Brandywine Explosives & Supply v. Director, Office of Workers' Compensation Programs
790 F.3d 657
| 6th Cir. | 2015Background
- Miner Richard Kennard worked >21 years as a blaster on surface (strip) coal mines (1977–2009) and filed for black lung benefits in Aug. 2009.
- Kennard has severe respiratory impairment (≈25% lung capacity), COPD diagnosis, prior right-lung pneumonectomy for cancer, and a heavy smoking history (~60 pack-years).
- ALJ found Kennard eligible for the 15‑year rebuttable presumption (30 U.S.C. § 921(c)(4)) because his surface‑mine working conditions were “substantially similar” to underground mines (regular exposure to coal/rock dust), and awarded benefits.
- ALJ found employer rebutted the presumption of clinical pneumoconiosis but failed to rebut legal pneumoconiosis or that pneumoconiosis substantially contributed to disability.
- Employer (Brandywine) appealed to the Benefits Review Board and this court, arguing the new DOL regulation on the 15‑year presumption is invalid, that Kennard’s conditions were not substantially similar, and that it rebutted the presumption and causation.
- Sixth Circuit reviewed the ALJ’s factual findings for substantial evidence, declined to consider the employer’s unexhausted challenge to the regulation, and denied the petition for review.
Issues
| Issue | Kennard's Argument | Brandywine's Argument | Held |
|---|---|---|---|
| Applicability of 15‑year presumption (substantial similarity) | Kennard: regular exposure to coal/rock dust as blaster makes surface work substantially similar to underground work | Brandywine: exposure was intermittent and mainly rock/dirt (not coal), so conditions not substantially similar | ALJ had substantial evidence (Kennard’s uncontradicted lay testimony); presumption applies |
| Validity / reviewability of DOL 2013 regulation (§ 718.305) | N/A (did not challenge regulation) | Brandywine: regulation invalid | Not considered by court—the challenge was not raised before BRB; court applies regulation to pending cases |
| Rebuttal standard under 15‑year presumption | Kennard: once eligible, employer must affirmatively rule out pneumoconiosis as a cause | Brandywine: employer need only show pneumoconiosis didn’t substantially cause disability; ALJ improperly required “play no part” | Court: ALJ used correct rebuttal standard—employer must affirmatively rule out any contribution by pneumoconiosis when rebutting presumption |
| Rebuttal of legal pneumoconiosis | Kennard: medical evidence (esp. Dr. Alam) shows coal dust partially caused/worsened COPD | Brandywine: medical opinions show COPD from smoking and pneumonectomy; Drs. Broudy and Dahhan excluded coal‑dust causation | Substantial evidence supports ALJ’s credibility determinations; employer failed to affirmatively disprove legal pneumoconiosis |
| Causation of disability (substantially contributing cause) | Kennard: pneumoconiosis materially worsened respiratory impairment and thus substantially contributed | Brandywine: even without mining, Kennard would be disabled due to lung removal and smoking, so mining cannot be held to cause disability | Court: dispositive standard is “substantially contributing cause”; ALJ reasonably concluded pneumoconiosis played a material role; employer didn’t rebut causation |
Key Cases Cited
- Central Ohio Coal Co. v. Dir., Office of Workers’ Comp. Programs, 762 F.3d 483 (6th Cir.) (endorsing DOL interpretive regulation and explaining legal vs. clinical pneumoconiosis)
- Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473 (6th Cir.) (rebuttal burden shifts to employer to affirmatively disprove presumption)
- Dir., Office of Workers’ Comp. Programs v. Midland Coal Co., 855 F.2d 509 (7th Cir.) (ALJ may compare claimant’s surface‑mine conditions to underground conditions without forcing claimant to prove underground baseline)
- Freeman United Coal Mining Co. v. Summers, 272 F.3d 473 (7th Cir.) (dust exposure is the key factor in substantial‑similarity analysis)
- Big Branch Resources, Inc. v. Ogle, 737 F.3d 1063 (6th Cir.) (ALJ may collapse causal chain and employer must rule out coal‑dust contribution when rebutting presumption)
- Cross Mountain Coal, Inc. v. Ward, 93 F.3d 211 (6th Cir.) (statute allows benefits where pneumoconiosis materially contributed even if other causes also disable)
- Island Creek Coal Co. v. Holdman, 202 F.3d 873 (6th Cir.) (employer rebuts presumption only by showing pneumoconiosis played no part in disability)