Sixth Circuit Rejects Company’s Arguments Against 2013 Amendments to Black Lung Regulations, Affirming Award of Benefits (Brandywine Explosives & Supply v. Director, OWCP [Kennard])

Map of Jurisdictions of U.S. Courts of Appeals for the Sixth and Seventh Circuits

On Monday, the U.S. Court of Appeals for the Sixth Circuit affirmed a miner’s award of federal black lung benefits in a published decision (slip opinion here, published opinion at Brandywine Explosives & Supply, Inc. v. Director, OWCP [Kennard] 790 F.3d 657 (6th Cir. 2015)).  At a factual level, the case shows that even a miner who was mainly a contract blaster and had a heavy smoking history, lung cancer, and a resulting lung removal prior to filing his claim can be entitled to benefits.  At a procedural level, the case reiterates the importance of exhausting all legal arguments before the Benefits Review Board and reaffirms that the company has the burden to “rule out” any contribution of coal-mine dust to a miner’s lung impairment.

(Disclosure:  I represent the claimant in this case and briefed and argued the case before the Sixth Circuit.)


Richard Dean Kennard worked as a blaster and dynamite hauler on strip mines in Kentucky from 1977 to 2009.  During much of this time, he did not work directly for coal companies, but rather for independent blasting contractors.  For example, the last company where he worked for at least a year was Brandywine Explosives & Supply, a contractor that split its work between blasting for highway construction and for surface mines.

After Mr. Kennard applied to work for a coal company and failed a pre-employment physical due to his lungs, he was diagnosed with lung cancer resulting from his approximately 60 pack-year smoking history.  Following the surgical removal of his right lung, Mr. Kennard filed his first claim for federal black lung benefits in 2009.

Of the three pulmonologists who examined Mr. Kennard, all agreed that he is disabled due to a combination of his lung removal and underlying COPD, which was mainly caused by his smoking history.  However, Dr. Alam thought that coal-mine dust also contributed while Dr. Broudy and Dr. Dahhan thought Mr. Kennard’s problems were caused solely by smoking.

The ALJ awarded benefits, finding that Mr. Kennard was entitled to the fifteen-year presumption (which was revived by the Byrd Amendments to the Affordable Care Act while Mr. Kennard’s claim was pending) and that none of the physicians’ opinions were credible.  Because the company had the burden to rebut the presumption, the lack of credible medical opinions meant that Mr. Kennard was entitled to benefits.  The Benefits Review Board affirmed the ALJ’s award.

Sixth Circuit Decision

In a published decision (authored by Circuit Judge Stranch and joined by Circuit Judge Griffin and District Judge Steeh), the Sixth Circuit issued four holdings (with a few subholdings about what employment qualifies towards the fifteen-year presumption).

  1. Any Challenge to the Department of Labor’s 2013 Amendments to the Black Lung Benefits Regulations Must First Be Brought Before the Benefits Review Board.  The court’s first holding rejected the company’s primary argument:  that the 2013 amendments to the regulations are invalid.  The 2013 amendments to the regs were published after the company filed its opening brief before the Benefits Review Board, but before the company filed its reply brief.  The Sixth Circuit held that the company’s failure to challenge the 2013 amendments to the regs before the Board was a failure to exhaust administrative remedies and precluded the court’s review of the merits of the company’s argument.  As a result, the court did not consider the company’s arguments against the regs and applied them to Mr. Kennard’s case.
  2. The ALJ Properly Found that Mr. Kennard Has Fifteen Years that Qualify Towards the Presumption.  The court held that Mr. Kennard’s testimony that “all the dust was flying around and you was breathing it” and that the dust looked like “big cloud[s] of smoke” easily proved regular exposure to coal-mine dust.  The company challenged Mr. Kennard’s entitlement to the fifteen-year presumption by arguing that the ALJ did not sufficiently acknowledge that Mr. Kennard did not spend every day blasting at coal mines and by arguing that Mr. Kennard was primarily exposed to rock dust and dirt, not coal dust.  The court rejected both arguments.  Regarding the lack of daily exposure to coal-mine dust, the court held that the ALJ properly discounted the time that Mr. Kennard was not working as a blaster on coal mines.  The court also rejected a distinction between coal dust and rock dust or dirt.  The court recognized that rock dust such as silica is one of the respiratory hazards facing coal miners and what is relevant is “coal-mine dust” not “coal dust.”
  3.  As the court previously held in Big Branch Resources, Inc. v. Ogle, 737 F.3d 1063 (6th Cir. 2013), an operator seeking to rebut the fifteen-year presumption must “rule out” any contribution of coal-mine employment to the miner’s disabling respiratory impairment.  The court reaffirmed its holding on the “rule out” standard as well as its holding that an ALJ does not err by collapsing the two rebuttal prongs into a single questions:  did the miner’s disability arise out of coal-mine employment?
  4. Substantial Evidence Supports the ALJ’s Finding that the Company Did not Rebut the Presumption.  The court held that the ALJ properly found that the company’s experts (Dr. Broudy and Dr. Dahhan) did not provide credible reasons to explain why Mr. Kennard’s exposure to coal-mine dust did not contribute to his COPD.  The court explicitly rejected the company’s argument that because Mr. Kennard could be disabled even if he never set foot in a mine, it would be unfair to hold the company responsible.  The court reaffirmed its holding from Cross Mountain Coal, Inc. v. Ward, 93 F.3d 211 (6th Cir. 1996), that a miner can be entitled to benefits even if he may be disabled by an independent cause that is not compensable under the Act.


Because the Sixth Circuit did not reach the merits of the 2013 amendments to the black lung regulations, Brandywine is most notable at a factual level.

Even though Mr. Kennard is not the typical miner who is entitled to black lung benefits—for example, the Appalachian roof bolter who worked for 30 years underground and now has coal workers’ pneumoconiosis—Mr. Kennard’s award of benefits shows that the fifteen-year presumption makes black lung benefits available for many miners who would have difficulty affirmatively proving their claim.

For example, the fact that Mr. Kennard’s lung was removed prior to his first complete pulmonary evaluation made it difficult for all of the doctors to assess the cause of Mr. Kennard’s breathing problems.  Due to this difficulty, the ALJ found that none of the doctors provided credible opinions about the cause of Mr. Kennard’s impairment.  Without the presumption, Mr. Kennard would have lost, but with the presumption, he received benefits.

Further, Mr. Kennard’s employment primarily as a blasting contractor should encourage lawyers and other black lung benefits advocates to think broadly about what workers may be miners under the Black Lung Benefits Act.  This is especially true for surface mines because the recent Halldin, et al. study (see previous post here) showed that a blasting contractor with only 10 years of coal-mine employment can suffer from severe black lung.

Similarly important for surface miners, it is important that the court explicitly rejected a distinction between coal dust and rock dust or dirt.  The court’s holding on this issue and use of the phrase “coal-mine dust” throughout its opinion represents an acknowledgment that the Black Lung Benefits Act makes all respiratory impairments caused by coal-mine employment compensable.  It makes no difference whether a miner has classic coal workers’ pneumoconiosis, silicosis, or a mixed-dust disease—as is becoming increasingly common among surface miners and underground miners who are mining thin coal seams.

The court’s reaffirmance of the “rule out” standard in another published opinion shows that the court considers this holding to be firmly entrenched.  Although a somewhat minor issue, it is notable that the court reaffirmed collapsing the two means of rebutting the fifteen-year presumption into a single question:  did the miner’s disability arise out of coal-mine employment?  Collapsing the two prongs is at odds with the Benefits Review Board’s recent decision in Minich v. Keystone Coal Mining Corp. (see previous post here).  Because the Sixth Circuit precedent controls over Board precedent in the Sixth Circuit’s geographic area (Kentucky, Tennessee, Ohio, and Michigan) this means that the Benefits Review Board should affirm ALJ decisions arising from the Sixth Circuit even if it would reverse these decisions if they were from another circuit.

Finally, the court’s holding that Brandywine Explosives & Supply failed to exhaust its administrative remedies before challenging the 2013 amendments to the regulations is a subtle but significant win.  It protects the regulations until a coal company properly presents its arguments and makes it likely that the Department of Labor’s adjudicators will have the first word on whether the regulations are valid.  This is also a reminder for lawyers that switching strategy on appeal is risky.  In this case, the company focused its argument before the Sixth Circuit on the 2013 amendment to the regulations and the court dismissed this argument in two paragraphs.

Brandywine Explosives & Supply was represented by Mark E. Solomons (argued) and Laura Metcoff Klaus of Greenberg Traurig, LLP.

The Director, OWCP was represented by Rebecca J. Fiebig (argued), Sean G. Bajkowski, and Rita A. Roppolo of the Department of Labor’s Solicitor’s Office.

As mentioned above, I represented Mr. Kennard before the Sixth Circuit on behalf of Appalachian Citizens’ Law Center.  Before the ALJ and District Director, Mr. Kennard had assistance from Jerry Murphree of Stone Mountain Health Services.

3 Responses to “Sixth Circuit Rejects Company’s Arguments Against 2013 Amendments to Black Lung Regulations, Affirming Award of Benefits (Brandywine Explosives & Supply v. Director, OWCP [Kennard])”

  1. Doc Holliday

    Young lawyers are too smart………they make us “oldtimers” look bad!

    Evan is one of them “smarty pants” young lawyers!

    I loved the Court’s distinction between “coal dust” and “coal mine dust”!

    Also the great analogy “two sides of the same coin”………….substanital evidence/rule out


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