01-1430 Freeman United Coal Mining Co. v. Summers

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“[O]n this record, we readily conclude that the ALJ’s invocation of the presumption was proper. We find no merit to the coal company’s claim that Summers simply made conclusory assertions such as, ‘The rooms were very dusty.’ To the contrary, we believe that Summers clearly delineated, in objective terms, the awful conditions on the surface of the mine. As we noted in Part II, Summers clearly and most vividly described how the tasks he performed in the repair shops, hoist rooms, and preparation plants resulted in dust exposure. He described how the wind and the exhaust fans aggravated that exposure, and he discussed the extent of that exposure. This unrebutted testimony, on its own terms, would have been sufficient for the ALJ, with his expertise and knowledge of the industry, to compare Summers’ working conditions to those prevalent in underground mines. See Blakley, 54 F.3d at 1319. Furthermore, we note that Summers gave additional, convincing, and undisputed testimony that his job conditions above and below ground were ‘pretty much the same.’ The ALJ was bound to find similarity after receiving such testimony, for one cannot rationally ignore credible, uncontested evidence.

“For purposes of calculating a miner’s length of employment, a year is defined as one calendar year, or partial periods totaling one year, during which the miner has worked ‘in or around a coal mine or mines for at least 125 “working days.”‘… Summers was not required to establish that he worked underground for more than 125 days per annum. See Landes v. OWCP, 997 F.2d 1192, 1198 (7th Cir. 1993) (quoting Yauk v. Director, OWCP, 912 F.2d 192, 195 (8th Cir. 1989)). Nor did he have to prove that he was around surface coal dust for a full eight hours on any given day for that day to count towards the 125-day total. See Griffith v. Director, OWCP, 868 F.2d 847, 849 (6th Cir. 1989). All that Summers had to show was that he worked ‘in or around a coal mine’ for any part of 125 days in a calendar year, for a total of 15 years. This he unquestionably did, by demonstrating that he was exposed to work-related dust five or six days each week from May 1948 to April 1965 and from April 1975 to October 1980. The ALJ then rationally determined that Summers was exposed to substantially the same conditions as underground miners. On this record, we conclude that the ALJ properly invoked the 15-year presumption.”

Affirmed.

Petition for Review from the Benefits Review Board of the United States Department of Labor, Coffey, J.