Consolidation Coal Co. v. Dir.
| Decision Date | 21 December 2018 |
| Docket Number | No. 18-2097,18-2097 |
| Citation | 911 F.3d 824 |
| Parties | CONSOLIDATION COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Cheryl L. Intravaia, Esq., Attorney, Feirich, Mager, Green & Ryan, Carbondale, IL, for Petitioner.
Maia S. Fisher, Edward Dean Sieger, Gary Stearman, Attorneys, Department of Labor, Office of the Solicitor, Sarah Hurley, Attorney, Department of Labor, Appellate Litigation, Washington, DC, for Office of Workers' Compensation Programs, Director, United States Department of Labor.
Joseph Edward Allman, Attorney, Allman Law LLC, Indianapolis, IN, for Ralph W. Ross.
Before Flaum, Ripple, and Manion, Circuit Judges.
Ralph Ross worked as a coal miner for approximately thirty years. He smoked cigarettes for almost as long but was able to quit after his first heart attack
. Ross continued to work as a coal miner even though he suffered another heart attack and had difficulty breathing at work. Approximately six years after Ross stopped working in the coal mines, his breathing problems became severe.
On January 19, 2012, Ross filed a claim for benefits under the Black Lung
Benefits Act, 30 U.S.C. § 901 et seq. At first, the administrative law judge ("ALJ") denied Ross’s claim. Ross petitioned the United States Department of Labor’s Benefits Review Board (the "Board") for review, and the Board vacated and remanded the ALJ’s decision for further consideration. On remand, the ALJ granted Ross’s claim. Ross’s former employer, petitioner Consolidation Coal Company (the "Employer"), petitioned the Board for review, and the Board affirmed the ALJ’s subsequent decision. Then the Employer filed this appeal. We enforce the decision of the Board.
Congress passed the Black Lung
Benefits Act (the "Act") in light of the "significant number" of coal miners who became "totally disabled" from working in coal mines. 30 U.S.C. § 901(a). Under the Act, coal miners may receive modest monetary and medical benefits to treat their pulmonary impairments. See id. To establish eligibility for such benefits, a coal miner must show: (1) he has pneumoconiosis, (2) the pneumoconiosis arose out of coal mine employment, (3) he is totally disabled, and (4) the pneumoconiosis contributes to the total disability. 20 C.F.R. § 725.202(d).
The Act and its implementing regulations define pneumoconiosis
as "a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment." 30 U.S.C. § 902(b) ; 20 C.F.R. § 718.201(a). And the regulations define two subcategories of pneumoconiosis : "Clinical pneumoconiosis" refers to "those diseases recognized by the medical community as pneumoconioses, i.e., the conditions characterized by permanent deposition of substantial amounts of particulate matter in the lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust exposure in coal mine employment." 20 C.F.R. § 718.201(a)(1). "Legal pneumoconiosis" refers to Id. § 718.201(a)(2).
To establish a respiratory or pulmonary impairment that is "totally disabl[ing]" and qualifies him for benefits under the Act, a miner must show that the impairment prevents him from performing his usual coal mine work and from engaging in gainful employment that requires similar skills to his coal mining job and that is near his home. Id. § 718.204(b)(1)(i)–(ii). Additionally, the coal miner must satisfy certain medical criteria. Id. § 718.204(b)(2). "In absence of contrary probative evidence," evidence that meets any of the standards outlined in § 718.204(b)(2)(i)–(iv) "shall establish a miner’s total disability." Id. Under subparagraph (i), pulmonary function tests
"showing values equal to or less than those listed in [certain tables in] Appendix B to this part for ... the FEV1 test" qualify "if, in addition, such tests also reveal the values ... equal to or less than those listed in ... Appendix B for this part, for ... the FVC test, or ... the MVV test, or ... [a] percentage of 55 or less when the results of the FEV1 test are divided by the results of the FVC test (FEV1/FVC equal to or less than 55%)." Under subparagraph (ii), arterial blood gas tests that "show the values listed in Appendix C to this part" qualify. Under subparagraph (iii), medical evidence showing the miner suffers from "cor pulmonale
with right-sided congestive heart failure" qualifies. And subparagraph (iv) provides:
Where total disability cannot be shown under paragraphs (b)(2)(i), (ii), or (iii) of this section, or where pulmonary function tests
and/or blood gas studies are medically contraindicated, total disability may nevertheless be found if a physician exercising reasoned medical judgment, based on medically acceptable clinical and laboratory diagnostic techniques, concludes that a miner’s respiratory or pulmonary condition prevents or prevented the miner from engaging in employment as described in paragraph (b)(1) of this section.
Congress intended for the Act to serve a remedial purpose and for doubts "[i]n the absence of definitive medical conclusion[s]" to be resolved in the miner’s favor. S. Rep. No. 92-743, at 2315. Accordingly, the Act includes a rebuttable presumption that a miner may invoke if the miner can establish that he has spent at least fifteen years working in a coal mine and establish pursuant to § 718.204 that he suffers from a totally disabling respiratory or pulmonary impairment.1 See 30 U.S.C. § 921(c)(4) ; 20 C.F.R. § 718.305. If the miner can make that showing, the miner is presumed to be totally disabled by pneumoconiosis
. 20 C.F.R. § 718.305(c)(1). The miner’s employer may rebut that presumption either by disproving the existence of legal and clinical pneumoconiosis, or by ruling out pneumoconiosis as a partial cause of the miner’s disability. Id. § 718.305(d)(1).
Ross spent thirteen years working underground in the mine and at least seventeen years working on the surface of the mine. Throughout his career, the dust from the mine was inescapable. After a day’s work, his clothes were "too nasty" to take inside his home, so he would shower at work, change into different clothes, and leave his work clothes hanging in his garage. Cleaning his work clothes required using the laundromat’s special washer for coal miner’s clothes, and even then, it took two wash cycles to remove the dust and grease from the coal mine.
Starting at the age of twenty and for approximately the next thirty years, Ross smoked between one-half to two packs of cigarettes per day, though sometimes he would begin smoking a cigarette, but would be too busy with work to finish it, so he’d extinguish it and go back to work. He quit smoking in 1989 after suffering his first heart attack
. Unfortunately, Ross had another serious heart attack in 1995, and he suspects he had a third heart attack in 1998.
Ross had breathing problems while working in the coal mines. He struggled to carry his tools while climbing the stairs and he often had to take breaks to catch his breath. And yet, Ross kept working.
That is, he kept working until his employer "let [him] go" in 2000 because he "got blinded in the right eye." At that time, Ross said he felt he could still do his job from a cardiac standpoint and that from a pulmonary standpoint, he "was trying." Since his coal mining career ended, Ross has not held steady employment. To stay busy, Ross volunteered by cutting firewood with a chainsaw, mowing lawns with a riding lawnmower, and putting up hay with a square baler.
Ross said his breathing problems became severe in 2006 or 2007. He has testified that since that time, he cannot walk around his house and yard like he used to, and it takes him longer to complete daily tasks, namely feeding his animals and mowing the lawn. Although he takes medication for his breathing problems, he can only perform fifteen to twenty minutes of work before he has to sit down to take a break for thirty-five to forty minutes. Ross uses an oxygen monitor to make sure his oxygen does not fall so low as to risk stroke
or death. When his oxygen levels get too low, Ross uses supplemental oxygen.
On January 19, 2012, Ross filed a claim for benefits under the Act. The District Director awarded Ross benefits in October 2012; the Employer requested a hearing before the Office of Administrative Law Judges. In preparation for that hearing, the Director of the Office of Workers’ Compensation Programs in the United States Department of Labor (the "Director"), Ross, and the Employer gathered medical evidence to present to the ALJ. The hearing occurred on October 23, 2013; Ross and his wife both testified. After the hearing, Ross and the Employer submitted briefs and the ALJ issued a decision denying benefits on September 8, 2014.
The ALJ determined that Ross had over fifteen years of qualifying coal mine employment, and in turn, focused on whether Ross was entitled to invoke the fifteen-year presumption by establishing a totally disabling respiratory or pulmonary impairment using qualifying medical evidence. Beginning with the pulmonary function tests
, the ALJ noted that the parties submitted three such exams for Ross. Dr. Tazbaz, on behalf of the Department of Labor, performed the first exam on Ross on February 13, 2012, and that exam produced qualifying values prebronchodilator. Dr. Tuteur, on behalf of the Employer, performed two more exams on Ross on June 28, 2012, and those exams produced nonqualifying values prebronchodilator and postbronchodilator. Since...
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