Consolidation Coal Co. v. Dir., Office of Workers' Comp. Programs

• Decision Date: 25 July 2017
• Docket Number: No. 16-9524,16-9524
• Citation: 864 F.3d 1142
• Parties: CONSOLIDATION COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor; Kirk Hanna, Personal Representative on behalf of the Estate of Judy K. Noyes, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

864 F.3d 1142

CONSOLIDATION COAL COMPANY, Petitioner,

v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor; Kirk Hanna, Personal Representative on behalf of the Estate of Judy K. Noyes, Respondents.

No. 16-9524

United States Court of Appeals, Tenth Circuit.

Filed July 25, 2017

Cheryl L. Intravaia, Feirich/Mager/Green/Ryan, Carbondale, Illinois, for Petitioner.

Sean G. Bajkowski, Counsel for Appellate Litigation, U.S. Department of Labor, Office of the Solicitor, Washington, D.C. (M. Patricia Smith, Solicitor of Labor, Maia S. Fisher, Acting Associate Solicitor, and Emily Goldberg-Kraft, Attorney, United States Department of Labor, Office of the Solicitor, Washington, D.C., with him on the brief), for Director, Office of Workers' Compensation Programs, Respondent.

Jared L. Bramwell, Kelly & Bramwell, P.C., Draper, Utah, for Kirk Hanna, Respondent.

Before TYMKOVICH, Chief Judge, LUCERO and MORITZ, Circuit Judges.

LUCERO, Circuit Judge.

Consolidation Coal ("Consolidation") seeks review of a decision by the Department of Labor ("DOL") awarding survivor's benefits to Judy Noyes under the Black Lung

Benefits Act ("BLBA"), 30 U.S.C. §§ 901 - 944. The administrative law judge ("ALJ") assigned to the case determined that Mrs. Noyes was entitled to a statutory presumption that the death of her husband, James Noyes, resulted from his exposure to coal dust in underground coal mines. The ALJ further concluded that Consolidation failed to rebut that presumption by showing either that Mr. Noyes did not suffer from pneumoconiosis or that pneumoconiosis did not cause his death. In its petition for review, Consolidation argues that the ALJ erred in retroactively applying the rebuttal standard from DOL's revised regulations to Mrs. Noyes' claim for benefits. Further, the company contends that the ALJ's determination that Consolidation failed to meet its burden of rebuttal is not supported by substantial evidence.

We hold that the ALJ permissibly applied the rebuttal standard from the revised regulations to Mrs. Noyes' claim. The statutory presumption under 30 U.S.C. § 921(c)(4) encompasses both clinical and legal pneumoconiosis. And the rebuttal standard set forth in 20 C.F.R. § 718.305(d)(2)(ii), which requires an employer to effectively "rule out" any causal connection between pneumoconiosis and the miner's death, is consistent with the requirements of the Administrative Procedure Act ("APA") and the purposes underlying the BLBA. That standard may further be applied retrospectively to claims, like Mrs. Noyes', that were filed prior to the effective date of the revised regulations.

However, we agree with Consolidation that the ALJ incorrectly stated the revised rebuttal standard in analyzing Mrs. Noyes' claim. Exercising jurisdiction under 33 U.S.C. § 921(c) and 30 U.S.C. § 932(a), we grant Consolidation's petition for review and remand for further proceedings.

I

A

The BLBA provides benefits to coal miners and their surviving dependents for death or disability due to certain respiratory diseases known as "pneumoconiosis

" arising out of coal-mine employment. 33 U.S.C. § 901. There are two types of pneumoconiosis under the BLBA: "clinical" and "legal." 20 C.F.R. § 718.201(a). Clinical pneumoconiosis refers to a group of diseases that are "recognized by the medical community as pneumoconiosis" and "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." § 718.201(a)(1). Legal pneumoconiosis, in contrast, "encompasses a broader class of lung diseases that" do not all constitute "pneumoconiosis as the term is used by the medical community." Andersen v. Dir., OWCP , 455 F.3d 1102, 1104 (10th Cir. 2006). Legal pneumoconiosis is defined as "any chronic lung disease or impairment and its sequelae arising out of coal mine employment," including "any chronic restrictive or obstructive pulmonary disease" arising out of such employment. § 718.201(a)(2). A disease "aris[es] out of coal mine employment" if it is "significantly related to, or substantially aggravated by, dust exposure in coal mine employment." § 718.201(b).

An individual claiming survivor's benefits under the BLBA must generally show that: (1) the miner had pneumoconiosis; (2) the miner's pneumoconiosis arose out of coal-mine employment; and (3) the miner's death was due to pneumoconiosis. § 718.205(a). Congress has enacted various presumptions intended to ease a claimant's burden of establishing entitlement to benefits. See generally 30 U.S.C. § 921(c). Under § 921(c)(4), a survivor is entitled to a "rebuttable presumption that ... [a miner's] death was due to pneumoconiosis

" if the "miner was employed for fifteen years or more in one or more underground coal mines" and "evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment." Id.

This fifteen-year presumption was created in 1972. See Black Lung Benefits Act of 1972, Pub. L. No. 92-303, § 4(c), 86 Stat. 150, 154. It was repealed in 1981. See Black Lung Benefits Revenue Act of 1981, Pub. L. No. 97-119, § 202(b)(1), 95 Stat. 1635, 1643. In 2010, however, Congress revived the presumption as to all claims filed after January 1, 2005, and pending on or after March 23, 2010. See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1556(a), (c), 124 Stat. 119, 260 (2010). DOL subsequently issued a regulation providing that a party opposing a survivor's claim may rebut the presumption by establishing that the miner did not have either legal pneumoconiosis or clinical pneumoconiosis arising out of coal-mine employment, or by demonstrating that "no part of the miner's death was caused by pneumoconiosis." § 718.305(d)(2). Although this new regulation went into effect on October 25, 2013, see Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act, 78 Fed. Reg. 59,102, 59,102 (Sept. 25, 2013), it applies to all claims covered by the statutory amendment. § 718.305(a).

B

Between 1976 and 2004, Mr. Noyes worked as a foreman supervisor, mine manager, and mine superintendent for three different coal mining operations in Utah, totaling twenty-two years of coal-mine employment. Mr. Noyes was also a long-time smoker. He died on February 11, 2008, after a prolonged battle with various respiratory conditions, including emphysema

/chronic obstructive pulmonary disease ("COPD"), pneumonia, and lung cancer.

In 2008, Mrs. Noyes filed an application for survivor's benefits under the BLBA.¹ Her claim was initially denied on September 3, 2009. While her administrative appeal was pending before DOL's Office of Administrative Law Judges, Congress restored the fifteen-year presumption found in § 921(c)(4). See § 1556(a), (c), 124 Stat. at 260. The ALJ, Richard Malamphy, denied Consolidation's request to remand the case to the District Director for the development of additional evidence in response to the restored presumption. ALJ Malamphy concluded that a remand was unnecessary because his review was de novo and the parties would have the opportunity to submit new evidence regarding the statutory change.

Following a formal hearing, ALJ Malamphy denied Mrs. Noyes' application for benefits, concluding she had failed to establish that pneumoconiosis was a substantially contributing cause or factor in her husband's death. DOL's Benefits Review Board ("BRB") vacated the decision and remanded for consideration of whether Mrs. Noyes was entitled to invoke the fifteen-year presumption under § 921(c)(4). In a new order, ALJ Malamphy determined that the presumption applied and had not been rebutted. He consequently awarded benefits to Mrs. Noyes. Consolidation appealed, and the BRB vacated the ALJ's decision in part for failure to give Consolidation an opportunity to disprove the existence of legal pneumoconiosis before discrediting the employer's rebuttal evidence. The case was remanded to a new ALJ, Paul Johnson, who awarded benefits. Applying the fifteen-year presumption and the rebuttal standard under § 718.305(d), ALJ Johnson determined that Consolidation had failed to rebut the presumption of death due to pneumoconiosis. The BRB affirmed. Consolidation filed a timely petition for review with this court.

II

Consolidation raises several legal challenges to the BRB's decision. We review the BRB's resolution of legal questions de novo. Antelope Coal Co./Rio Tinto Energy Am. v. Goodin , 743 F.3d 1331, 1342 (10th Cir. 2014). In conducting this review, "[w]e give no deference to the [BRB's] interpretation" but accord "considerable weight to [DOL's] construction of the statute it is entrusted to administer and substantial deference to the agency's reasonable interpretation of its own regulations, unless such interpretation is plainly erroneous or inconsistent with the regulation." Id. (quotations, citations, and alteration omitted).

A

Consolidation first argues that § 718.305(d) constitutes an impermissible construction of the BLBA. With respect to claims for survivor's benefits under the Act, that regulation provides that a company may rebut the fifteen-year presumption by:

(i) Establishing both that the miner did not have:

(A) Legal pneumoconiosis as defined in § 718.201(a)(2) ; and(B) Clinical pneumoconiosis as defined in § 718.201(a)(1), arising out of coal mine employment ...; or

(ii) Establishing that no part of the miner's death was caused by pneumoconiosis as defined in § 718.201.

§ 718.305(d)(2). Consolidation contends that the fifteen-year presumption applies only to clinical pneumoconiosis and thus the regulation impermissibly requires a showing that the miner did not have legal pneumoconiosis. We disagree.

Section 921(c)(4) creates a rebuttable presumption that a "miner is totally disabled due to pneumoconiosis, that his death was due to pneumoconiosis

, or that at the time of his death he was totally disabled by...