Harlan Bell Coal Co. v. Lemar

• Decision Date: 08 June 1990
• Docket Number: No. 89-3529,89-3529
• Citation: 904 F.2d 1042
• Parties: HARLAN BELL COAL CO. and Old Republic Insurance Company, Petitioners, v. Dewey LEMAR, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1042

904 F.2d 1042

HARLAN BELL COAL CO. and Old Republic Insurance Company, Petitioners, v. Dewey LEMAR, Respondent.

No. 89-3529.

United States Court of Appeals Sixth Circuit.

Argued Feb. 5, 1990.

Decided June 8, 1990.

Laura Metcoff Klaus, Mark E. Solomons (argued), and Arter & Hadden, Washington, D.C., for petitioners.

John C. Carter (argued), Harlan, Ky., Michael J. Denney, Rae Ellen Frank James, and Irene B. Wozny, U.S. Department of Labor, Office of the Sol., Washington, D.C., for respondent.

Before KEITH and NORRIS, Circuit Judges, and JOINER, Senior District Judge. ^*

KEITH, Circuit Judge.

The petitioners, Harlan Bell Coal Co. and Old Republic Insurance Companies (collectively "Harlan Bell"), appeal from the decision and order of the Benefits Review Board ("the Board"), granting the black lung benefits claim of Harlan Bell's former employee, respondent Dewey Lemar ("Lemar"). For the reasons stated below, we Reverse and Remand.

I.

On January 28, 1980, Lemar submitted an application for disability benefits, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. Secs. 901-945 ("the Act"). Lemar claimed that he suffered from respiratory and pulmonary impairments. On November 3, 1981, the Department of Labor's Office of Workers' Compensation Programs ("the OWCP") determined that Lemar was not entitled to benefits because: first, he established only seven years of employment in the coal mines; and second, he failed to show that he was rendered incapable of performing coal mine work due to a totally disabling respiratory or pulmonary impairment.

Lemar terminated his coal mine employment on March 17, 1983, when he suffered a serious back injury. Lemar's claim was referred to an Administrative Law Judge ("ALJ") on January 25, 1985. Lemar's claim was contested by his employer, Harlan Bell, and the Director, OWCP ("the Director").

The ALJ heard oral argument from the parties on February 25, 1987. Contrary to the initial determination of the DOL, the ALJ found that Lemar had established fifteen years of coal mine employment. ¹ Because Lemar filed his claim prior to April 1, 1980 and produced an X-ray that was interpreted positive for pneumoconiosis by Dr. Brent Brandon, ² the ALJ determined that Lemar had invoked the interim presumption under 20 C.F.R. Sec. 727.203(a)(1). ³ The ALJ went on to find, however, that the presumption was rebutted pursuant to Sec. 727.203(b)(2): ⁴

Subsection (b)(2) permits rebuttal by showing that the miner is able to do his usual coal mine work or comparable gainful work. The [Board] has held that this may be done by proving that the miner did not suffer from a respiratory or pulmonary impairment or by showing that such impairment was not totally disabling ...

[Lemar's] pulmonary function study and arterial blood gas study of record, combined with the examination of Dr. [Kathy] Caizzi establish only a mild obstructive defect. Based on the objective studies of record and the evaluation by Dr. Caizzi, [I] conclude that [Lemar] does not suffer from a totally disabling respiratory or pulmonary impairment which would render him unable to perform his usual coal mine work or similar work activity. I find that [Lemar] left his last coal mine work due to a back injury and not because of breathing difficulties.

Joint Appendix at 17 (quoting Lemar v. Harlan Bell, No. 85-BLA-2048 (DOL Nov. 13, 1987) (order denying black lung benefits) (citations omitted)). The ALJ concluded that the totality of the evidence indicated that Lemar retained a residual functional capacity to perform his usual coal mine work or comparable employment.

At the time of Lemar's ALJ hearing, a showing that a miner was not rendered incapable of performing his usual coal mine work or comparable work because of a respiratory or pulmonary impairment was sufficient to rebut the interim presumption. See 20 C.F.R. Sec. 727.203(b)(2); Sykes v. Itmann Coal Co., 2 Black Lung Rep. (MB) 1-1089, 1-1094 (Ben.Rev.Bd.1980); Johnson v. Cannelton Industries, Inc., 2 Black Lung Rep. (MB) 1-1081, 1-1085 (Ben.Rev.Bd.1980). However, on May 18, 1987, after the record in Lemar's case was closed but before the ALJ had issued an order, this court held in York v. Benefits Review Bd., 819 F.2d 134 (6th Cir.1987), that the interim presumption may not be rebutted if the miner is disabled for any reason, whether or not respiratory or pulmonary impairments are implicated. In York, we concluded that:

[I]n order for the Director or employer to rebut a miner's presumed entitlement to benefits as established by Sec. 727.203(a), they must establish, under rebuttal provision Sec. 727.203(b)(2), that the miner is able to do his usual coal mine work or comparable and gainful work. They cannot merely rely upon a showing that the miner was not totally disabled by the respiratory impairment alone. Rather, they must show the miner is not disabled.

819 F.2d at 138.

In the present case, the ALJ issued an opinion and order denying Lemar's claim for black lung disability benefits on November 13, 1987. Because the ALJ failed to apply the post-York standards, Lemar appealed the ALJ's decision to the Board.

In his petition before the Board, Lemar argued that the ALJ erred in failing to apply York in his Sec. 727.203(b)(2) rebuttal analysis. In response, Harlan Bell argued that if the Board found York dispositive, then the case should be remanded to the ALJ because the new standards announced in York had substantially undermined Harlan Bell's defense. Harlan Bell also contended that the ALJ's findings should be deemed adequate to support rebuttal of the interim presumption under Sec. 727.203(b)(3). ⁵

On December 28, 1988, the Board reversed the decision and order of the ALJ. The Board did not address Harlan Bell's request for a new trial, but did indicate that the record evidence was inadequate, as a matter of law, to demonstrate rebuttal under Sec. 727.203(b)(3). Addressing the issue of rebuttal under Sec. 727.203(b)(2), the Board found that Lemar suffered from back and heart problems, as well as a respiratory or pulmonary disability. Thus, the Board concluded that, under the post-York standards, the medical evidence of Lemar's disabling back, heart, and respiratory or pulmonary impairments precluded rebuttal of the interim presumption. The Board subsequently remanded Lemar's case for the entry of a benefit award.

On January 25, 1989, Harlan Bell filed a motion for reconsideration of the Board's order. Harlan Bell maintained that it was entitled to a remand for a new trial and a fair opportunity to respond to the substantial changes in interim presumption law brought about by York. The Board denied Harlan Bell's motion for reconsideration on April 27, 1989. The Board, citing Lynn v. Island Creek Coal Co., 12 Black Lung Rep. (MB) 1-146 (Ben.Rev.Bd.1989), concluded that there was no impropriety in its application of intervening case law without providing Harlan Bell the opportunity to present evidence under the new standard.

On June 16, 1989, Harlan Bell filed a timely appeal with this court.

II.

In Welch v. Benefits Review Bd., 808 F.2d 443 (6th Cir.1986), we stated that:

This court has a limited scope of review over the decisions of the Benefits Review Board. The Board itself may set aside an administrative law judge's findings of fact and conclusions of law only if they are not supported by substantial evidence, or not in accordance with law. Our scope of review is limited to scrutinizing Board decisions for errors of law and for adherence to the statutory standard governing the Board's review of the administrative law judge's factual determinations. Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1116 (6th Cir.1984), cert. denied, 471 U.S. 1116, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985).

Welch, 808 F.2d at 445. Thus, both this court and the Board examine the ALJ's decision to determine whether it is consistent with the Act and "supported by substantial evidence in the record considered as a whole." 33 U.S.C. Sec. 921(b)(3). See Warman v. Pittsburg & Midway Coal Mining Co., 839 F.2d 257, 258 (6th Cir.1988).

The Black Lung Benefits Act was enacted to "provide benefits ... to coal miners who are totally disabled due to pneumoconiosis and to the surviving dependents of miners whose death was due to such disease." 30 U.S.C. Sec. 901(a). Under the Act, pneumoconiosis is defined 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. Sec. 902(b).

III.

A.

On appeal, Harlan Bell argues that the Board erred by not remanding the present case to the ALJ for reconsideration under the standards established in York v. Benefits Review Bd., 819 F.2d 134 (6th Cir.1987). Harlan Bell initially contends that by usurping the ALJ's factfinding function, the Board clearly exceeded the scope of its statutory authority. Lemar responds that because a remand to the ALJ for additional factfinding would not have produced a different result, the Board did not err in granting his benefit award. We disagree.

In Director, OWCP v. Rowe, 710 F.2d 251 (6th Cir.1983), we emphasized that the Board's primary function is to review the ALJ's decision for errors of law. See id. at 254. Although the Board may appropriately determine whether the ALJ's factual findings are supported by substantial evidence, the Board is not empowered to engage in a de novo review of the facts. See id.; 33 U.S.C. Sec. 921(b)(3); 20 C.F.R. Sec. 802.301(a). If the ALJ fails to consider important facts or incorrectly reviews the record, then the Board may properly remand the case with appropriate instructions for further review by the ALJ. See Rowe, 710 F.2d at 255.

If the ALJ or the Board has erred by ignoring important facts or reviewing evidence under an incorrect legal standard, then we must remand the case for additional proceedings. See Freeman v. Director, OWCP, 781 F.2d 79, 83 (6th Cir.1986). Where...