Road-Construction Driller Awarded Federal Black Lung Benefits (Pennington v. Director, OWCP)

Example of Road Construction in Central Appalachia

Most black lung claims are based on work that is undebatably in a coal mine.  However, some individuals end up with breathing problems and attribute it to exposure to coal dust even if they spent little time in a place that most people would call a coal mine.

The case of Elbert G. Pennington is one of those.  (ALJ Decision here).

Mr. Pennington spent most of his career working as a driller for companies that were involved in road construction but that would also extract and sell coal while blasting for roads.  In fact, the companies would get mining permits as a part of their construction and would separate the coal from the rock that they blasted.  Mr. Pennington testified that they were “constantly hitting coal seams” and that the times they did not hit coal were “very seldom . . . I always stayed up in those areas that had coal.”  Mr. Pennington testified that he regularly breathed coal dust, rock dust, and shale dust.

To determine whether a claimant is a “miner” under the Black Lung Benefits Act, the law requires the claimant to prove (1) that he performed a work function that was integral to the production of coal (“function” prong), and (2) that his work occured in or around a coal mine (“situs” prong).

The Administrative Law Judge (Judge Silvain) found that Mr. Pennington proved both prongs of the situs-function test.  The function prong was relatively simple because Mr. Pennington’s work as a driller was clearly integral to the operation.

The “situs” test was more interesting.  Judge Silvain concluded:

Based on the record, I find that the Claimant‘s road construction sites meet the definition of a “coal mine” under the Act and thus satisfy the situs prong.  Although the work performed on the sites was ultimately intended to turn the areas into roads, it is clear that the employers devoted substantial time to extracting coal from the sites and separating it from the other excavated rock and had a significant economic interest in the coal generated. Documents from the West Virginia Department of Transportation and the Kentucky Transportation Cabinet state that when highway construction contractors encounter coal reserves, the contractors are permitted to remove the coal and sell it. (DX 90).  Further, documents from the Kentucky Energy and Environment Cabinet indicate that Elmo Greer & Sons and Bizzack Inc. (which merged with Addington Contracting) both held mining permits issued by the Kentucky Division of Mine Permits. (DX 82). The record reflects that these companies have also been cited in the past for improper excessive mining activities associated with their road construction projects.  (DX 81; DX 83).

. . .

It is clear that the companies the Claimant worked for frequently encountered coal seams in the course of their work as he testified he would encounter coal every day when he drilled.  The record reflects that the discovery of coal seams was not incidental or happenstance to the road construction but rather a situation that was planned for and anticipated by these companies; as reflected by the permits to allow them to sell the coal that they excavated.  Thus, the intended use of the land was partly for the extraction and preparation of coal.  While engaging in their road operations these companies treated coal different from the rock they cleared and would behave as mine operators: drilling, blasting, striping, cleaning, and loading the coal.  Further, it is clear that the companies had a substantial economic interest in excavating the coal and selling it commercially.  Accordingly, I find that the road construction sites the Claimant worked on were “coal mines” under the Act such that they satisfy the situs prong.

slip op. 8–10.

Judge Silvain found road-construction jobs to be more similar to the clay mines that the Board held also qualified as coal mines in Smith v. Director, OWCP, BRB No. 82-2768 BLA (BRB April 16, 1986), than the cement manufacturer that crushed coal for its own use that the Board said was not a coal mine in McKee v. Director, OWCP, 2 B.L.R. 1-804 (1980).

The ALJ then went on to find that Mr. Pennington had 16.31 years of coal-mine employment (rather than the 1.97 that the District Director’s office found or the “approximately one year” that a previous ALJ found) and that the medical evidence supported a finding of complicated pneumoconiosis.

The remaining dispute was whether Mr. Pennington’s severe pneumoconiosis was related to his coal-mine employment.  Dr. Baker opined that it was related while Dr. Forehand opined that it was not.  Dr. Forehand assumed that Mr. Pennington had only 1.97 years of coal-mine employment while Dr. Baker understood that Mr. Pennington had 28 years of coal-mine dust exposure.  The ALJ concluded that because he found that Mr. Pennington had 16.31 qualifying years, Mr. Pennington invoked the 10-year presumption of pneumoconiosis causation.  Dr. Forehand’s opinion did not rebut it because he understood Mr. Pennington to have less coal-mine employment than the ALJ had found.

Accordingly, because Judge Silvain concluded that Mr. Pennington was a “miner” with severe black lung that was presumed to be due to his time working on road-construction sites that doubled as coal mines, he awarded Mr. Pennington benefits.


Pennington v. Director, OWCP serves as a reminder that the definition of “miner” under the Black Lung Benefits Act is broader than many people realize. Judge Silvain’s legal reasoning is persuasive and his decision is worth citing for other cases where a claimant’s work is not traditional coal-mine employment.  It appears that the Director, OWCP has not appealed Mr. Pennington’s award, so Judge Silvain’s opinion will be the last adjudicator’s word on Mr. Pennington’s set of facts.

In addition to Judge Silvain’s sound logic, what stands out about Mr. Pennington’s case is the attention to detail that Mr. Pennington and his attorney spent on creating a record to support their contention that his time as a road-construction driller was also time as a “miner.”  By combining information such as the mining permits and notices of violation for mining with Mr. Pennington’s credible testimony, they were able to convince an ALJ to go from a year or two of coal-mine employment to over sixteen years.

And lastly, it is notable that the weight of the evidence supported a diagnosis of complicated pneumoconiosis.  As severe black lung is surging back in Central Appalachia it is striking that a person such as Mr. Pennington who spent little time in a traditional coal mine would contract the severe form of the disease.  It highlights the dangers that the largely unregulated dust conditions on surface mines and similar environments pose for workers.  (For a previous post about severe black lung among surface miners, see here.)

Mr. Pennington was represented by James Doug Holliday of Hazard, KY.

The Director, OWCP was represented by Matthew Shepherd of the Department of Labor’s Regional Solicitor’s Office in Nashville, TN.

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