Director, Office of Workers' Compensation Programs v. Trace Fork Coal Co.

K.K. HALL, Circuit Judge,

concurring in part and dissenting in part:

I concur in all of the majority’s opinion, except for Section II-B. The Director made a prima facie showing that Trace Fork was the responsible operator, ie., that it met the criteria of 20 C.F.R. § 725.492 and that none of Matney’s subsequent employers did. The cold record clearly reflects that the CWP Fund terminated Arizona Fuel’s coverage prior to Matney’s last day of employment; I see no advantage in imposing upon the Director the additional requirement of examining the policies and procedures of individual carriers to ensure that such terminations are proper. I would instead place the substantial burden of raising and resolving that question on the party with the strongest incentive to discover the answer — the employer who wishes to avoid liability for the claim.

Trace Fork’s contention that Arizona’s coverage should not have been terminated is in the nature of an affirmative defense; it therefore should have borne the burden of persuasion on the issue, and, concomitantly, the risk of non-persuasion. Because the record evidence was insufficient to prove whether the CWP Fund’s actions were either proper or improper, the Director’s designation of Trace Fork as the responsible operator should have been allowed to stand.