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

• Decision Date: 27 June 2013
• Docket Number: No. 11–3637.,11–3637.
• Citation: 721 F.3d 789
• Parties: CONSOLIDATION COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor and George Bailey, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

721 F.3d 789

CONSOLIDATION COAL COMPANY, Petitioner,

v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor and George Bailey, Respondents.

No. 11–3637.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 10, 2012.

Decided June 27, 2013.

Cheryl L. Intravaia (argued), Feirich, Mager, Green & Ryan, Carbondale, IL, for Petitioner.

Sean G. Bajkowski, Maia S. Fisher (argued), Department of Labor, Washington, DC, Tara L. Dahl, Darrell Dunham & Associates, Carbondale, IL, for Respondents.

Before EASTERBROOK, Chief Judge, and CUDAHY and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

This is a case about a black lung benefits claim. The main issue is the application of the recently revived “15–year presumption” that the total pulmonary or respiratory impairment of a coal worker with 15 years experience in the mines is due to pneumoconiosis (commonly known as “black lung”) for the purposes of the Black Lung Benefits Act (the Act). 30 U.S.C. §§ 901 et seq.

The Act was enacted in 1972 as an amendment to the Health and Safety Act to compensate coal miners who were totally disabled due to pneumoconiosis. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 8–9, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). For the purposes of the Act, the miner may either have “clinical” or “legal” pneumoconiosis. 20 C.F.R. § 718.201. The latter is defined as “any chronic lung disease or impairment ... arising out of coal mine employment.” Any chronic lung disease that is “significantly related to, or substantially aggravated by” exposure to coal mine dust is legal pneumoconiosis; dust need not be the sole or even primary cause of the disease. 20 C.F.R. § 718.201(a)(1)-(b).

In 1972, the Act contained a provision creating a rebuttable presumption that coal miners who had worked for at least 15 years in underground mines or in surface mines with similar conditions and who suffered from a totally disabling respiratory or pulmonary impairment were totally disableddue to pneumoconiosis. See Pub.L. No. 92–303, § 4(c) (1972). In 1981, Congress removed this presumption for new claims. SeePub.L. No. 97–119, § 202(b)(1) (1981). In 2010, Congress revived the presumption for “claims filed after January 1, 2005, that were still pending on or after March 23, 2010.” Keene v. Consolidation Coal Co., 645 F.3d 844, 847 (7th Cir.2011); see30 U.S.C. § 921(c)(4).

George Bailey was employed by Consolidation Coal (Coal) at a surface mine for 26 years. He primarily operated bulldozers to load coal in very dusty conditions. He also smoked several cigarettes each day for many years; the actual number of pack years is disputed by the parties. Bailey has been diagnosed with chronic obstructive pulmonary disease (COPD) and is seeking benefits under the Act. In order to be awarded benefits under the Act, Bailey must satisfy four elements: (1) that he suffers from pneumoconiosis; (2) that his pneumoconiosis was caused by coal mine employment; (3) that he is totally disabled by a pulmonary or respiratory impairment; and (4) that impairment is caused, at least in part, by pneumoconiosis. Keene, 645 F.3d at 848.

He has filed four claims for black lung benefits. The first three claims were considered during the decades-long interval when the 15–year presumption was absent from the Act. The first two claims were denied, and he withdrew his third claim.

Bailey filed his first claim in 2000. In connection to that claim, Bailey was examined by Dr. Rhody Eisenstein. Eisenstein diagnosed Bailey with COPD, which was attributed to “inherited factors” and “mining exposure.” Eisenstein noted that Bailey's disability was minor. The Director denied this claim, noting that the evidence did not show “the presence of pneumoconiosis”; or “that the disease was caused at least in part by coal mine work”; or that Bailey was “totally disabled.”

Bailey filed his second claim in 2003 and he was examined by Dr. P.B. Sanjabi. Sanjabi diagnosed Bailey with COPD and possibly coal workers' pneumoconiosis, attributable to smoking and exposure. Sanjabi noted with respect to Bailey's condition that “some limitation is expected due to COPD.” The Director denied this claim, concluding that the evidence did “not show that the miner is totally disabled by the disease.”

Bailey filed his current claim in 2007. He was examined by Drs. William Houser and Peter G. Tuteur, and his medical file was reviewed by Dr. Byron T. Westerfield. All three doctors agreed that Bailey is totally disabled by COPD. Bailey and Coal submitted four pulmonary function tests. In a pulmonary function test, the examinee's condition is measured first before the application of a bronchodilator and subsequently after the application of a bronchodilator. The height, age and sex of the examinee establish the benchmarks for evaluating results. However, examiners did not list height consistently for Bailey, listing him on subsequent measurements as 68, 69, 71, and 69 inches respectively. All four tests that were conducted before the application of a bronchodilator returned results establishing total disability for a male 69 to 71 inches tall. However, only the two most recent tests that were conducted after the application of the bronchodilator returned results establishing disability for a male 69 to 71 inches tall.

Due to the fact that he had previously filed rejected claims, Bailey was required to show a change in condition in his fourth claim. The Director must first complete a subsequent claim inquiry before moving to an overall claim analysis. Evidence collected after the prior rejection must show that the claimant now satisfies a previously deficient element. While Bailey's fourth claim was under consideration, Congress restored the 15–year presumption. The main issue in this case is what impact this restoration has on subsequent claim analysis.

The Director issued a proposed decision awarding benefits. Coal requested a hearing before an administrative law judge (ALJ). Upon review, the ALJ first conducted a subsequent claim inquiry and determined that Bailey's medical condition had worsened to the point that he was now totally disabled.¹ The ALJ, using the 15–year presumption, held that Bailey can now establish pneumoconiosis caused in part by exposure to coal dust, two elements that had been deficient in his previous claims. The ALJ proceeded to analyze Bailey's overall claim, applied the 15–year presumption, and awarded the benefits on the basis of total pulmonary impairment. However, the ALJ did not determine Bailey's height, nor did it consider if Coal had rebutted the 15–year presumption in the subsequent claim analysis.

Coal appealed to the Benefits Review Board. The board affirmed. Coal petitioned this court for review of the decision of the Benefits Review Board and argues that the ALJ first incorrectly applied the 15–year presumption to find a change in Bailey's condition during the subsequent claim inquiry and second that the ALJ erred in finding that Bailey satisfies the elements for benefits under the Act without considering whether Coal had rebutted the 15–year presumption.

The Board had jurisdiction under 33 U.S.C. § 921(b)(3). This court has jurisdiction under 33 U.S.C. § 921(c). We review the ALJ decision and cannot overturn that decision if it is “rational, supported by substantial evidence, and consistent with governing law.” Freeman United Coal Mining Co. v. Hunter, 82 F.3d 764, 767 (7th Cir.1996).

I.

Coal's primary argument is that the 15–year presumption cannot be used to establish an element of entitlement for purposes of demonstrating a change in medical condition. An examination of the relevant statutory language does not support this contention, especially in light of our previous analysis of subsequent claims under the Act and the deference this court gives to the Director's interpretation.

We addressed the proper handling of subsequent applications for benefits under the Act in Peabody Coal Co. v. Spese, 117 F.3d 1001 (7th Cir.1997) (en banc).² We concluded in Spese that a new application for benefits is permissible when a grant of a new application would be consistent with the conclusion that the denial of the earlier application was correct. Id. at 1008. “To prevail on the new claim, therefore, the miner must show that something capable of making a difference has changed since the record closed on the first application.” Id.

In Spese, we dealt with a material change in the miner's physical condition; x-rays taken after his first claim denial returned positive results. In the case before us, it is primarily the change of the law has allowed Bailey to establish a previously deficient element. Under the reasoning of Spese, we see no reason why a subsequent change analysis should treat a change in the applicable law any differently than a material change in the physical condition of the miner. In either situation, it is possible to say that the initial denial was correct but that the miner is now entitled to benefits.

Our treatment of a material change predicated on a change in the applicable law comports with the text of the Act. A subsequent claim inquiry must show that “one of the applicable conditions of entitlement” as set out in 20 C.F.R. § 725.202(d) has changed since the denial of the earlier claim. 20 C.F.R. § 725.309(d). Section 725.202(d) lists the elements of a claim, including that the claimant has pneumoconiosis, as set out in § 718.202, and that this pneumoconiosis contributes to the claimant's total disability, as set out in § 718.204. These sections set out the elements of entitlement and incorporate regulatory definitions of those elements.

There is nothing in any of these sections that precludes the use of the 15–year presumption to show a change in condition. Indeed, these sections specifically mention that the elements of pneumoconiosis and disability causation, respectively, can be established by the 15–year presumption. This point is...