PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1656

RB&F COAL, INCORPORATED; OLD REPUBLIC INSURANCE COMPANY,

Petitioners,

v.

DELORIS J. MULLINS, o/b/o and Widow of Turl Mullins; 

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED 

STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order of the Benefits Review Board. 

(14-0169 BLA)

Argued: September 21, 2016 Decided: November 18, 2016 

Before WILKINSON and FLOYD, Circuit Judges, and Irene M. KEELEY, 

United States District Judge for the Northern District of West 

Virginia, sitting by designation.

Affirmed by published opinion. Judge Floyd wrote the opinion,

in which Judge Wilkinson and Judge Keeley joined

ARGUED: Mark Elliott Solomons, GREENBERG TRAURIG LLP, 

Washington, D.C., for Petitioners. Victoria Susannah Herman, 

WOLFE WILLIAMS & REYNOLDS, Norton, Virginia; Rebecca Jayne 

Fiebig, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for 

Respondents. ON BRIEF: Laura Metcoff Klaus, GREENBERG TRAURIG 

LLP, Washington, D.C., for Petitioners. Joseph E. Wolfe, WOLFE 

WILLIAMS & REYNOLDS, Norton, Virginia, for Respondent Deloris 

Mullins. M. Patricia Smith, Solicitor of Labor, Rae Ellen Frank 
2

James, Associate Solicitor, Sean G. Bajkowski, Counsel for 

Appellate Litigation, Rita A. Roppolo, Office of the Solicitor, 

UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for 

Respondent Director, OWCP.
3

FLOYD, Circuit Judge:

R B & F Coal Inc., and Old Republic Insurance Company 

(collectively, “RB&F”) seek relief from an order of the 

Department of Labor’s (DOL) Benefits Review Board (BRB) holding 

RB&F responsible for the payment of benefits to a coal miner, 

Turl Mullins, and survivor’s benefits to his widow, Deloris 

Mullins, under the Black Lung Benefits Act, (BLBA), 30 U.S.C. 

§ 901 et seq.1 The parties agree that the Mullins family is 

entitled to benefits. The only remaining dispute is whether 

RB&F or another operator is liable for the claim. We find that 

RB&F is liable, and therefore affirm the decision of the BRB.

I.

Before discussing the undisputed facts of this case, it is 

helpful to understand the statutory schemes at issue. The BLBA 

provides benefits to miners who are disabled by pneumoconiosis. 

30 U.S.C. §§ 901(a), 922(a), 932(c). The mine operator that 

employed the disabled miner is liable for payment of those 

benefits. See id. § 932(b). In instances where a miner 

claiming benefits was employed by multiple coal mine operators, 

the BLBA authorizes the Secretary of Labor to promulgate 

 1 For clarity, we will refer to these consolidated claims in 

the singular as Mullins’s claim.
4

regulations to establish standards for apportioning liability 

among operators. Id. § 932(h). 

The “responsible operator”--the operator ultimately found 

liable for the BLBA claim--is the most recent company to employ 

the miner, so long as that employer qualifies as a “potentially 

liable operator.” 20 C.F.R. § 725.495(a)(1). The regulation 

then outlines five criteria an employer must satisfy in order to 

be a potentially liable operator, only one of which is relevant 

to this case: the operator and/or its insurer must be 

financially capable of assuming liability. Id. § 725.494(e). 

Once a miner files a claim, a DOL district director determines 

whether any of the miner’s previous employers qualify as 

potentially liable operators. Id. § 725.407(a). If one or more 

operators are considered potentially liable operators, the 

district director names the potentially liable operator that 

most recently employed the miner as the “responsible operator.” 

Id. §§ 725.407(b), 725.495(d).

The DOL bears the initial burden of proving that the 

operator it designates as responsible is a “potentially liable 

operator” under § 725.494.2 Id. § 725.495(b). If the 

responsible operator designated by the district director 

believes that another party should be designated as the 

 2 RB&F’s status as a potentially liable operator is not in 

dispute.
5

responsible operator, that operator bears the burden of proving 

that another operator more recently employed the miner, and that 

the later employer meets the § 725.494 criteria. Id. § 

725.495(c)(2). 

The Virginia Property and Casualty Insurance Guaranty 

Association (VPCIGA), is a state chartered non-profit 

association established by the legislature to “provide prompt 

payment of covered claims to reduce financial loss to claimants 

or policyholders resulting from the insolvency of an insurer.” 

Va. Code Ann. § 38.2-1600.3 All insurance companies that conduct 

business in Virginia are required by state law to join, and the 

association is funded by mandatory contributions from those 

members. Id. §§ 38.2-1604.

When a member insurer becomes insolvent, the VPCIGA takes 

on liability for some, but not all, of its obligations. See id.

§ 38.2-1606(A)(1). The VPCIGA is required to pay “covered 

claims” as that term is defined in the Guaranty Act. Id. In 

relevant part, the Guaranty Act provides: “Notwithstanding any 

other provision of this chapter, a covered claim shall not 

 3 The provisions at Va. Code Ann. §§ 38.2-1600 to -1623 are 

collectively referred herein as the “Guaranty Act.” The 

Virginia Insurance Guaranty Association Act, previously codified 

at Va. Code §§ 38.1-756.1 to -774, which created what is now the 

VPCIGA, was rewritten in 1986 and is now found at §§ 38.2-1600 

to -1623. See 1986 Va. Acts ch. 562. The rewriting changed the 

name of the association, however, the substantive provision of 

the code relevant to this appeal remained the same. 
6

include any claim filed with the [VPCIGA] after the final date 

set by the court for the filing of claims against the liquidator 

or receiver of an insolvent insurer.” Id. § 38.2-1606(A)(1)(b). 

II.

Turning now to the facts of this appeal, Turl Mullins 

worked as a coal miner for several years including stints with 

RB&F between 1985 and 1986 and Wilder Coal (“Wilder”) between 

1986 and 1988.4 Mullins was diagnosed with pneumoconiosis in 

2009, and filed a claim for benefits under the BLBA in that same 

year. As discussed above, under DOL regulations, liability for 

those benefits falls to the mine operator that most recently 

employed the miner for at least a year, so long as that employer 

is financially capable of assuming liability for the claim. 20 

C.F.R. § 725.494. By the time Mullins filed his claim, Wilder 

was out of business. Further, its insurer, Rockwood Insurance 

Co. (“Rockwood”), a member of the VPCIGA, had been declared

insolvent by a Pennsylvania court in August of 1991. See Boyd & 

Stevenson Coal Co. v. Dir., Office of Workers’ Comp. Programs, 

407 F.3d 663, 665 (4th Cir. 2005). Following Rockwood’s 

insolvency, the court appointed a liquidator who set the final 

 4 Mullins also worked for other coal mine operators, but it 

is undisputed that none of those operators are liable for his 

claim.
7

date for filing claims against Rockwood as August 26, 1992. See

Uninsured Employer’s Fund v. Mounts, 484 S.E.2d 140, 144 (Va. 

App. 1997), aff’d, 497 S.E.2d 464 (Va. 1998). The VPCIGA 

assumed responsibility for claims filed before that date--i.e., 

“covered claims”--but not for claims filed after that date. See

id.; Va. Code Ann. § 38.2-1606(A)(1). 

A DOL district director found that Mullins was entitled to 

benefits and that RB&F was the responsible operator. Contesting 

its liability, RB&F requested that the case be transferred to an 

Administrative Law Judge (ALJ) for a hearing. 

The ALJ concluded that the district director gave a valid 

reason for not naming the more recent employer, Wilder, as the 

responsible operator. First, Wilder was out of business. 

Second, Wilder’s insurer, Rockwood, was insolvent. And third, 

the VPCIGA was not liable for the claim because the August 26, 

1992 bar date to file claims against Rockwood had passed. The 

ALJ then determined that, according to DOL regulations, the 

burden shifted to RB&F to show that Wilder was in fact 

financially capable of assuming liability. 

The ALJ then found that RB&F had failed to show either that 

(1) Wilder or Rockwood was capable of assuming liability for 

Mullins’s claim; or (2) the claim qualified as a “covered claim” 

under the Guaranty Act obligating the VPCIGA to assume liability 

for the claim. The ALJ also found that because this was not a 
8

“covered claim,” the district director had no duty to notify the 

VPCIGA or name it as a party. The ALJ concluded that RB&F was 

properly named as the responsible operator and was liable for 

Mullins’s claim. 

RB&F appealed the ALJ’s determination to the BRB arguing 

that the ALJ incorrectly found that RB&F was the responsible 

operator.5 RB&F also argued that to the extent that the Guaranty 

Act prevents the VPCIGA from assuming liability for Mullins’s 

claim, it violates 20 C.F.R. § 726.203(c), which prohibits an 

insurance company from limiting its liability for black lung 

claims. The BRB disagreed and found that the prohibition did 

not apply to guaranty associations: “Contrary to employer’s 

argument, state-run insurance guaranty associations are not 

covered by 20 C.F.R § 726.203(c), which prohibits private 

insurance carriers from limiting their liability for black lung 

claims.” J.A. 15. As such, the BRB affirmed the ALJ’s finding 

and denied RB&F’s motion for reconsideration. RB&F’s petition 

to this Court followed.

 5 RB&F also appealed the determination that Mullins had 

pneumoconiosis, that he was totally disabled, and that his death 

was due to pneumoconiosis. Those determinations were not 

appealed here.
9

III.

This Court reviews the legal conclusions of the BRB and the 

ALJ de novo to determine whether those conclusions are rational 

and consistent with applicable law. Westmoreland Coal Co. v. 

Cox, 602 F.3d 276, 282 (4th Cir. 2010) (quoting Milburn Colliery 

Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998)). 

RB&F challenges the BRB’s determination that Wilder was 

incapable of assuming its liability for Mullins’s claim. RB&F 

claims that since Wilder’s liability was fully covered by 

Rockwood, which was a member of the VPCIGA, then it cannot be 

found to be incapable of assuming liability because the VPCIGA 

is now obligated to pay the claim. For the reasons below, we

disagree.

A.

Wilder is not a “responsible operator” for the purposes of 

the BLBA. A mine operator cannot be the “responsible operator” 

if it is financially incapable of assuming liability. 20 C.F.R. 

§ 725.494(e). 

It is undisputed that Wilder is bankrupt and is itself 

incapable of assuming liability. It is also undisputed that 

Wilder’s insurance company, Rockwood, is insolvent and is 

incapable of assuming liability. According to DOL regulations, 

an operator’s insurance policy “shall not be considered 
10

sufficient to establish the operator’s capability of assuming 

liability if the insurance company has been declared insolvent 

and its obligations for the claim are not otherwise guaranteed.” 

Id. § 725.494(e)(1). Thus, the issue is whether or not 

liability for Wilder’s claims are “otherwise guaranteed.” Id. 

Under the Guaranty Act, Wilder’s obligations for the claim are 

not otherwise guaranteed by the VPCIGA. 

As discussed above, the final date for filing claims 

against Rockwood was August 26, 1992. Mullins’s claim was filed 

in 2009, seventeen years after the final date to file his claim 

against Rockwood had passed. J.A. 12, 31. As such, this is not 

a “covered claim” under the Guaranty Act, and the VPCIGA is 

under no obligation to pay it. See Mounts, 484 S.E.2d at 144

(holding that VPCIGA’s liability was limited to “covered claims” 

and that claims filed against Rockwood after August 26, 1992 

were not “covered claims”).

RB&F contends that the August 1992 bar date for filing 

claims against Rockwood is void based on our decision in Boyd & 

Stevenson, which it argues was based on “general principles of 

insurance law, that where the law establishes a condition of 

insurance that is impossible for a claimant to perform, it is 

ineffectual and void.” Pets.’ Br. at 15. Thus, RB&F claims

that because Mullins could not have filed his claim before the 
11

1992 bar date, the bar date creates a condition impossible and 

must be void. RB&F’s reliance on Boyd & Stevenson is misplaced. 

In Boyd & Stevenson, we determined that a notice provision 

sent to Rockwood’s claimants after Rockwood’s insolvency was 

capable of two interpretations: (1) that a claim for survivor’s 

benefits was a separate claim that must be independently filed 

with the VPCIGA; or (2) that a claim for survivor’s benefits was 

derivative of the original claim and did not require filing with 

the VPCIGA. 407 F.3d at 668-69. We then looked to the “general 

principle of contract law that exclusionary language in a 

contract will be construed against an insurer,” and “adopt[ed] 

an interpretation which recognizes that a survivor’s claim is 

part of a miner’s original claim for filing purposes.” Id.

Then, we explicitly distinguished Mounts, stating in no 

uncertain terms that the matter in Boyd & Stevenson “is 

distinguishable from the Virginia Court of Appeals decision in 

. . . Mounts.” Id. at 669. In Mounts, just as in this case, 

the miner was diagnosed with pneumoconiosis after the deadline 

for filing claims against Rockwood had passed, yet the Virginia 

court held that state law prevented the VPCIGA from assuming 

liability for the claim. 484 S.E.2d at 144. The “condition 

impossible” in this case is materially indistinguishable from 

the facts in Mounts. As such, Boyd & Stevenson does not apply. 
12

B.

RB&F contends that even if Virginia law limits the VPCIGA’s 

liability, to the extent that the Guaranty Act limits liability 

for black lung claims, it is preempted by the BLBA. This 

argument centers on RB&F’s assumption that the VPCIGA is an 

insurer for the purposes of the BLBA. If that were the case, 

the Guaranty Act’s limitation might be preempted and the VPCIGA

may be obligated to cover Mullins’s claim. See Lovilia Coal Co. 

v. Williams, 143 F.3d 317, 325 (7th Cir. 1998) (holding that a 

state law in conflict with the BLBA was preempted). We do not 

have to reach the preemption question, however, because the 

VPCIGA is not an insurer for this claim and is thus not covered 

by the BLBA. 

The BLBA requires employers to secure their liability for 

the payment of benefits by either self-insuring, or purchasing 

qualifying insurance. Specifically, the BLBA provides:

[E]ach operator of a coal mine . . . shall secure the 

payment of benefits for which he is liable under 

section 932 of this title by (1) qualifying as a selfinsurer in accordance with regulations prescribed by 

the Secretary, or (2) insuring and keeping insured the 

payment of such benefits with any stock company or 

mutual company or association, or with any other 

person or fund, including any State fund, while such 

company, association, person or fund is authorized 

under the laws of any State to insure workmen’s 

compensation.

30 U.S.C. § 933(a). The Act further requires that:
13

[E]very policy or contract of insurance must contain 

-- (1) a provision to pay benefits required under 

section 932 of this title, notwithstanding the 

provisions of the State workmen’s compensation law 

which may provide for lesser payments; (2) a provision 

that insolvency or bankruptcy of the operator or 

discharge therein (or both) shall not relieve the 

carrier from liability for such payments; and (3) such 

other provisions as the Secretary, by regulation, may 

require.

Id. § 933(b). DOL’s regulations provide that any such policy 

shall be construed to conform with the requirements of the BLBA, 

20 C.F.R. § 726.203(c)(6), and that every carrier who writes 

insurance under the BLBA shall be deemed to have agreed to be 

bound “to the full liability for the obligations under the Act 

of the operator named in said report,” id. § 726.210. See also

id. § 726.207 (“Any requirement under any benefits order, 

finding, or decision shall be binding upon such carrier in the 

same manner and to the same extent as upon the operator.”). As 

this Court has explained, the BLBA requires insurance carriers 

to “step[] into [the] shoes” of the insured employer. Tazco, 

Inc. v. Dir., Office of Workers Comp. Program, U.S. Dep’t of 

Labor, 895 F.2d 949, 951 (4th Cir. 1990).

Therefore, the BLBA squarely puts the obligation to provide 

insurance on the mine operator and the insurance company writing 

the provision. It is clear that mine operators must be insured, 

even in the case of their own insolvency, and that any insurance 

carrier who writes insurance under the BLBA is bound to the full 
14

liability of the covered operator. The issue in this case, 

then, is whether the VPCIGA is an insurer under the BLBA. 

Under DOL regulations implementing the BLBA, “[i]nsurer or 

carrier means any . . . fund, including any State fund, 

authorized under the laws of a State to insure employers’ 

liability under workers’ compensation laws.” 20 C.F.R. § 

725.101(a)(18) (emphasis added). 

The VPCIGA, however, is not an insurer in the traditional 

sense. As its name suggests, it is a state guaranty

association; it only “steps into the shoes” of the insolvent 

insurance company for “covered claims.” Va. Code Ann. § 38.2-

1606(A)(1). The VPCIGA “is not engaged in the business of 

making contracts of insurance,” Northland Ins. Co. v. Va. Prop. 

& Cas. Ins. Guar. Ass’n, 392 S.E.2d 682, 685 (Va. 1990),6 but 

rather is designed to “provide prompt payment of covered claims

to reduce financial loss to claimants or policyholders resulting 

from the insolvency of an insurer.” Va. Code Ann. § 38.2-1600

(emphasis added). As the Supreme Court of Virginia has held:

 6 RB&F attempts to distinguish Northland because it dealt 

with subrogation claims against the VPCIGA under Virginia’s 

uninsured motorist statute. The type of claim, however, is 

irrelevant; the important fact is that although the VPCIGA 

assumed responsibility for some claims against an insolvent 

insurer, it does not write insurance contracts and does not 

become an insurer for all of an insolvent insurance company’s 

claims. See Northland, 392 S.E.2d at 685.
15

The [Guaranty] Act, considered as a whole, clearly 

indicates that the General Assembly did not intend 

that the Association merely “step into the shoes” of 

the insolvent insurer. Establishment of the [VPCIGA]

affords a mechanism for the timely payment of 

appropriate claims to avoid financial loss to certain 

classes of people. But it is not merely a solvent 

substitute for an insolvent insurance company. 

Va. Prop. & Cas. Ins. Guar. Ass’n v. Int’l Ins. Co. (Foster), 

385 S.E.2d 614, 616 (Va. 1989).7 

Specifically, with regards to Rockwood’s insolvency, the 

Virginia courts have further made it clear that VPCIGA was not 

intended to cover claims against Rockwood after August 26, 1992. 

Mounts, 484 S.E.2d at 144. In Mounts, the court held that 

because the claim in question was filed after the 1992 cutoff 

date, “the [VPCIGA] was barred by statute from considering 

 7 RB&F argues that Foster shows that under Virginia law, the 

insolvency of Rockwood created a legal relationship between 

Wilder and the VPCIGA for the purposes of BLBA claims against 

Wilder, bringing the VPCIGA under the BLBA. However, according 

to the Supreme Court of Virginia, that legal relationship exists 

“only to the extent” that it was not otherwise limited by the 

Virginia Guaranty Act. Foster, 385 S.E.2d at 616 (“The 

insolvency of [the insurer] created a legal relationship between 

[the covered entity] and the [VPCIGA] which reflected the terms 

of the [insurers] policy only to the extent they were not 

otherwise limited by the [Guaranty] Act.”) (emphasis added). As 

explained in Section I, supra, the legal relationship between a 

claimant and the VPCIGA is limited to “covered claims,” which 

Mullins’s is not. 
16

Mounts’ claim to be ‘a covered claim,’ . . . and was not 

authorized to pay benefits.” Id.8 

To the extent that a state guaranty association steps into 

the prior insurer’s shoes as to the particular claim, and 

“insure[s] employers’ liability under workers’ compensation 

laws,” that guaranty association is an insurer under the BLBA. 

20 C.F.R. § 725.101(a)(18). However, the mere existence of a 

state guaranty company does not then impose liability on the 

guaranty company for all of the state’s insolvent insurance 

companies’ BLBA claims. See 62 Fed. Reg. 3338, 3369 (1997) 

(“[T]he Department and the award beneficiary may collect from a 

state insurance guaranty association where state law requires 

such an association to assume the insurers liabilities.”) 

(emphases added). Only if that state guaranty association 

“insure[s] employers’ liability under workers’ compensation 

 8 RB&F attempts to draw a distinction between this case and 

Mounts. It essentially argues that because the court in Mounts 

held that the state Uninsured Employer’s Fund was found liable 

for the claim instead of a prior employer, then Mounts precludes 

imposition of liability on RB&F. However, the reason the 

liability did not fall to a previous employer in Mounts is 

because the statute assigning liability in that case did not 

require it, see 484 S.E.2d at 143, whereas the statute in this 

case, the BLBA, does place liability on prior employers if the 

most recent employer is financially incapable of assuming 

liability, 20 C.F.R. § 725.494(e). Moreover, it does not matter 

to whom liability eventually fell. The relevant fact is that 

the Virginia court held that the VPCIGA was barred by state law 

from assuming liability. 
17

laws,” does the association fall under the BLBA. 20 C.F.R. § 

725.101(a)(18). Here, Virginia chose not to require the VPCIGA 

to assume Rockwood’s non-covered claims--in this case, Mullins’s 

BLBA claim.

RB&F is correct in pointing out that insurers that cover an 

operator’s BLBA claims are not permitted to provide partial 

liability for those claims. See Tazco, 895 F.2d at 951.9 The 

VCPIGA, however, is not providing partial liability for 

Wilder/Rockwood’s BLBA claims, but is rather assuming full 

liability of a subset of Rockwood’s claims. See Mounts, 484 

S.E.2d at 144 (noting that the VPCIGA assumed full liability for 

“covered claims,”--claims made before August 26, 1992--but was 

barred by statute from assuming liability for non-covered 

claims--claims made after August 26, 1992). In Tazco, we held 

 9 RB&F makes an additional argument based on this Court’s 

decision in Tazco. It argues that Tazco’s requirement that DOL 

provide notice of a claim to both the coal mine operator and the 

insurer means that DOL was required to provide notice first to 

the VPCIGA, regardless of whether it was liable for the claim 

under state law. However, Tazco was a challenge brought because 

an interested party--the insurance company that covered the 

claim--did not receive notice of a claim and subsequently 

defaulted. The ruling rested on due process grounds, namely 

“the guarantees of notice and opportunity to be heard,” which 

the court reasoned were “[p]aramount among [constitutional] 

rights.” 895 F.2d at 950 (citation omitted). Here, RB&F has 

had an opportunity to be heard; it is simply arguing that VPCIGA 

should have been given notice first, in case they agreed to 

cover the claim. The DOL’s actions here did not deny RB&F due 

process.
18

that the insurance carrier was properly identified as the party 

in interest because “the carrier takes on all the employer’s 

responsibilities in connection with insured claims.” Id. at 951

(emphasis added). Under state law, however, the VPCIGA was 

barred from taking on all of Rockwood’s claims. See Mounts, 484 

S.E.2d at 144. Indeed, it was barred from taking on this claim. 

In order to comply with the BLBA, it is clear that Wilder 

and Rockwood were required to cover all future BLBA claims 

against Wilder. See 30 U.S.C. § 933(a)-(b). Wilder and 

Rockwood’s reliance on the VPCIGA to cover all future claims

after both companies’ insolvency, however, was misplaced. Full 

coverage of all claims against an insolvent insurer was not the 

purpose of the Guaranty Act. See Va. Code Ann. § 38.2-1600. 

Wilder and Rockwood could have--and likely should have under the 

BLBA--contracted with a reinsurer to cover the company’s future 

BLBA liabilities. However, Wilder and Rockwood’s misplaced 

reliance does not impose liability, as a matter of federal law, 

on the VPCIGA.10 Under DOL regulations, the liability for 

 10 RB&F argues that “Rockwood could not have been discharged 

from its bankruptcy reorganization without a plan to fully cover 

the workers’ compensation claims for which it was liable and no 

bankruptcy judge would have accepted the proposition that 

Rockwood accounted for these liabilities by relying on a prior 

carrier and employer like Old Republic and RB&F.” Pets.’ Br. at 

24. RB&F, however, offers no support for this statement and no 

evidence that Rockwood’s bankruptcy reorganization shifted all 

(Continued)
19

Mullins’s claim falls to the “potentially liable operator” that 

most recently employed the miner. 20 C.F.R. § 725.495(a)(1).

Since Wilder cannot be found to be a “potentially liable 

operator” under 20 C.F.R. § 725.494, the liability properly 

falls to the miner’s next most recent employer, RB&F. Id.

§ 725.495(a)(3); see also Armco, Inc. v. Martin, 277 F.3d 468, 

476 (4th Cir. 2002) (reaching a similar conclusion under earlier 

DOL regulations implementing the BLBA). 

C.

RB&F additionally argues that the regulatory burdenshifting analysis applied by the ALJ violated the APA and 

Director, Office of Workers’ Compensation Programs, Department 

of Labor v. Greenwich Collieries, 512 U.S. 267 (1994). But we 

need not answer this question here; the burden of proof was 

irrelevant to the outcome of this case. See N & N Contractors, 

Inc. v. Occupational Safety & Health Review Comm’n, 255 F.3d 

122, 127-128 (4th Cir. 2001) (holding that even an erroneous 

shifting of the burden of proof is harmless if the decision did 

not turn on that burden); see also In re Schoonover, 331 F.3d 

575, 577 (7th Cir. 2003) (“[T]he dispute was resolved on wholly 

 

of the company’s future BLBA liabilities to the VPCIGA (which 

again would have been directly contrary to Virginia law).
20

legal grounds, so the burden of persuasion is irrelevant.”). 

The only disputed issues in this case are questions of law: 

whether the VPCIGA is liable for this claim under Virginia law, 

and if not, whether the Guaranty Act is preempted by the BLBA. 

The relevant facts--Wilder’s bankruptcy, Rockwood’s insolvency, 

the bar date for claims against Rockwood, and the date Mullins’s 

claim was filed--are not contested. As such, the burdenshifting analysis under 20 C.F.R. § 725.495(c) had no impact on 

the ALJ’s or the BRB’s decision. 

IV.

For the foregoing reasons, the decision of the Benefits 

Review Board is

AFFIRMED.