Groves v. Arch On The Green, Inc., BRB 20-0170 BLA
| Decision Date | 20 May 2021 |
| Docket Number | BRB 20-0170 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | LAWRENCE L. GROVES Claimant-Respondent v. ARCH ON THE GREEN, INCORPORATED and BITUMINOUS CASUALTY CORPORATION Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
Appeal of the Decision and Order Awarding Benefits of Jonathan C Calianos, Administrative Law Judge, United States Department of Labor.
Brent Yonts (Yonts, Sherman & Driskill, PSC), Greenville Kentucky, for Claimant.
Laura Metcoff Klaus (Greenberg Traurig LLP), Washington, D.C., for Employer and its Carrier.
Jeffrey S. Goldberg (Elena S. Goldstein, Deputy Solicitor of Labor; Barry H. Joyner, Associate Solicitor; Michael J Rutledge, Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.
Before: BUZZARD, GRESH, and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Employer and its Carrier (Employer) appeal Administrative Law Judge Jonathan C. Calianos's Decision and Order Awarding Benefits (2016-BLA-05653) rendered on a claim filed on May 1 2006 pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case involves Claimant's request for modification in a subsequent claim[1] and is before the Benefits Review Board for the third time.[2]
In its last decision, the Board affirmed Administrative Law Judge Daniel F. Solomon's finding that Claimant established the existence of pneumoconiosis and therefore established a change in an applicable condition of entitlement. Groves v. Arch on the Green Inc., BRB No. 12-0170 BLA, slip op. at 6-7 (Dec. 21, 2012) (unpub.). The Board also affirmed his finding that Claimant established total disability due to pneumoconiosis and therefore affirmed the award of benefits. Id.
Pursuant to Employer's appeal, the United States Court of Appeals for the Sixth Circuit vacated Judge Solomon's finding that Claimant established total disability due to pneumoconiosis, holding he applied an incorrect standard in finding disability causation. Arch on the Green, Inc. v. Groves, 761 F.3d 594, 600-01 (6th Cir. 2014). Thus, the Sixth Circuit remanded this case for further proceedings. Id.
On November 6, 2014, subsequent to the Sixth Circuit's remand, Claimant requested modification, and the case was remanded to the district director on December 29, 2014. Director's Exhibits 47, 48. On May 19, 2016, the case was referred to the Office of Administrative Law Judges for a formal hearing and was assigned to Judge Calianos (the administrative law judge). Prior to the hearing, Employer sought to depose Department of Labor (DOL) employees concerning the continuing validity of the scientific premises set forth in the preamble to the 2001 revisions to the black lung regulations. The Director, Office of Workers' Compensation Programs (the Director), moved for a protective order to prevent the depositions, which the administrative law judge granted.
In the Decision and Order Awarding Benefits dated January 8, 2020, which is the subject of this appeal, the administrative law judge credited Claimant with sixteen years of surface coal mine employment in conditions substantially similar to those in an underground mine and found he established a totally disabling respiratory or pulmonary impairment. 20 C.F.R. §718.204(b)(2). He therefore found Claimant invoked the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, [3] 30 U.S.C. §921(c)(4) (2018), and thereby established a change in an applicable condition of entitlement.[4] 20 C.F.R. §725.309(c). He further found Employer did not rebut the presumption and awarded benefits.
On appeal, Employer contends this appeal should be held in abeyance pending resolution of challenges to the constitutionality of the Section 411(c)(4) presumption. It further argues the administrative law judge deprived it of due process by refusing to allow it to depose a DOL official regarding the scientific bases for the preamble to the 2001 regulatory revisions while relying on the preamble to find it did not rebut the Section 411(c)(4) presumption. On the merits, Employer argues the administrative law judge improperly invoked the presumption based on erroneous findings that Claimant had at least fifteen years of qualifying coal mine employment and is totally disabled. Employer also asserts the administrative law judge erred in finding its experts relied on premises that conflict with the preamble. In the alternative, it contends that, even if Claimant is entitled to benefits, the administrative law judge erred in determining the benefits commencement date.
Claimant responds, urging affirmance of the award of benefits. The Director responds, contending the administrative law judge rationally found Claimant established at least fifteen years of surface coal mine employment in conditions substantially similar to those underground and did not deprive Employer of due process. The Director further urges the Board to reject Employer's request to hold this case in abeyance. Employer reiterates its contentions in its reply brief.
The Board's scope of review is defined by statute. We must affirm the administrative law judge's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.[5] 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Employer requests that the Board hold this appeal in abeyance pending a final resolution to constitutional challenges to the Affordable Care Act (ACA), which revived the Section 411(c)(4) presumption. Employer's Brief at 14 n.2; see Pub. L. No. 111-148, §1556 (2010). As Employer indicates, the United States Supreme Court is considering whether the ACA requirement for individuals to obtain health insurance is unconstitutional and, if so, whether the remainder of the law must also be struck down as inseverable from that provision.[6] Texas v. California, U.S., No. 19-1019, argued Nov. 10, 2020. The United States Supreme Court previously upheld the constitutionality of the ACA in Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012), however, and the Board has declined to hold cases in abeyance pending resolution of legal challenges to the ACA. See Stacy v. Olga Coal Co., 24 BLR 1-207, 1-214-15 (2010), aff'd sub nom. W.Va. CWP Fund v. Stacy, 671 F.3d 378 (4th Cir. 2011); Mathews v. United Pocahontas Coal Co., 24 BLR 1-193, 1-201 (2010). We thus deny Employer's motion to hold this case in abeyance.
Prior to the hearing on Claimant's request for modification Employer submitted a Notice of Rule 30(b)(6) Deposition to DOL indicating it intended to compel the testimony of a DOL employee "qualified and knowledgeable to testify concerning the scientific validity of . . . facts and medical conclusions set forth in the preamble[]" to the revised regulations. Employer's August 26, 2016 Notice of Rule 30(b)(6) Deposition to DOL. The Director filed a Motion for Protective Order to prevent Employer from deposing any DOL employees. Director's Aug. 31, 2016 Motion for Protective Order. Employer responded, urging the administrative law judge to deny the Director's request. Employer's Sept. 14, 2016 Opposition to Motion for a Protective Order. In an Order dated September 30, 2016, the administrative law judge granted the Director's request, adopting and incorporating by reference Administrative Law Judge Timothy McGrath's March 17, 2016 Order Granting Motion for Protective Order in Thomas v. Cedar Ridge Inc., 2015-BLA-05443 (Judge McGrath's Order). Sept. 30, 2016 Order Granting Request for Protective Order and Quashing Deposition. The administrative law judge adopted Judge McGrath's reasoning: courts have consistently upheld the validity of the 2001 regulatory revisions and have determined administrative law judges may rely on the preamble in weighing medical evidence; a deposition of a DOL employee was unnecessary because the scientific bases for the regulations are contained in the preamble; and interested parties are free to provide more recent medical studies and evidence to challenge the scientific bases for the regulations. Id., citing Judge McGrath's Order.
Employer argues it was deprived of due process because the administrative law judge denied its request to depose a DOL official regarding the scientific basis for the preamble, then relied on the preamble in evaluating the medical opinion evidence. Decision and Order at 18-19. We disagree.
Due process requires that Employer be given the opportunity to mount a meaningful defense. See Island Creek Coal Co. v. Holdman, 202 F.3d 873, 883-84 (6th Cir. 2000). As the administrative law judge concluded, the medical studies and literature that serve as the bases for the scientific findings contained in the 2001 regulatory revisions are set forth in the preamble itself. Sept. 30, 2016 Order Granting Request for Protective Order and Quashing Deposition, citing Judge McGrath's Order. Thus, Employer had access to the DOL's conclusions regarding the medical studies that it found most credible and was fully aware that administrative law judges may consult those scientific findings when analyzing medical opinion evidence.[7] See Cent. Ohio Coal Co. v. Director, OWCP [Sterling], 762 F.3d 483, 491 (6th Cir. 2014); A & E Coal Co. v. Adams, 694 F.3d 798, 801 (6th Cir. 2012).
Moreover as the administrative law judge noted, Employer was free to develop and submit evidence...
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