Hawkins v. Director, Office of Workers' Compensation Programs, 89-2102

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore WOOD, Jr., and KANNE, Circuit Judges, and PELL, Jr.; HARLINGTON WOOD, Jr.
Citation907 F.2d 697
PartiesRobert HAWKINS, Petitioner-Appellant, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, and Freeman United Coal Mining Company, Respondents-Appellees.
Docket NumberNo. 89-2102,89-2102
Decision Date20 July 1990

Page 697

907 F.2d 697
Robert HAWKINS, Petitioner-Appellant,
States Department of Labor, and Freeman United
Coal Mining Company, Respondents-Appellees.
No. 89-2102.
United States Court of Appeals,
Seventh Circuit.
Argued March 6, 1990.
Decided July 20, 1990.

Page 698

Howard B. Eisenberg, Southern Illinois University, Carbondale, Ill., for Robert Hawkins.

Louis R. Hegeman, Jay D. Stein, Gerald Ratner, Karin T. O'Connell, Gould & Ratner, Chicago, Ill., Robert W. Lewis, Benton, Ill., for Freeman United Coal Mining Co.

Carla Chapman, Linda M. Meekins, Benefits Review Bd., Dept. of Labor, Washington, D.C., for Benefits Review Bd.

Michael J. Denney, Steven D. Breeskin, Robert E. Kirschman, Jr., Dept. of Labor, Office of the Solicitor, Washington, D.C., John H. Secaras, Sol. Gen., Dept. of Labor, Chicago, Ill., for Office of Workers' Compensation Programs.

Before WOOD, Jr., and KANNE, Circuit Judges, and PELL, Jr., Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Former mine worker Robert Hawkins, a thirty-five year, pack-a-day cigarette smoker, has pneumoconiosis and arteriosclerotic heart disease. He is totally disabled. We must decide whether the ALJ, in denying Hawkins benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901-945 (1982), imposed on him the appropriate burden of proof on the issue whether his total disability was caused by his pneumoconiosis.

Page 699

I. Case History

On March 4, 1987, Hawkins received a hearing on his application for disability benefits under the black lung program. Administrative Law Judge Robert L. Cox denied Hawkins' claim in a written decision issued May 7, 1987. The ALJ framed the issues as follows: (1) was the claim timely filed? (2) did the miner suffer from pneumoconiosis? (3) did the miner's pneumoconiosis arise out of coal mine employment? ("employment causation"); (4) was the miner totally disabled? and (5) was the miner's disability due to pneumoconiosis? ("disability causation" 1). The parties eventually agreed that the claim was timely, and this issue is not raised on appeal.

The ALJ determined that Hawkins had pneumoconiosis and thus met the first prong of the test. Under the regulations governing Hawkins' case, 2 pneumoconiosis may be shown by x-ray evidence, biopsy or autopsy results, or by means of a "reasoned medical opinion" of a physician. 20 C.F.R. Sec. 718.202. 3 In Hawkins' case, the ALJ found that pneumoconiosis was demonstrated by x-ray evidence. Although the evidence was controverted, the ALJ resolved the conflicting evidence in Hawkins' favor and proceeded to the next step.

The ALJ also found that Hawkins proved that his pneumoconiosis arose from his coal mine employment. This step is met either by the invocation of a rebuttable presumption or by direct proof, depending on the miner's length of employment in the industry. 20 C.F.R. Sec. 718.203. In our case, the parties stipulated that Hawkins had at least twenty years of coal mine employment and thus qualified for the rebuttable presumption under section 718.203(b). In rebuttal, the employer relied on the medical report of Dr. Campbell which concluded that Hawkins' pulmonary disorder was moderate and caused completely by cigarette smoking rather than coal mine employment. The ALJ held that Dr. Campbell's report did not amount to "affirmative evidence that [Hawkins'] pneumoconiosis ... did not arise out of his coal mine employment" and cited two medical reports that contradicted Dr. Campbell's conclusion and explicitly connected Hawkins' lung condition with his coal mine employment. Thus, the ALJ held that the employer failed to rebut the presumption that Hawkins' pneumoconiosis arose from his employment in coal mines.

The next step, showing that the miner is totally disabled, was also resolved in Hawkins' favor. Total disability may be found from the results of pulmonary function tests, arterial blood-gas tests, the existence of both pneumoconiosis and cor pulmonale, or the reasoned medical opinion of a physician if total disability cannot be shown under the first three methods. 20 C.F.R. Sec. 718.204. The ALJ held that Hawkins' pulmonary function test results proved that he was totally disabled. The evidence again was controverted, but the ALJ resolved the conflict in favor of Hawkins and held that he was totally disabled for purposes of the Act.

The last issue the ALJ addressed was whether Hawkins proved that he was totally disabled due to pneumoconiosis. The ALJ held that the doctors' reports did not "constitute[ ] probative evidence that [Hawkins] is totally disabled by pneumoconiosis." Upon review of the entire record, the ALJ found that Hawkins had failed to carry his burden of proof on the disability causation issue.

Hawkins appealed the ALJ's decision to the Benefits Review Board. In a per curiam opinion, the Board affirmed the denial of benefits. Citing Wilburn v. Director,

Page 700

OWCP, 11 Black Lung Rep. 1-135 (1988), the Board held that in addition to the first three steps, "[a] miner ... must [also] establish by direct proof that his pneumoconiosis is, in and of itself, totally disabling." The Board agreed that Hawkins failed to enter such proof and that the ALJ correctly denied benefits. 4

Hawkins petitioned for a rehearing en banc, arguing that the Wilburn standard placed on miners the preclusive burden of proving that they were disabled solely due to pneumoconiosis. The Board granted the petition for reconsideration, but affirmed the original panel's decision. The Board reaffirmed its position that "a finding of total disability ... does not relieve claimant of his burden of establishing that his pneumoconiosis is, in and of itself, totally disabling." Since, according to the Board, the pulmonary function results on which Hawkins relied to prove he was totally disabled did not demonstrate "the etiology of the respiratory impairment," the Board agreed that Hawkins failed in his burden of proof. Hawkins now appeals.

II. Case Law

As originally presented to this court, the issue on appeal 5 was whether a claimant must prove any direct causal link between his or her pneumoconiosis and his or her total disability. Hawkins argued that the regulations imposed no such burden on claimants and that a claimant was entitled to benefits as soon as he or she met the three-pronged test of proving (1) the existence of pneumoconiosis, (2) employment causation, and (3) total disability. Thus, according to Hawkins, there was no separate disability causation step in the entitlement analysis. 6 Respondents pointed out in their briefs that a recent Tenth Circuit opinion, Mangus v. Director, OWCP, 882 F.2d 1527 (10th Cir.1989), had rejected Hawkins' argument and required claimants under section 718 who were not entitled to a disability causation presumption to enter evidence of this causal link. Respondents urged us to adopt the same reasoning. In his reply brief, Hawkins addressed Mangus and attempted to distinguish the case factually.

Between the time Hawkins filed his reply brief and the date of oral argument, three other circuit courts agreed with Mangus that claimants must demonstrate some causal link between pneumoconiosis and total disability. Lollar v. Alabama By-Products Corp., 893 F.2d 1258 (11th Cir.1990); Adams v. Director, OWCP, 886 F.2d 818 (6th Cir.1989); Bonessa v. United States Steel Corp., 884 F.2d 726 (3d Cir.1989). At oral argument, we asked the parties to address the applicability of these decisions to Hawkins' claim. A somewhat ambiguous split in authority existed in the four recorded cases: two circuits adopted a "simple contributing cause" standard, Mangus, 882 F.2d at 1531; Adams, 886 F.2d at 825; two adopted a

Page 701

seemingly stricter "substantial contributing cause" standard. Bonessa, 884 F.2d at 731; Lollar, 893 F.2d at 1265. Respondents conceded that all four circuits that had addressed the issue rejected Wilburn, and respondents therefore did not further insist on its application to Hawkins' claim. Hawkins conceded that some burden of proof on the disability causation issue must be met, but neither Hawkins nor the respondents were prepared to address the distinctions in the four cases or to suggest which standard this circuit should adopt. We therefore permitted the parties to file post-argument briefs addressing the issue. 7

Before the briefs were filed, a different panel of this court decided in Shelton v. Director, OWCP, 899 F.2d 690 (7th Cir.1990) that black lung claimants were eligible for benefits if they established a contributing cause relationship between their pneumoconiosis and their total disability. Hawkins argues in his post-argument brief that Shelton adopted the simple cause standard of Mangus and Adams, and that under this standard he is entitled to benefits. Freeman Coal argues that Hawkins is not entitled to benefits under his interpretation of Shelton. And the Director argues that Shelton adopted the "substantial contributing cause" standard of Lollar and Bonessa, and that the case should be remanded for a specific finding on the disability causation standard. While we agree that a remand is in order in this case, we disagree that Shelton adopted a substantial contributing cause standard or that a substantial cause standard is appropriate. As Shelton made clear, claimants must prove a simple "but for" nexus to be entitled to benefits. The differences between the simple and substantial contributing cause standards may be more apparent than real, but we will address the "split" in authority in order to respond to the Director's arguments.

The simple contributing cause standard emerged in Mangus v. Director, OWCP, supra, where the Tenth Circuit held that miners must show at least some causal relationship between their pneumoconiosis and their totally disabling condition to be entitled to benefits. 882 F.2d at 1531-32. The court compared the interim...

To continue reading

Request your trial
22 cases
  • Lovilia Coal Co. v. Harvey, 95-4122
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 1, 1997
    ...to a large deficit in the Trust Fund, raised taxes on coal operators and tightened eligibility requirements. See Hawkins v. Director, 907 F.2d 697, 702 n. 8 (7th Cir.1990); see also Lopatto, The Federal Black Lung Program: A 1983 Primer, 85 W.Va.L.Rev. 677 2 Lovilia does not, and could not,......
  • Little T Coal Co. v. Dir., Office of Workers' Comp. Programs, 22-3135
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 2, 2023
    ...Cir. 1990) (suggesting that "mining" must be a necessary but not sufficient cause of a miner's disability) with Hawkins v. Dir., OWCP, 907 F.2d 697, 704 &n.10 (7th Cir. 1990) (clarifying that a claimant who proves that legal pneumoconiosis was a cause of their disability would be eligible f......
  • Compton v. Inland Steel Coal Co., 89-2943
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 17, 1991
    ...miner can recover black lung benefits. Shelton 's utility has been proven already in this Court's decision in Hawkins v. Director, OWCP, 907 F.2d 697 (7th Cir.1990). In Hawkins, the Court recognized that "[a]s Shelton makes clear, claimants must prove a simple 'but for' nexus to be entitled......
  • Siples v. Brazil Coal & Clay Corp., BRB 18-0306 BLA
    • United States
    • Court of Appeals of Black Lung Complaints
    • August 29, 2019
    ...OWCP [Shores], 358 F.3d 486, 495 (7th Cir. 2004); Shelton v. Director, OWCP, 899 F.2d 690, 693 (7th Cir. 1990); Hawkins v. Director, OWCP, 907 F.2d 697 (7th Cir. 1990). Moreover, he permissibly considered and weighed the medical opinion evidence relevant to the cause of the miner's disabili......
  • Request a trial to view additional results

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