construction in a Kentucky mine where he moved belt
lines, took out steel track, and produced coal. The parties
do not dispute the facts underlying Bowling's claims or
his eligibility for benefits.
Procedural History of Bowling's Claims for
2002, Bowling filed a claim for benefits under the Black Lung
Benefits Act. An ALJ denied the claim in 2005, finding that
Bowling was totally disabled, but that he had failed to
establish that he had pneumoconiosis (black lung), or that
pneumoconiosis caused his total disability. In 2010, Bowling
filed the current claim for benefits. During the time
intervening between these claims, a provision of the
Affordable Care Act amended the Black Lung Benefits Act to
reinstate a rebuttable presumption that claimants with
respiratory disabilities and 15 years or more of underground
coal-mining work experienced those disabilities as a result
of pneumoconiosis. 30 U.S.C. § 921(c)(4). Bowling sought
benefits pursuant to this presumption.
District Director, a Department of Labor employee responsible
for processing claims, 20 C.F.R. § 725.418(d), issued a
Notice of Claim that proposed designating Island Fork as the
responsible operator. Island Fork contested all issues,
including its status as responsible operator and
Bowling's eligibility for benefits. In April 2011, the
District Director issued a Proposed Decision and Order that