Energy West Mining Co v. Oliver

Decision Date20 February 2009
Docket NumberNo. 07-9588.,07-9588.
Citation555 F.3d 1211
PartiesENERGY WEST MINING COMPANY, Petitioner, v. John OLIVER; Office of Workers' Compensation Programs, Respondents.
CourtU.S. Court of Appeals — Tenth Circuit

Respondent Office of Workers' Compensation Programs.

Before McCONNELL, EBEL, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

This is a petition to review the judgment of the Department of Labor's Benefits Review Board. The Board upheld retired miner John Oliver's claim to black lung benefits from his longtime employer, Energy West Mining Company. Energy West's petition asserts two grounds for relief. First, it claims the Board's benefits award is not supported by substantial evidence. Second, Energy West argues that its liability to Mr. Oliver should be transferred to the Black Lung Disability Trust Fund—that is, to the government—because the government destroyed the records associated with a prior claim filed by Mr. Oliver in 1980. The company argues that the destruction of these records deprived it of a fair opportunity to defend Mr. Oliver's present claim, in violation of the Due Process Clause. After careful review, we deny the petition in both respects.

I
A

The Black Lung Benefits Act ("BLBA" or "Act"), 30 U.S.C. § 901 et seq., compensates coal miners who become totally disabled after contracting pneumoconiosis, or black lung disease, on the job. The Act defines pneumoconiosis as "a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mining employment." 30 U.S.C. § 902(b). It is caused by inhaling coal dust into the lungs over a long period, and "encompasses a cruel set of conditions that afflict a significant percentage of the nation's coal miners with `severe, and frequently crippling, chronic respiratory impairment.'" Nat'l Mining Ass'n v. Dep't of Labor, 292 F.3d 849, 854 (D.C.Cir.2002) (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 6, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976)). Black lung benefits are normally paid by a miner's employer, id.; 30 U.S.C. § 932, but if no employer is held responsible, the claim is paid from the Black Lung Disability Trust Fund ("Black Lung Trust") administered by the government, Nat'l Mining Ass'n, 292 F.3d at 854.

To obtain benefits under the Act, a miner must demonstrate that he satisfies three conditions: (1) he or she suffers from pneumoconiosis; (2) the pneumoconiosis arose out of coal mining employment; and (3) the pneumoconiosis is totally disabling. Wyoming Fuel Co. v. Dir., OWCP, 90 F.3d 1502, 1505 (10th Cir.1996); 30 U.S.C. § 901(a); 20 C.F.R. §§ 718.201-04. The miner must initially file a claim with a district director of the Office of Workers' Compensation Programs ("OWCP"). Either side may appeal the district director's decision to an administrative law judge ("ALJ"), then to the Board of Benefits Review, and finally to the court of appeals for the circuit in which the miner's injury occurred. Nat'l Mining Ass'n, 292 F.3d at 854; 33 U.S.C. § 921(c), as incorporated by the BLBA at 30 U.S.C. § 932(a); 20 C.F.R. §§ 725.481-82.

B

Mr. Oliver began his mining career with Energy West in 1967. Over the course of some twenty-five years, he worked at two of Energy West's Utah coal mines. At various times, he worked as a shuttle car operator, a belt man, and finally a bath house attendant. All of these activities exposed him to coal dust. Mr. Oliver was also exposed to dust (though not of the coal variety) through his work as a cattle rancher. He now suffers from chronic obstructive pulmonary disease ("COPD") a progressive and debilitating narrowing of the airways. Mr. Oliver now experiences shortness of breath, coughing fits, and difficulty lifting things. He is on continuous oxygen treatment.

Though COPD is not one of the diseases doctors call pneumoconiosis, it can nevertheless qualify under the legal definition of the term if it arises out of coal mining employment. A longstanding interpretation of the BLBA recognizes that Congress intended to compensate miners for "a broader class of lung diseases that are not pneumoconiosis as that term is used by the medical community." Andersen v. Dir., OWCP, 455 F.3d 1102, 1103-04 & n. 2 (10th Cir.2006); see also Gulf & Western Indus. v. Ling, 176 F.3d 226, 231-32 (4th Cir.1999). As we noted in Andersen, the Labor Department codified this interpretation at 20 C.F.R. § 718.201(a). The regulation defines "legal" pneumoconiosis to encompass "any chronic lung disease or impairment and its sequelae," including "any chronic restrictive or obstructive pulmonary disease arising out of coal mine employment." 20 C.F.R. § 718.201(a)(2); see also Andersen, 455 F.3d at 1104. COPD arises out of coal mining employment if it is "significantly related to, or substantially aggravated by, dust exposure in coal mine employment." 20 C.F.R. § 718.201(b). Because COPD is most frequently caused by cigarette smoking and is commonly found among the general population, we have held that a miner whose claim to black lung benefits is based on COPD is not entitled to the ordinary rebuttable presumption that his or her disease arose out of coal mining employment provided he worked in the mines for at least ten years. Andersen, 455 F.3d at 1104, 1106-07; cf. 30 U.S.C. § 921(c); 20 C.F.R. § 718.203(b) (establishing presumption).

Mr. Oliver filed his first claim for black lung benefits in 1980. Because OWCP destroyed the records associated with that claim in 1999 pursuant to its record-retention policy, we know very little about the claim's adjudication aside from the fact that it was denied. A memo left in place of the file suggests that, while Mr. Oliver had established the first two elements of his claim (pneumoconiosis arising out of coal mining employment), the claim was denied because he failed to show he was totally disabled in 1980. Following the denial of his original claim, Mr. Oliver continued to perform mining work for Energy West until his retirement in 1993.

Mr. Oliver filed his present claim for benefits in 2002. Because it follows a prior denial, it is a "subsequent claim" that must also be denied "unless the claimant demonstrates that one of the applicable conditions of entitlement has changed since the date upon which the order denying the prior claim became final." 20 C.F.R. § 725.309(d) (citations omitted). Under the applicable regulations, the adjudication of a subsequent claim is subject to special procedures. First, "any evidence submitted in connection with any prior claim shall be made a part of the record in the subsequent claim." § 725.309(d)(1). Then, limiting the inquiry to those conditions of entitlement on which the prior denial was actually based, § 725.309(d)(2), if the reason for the denial relates to the miner's physical condition, the subsequent claim may be approved only "if new evidence submitted in connection with the subsequent claim establishes at least one applicable condition of entitlement," § 725.309(d)(3). Once the claimant establishes one of the previously denied elements solely on the basis of new evidence, any prior findings on the remaining elements are deprived of preclusive effect. § 725.309(d)(4). Finally, if the claimant prevails, his or her benefits are limited to the period after the prior claim was denied. § 725.309(d)(5).

The destruction of Mr. Oliver's 1980 claim file threw a wrench into these procedures. Because OWCP destroyed it, the evidence associated with the prior claim was not made a part of the record as § 725.309(d)(1) requires. As a result, both sides were deprived of whatever support that evidence might have lent them with respect to two of the three elements. Ordinarily, after establishing one of the elements by new evidence alone, a claimant would be entitled to rely on both old and new evidence to support the other two. Instead, Mr. Oliver was forced to establish all three elements of his claim by new evidence rather than just one, while Energy West was forced to defend all three elements without the ability to counter or impeach new evidence with old.

In a hearing before the ALJ, each side pressed its case on the basis of expert medical testimony. Though the regulations establish four possible methods of proving a black lung claim—X-rays, a biopsy, applicable legal presumptions, and a physician's diagnosis based on "objective medical evidence" and "supported by a reasoned medical opinion," 20 C.F.R. § 718.202(a)—the ALJ found that Mr. Oliver could not prove his case by any of the first three methods. As a result, his proof consisted of the testimony of three doctors: Dr. Morgan, his treating physician, and Drs. Poitras and James. Energy West introduced rebuttal opinions from two of its own experts, Drs. Farney and Fino.

In a thorough thirty-page opinion, the ALJ found Mr. Oliver's experts more credible than Energy West's, placing particular reliance on the opinion of the treating physician. On the issue of the first two elements —whether Mr. Oliver had pneumoconiosis and whether it arose out of coal mining employment—the ALJ credited the opinion of all three of Mr. Oliver's doctors. She concluded that Dr. James and Dr. Poitras offered well-reasoned, well-documented opinions that were, importantly, "consistent with the opinion of [Mr. Oliver's] treating physician," Dr. Morgan. ALJ Op. at 23-24. She also noted that, unlike most COPD sufferers, Mr. Oliver has never been a smoker. Id. at 22. By contrast, Dr. Farney's conclusion for the company that Mr....

To continue reading

Request your trial
82 cases
  • Gardner v. Schumacher
    • United States
    • U.S. District Court — District of New Mexico
    • 13 Enero 2021
    ...fundamentally unfair element.’ " Mays v. Colvin, 739 F.3d at 573 (emphasis in the original)(quoting Energy W. Mining Co. v. Oliver, 555 F.3d 1211, 1219 (10th Cir. 2009) ). In other words, Dr. Gardner must show that he was prejudiced when the Dental Board's relied on photocopies of the origi......
  • D.A. v. Bridger Coal Co.
    • United States
    • Court of Appeals of Black Lung Complaints
    • 26 Octubre 2009
    ...that the administrative law judge erred in relying on Dr. Dobersen’s opinion to find complicated pneumoconiosis established. Oliver, 555 F.3d at 1211, 24 BLR at Pickup, 100 F.3d at 871, 20 BLR at 2-334; Hansen, 984 F.2d at 364, 17 BLR at 2-48. Additionally, employer chooses to overlook Dr. ......
  • Creech v. Apogee Coal Co.
    • United States
    • Court of Appeals of Black Lung Complaints
    • 28 Noviembre 2022
    ... ... due process]." Energy W. Mining Co. v. Oliver , ... 555 F.3d 1211, 1219 (10th Cir. 2009) ... ...
  • McLain v. Old Ben Coal Co.
    • United States
    • Court of Appeals of Black Lung Complaints
    • 14 Noviembre 2022
    ...F.3d at 997-98. Specifically, Employer must establish the claim proceedings included a "prejudicial, fundamentally unfair element." Oliver, 555 F.3d at 1219 (citing Betty B Coal Co. v. Director, [Stanley], 194 F.3d 491, 501 (4th Cir. 1999)). Thus Employer must "demonstrate that the contents......
  • Request a trial to view additional results
2 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Bohr's Social Security Issues Annotated - Volume II
    • 4 Mayo 2015
    ...726, 733 (E.D. Wis. 2004), § 1107.4 Wirth v. Barnhart , 325 F. Supp.2d 911, 914 (E.D. Wis. 2004), § 1702.7 W. Mining Co. v. Oliver , 555 F.3d 1211, 1219 (10th Cir. 2009), 10th-14 Wohl v. Secretary of Health & Human Servs. , CV 82-1312 (E.D.N.Y., Dec. 3, 1986), § 1702.7 Wolfe v. Chater , 86 ......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive Social Security Issues Annotated. Vol. II - 2014 Contents
    • 3 Agosto 2014
    ...726, 733 (E.D. Wis. 2004), § 1107.4 Wirth v. Barnhart , 325 F. Supp.2d 911, 914 (E.D. Wis. 2004), § 1702.7 W. Mining Co. v. Oliver , 555 F.3d 1211, 1219 (10th Cir. 2009), 10th-14 Wohl v. Secretary of Health & Human Servs. , CV 82-1312 (E.D.N.Y., Dec. 3, 1986), § 1702.7 Wolfe v. Chater , 86 ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT