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West Virginia CWP Fund v. Bender

United States Court of Appeals, Fourth Circuit

April 2, 2015

WEST VIRGINIA CWP FUND, as insurer for Logan Coals, Inc., Petitioner,
v.
PAGE BENDER, JR.; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents

Argued January 29, 2015

Page 130

[Copyrighted Material Omitted]

Page 131

On Petition for Review of an Order of the Benefits Review Board. (11-0683-BLA; 10-BLA-5257).

PETITION FOR REVIEW DENIED.

ARGUED:

William Steele Mattingly, JACKSON KELLY PLLC, Morgantown, West Virginia, for Petitioner.

Sean Gregory Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Roger Daniel Forman, LAW OFFICE OF ROGER D. FORMAN, Buckeye, West Virginia, for Respondents.

ON BRIEF:

M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor, Maia S. Fisher, Deputy Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent Director, Office of Workers' Compensation Programs, United States Department of Labor.

Before KEENAN, FLOYD, and HARRIS, Circuit Judges. Judge Keenan wrote the opinion, in which Judge Floyd and Judge Harris joined.

OPINION

Page 132

BARBARA MILANO KEENAN, Circuit Judge.

In this appeal, we consider the validity of an administrative regulation and its evidentiary standard under which coal mine operators may rebut a presumption of disability that otherwise qualifies certain coal miners for benefits under the Black Lung Benefits Act, 30 U.S.C. § § 901 through 945. Logan Coals, Inc.[1] (the operator) seeks review of a decision of the Benefits Review Board affirming an administrative law judge's (ALJ) award of benefits to Page Bender, Jr. under the Act. Because Bender had worked as an underground coal miner for 21 years and suffered from a totally disabling respiratory condition, the ALJ applied to Bender's claim a rebuttable presumption of total disability due to pneumoconiosis, as provided by 30 U.S.C. § 921(c)(4) and 20 C.F.R. § 718.305.[2] After considering the medical evidence, the ALJ concluded that the operator had not rebutted the presumption of total disability due to pneumoconiosis by " ruling out" any causal relationship between Bender's pneumoconiosis and his disability. The ALJ therefore awarded black lung benefits to Bender, and the Benefits Review Board affirmed the ALJ's decision.

In its petition for review, the operator argues that the ALJ erred in applying the " rule-out" rebuttal standard. We disagree and hold that the Department of Labor acted within its regulatory authority in requiring coal mine operators to show, in the case of miners who meet the statutory criteria for the presumption, that " no part of the miner's respiratory or pulmonary total disability was caused by pneumoconiosis." 20 C.F.R. § 718.305(d). We also hold that the ALJ's decision is supported by substantial evidence. Accordingly, we affirm the award of benefits and deny the operator's petition for review.

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I.

We begin by stating the statutory and regulatory framework, including certain pertinent history. The Black Lung Benefits Act (the Act), 30 U.S.C. § § 901 through 945, was first enacted in 1969.[3] See Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 683-84, 111 S.Ct. 2524, 115 L.Ed.2d 604 (1991) (describing history of the Act). The Act is intended " to provide benefits . . . to coal miners who are totally disabled due to pneumoconiosis [(black lung disease)] and to the surviving dependents of miners whose death was due to such disease." 30 U.S.C. § 901(a).

In general, to establish an entitlement to black lung benefits, a miner must show: " (1) that he has pneumoconiosis, in either its 'clinical' or 'legal' form; (2) that the pneumoconiosis arose out of coal mine employment; (3) that he is totally disabled by a pulmonary or respiratory impairment; and (4) that his pneumoconiosis is a substantially contributing cause of his total disability." Mingo Logan Coal Co. v. Owens, 724 F.3d 550, 555 (4th Cir. 2013) (citing 20 C.F.R. § § 725.202(d)(2), 718.204(c)(1)). Pneumoconiosis is a " substantially contributing cause" of a miner's disability if the pneumoconiosis (1) " [h]as a material adverse effect on the miner's respiratory or pulmonary condition" or (2) " [m]aterially worsens a totally disabling respiratory or pulmonary impairment which is caused by a disease or exposure unrelated to coal mine employment." 20 C.F.R. § 718.204(c)(1).

In 1972, Congress added to the Act a rebuttable presumption of total disability due to pneumoconiosis (the presumption). See Black Lung Benefits Act of 1972, 92 Pub. L. No. 303, 86 Stat. 150, 154; 30 U.S.C. § 921(c)(4) (2012).[4] The presumption is applicable to a miner's claim if he worked for at least 15 years in underground coal mines, if a chest x-ray does not show the presence of complicated pneumoconiosis,[5] and " if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment." § 921(c)(4). Section 921(c)(4) also specifies the manner in which the Secretary of Labor[6] (the Secretary) can rebut the presumption:

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The Secretary may rebut such presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.

Four years after the presumption was added to the statute, the Supreme Court decided Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 35-37, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), holding that the rebuttal provision in Section 921(c)(4) applied by its plain terms only to the Secretary, not to coal mine operators opposing a miner's claim for benefits. Later, in 1980, the Department of Labor promulgated a regulation implementing the statutory presumption and clarifying the rebuttal standard for both the Secretary and the coal mine operators (the original regulation). See Standards for Determining Coal Miners' Total Disability or Death Due To Pneumoconiosis, 45 Fed. Reg. 13,678, 13,692 (Feb. 29, 1980); 20 C.F.R. § 718.305 (2012). The original regulation set forth the rebuttal standard as follows:

Where the cause of death or total disability did not arise in whole or in part out of dust exposure in the miner's coal mine employment or the evidence establishes that the miner does not or did not have pneumoconiosis, the presumption will be considered rebutted. However, in no case shall the presumption be considered rebutted on the basis of evidence demonstrating the existence of a totally disabling obstructive respiratory or pulmonary disease of unknown origin.

§ 718.305(d) (2012) (emphasis added).

In 1981, however, Congress entirely eliminated the statutory presumption from Section 921(c)(4) for claims filed on or after January 1, 1982. See Black Lung Benefits Revenue Act of 1981, 97 Pub. L. No. 119, 95 Stat. 1635. The original regulation was amended in 1983 to reflect this statutory change, but remained in effect as originally written for claims filed before January 1, 1982.[7]

The presumption was restored to the statute in March 2010, as part of the Patient Protection and Affordable Care Act. See Patient Protection and Affordable Care Act, 111 Pub. L. No. 148, 124 Stat. 119, § 1556 (2010). In reenacting this provision, Congress used language identical to that employed in the original statute. See 30 U.S.C. § 921(c)(4) (2012). This revived statutory presumption remains in effect at the time of this appeal.

In 2013, the Department of Labor promulgated a revised regulation (the revised regulation, or the regulation), which is at issue in this case. The revised regulation states the following evidentiary standard that is required to rebut the presumption:

In a claim filed by a miner, the party opposing entitlement may rebut the presumption by--
(i) Establishing both that the miner does not, or did not, have:
(A) Legal pneumoconiosis . . . ; and
(B) Clinical pneumoconiosis . . ., arising out of coal mine ...

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