Adams v. Director, OWCP

• Decision Date: 29 September 1989
• Docket Number: No. 88-3946,88-3946
• Citation: 886 F.2d 818
• Parties: Jesse ADAMS, Petitioner, v. DIRECTOR, OWCP, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 818

886 F.2d 818

Jesse ADAMS, Petitioner, v. DIRECTOR, OWCP, Respondent.

No. 88-3946.

United States Court of Appeals Sixth Circuit.

Argued May 25, 1989.

Decided Sept. 29, 1989.

Jack N. VanStone (argued), VanStone & Krochta, Evansville, Ind., for Jesse H. Adams, petitioner.

Michael J. Denney, Rae Ellen Frank James, and Michael J. Rutledge (argued), U.S. Dept. of Labor, Office of the Sol., Washington, D.C., for Director, OWCP, respondent.

Before MILBURN, Circuit Judge, and CELEBREZZE, Senior Circuit Judge, and BERTELSMAN, District Judge. ^*

CELEBREZZE, Senior Circuit Judge.

Claimant Jesse Adams petitions this court to review a final order of the Benefits Review Board (BRB or Board) denying his claim for benefits under the Black Lung Benefits Act (Act), 30 U.S.C. Secs. 901-945 (1982). ¹ Claimant Adams argues that the BRB erred in requiring him to prove that his pneumoconiosis "in and of itself" or "standing alone" caused his totally disabling respiratory or pulmonary impairment. We agree with Adams that application of the Board's standard to a claim such as his, in which the miner has established the existence of employment-related pneumoconiosis and a totally disabling respiratory impairment, is an unduly restrictive reading of the statutory and regulatory language "total disability due to pneumoconiosis" and is thus inconsistent with the beneficial purposes of the Act. Accordingly, we grant the petition for review and reverse the BRB's order.

Adams filed the instant claim for benefits on July 9, 1982. ² A hearing was held before an Administrative Law Judge (ALJ) on March 7, 1985. The record discloses that Adams was a miner in underground coal mines for twelve years and two and one-half months between 1943 and 1961. From 1962 until 1969, Adams was employed as a mechanic and a welder in a stone quarry, and between 1969 and 1979, he was self-employed as a mechanic and welder. In both of these non-mining occupations, Adams was exposed to noxious arc-welding fumes. In addition, Adams had a long-standing habit of cigarette smoking.

Mr. Adams' respiratory problems first surfaced in 1972. The evidence heard by the ALJ indicated that Adams' respiratory disease had worsened since its onset. Adams would become short of breath upon exertion, and he suffered from morning cough. Adams was also afflicted with heart problems and an ulcerated stomach, both of which had resulted in hospital stays and surgery.

Although the medical evidence presented to the ALJ was to a certain extent conflicting, Adams clearly established by x-ray that pneumoconiosis had invaded his lungs, see 20 C.F.R. Sec. 718.202(a)(1), and the Director has accordingly conceded the existence of the disease. Because Adams suffered from pneumoconiosis and had more than ten years of coal mine employment, he was also entitled to the presumption that his pneumoconiosis arose out of his coal mine employment. See id. Sec. 718.203(b). This presumption went unrebutted. ³ In addition, the ALJ found that the qualifying results of a pulmonary function test established that Adams suffered from a totally disabling respiratory or pulmonary impairment. See id. Sec. 718.204(c)(1).

Despite the confluence of these facts establishing a totally disabling lung disease and pneumoconiosis arising from coal mine employment, the ALJ denied benefits under the Act. Assessing the medical opinions of record, the ALJ concluded that Adams had failed to establish the requisite causal link between his pneumoconiosis and his total disability: "The record contains no medical evidence that affirmatively establishes that Claimant's total disability was due to pneumoconiosis standing alone " (emphasis added). On appeal, the BRB held that its prior decision in Wilburn v. Director, OWCP, 11 Black Lung Rep. 1-135 (B.R.B.1988), dictated that the claimant must prove his pneumoconiosis was "in and of itself" totally disabling. The Board concluded that the ALJ's "standing alone" formulation was equivalent to the "in and of itself" standard, and upon finding the ALJ's conclusion supported by substantial evidence, the BRB affirmed. This timely petition for review ensued.

Since Adams' claim was filed after March 31, 1980, it was properly evaluated by the ALJ and the BRB under the Secretary of Labor's permanent regulations found at 20 C.F.R. Part 718. See Tennessee Consolidated Coal Co. v. Crisp, 866 F.2d 179 (6th Cir.1989); 20 C.F.R. Sec. 718.2. Under Part 718, the miner must prove three facts in order to receive Black Lung Benefits: (1) that he suffers from pneumoconiosis; (2) that his pneumoconiosis arose at least in part out of his coal mine employment; and (3) that he is totally disabled by pneumoconiosis. See Director, OWCP v. Mangifest, 826 F.2d 1318, 1320 (3d Cir.1987); 20 C.F.R. Secs. 718.2, 718.202, 718.203, 718.204; see also Strike v. Director, OWCP, 817 F.2d 395, 399 (7th Cir.1987). The claimant bears the burden of proving each of these elements of his claim by a preponderance of the evidence, except insofar as he is aided by a presumption. See 20 C.F.R. Sec. 718.403; Mangifest, 826 F.2d at 1320; see also 20 C.F.R. Secs. 718.203(b), 718.302-.306 (presumptions).

In the instant claim, it is undisputed that Adams has pneumoconiosis, id. Sec. 718.202(a)(1), that his pneumoconiosis arose from his twelve years of coal mine employment, id. Sec. 718.203, and that he suffers from a totally disabling respiratory impairment, id. Sec. 718.204(c). The only issue in dispute on this petition to review, therefore, is whether Adams is totally disabled "due to" pneumoconiosis. More specifically, the narrow question presented concerns the degree of causation necessary when the claimant has established his pneumoconiosis by x-ray (but has been unable to invoke the irrebuttable presumption of section 718.304) and has also shown the existence of a totally disabling respiratory disease by medical evidence under section 718.204(c) (but has not qualified for the rebuttable presumption in section 718.305 because of less than fifteen years coal mine employment).

This inquiry is mandated by the statutory requirement that the miner is entitled to benefits only if he is "totally disabled due to pneumoconiosis." 30 U.S.C. 901(a). This requirement is reiterated in the specific regulatory language under review:

Except as provided in Sec. 718.305, proof that the miner suffers or suffered from a totally disabling respiratory impairment as defined in paragraphs (c)(1), (2), (4) and (5) of this section shall not, by itself, be sufficient to establish that the miner's impairment is or was due to pneumoconiosis.

20 C.F.R. Sec. 718.204(c)(5) (emphasis added). As we noted in Zimmerman v. Director, OWCP, 871 F.2d 564 (6th Cir.1989), this requirement that the total disability arise from pneumoconiosis, and not just any respiratory or pulmonary impairment, is "implicit in the entire scheme enacted by Congress." Id. at 566. Our decision in Zimmerman, however, did not purport to answer the question posed by the instant case.

The Director argues that, as a general matter, two avenues are open for a claimant to establish total disability "due to" pneumoconiosis when the statutory presumptions are not available. First, in the absence of x-ray evidence (or other qualifying evidence under section 718.202) indicating that the miner suffers from "clinical" pneumoconiosis, the Director asserts that the causation requirement would be satisfied only if the claimant's totally disabling respiratory disease (as found under section 718.204(c)) is shown to be "significantly related to, or substantially aggravated by, dust exposure in coal mine employment." 20 C.F.R. Sec. 718.201. Under these circumstances, in the Director's view, the miner's entire lung disease is "legal" pneumoconiosis under the regulations, and his totally disabling respiratory impairment must therefore be considered "due to" his pneumoconiosis. See id. Sec. 718.204(b) ("a miner shall be considered totally disabled if pneumoconiosis as defined in Sec. 718.201 prevents ... the miner" from engaging in his coal mine work or comparable, gainful employment). This case does not provide us with a direct opportunity to review this interpretation.

The Director also recognizes a second method for a claimant to prove causation, which is at issue here: a miner who is totally disabled by respiratory disease, and who has established the existence of "clinical" pneumoconiosis by x-ray, may prove the requisite causal nexus between the two by competent medical evidence. The Department of Labor regulations, however, nowhere define the circumstances under which such a living miner's totally disabling lung disease will be considered "due to" pneumoconiosis under the Act and section 718.204(c)(5). Compare 20 C.F.R. Sec. 718.205(b) & (c) ("due to pneumoconiosis" defined in context of survivors' claims). To make up for this deficiency, the Director asserts, as the BRB held, that the language "total disability due to pneumoconiosis" requires "unequivocally" that the claimant's pneumoconiosis be totally disabling "in and of itself", which appears to be the equivalent of the traditional "but for" causation test.

The causation standard embodied in the term "due to", however, is not susceptible to such easy interpretation. As the Department of Labor stated in promulgating regulations explaining the requirement of "death due to pneumoconiosis" for survivors' claims cited above:

The words do not speak clearly and unambiguously for themselves. The causal nexus of "due to" has been given a broad variety of meanings in the law ranging from sole and proximate cause at one end of the spectrum to contributing cause at the other.

48 Fed.Reg. 24,276 (May 31, 1983). Given this obvious ambiguity in the "due to" language, it is somewhat surprising for the Director now to argue that its meaning is unequivocal. Since the Director cites us to little regulatory or statutory support for his restrictive...