Amicus Curiae Brief — Lovilia Coal Co. v. Harvey

} Supreme Court, U.S.

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(H F MAR 6 1996

No. 97-918 CLERK

IN THE

Supreme Court of the Anited States

October Term, 1997

LOVILIA COAL COMPANY and

OLD REPUBLIC INSURANCE COMPANY,

Petitioners,

V.

WESLEY HARVEY and DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for Writ Of Certiorari

To The United States Court Of Appeals

For the Eighth Circuit

BRIEF OF AMICUS CURIAE

ASSOCIATION OF BITUMINOUS CONTRACTORS, INC..,

IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

WILLIAM H. HOWE

(Counsel of Record)

MARY LOU SMITH

Howe, Anderson & Steyer, P.C.

1747 Pennsylvania Avenue, N.W.

Suite 1050

Washington, D.C. 20006

(202) 296-5680

March 6, 1998

Balmar Legal Publishing Services, Washington, D.C., (202) 682-9800

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TABLE OF CONTENTS

Page

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INTEREST OF THE AMICUS CURIAE.........ccccccccccsccsoeeoeee. I

SUMMARY OF ARGUMENT ou... ccccccceccsscsececsecesoeceeees 3

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I. THE IRRATIONALITY OF THE DEPART-

MENT OF LABOR’S THEORY OF “MATE-

RIAL CHANGE” IS STARKLY PRESENTED

IN THE CASE OF CONSTRUCTION

WORKERS WHO ARE NOT EXPOSED TO

THE CONDITIONS GIVING RISE TO

BLACK LUNG DISEASE ...00......c.cosccccssocosescesessoses 4

ll. BECAUSE OF THE SPECIAL CIRCUM-

STANCES UNDER WHICH CONSTRUC-

TION COMPANIES CAN BE HELD LIABLE

AS “RESPONSIBLE OPERATORS” UNDER

THE ACT, THEY ARE AT A PARTICULAR

DISADVANTAGE WHEN FORCED TO

DEFEND PREVIOUSLY DENIED CLAIMS

LONG AFTER EMPLOYMENT WITH THE

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TABLE OF AUTHORITIES

Cases Page

Ray v. Williamson Shaft Contracting Co., 14 BLR 1-105

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Statutes and Regulations

Black Lung Benefits Act, as amended, 30 U.S.C.

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Section 402(b), 30 U.S.C. § 902(D).............scccccccssreceeeeees 2,6

Black Lung Program Regulations

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Other Authorities

S. Rep. No. 95-209, 95th Cong., Ist Sess. (May 16,

1977) (reprinted in the Legislative History of the

Black Lung Benefits Reform Act and Black Lung

Benefits Revemme Act OF 1977) .......cccccssescecsersecsscesseessesesee: .6

No. 97-918

IN THE

Supreme Court of the United States

October Term, 1997

LOVILIA COAL COMPANY and

OLD REPUBLIC INSURANCE COMPANY,

Petitioners,

Vv.

WESLEY HARVEY and DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for Writ Of Certiorari

To The United States Court Of Appeals

For the Eighth Circuit

BRIEF OF AMICUS CURIAE

ASSOCIATION OF BITUMINOUS CONTRACTORS, INC.,

IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

INTEREST OF THE AMICUS CURIAE

This brief amicus curiae is tiled in support of the petition

for writ of certiorari. The Association of Bituminous

Contractors, Inc. (“ABC’’) is a multiemployer association of

independent and general contractors who perform various

types of construction work for coal company customers.

ABC’s member companies engage in shaft and slope

' Pursuant to Supreme Court Rule 37.2, this brief is filed with the

written consents of the parties which are filed concurrently herewith.

2

construction, the construction of structures such as

preparation plants, road construction and electrical work at

both existing and future coal mine sites.

The Black Lung Benefits Act, as amended, 30 U.S.C. §§

901-945, employs certain definitions as terms of art to

identify the class of individuals potentially eligible for black

lung benefits. Construction workers do not engage in the

usual tasks associated with the mining of coal, that is the

extraction and preparation of coal for commercial use.

However, for purposes of the Act, the definition of “miner”

encompasses construction workers to the extent that they are

exposed to coal dust as a consequence of their work in coal

mine construction. 30 U.S.C. § 902(b). Defined as “miners”

under these circumstances, employees of ABC member

companies are entitled to black lung benef‘’s if they become

totally disabled due to pneumoconiosis. Survivors of such

employees whose death was due to pneumoconiosis are also

entitled to benefits.

Where an award is made, benefits for a claim are paid

either by a “responsible operator” within the meaning of the

Act and the implementing regulations, or, in the absence of a

responsible operator, by the Black Lung Disability Trust

Fund. 20 C.F.R. §§ 725.492, 725.493. The regulations provide

that only one operator is responsible for the payment of a

particular employee’s benefits. If an employee had multiple

employers, liability is assessed against the most recent

employer for whom the employee worked at least one year as

a “miner.” 20 C.F.R. § 725.493(a) (1).

Since the passage of the 1978 amendments to the Act,

ABC’s member companies have been named as potentially

liable “responsible operators” in cases filed by approximately

500 claimants. The resolution of the issues presented in the

petition concerning the legal standards which should be

applied in the adjudication of duplicate claim filings will have 4

an impact on both pending and new duplicate claim filings by

any of these 500 claimants. Moreover, the impact will extend

beyond this group if ABC members are newly named as

3

potentially liable parties in duplicate claim filings by

heretofore unknown claimants. The identity of such claimants

cannot be ascertained, but ABC believes their number may be

significant given the Department’s policies for determining

potentially liable responsible operators under its most-recent-

- year-of-employment regulation.

ABC’s members are geographically dispersed, engaging

in construction projects at locations throughout the United

States. Currently, diverse standards are applied in the

adjudication of duplicate black lung claims in the various

judicial circuits. ABC supports the petitioner in urging the

Court to establish uniform standards to be applied in

adjudicating duplicate claims.

SUMMARY OF ARGUMENT

Awards should be made.on duplicate federal black lung

claims only where a previously denied claimant can make a

meaningful showing of a deterioration in health attributable to

pneumoconiosis, that is. a “material change in condition.”

Allowing readjudication of duplicate claims is an exception to

the usual rule of judicial finality, and one which must be

construed to limit the availability of new evaluations of

previously denied claims. The Department of Labor has

improperly taken the position that something less than a

meaningful showing of deterioration in health is sufficient to

overcome the bar of finality. The Department’s position rests

on the theory that pneumoconiosis can be presumed to

progress in all cases, thereby allowing a finding of “material

change” without affirmative proof of an actual worsening of

health due to black lung disease.

As applied to construction contractors, the Labor

Department’s theory of progressivity is wholly specious. The

provisions under which a construction contractor can be held

liable are supposed to limit awards to cases involving dust

exposure comparable to that experienced by actual coal

miners. Because of the way the determination of dust

exposure is made, however, it is possible for a construction

4

worker with no dust exposure to maintain a claim. The net

result is that a claimant can avail himself of the presumption

of progressivity in duplicate claims even where there may

have been no dust exposure before, during, or after his

employment. Even if such an individual is highly unlikely to

prevail on the merits of his claim, the absence of finality

forces the named “responsible operator” to defend claims

which should never be allowed to go forward.

Because the Department’s liberal reopening policy leads

to full adjudication of duplicate claims filed many years after

employment ceased, it effectively undermines the right of

construction companies to contest the Department’s

responsible operator designation. In order to mount an

effective defense, a construction contractor must produce

highly specific evidence of the actual day-to-day dust

conditions encountered by a claimant. Such evidence becomes

increasingly more difficult to muster with each passing year.

Requiring a construction contractor to develop its evidence in

the first instance in connection with a duplicate claim filed

long after employment ceased improperly ignores the parties’

reasonable expectation of finality.

ARGUMENT

I. The irrationality of the Department of Labor’s

theory of “material change” is starkly presented

in the case of construction workers who are not

exposed to the conditions giving rise to black

lung disease.

The Department’s regulations impose a_ threshold

requirement for adjudication of so-called duplicate claims,

requiring that they be denied on the basis of the previous ,

denial of a claim unless a “material change in conditions” can

be shown. 20 C.F.R. § 725.309(c), (d). This is an exception to

the general rule that final adjudications should not be |

reconsidered, and reflects the Department’s judgment that a

new evaluation of a previously denied black lung claim

should be permissible in certain cases. Necessarily, the class

SS...

5

of cases which are subject to this exceptional treatment should

be limited. Federal black lung claims are subject to the usual

constraints of res judicata, and previously denied black lung

claims should be reopened and reevaluated only in those

instances where the claimant in question can affirmatively

demonstrate a deterioration in health due to black lung

disease.

As described by petitioner, the Department of Labor has

improperly developed a burden-shifting scheme unsupported

by legal authority or valid medical science that allows

unsuccessful claimants to pursue awards without having to

make a meaningful showing in connection with a duplicate

claim. To justify this result, the Labor Department relies on

the dogma that pneumoconiosis is a progressive disease even

in the absence of dust exposure. This leaves the way clear for

an endless series of reopenings, which is totally at odds with

applicable principles of finality.

The relevant legal context and the current state of the law

are fully presented in the petition and demonstrate why the

Labor Department’s theory is an unacceptable way to

approach duplicate claims adjudication. The application of

this theory leads to especially irrational results in the cases of

many construction workers where there is no evidence that

they were ever exposed to coal mine dust in the first place.

Coal mine construction work frequently involves limited,

or no, dust exposure. Workers who may be erecting new

structures or otherwise preparing a site for future coal mining

operations simply do not encounter the type of conditions

giving rise to black lung disease that were the genesis of the

federal black lung program. Congress accordingly included

provisions jin the Act to address these special circumstances.

As explained in the report of the Senate Committee on Human

Resources:

The term [miner] includes coal mine construction

workers when they work in conditions substantially

similar to conditions in underground coal mines.

6

S. Rep. No. 95-209, 95th Cong. Ist Sess. 20 (May 16, 1977)

(reprinted in the Legislative History of the Black Lung Benefits

Reform Act and Black Lung Benefits Revenue Act of 1977 p.

624) (emphasis added).

It is for this reason that Congress limited the circumstances

under which construction companies may be held liable under

the Act. Only to the extent a construction worker is employed

under conditions which may cause black lung disease, that is, to

the extent he or she is exposed to coal dust, is a construction

worker a “miner” for purposes of the Black Lung Act. 30 U.S.C.

§. 902(b); 20 C.F.R. § 725.491(c) (1) (construction contractors

may be held liable for the payment of benefits only with respect

to their employees “who work or have worked.......in-coal-_mine

construction in any period during which such employees were

exposed to coal dust during their employment with such

contractor’).

Despite the express concern of Congress with viewing

construction workers as miners only to the extent they are

exposed to conditions like those found in underground mining,

the Department’s implementing regulations approach the issue

from a different perspective. For purposes of determining

whether a worker was exposed to coal dust, the Department

employs a _ burden-shifting presumption that requires a

construction contractor to disprove the existence of conditions

which are similar to those found in mining. Specifically, there is

a rebuttable presumption that an individual was regularly and

continuously exposed to coal dust during the course of

employment by the construction contractor. 20 C.F.R. §

725.492(c). The regulations specify that this presumption may

be rebutted by showing that the employee was not regularly

exposed to coal mine dust during his or her employment in or

In responding to comments concerning the proposed regulations, the

Department took the position that statutory authority does not limit the

coverage of construction employees only to situations in which there is

exposure to dust conditions substantially similar to those encountered in

underground mining. 43 Fed. Reg. 36,778 (1978).

]

]

7

around a coal mine or preparation facility. 20 C.F.R. §

725.202(a)(1).

Under this burden-shifting approach, there need be no

affirmative proof whatsoever that a construction worker was

exposed to dust conditions comparable to coal mining in order

for the worker to be considered a “miner” potentially eligible

for black lung benefits. Rather, the determination rests on the

sufficiency of the employer’s evidence to refute the existence

of regular exposure to coal mine dust. Furthermore, in

applying the regulations, the Department has taken the

extreme position that rebuttal must be denied absent evidence

addressing each and every moment the claimant was

employed. See-Ray-v. Williamson Shaft Contracting Co., 14

BLR 1-105 (1990) (evidence concerning generally clean

conditions legally insufficient to meet the employer’s burden

of proof). Once the dust exposure issue is thus reduced to an

evidentiary question heavily skewed against a negative

finding, the resolution of the issue may, but will likely not,

reflect on the actual dust conditions under which the worker

was employed.

As a result, there is no reason to presume in any

construction worker case that the claimant was exposed to

dust conditions which would support, or even suggest the

possibility of, a potential future impact on his health. Many

cases simply rest on the contractor’s inability to muster the

quantum of proof necessary to disprove exposure. Therefore,

given this setting, to throw open the case for full

readjudication based on anything less than an affirmative

showing by the claimant of a material change in condition is

completely unfounded and irrational.

8

II. Because of the special circumstances under

which construction companies can be held liable

as “responsible operators” under the Act, they

are at a particular disadvantage when forced to

defend previously denied claims long after

employment with the company ceased.

Oftentimes a determination of responsible operator status

is not made when a claim is denied on medical grounds

because where no award is made, there is no need to decide

who should pay. In this setting, lack of finality is particularly

prejudicial to construction contractors who, because of the

passage of time, may not be able to locate and develop

evidence needed to refute their operator status when the claim

is readjudicated as a duplicate claim many years later.

Delayed adjudication potentially affects all named

“operators” who must defend themselves long after the claims

process was initially commenced. In the case of construction

companies, however, the absence of finality has particularly

adverse consequences because of the special circumstances

which apply to the determination of their “responsible

operator” status. As a practical matter, the disregard for

finality in adjudications prevents construction companies

from presenting the fundamental defense Congress provided,

namely that the individual was not a “miner” while employed

by the construction company.

While the most-recent-year-of-employment rule of

liability would tend to suggest that the “responsible operator”

determination is being made as close as possible in time to the

cessation of employment, this is frequently not so where

construction employment is involved. Because of the

transitory nature of construction jobs, many construction

workers are employed on-and-off by numerous employers

during their lifetimes. To be named as the “responsible

operator,” a construction company need only have employed

an individual for one year (either at one time or for

cumulative periods adding up to a year) at some point during

his lifetime. Depending on the individual’s work history, the

9

named construction company might have last employed the

individual many years before he ceased working for good.

This situation arises when none of the employee’s more

recent employers meet the one-year requirement, a common

occurrence in construction employment.

In light of the burden imposed on_ construction

companies to disprove dust exposure, they are at a particular

disadvantage when claims are not adjudicated within a

reasonable period after the cessation of employment. Ten,

fifteen or twenty years after a worker left the employment of a

construction company it may be impossible for relevant

evidence to be developed on the dust exposure issue. Even if

there was no dust exposure, the passage of time alone may

prevent rebuttal of the presumption of exposure because

witnesses or documents are no longer available.’ The

consequence of this delay is that a construction company who

should not be liable cannot overcome the Department of

Labor’s designation as a potentially liable party.

It may seem that the problems of proof associated with

delayed adjudications of the responsible operator issue are

generally present in all black lung claims and are not

associated with construction worker claims in particular. The

difference is that there may be historical employment

information created for other purposes that will resolve a

mining company’s status, but there is no such information to

resolve a construction company’s status. Where the fact and

length of employment are the basic issues, it is often possible

to rely on Social Security Administration earnings records or

other usual business records to establish the necessary

employment history, even years later. Since employment only

is the basis for responsible operator designation in the usual

The petitioner, for example, presents a case where the first black

lung claim was filed in 1973, the fifth claim was filed in 1990, and no

award was made until 1993. In a similar situation involving a construction

company, the employer would have to present evidence on the extent of

dust exposure in the first instance approximately twenty years after

employment ceased.

10

mining company setting, later adjudications do not present

insurmountable hurdles, at least in theory.”

By contrast, there will seidom be business records or

historical documents, created for other purposes, that address

the dust exposure issue. When presented with an award in the

first instance years after a denial, the construction employer

faces the prospect of finding documentation of the projects at

which the claimant was employed (which probably were

concluded at the same time or shortly after the claimant

-ceased working); witnesses who are familiar with those

projects (usually employees who were employed at the same

time and place as the claimant); and recreating the setting of

the claimant’s employment. Doing this for construction

projects which ended years before will be possible in only the

rarest of cases. The failure to give force and effect to the

normal concepts of finality which should be applied in federal

black lung cases thus has the unanticipated and unjustifiable

consequence of holding construction contractors liable in

cases where they should not be.

4

Under the regulations, an individual employed by a coal mine

operator is considered to be a miner regardless of the dust conditions

encountered in his or her work. 20 C.F.R. § 725.202(a).

Sn oe

CONCLUSION

For the reasons stated above, ABC urges the Court to

grant the Petition for Writ of Certiorari.

Respectfully submitted,

WILLIAM H. HOWE

(Counsel o f Record )

MARY LOU SMITH

Howe, Anderson & Steyer, P.C.

1747 Pennsylvania Avenue

Suite 1050

Washington D.C. 20006

(202) 296-5680

Attorneys for Amicus Curiae

Association of Bituminous

Contractors, Inc.

Dated: March 6, 1998