                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       March 26, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
THE WACKENHUT CORPORATION,

             Petitioner,

v.                                                         No. 12-9595
                                                       (Petition for Review)
GLORIANNA HANSEN, o/b/o Eldon A.
Hansen, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,

             Respondents.


                            ORDER AND JUDGMENT*


Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and
O’BRIEN, Circuit Judge.


      The Wackenhut Corporation seeks review of a decision by the United States

Department of Labor Benefits Review Board (Board) affirming an award of black

lung benefits to Eldon Hansen. It contends Hansen is not eligible for benefits


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
because his work as a security guard did not qualify him as a “miner” under the

Black Lung Benefits Act, 30 U.S.C. §§ 901-944 (BLBA). We affirm the award of

benefits.1

                                           I

       Hansen worked for Wackenhut as a security officer at several coal mines.2

From 1984 to 1985, his work included patrolling mine-sites, inspecting coal-conveyer

tubes for fire hazards, and ensuring that train-cars were loaded to their proper weight.

From 1985 until 1994, Hansen worked at the Black Thunder Mine, where he spent

25% of his time at the guard-shack and the rest performing other duties outdoors.

The guard-shack was located 100 yards from the primary crusher and 200 yards from

the train load-out facility. Hansen’s duties varied but included admitting mine

supervisors and contractors to the premises, patrolling the mine for safety violations

and trespassers, and walking the open pit looking for coal-fires. Additionally, he was

charged with inspecting mining equipment, checking the operation of water pumps in

the mine pit, and generally looking at the overall safety of the mine.

       In 2001, Hansen filed his claim for benefits. An administrative law judge

(ALJ) denied it, finding Hansen not to be a “miner” as defined by the BLBA. The




1
       Our jurisdiction derives from 33 U.S.C. § 921(c).
2
      Hansen passed away in 2009, during the litigation of this claim. His surviving
spouse, Glorianna Hansen, was added as a party on his behalf.


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Board vacated that decision and remanded to allow the ALJ to explain why some of

Hansen’s duties did not qualify him as a miner.3

      On remand, the ALJ reversed course and determined some of Hansen’s work

qualified him as a miner. That came from a consideration of Hansen’s job

description, his testimony, and the testimony of Wackenhut’s branch manager. The

ALJ then compared Hansen’s duties to the job descriptions of a security guard and

mine inspector, as listed in the Dictionary of Occupational Titles, observing that the

latter qualifies as a “miner” under Board precedent, see, e.g., Bartley v. Dir., Office

of Workers’ Comp. Programs, 12 Black Lung Rep. (Juris) 1-89, 1988 WL 232708, at

*2 (Ben. Rev. Bd. 1988). Finding sufficient overlap between Hansen’s duties and

those of a mine inspector, the ALJ decided Hansen was eligible for benefits as a

miner because his duties “[were] an integral part of the preparation or extraction of

coal.” Admin. R., Vol. 1 at 89 (internal quotation marks omitted).

      The Board affirmed the award of benefits; it considered the ALJ’s decision to

be rational, supported by substantial evidence, and in accord with applicable law. In

particular, the Board concluded the ALJ had “acted within his discretion in

determining that [Hansen] performed tasks that, like those of a mine inspector, were

integral to the extraction or preparation of coal, as they ensured the safety of mining

operations.” Id. at 4. Wackenhut now petitions this court for review.
3
       Wackenhut attempted to appeal to this court, but we dismissed its petition for
lack of jurisdiction because the remand order was not a final decision. See
Wackenhut Corp. v. U.S. Dep’t Labor, No. 10-9506 (10th Cir. Apr. 23, 2010).


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                                            II

       We review legal issues de novo and the ALJ’s factual findings for substantial

evidence. Bridger Coal Co. v. Dir., Office of Workers’ Comp. Programs, 669 F.3d

1183, 1190 (10th Cir. 2012). We do not reweigh the evidence, but examine only

whether the evidence supports the ALJ’s findings of fact. See Energy W. Mining Co.

v. Oliver, 555 F.3d 1211, 1217 (10th Cir. 2009). In conducting our review, we are

mindful that the BLBA “is intended to be remedial in nature, and doubts should be

resolved in favor of the disabled miner or his or her survivors.” Bridger Coal,

669 F.3d at 1190 (internal quotation marks omitted).

       The BLBA defines a miner as “any individual who works or has worked in or

around a coal mine or coal preparation facility in the extraction or preparation of

coal.” 30 U.S.C. § 902(d); see also 20 C.F.R. § 725.202(a). Courts interpret this

definition as a two-part test in which “an individual must establish . . . : (1) [work] in

or around a statutorily defined coal mine (the ‘situs’ test), 30 U.S.C. § 802(h)(2), and

(2) . . . duties involv[ing] the extraction or preparation of coal, or involv[ing]

appropriate coal mine construction or transportation (the ‘function’ test).” Falcon

Coal Co. v. Clemons, 873 F.2d 916, 921 (6th Cir. 1989). Only the second part of the

test is in dispute here.

       Under the terms of the BLBA, a claimant’s function must involve the

extraction or preparation of coal. But consistent with the statute’s remedial purpose,

courts have applied a broad definition to the term “miner,” including within its


                                           -4-
meaning workers who perform duties incidental to the extraction or preparation of

coal, so long as their work is “an ‘integral’ or ‘necessary’ part of the coal mining

process.” Id. at 922; see also Amax Coal Co. v. Fagg, 865 F.2d 916, 918 (7th Cir.

1989) (recognizing the broad definition of a “miner” includes workers “involved in

ancillary activities necessary to the extraction or preparation of coal” (internal

quotation marks omitted)). Duties necessary to the procurement of coal or keeping

the mine operational satisfy the function test, but duties merely convenient or helpful

to the operation of a mine do not. See Falcon Coal, 873 F.2d at 922-23 (“[T]hose

individuals who handle raw coal or who perform tasks necessary to keep the mine

operational and in repair are generally classified as ‘miners.’”); Freeman v. Califano,

600 F.2d 1057, 1060 (5th Cir. 1979) (recognizing availability of benefits to “those

involved in ancillary activities necessary to the extraction and preparation of coal”).

      According to the ALJ, Hansen satisfied the function test because he performed

duties integral to the extraction and preparation of coal. This decision is supported

by substantial evidence. Early in his career, Hansen worked in the “train room,”

where he would summon empty coal train-cars, weigh them, load them, and weigh

them again to ensure they were not overweight. Aplt. App. at 43-44; Admin. R.,

Vol. 2 (Dir. Ex. 4). Since that time, his duties also have included patrolling mine

sites and inspecting coal-conveyor tubes for fire hazards. At the Black Thunder

Mine, where he patrolled on foot and by truck, he would inspect the pit—an active

mining area—every hour looking for fires in the coal. Four times per shift, he would


                                          -5-
inspect the coal-conveyer tubes to ensure there were no fire-hazards from methane or

coal dust build-up. He also would inspect the pit’s water pumps to ensure they were

operating properly and there was no flooding.

      Additionally, he inspected shovels, drills, and fire extinguishers, filling as

many as 100 extinguishers in a day, if necessary. He also made certain there were no

fire hazards in any power cables, material was not stored or located in a hazardous

manner, and the railroad tracks were not blocked. Finally, he directed emergency

procedures, was familiar with evacuation routes, and ensured that other guards were

“performing according to the rules and regulations of the mine,” Aplt. App. at 24. As

the ALJ recognized, these tasks were integral to the mine’s safe operation and the

extraction of coal. See Falcon Coal, 873 F.2d at 922-23.4

      Of course, there was evidence reflecting Hansen’s role as a security guard.

For example, he patrolled for trespassers and worked at the front gate, checking in

other employees. But these and other similar duties do not negate Hansen’s essential

work in insuring the safe operation of the mine. Wackenhut submitted testimony

from its branch manager suggesting its security guards worked only at the front gate;

the ALJ gave the testimony little weight because the branch manager was at the mine
4
       Wackenhut points out that in Falcon Coal, the Sixth Circuit ultimately decided
a night watchman did not satisfy the function test. 873 F.2d at 923. The claimant in
that case performed duties that differed from Hansen’s, however, underscoring the
fact-sensitive nature of the analysis. Indeed, under different circumstances, the Sixth
Circuit has since ruled that a night watchman at a coal mine did satisfy the function
requirement. See Sammons v. EAS Coal Co., No. 92-3030, 1992 WL 348976, at *2
(6th Cir. Nov. 24, 1992) (unpublished).


                                          -6-
twelve years after Hansen had retired. The ALJ’s decision is supported by

substantial evidence.

      The petition for review is denied, and the Board’s judgment is affirmed.


                                              Entered for the Court


                                              Terrence L. O’Brien
                                              Circuit Judge




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