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Frontier-Kemper Constructors, Inc. v. Director

United States Court of Appeals, Fourth Circuit

November 30, 2017

FRONTIER-KEMPER CONSTRUCTORS, INCORPORATED, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; GRAT M. SMITH, Respondents.

          Argued: September 12, 2017

         On Petition for Review of an Order of the Benefits Review Board. (14-0435-BLA)

         ARGUED:

          Mary Lou Smith, HOWE, ANDERSON & SMITH, P.C., Washington, D.C., for Petitioner.

          Sarah Marie Hurley, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Joseph E. Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton, Virginia, for Respondents.

         ON BRIEF:

          M. Patricia Smith, Solicitor of Labor, Maia S. Fisher, Acting Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent Director, Office of Workers' Compensation Programs.

          Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.

          DIAZ, Circuit Judge:

         Frontier-Kemper Constructors, Inc. ("Frontier-Kemper") appeals the Decision and Order of the U.S. Department of Labor Benefits Review Board holding Frontier-Kemper responsible for the payment of benefits to a coal miner, Grat M. Smith, under the Black Lung Benefits Act (the "BLBA"), 30 U.S.C. § 901 et seq. Frontier-Kemper does not contest Smith's eligibility for benefits, but instead disputes its liability for the claim. We find that Frontier-Kemper is liable and therefore affirm.

         I.

         A.

          Before discussing the details of Frontier-Kemper's challenge, we provide a brief overview of the statutory and regulatory framework through which the BLBA imposes liability on employers for the payment of miners' claims.

         The BLBA provides benefits to miners who are disabled by pneumoconiosis. [1] 30 U.S.C. §§ 901(a), 922(a), 932(c). The disabled miner's most recent employer is generally liable for payment of those benefits, but if no employer is found liable (or the employer is no longer in business), the Black Lung Disability Trust Fund pays the benefits. 26 U.S.C. § 9501(d)(1).

          Only "operators, " as defined by the Federal Mine Safety and Health Act (the "FMSHA"), can be liable for black lung benefits claims. Prior to 1977, the FMSHA defined "operator" as "any owner, lessee, or other person who operates, controls, or supervises a coal mine." 30 U.S.C. § 802(d) (1976). In 1977, Congress amended this definition to include "any independent contractor performing services or construction at such mine." 30 U.S.C. § 802(d).

         When an operator is acquired or reorganizes, liability for benefits claims transfers to the "successor operator." See 30 U.S.C § 932(i). Successor operators are liable to pay such benefits for "miners previously employed by [a] prior operator as if the acquisition had not occurred and the prior operator had continued to be an operator." 30 U.S.C § 932(i)(1) To that end, the BLBA regulations provide that "any employment with a prior ...


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