                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 17a0227p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 ISLAND FORK CONSTRUCTION,                                ┐
                                            Petitioner,   │
                                                          │
                                                          >      No. 16-4319
        v.                                                │
                                                          │
                                                          │
 JIMMY BOWLING; DIRECTOR, OFFICE       OF   WORKERS’      │
 COMPENSATION PROGRAMS,                                   │
                                         Respondents.     │
                                                          ┘

               On Petition for Review of an Order of the Benefits Review Board.
                             Nos. 16-0057 BLA; 2011 BLA 5956.

                            Decided and Filed: September 29, 2017

                     Before: MOORE, STRANCH, and DONALD Circuit Judges.

                                      _________________

                                            COUNSEL

ON BRIEF: H. Brett Stonecipher, FOGLE KELLER PURDY, Lexington, Kentucky, for
Petitioner. Joseph E. Wolfe, M. Rachel Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton,
Virginia, for Respondent Bowling. Gary K. Stearman, Jeffrey S. Goldberg, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for the Federal Respondent.
                                      _________________

                                            OPINION
                                      _________________

       JANE B. STRANCH, Circuit Judge. Jimmy Bowling worked as a coal miner for close to
three decades. There is no dispute that he is eligible for benefits under the Black Lung Benefits
Act. The question is who should pay the benefits to this disabled miner given that the responsible
mine operator and the company that insured that operator are both insolvent. Two options
 No. 16-4319             Island Fork Construction v. Bowling, et al.                       Page 2


exist—the federal Trust Fund and the Kentucky Insurance Guaranty Association (KIGA). The
administrative law judge (ALJ) and Benefits Review Board (Board) both concluded that KIGA
should provide benefits. We affirm the determination of the Review Board.

                                      I.     BACKGROUND

    A. Factual History of Bowling’s Employment

        Bowling worked as a coal miner for over 29 years. He spent most of that time as a
foreman and substantially all of his work was underground. Bowling’s last job was working for
Island Fork Construction in a Kentucky mine where he moved belt lines, took out steel track, and
produced coal. The parties do not dispute the facts underlying Bowling’s claims or his eligibility
for benefits.

        B. Procedural History of Bowling’s Claims for Benefits

        In 2002, Bowling filed a claim for benefits under the Black Lung Benefits Act. An ALJ
denied the claim in 2005, finding that Bowling was totally disabled, but that he had failed to
establish that he had pneumoconiosis (black lung), or that pneumoconiosis caused his total
disability. In 2010, Bowling filed the current claim for benefits. During the time intervening
between these claims, a provision of the Affordable Care Act amended the Black Lung Benefits
Act to reinstate a rebuttable presumption that claimants with respiratory disabilities and 15 years
or more of underground coal-mining work experienced those disabilities as a result of
pneumoconiosis. 30 U.S.C. § 921(c)(4). Bowling sought benefits pursuant to this presumption.

        The District Director, a Department of Labor employee responsible for processing
claims, 20 C.F.R. § 725.418(d), issued a Notice of Claim that proposed designating Island Fork
as the responsible operator. Island Fork contested all issues, including its status as responsible
operator and Bowling’s eligibility for benefits. In April 2011, the District Director issued a
Proposed Decision and Order that awarded Bowling benefits. Island Fork requested de novo
review by an ALJ. See 20 C.F.R. §§ 725.419(a); 725.455(a).

        At the hearing before the ALJ in December 2014, counsel informed the ALJ that both
Island Fork and its insurer, Frontier Insurance, were insolvent. Frontier declared insolvency in
 No. 16-4319             Island Fork Construction v. Bowling, et al.                       Page 3


November 2012, after the Proposed Decision and Order had been issued. The ALJ requested
briefing on the issue of whether Island Fork could still be the responsible operator now that it
and its insurer were insolvent. Department of Labor regulations state that an operator is deemed
financially capable of being the responsible operator if the operator “obtained a policy or
contract of insurance . . . that covers the claim” unless “the insurance company has been declared
insolvent and its obligations for the claim are not otherwise guaranteed.”              20 C.F.R.
§ 725.494(e)(1). At the initial stages, if the District Director determines that an operator is not
financially capable, the Director can select another operator—such as a previous employer—to
be the responsible operator. 20 C.F.R. § 725.495(a)(3). But once the claim reaches the ALJ
stage, there is no mechanism to designate a different responsible operator.

       As a result of this timing, the question presented is which of the two options—the federal
Trust Fund or KIGA—should pay the benefits to Bowling. The Trust Fund was created by the
Black Lung Benefits Act and provides benefits when there are no responsible operators
available, including when an operator is deemed at the ALJ stage not to be financially capable of
paying benefits. 65 Fed. Reg. 79,920, 79,990-91 (Dec. 20, 2000). KIGA is a nonprofit body
created by the Kentucky Insurance Guaranty Association Act (Guaranty Act) to provide benefits
when a member insurance company is insolvent.            All providers of property and casualty
insurance in Kentucky are required to be KIGA members and pay fees—assessed with insurance
premiums—to the association. Ky. Rev. Stat. § 304.36-080(1)(d). KIGA covers “claims made
against insureds whose carrier becomes insolvent.” Ky. Ins. Guar. Ass’n v. Jeffers, 13 S.W.3d
606, 608 (Ky. 2000).       KIGA also “assist[s] in the detection and prevention of insurer
insolvencies.” Ky. Rev. Stat. § 304.36-020. The Guaranty Act provides exceptions for “[o]cean
marine insurance” and “[a]ny insurance provided, written, reinsured, or guaranteed by any
government or governmental agencies.” Ky. Rev. Stat. § 304.36-030. KIGA argues that these
exceptions apply and the benefits should instead be provided by the Trust Fund. Bowling and
the Department of Labor argue that the exceptions are inapplicable and that KIGA must legally
provide benefits as guarantor to the insurance policy.

       After briefing, the ALJ decided that Island Fork was still the responsible operator because
benefits could be paid by KIGA. Island Fork “as insured by” KIGA, and represented by
 No. 16-4319              Island Fork Construction v. Bowling, et al.                      Page 4


common counsel, petitioned for review of the ALJ Decision and Order by the Board. The Board
affirmed the decision of the ALJ, deciding that the statutory exceptions did not apply and KIGA
was the guarantor of the insurance contract between Island Fork and Frontier.

       Island Fork timely appealed to this court.

                                        II.    DISCUSSION

       A. Appellate Jurisdiction and Standard of Review

       This court has jurisdiction over appeals from final orders of the Board under 30 U.S.C.
§ 932(a), which incorporates the judicial review procedures of the Longshore and Harbor
Workers’ Compensation Act found at 33 U.S.C. § 921(c). The injury underlying the claim took
place in mines in Kentucky, so the Sixth Circuit is the “circuit in which the injury occurred.”
33 U.S.C. § 921(c).

       We “review the Board’s legal conclusions de novo” to assess whether “the Board has
committed legal error or exceeded its scope of review.” Big Branch Res., Inc. v. Ogle, 737 F.3d
1063, 1068 (6th Cir. 2013). We also “review the ALJ’s decision to determine whether the ALJ
applied the applicable law correctly to reach a conclusion supported by substantial evidence.”
Id.

       B. Personal Jurisdiction

       There is no dispute that the court has jurisdiction over Bowling and Island Fork, but
KIGA argues that it has never properly been made a party in this action. It therefore claims there
is a lack of personal jurisdiction over it. KIGA asserts that the District Director and adjudicatory
bodies had authority to name KIGA as a party under various Department of Labor regulations,
but failed to do so. See 20 C.F.R. § 725.360(d) (“Any other individual may be made a party if
that individual’s rights with respect to benefits may be prejudiced by a decision to be made.”);
§ 725.407(d) (allowing the District Director to notify an operator “which may be liable for the
payment of benefits” and “take such further action on the claim as may be appropriate”). KIGA
claims that because the District Director and ALJ did not designate KIGA as a party, the
association did not have an opportunity to “develop and rebut evidence.”
 No. 16-4319                Island Fork Construction v. Bowling, et al.                              Page 5


        If KIGA had been present to raise status as a party before the District Director, the
Director could have responded by determining whether KIGA was properly a party. KIGA,
however, did not have a direct interest in the claim until Frontier became insolvent, which was
after the District Director issued a Proposed Decision and Order and the claim file had been sent
to the ALJ. At that time, KIGA filed a letter that stated: “all of [Frontier’s] claims have been
turned over to KIGA.” KIGA also indicated that it “had received a notification letter advising of
potential liability as a result of the insolvent carrier. In response, KIGA made an entry of
appearance and defended the case while it investigated whether Claimant was eligible for
assistance under the Kentucky guarantees law.” At the hearing before the ALJ, counsel stated
that she was making an appearance “on behalf of Island Fork Construction which was previously
insured by Frontier Insurance Company which is now insolvent so my client in fact at this point
is KIGA.” Counsel for Island Fork and KIGA raised arguments on the merits at the ALJ and
Board level,1 and introduced medical evidence. She briefed both decision makers on whether
Island Fork was properly considered a responsible party, but did not challenge KIGA’s status. If
KIGA had raised the issue, the ALJ or Board would have had authority to add KIGA as a party
under 20 C.F.R. § 725.360 (authorizing “the appropriate adjudication officer” to name parties
including “[a]ny other individual . . . if that individual’s rights with respect to benefits may be
prejudiced by a decision to be made”) Because KIGA did not raise the issue of its status before
the ALJ or the Board, and instead participated in the proceedings, the challenge to personal
jurisdiction was forfeited.

        C. The Recent Ratliff Decision

        Bowling argues that KIGA also forfeited any challenge to its liability, relying on our
recent decision in a similar case, Appleton & Ratliff Coal Corp. v. Ratliff, 664 F. App’x 470 (6th
Cir. 2016). In Ratliff, a miner sought benefits from an operator and insurer that were both
insolvent by the time the claim reached the ALJ. Id. at 473. There, KIGA raised arguments
based on exceptions in its enabling statute, the same arguments raised here—that KIGA was not


        1
         The Office of Workers’ Compensation Programs in the Department of Labor submitted a Supplemental
Appendix, found at App. R. 22, containing documents that are not included in the Island Fork Appendix. Bowling
also submitted a Supplemental Appendix found at App. R. 25.
 No. 16-4319             Island Fork Construction v. Bowling, et al.                        Page 6


responsible for paying Black Lung Benefits Act claims because those claims were “[o]cean
marine insurance” or were “guaranteed by . . . governmental agencies.” Id. at 474. The ALJ and
Board both disagreed and found KIGA liable to pay benefits. Id. We affirmed but based the
decision on different grounds:

       By failing to contest its responsible operator status until after the case went before
       an administrative law judge, KIGA has prevented the director from revisiting [the
       responsible operator] determination and effectively seeks to shift the
       responsibility for payment of benefits to the Trust Fund.
       Because A&R failed to timely contest its liability under the Department of
       Labor’s unchallenged regulations, it is precluded from doing so.

Id. at 475-76. In a footnote, we expressed some skepticism about the merits of KIGA’s state
statutory argument: “This is a novel contention, and we are not aware of any other court
addressing this statutory construction question under [the Guaranty Act], or any other similarly
enacted insurance guaranty act across the country.” Id. at 475 n.2. The footnote also referenced
an example of a state guaranty association assuming responsibility for black lung benefits, Boyd
& Stevenson Coal Co. v. Dir., Office of Workers’ Comp. Programs, 407 F.3d 663, 665 (4th Cir.
2005), and mentioned the Board’s decision in this case. 664 F. App’x at 475 n.2.

       Bowling argues that a similar forfeiture determination should apply here. There is,
however, a timing difference between Ratliff and this case. In Ratliff, the insurer filed for
bankruptcy a few weeks after the claim was filed, which was before the District Director had
identified a responsible operator. Id. at 473. Here, KIGA had no meaningful opportunity to
challenge its status before the District Director—the stage at which another responsible operator
could have been identified—because Frontier became insolvent after the Director issued a
decision naming Island Fork as the responsible operator. When KIGA appeared before the ALJ,
and later the Board, it raised the arguments based on the exceptions in KIGA’s enabling statute.
Although those arguments were forfeited in Ratliff, the timing difference in this case leads us to
address the merits of the statutory argument made by KIGA.

       D. Responsibility to Pay Under Kentucky Law

       The Guaranty Act that created KIGA excludes “[o]cean marine insurance” and “[a]ny
insurance provided, written, or reinsured, or guaranteed by any government or governmental
 No. 16-4319             Island Fork Construction v. Bowling, et al.                       Page 7


agencies.” Ky. Rev. Stat. § 304.36-030(1)(f),(h). As mentioned in the footnote in Ratliff, there
does not appear to be any caselaw interpreting these provisions of the Kentucky statute.

                1. Ocean Marine Insurance

       KIGA argues that insurance for black lung benefits should be considered “[o]cean marine
insurance” based on the broad definition for that term used in the Guaranty Act. “Ocean marine
insurance” is defined as “any form of insurance . . . that insures against maritime perils or risks
and other related perils or risks, that are usually insured against by traditional marine insurance
such as hull and machinery, marine builders risk, and marine protection and indemnity.”
Ky. Rev. Stat. § 304.36-050(10). The term “ocean marine insurance” also includes coverage for:
“(a) The Jones Act (46 U.S.C. sec. 688); (b) The Longshore and Harbor Workers’ Compensation
Act [] (33 U.S.C. secs. 901 et seq.); or (c) Any other similar federal statutory enactment, or any
endorsement or policy affording protection and indemnity coverage.” Ky. Rev. Stat. § 304.36-
050(10)(a)-(c). KIGA seeks to rely on subsections (b) and (c).

       KIGA claims that the Black Lung Benefits Act is “empowered and authorized” by the
Longshore Act. The Black Lung Benefits Act, however, is not “authorized” by the Longshore
Act, but instead merely incorporates some of its provisions, such as the judicial review provision
cited above in Section II(A). The Black Lung Benefits Act explicitly does not incorporate the
insurance provisions of the Longshore Act. 30 U.S.C. § 932(a) (excluding Longshore Act
sections regarding insurance, liability, and penalties for failure to secure workers’ compensation
from the sections incorporated into the Black Lung Benefits Act).

       KIGA also argues that the Black Lung Benefits Act is a “similar federal statutory
enactment” under subsection (c).     But there is no logic or precedent for reading a statute
involving miner benefits as involving “[o]cean marine insurance” similar to that dealt with in the
Jones Act and Longshore Act, both of which directly involve traditional maritime activities. The
Black Lung Benefits Act, moreover, is not in keeping with the list of maritime laws made by the
Kentucky legislature. We therefore agree with the Board that insurance coverage for the Black
Lung Benefits Act is not “[o]cean marine insurance” as that term is used and defined in the
Guaranty Act.
 No. 16-4319               Island Fork Construction v. Bowling, et al.                   Page 8


               2. Policies Guaranteed by Government Agencies

       The Guaranty Act also states an exception for insurance “guaranteed by . . . governmental
agencies.” Ky. Rev. Stat. § 304.36-030(1)(h). KIGA argues that the Trust Fund “functionally
operates as a guarantor of benefits” because it serves as a backstop when no responsible operator
is able to pay benefits. Kentucky law, however, requires a guaranty to be “in writing signed by
the guarantor and contain[ing] provisions specifying the amount of the maximum aggregate
liability of the guarantor thereunder, and the date on which the guaranty terminates.” Ky. Rev.
Stat. § 371.065(1). The Trust Fund does not have contracts with insurance companies that
provide coverage for the Black Lung Benefits Act, so the Trust Fund’s coverage of benefits does
not meet the technical requirements for a guaranty under Kentucky law.

       There is evidence that the committee that created the model law on which the Guaranty
Act was based intended for the provision to exclude flood and crop insurance that are covered
by government guaranty programs.            See Property and Casualty Insurance Guaranty
Association Model        Act,   Nat’l   Ass’n    of   Ins.   Comm’rs     PC    540-12    (2016),
http://www.naic.org/store/free/MDL-540.pdf (“This would have the effect of excluding flood
and crop hail insurance guaranteed by the federal government from covered claims.”). These
federal programs do involve formal arrangements between insurance companies and the
government. See Gibson v. Am. Bankers Ins. Co., 289 F.3d 943, 947 (6th Cir. 2002) (discussing
flood insurance policies issued both directly from the federal government and through an
insurance company acting as a fiscal agent of the government); Kansas ex rel. Todd v. United
States, 995 F.2d 1505, 1508 (10th Cir. 1993) (describing crop insurance issued directly by the
government or through private insurance companies that are reimbursed for operating and
administrative costs).     The Black Lung Benefits Act instead seeks to require private mine
operators to pay benefits “to the maximum extent feasible,” Ark. Coals, Inc. v. Lawson, 739 F.3d
309, 313 (6th Cir. 2014) (citation omitted), and only provides for the Trust Fund to assume
liability when “there is no operator who is liable for the payment of such benefits,” 26 U.S.C.
§ 9501(d)(1)(B).
 No. 16-4319                Island Fork Construction v. Bowling, et al.                Page 9


       The Trust Fund has not “guaranteed” the Black Lung Benefits Act coverage under
Kentucky law. The KIGA exception for claims “guaranteed by . . . governmental agencies”
therefore does not apply.

                                        III. CONCLUSION

       We have personal jurisdiction over KIGA and address the merits of its claims. The
exclusions in the Guaranty Act do not apply because the Black Lung Benefits Act coverage in
this case is not “ocean marine insurance” or “guaranteed by . . . governmental agencies.” KIGA
is therefore liable for coverage issued by Frontier, the now-insolvent insurer. For the reasons
stated, we affirm the decision of the Board.
