Lisa Lee Mines v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 19 June 1996
• Docket Number: No. 94-2523,94-2523
• Citation: 86 F.3d 1358
• Parties: LISA LEE MINES (Terrilynne Coal Company), Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; Alva Rutter, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1358

86 F.3d 1358

LISA LEE MINES (Terrilynne Coal Company), Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; Alva Rutter, Respondents.

No. 94-2523.

United States Court of Appeals Fourth Circuit.

Argued Jan. 30, 1996.

Decided June 19, 1996.

ARGUED: Ronald Eugene Gilbertson, Kilcullen, Wilson & Kilcullen, Chartered, Washington, D.C., for Petitioner. Christian P. Barber, Counsel for Appellate Litigation, Office of the Solicitor, United States Department of Labor, Washington, D.C., for Respondent Director; Robert F. Cohen, Jr., Cohen, Abate & Cohen, Fairmont, West Virginia, for Respondent Rutter. ON BRIEF: Thomas S. Williamson, Jr., Solicitor of Labor, Donald S. Shire, Associate Solicitor for Black Lung Benefits, Karen N. Blank, Office of the Solicitor, United States Department of Labor, Washington, D.C., for Respondent Director.

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER, HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge HALL wrote the majority opinion, in which Judges WIDENER, MURNAGHAN, ERVIN, NIEMEYER, MICHAEL, and MOTZ joined. Judge NIEMEYER wrote a concurring opinion. Judge LUTTIG wrote a dissenting opinion, in which Chief Judge WILKINSON and Judges RUSSELL, WILKINS, HAMILTON, and WILLIAMS joined.

OPINION

K.K. HALL, Circuit Judge:

Lisa Lee Mines petitioned for review of an order of the Department of Labor's Benefits Review Board (BRB) affirming the award of black lung benefits to Alva Rutter, a former coal miner. A panel of this court reversed and remanded. Lisa Lee Mines v. Director, Office of Workers' Compensation Programs, 57 F.3d 402 (4th Cir.1995). Rutter, who had proceeded pro se before the panel, obtained counsel and sought rehearing en banc. Having granted such rehearing, we now affirm.

I.

Putting aside for a moment the question on which the parties disagree, we must first note that Alva Rutter's medical condition unquestionably qualifies him for black lung benefits. He is the very paradigm of the man Congress intended to compensate. According to x-rays taken in 1988 and 1989, he has profuse ¹ small opacities in all six lung zones, upon which has developed complicated pneumoconiosis, or, by its more dauntingly descriptive name, "progressive massive fibrosis." One of the 1989 readers classified the large opacities in Rutter's lungs in Category B, which means that they are greater than two inches in diameter. Because progressive massive fibrosis is just that--progressive--Rutter is doubtless worse off now, seven years later, and he is not yet an old man. ² He spent his entire working life--32 years--in the mines, most of it loading coal by hand. Because of this long tenure, he need prove nothing more than his complicated pneumoconiosis to be entitled to benefits. 30 U.S.C. § 921(c)(1), (3); 20 C.F.R. §§ 718.302, .304. In short, the substance of Rutter's claim is fine.

II.

Procedure is the rub. In 1986, without the assistance of an attorney, Rutter applied for black lung benefits. He was still working at the time. An x-ray he submitted showed complicated pneumoconiosis; nonetheless, a Department of Labor claims examiner sent him a form denial. Rutter did not pursue the claim further.

In April 1989, he filed a new claim. ³ Because of the denial of his earlier claim, this one was subject to the "duplicate claims" regulation at 20 C.F.R. § 725.309(d), which states, in relevant part:

If the earlier miner's claim has been finally denied, the later claim shall also be denied, on the grounds of the prior denial, unless the deputy commissioner determines that there has been a material change in conditions....

This time a deputy commissioner ⁴ in the Department awarded benefits. The responsible operator, petitioner Lisa Lee Mines, requested a hearing. Lisa Lee's challenge to the deputy commissioner's decision was limited to whether Rutter had made the threshold showing of a "material change in conditions." The parties then agreed to submit the question on the existing record.

On October 11, 1991, an administrative law judge (ALJ) issued a decision and order awarding benefits. After canvassing the evidence, the ALJ concluded, "the medical evidence in 1989 shows a definite progression of the disease occurring over another interval of time resulting in the Claimant's reduced capacity to do his former coal mine work."

The ALJ then went on to hold that, if the evidence were inadequate to establish a material change in conditions, Rutter would still be entitled to benefits. According to the ALJ, the 1986 denial was erroneous on its face and "null and void ab initio." Consequently, "it is believed that a determination whether or not the new evidence establishes a change of condition is immaterial." The ALJ set the date of onset of disability as August 1, 1986.

On September 30, 1994, the BRB modified the award. It held that the ALJ's finding of an actual progression of Rutter's disease was sufficient to satisfy its Spese ⁵ test for material change in condition. However, the BRB held that the ALJ had no power to reopen or review the denial of the 1986 claim, which became final upon Rutter's failure to appeal or move to modify it. The BRB therefore affirmed the award but changed the date from which benefits were payable to April 1, 1989. Lisa Lee then filed a timely petition for review in this court.

III.

Lisa Lee's argument is as easily stated as it is counterintuitive: Rutter must now lose because he clearly should have won in 1986. He likely should have; the ALJ here was so appalled by the 1986 denial that he deemed it "void ab initio." Nonetheless, though we might share the ALJ's sentiment, we agree that his reasoning was flawed. The 1986 denial is final, see Pittston Coal Group v. Sebben, 488 U.S. 105, 122-123, 109 S.Ct. 414, 424-25, 102 L.Ed.2d 408 (1988), and for present purposes, we must assume that it was correct.

The panel rejected the BRB and Director's standards for determining whether there was a material change in Rutter's condition. The panel criticized the BRB's Spese standard because it "impermissibly allows a claimant to present ... evidence available at the time of the initial decision tending to show that the initial decision was in error." 57 F.3d at 406. The Director's standard met similar criticism: "it permits reconsideration of critical determinations underlying a decision denying benefits." Id. at 407. Instead, the panel adopted the Seventh Circuit's test, which, as applied, meant that the miner must show that his condition has changed on every element previously decided against him. See Sahara Coal Co. v. Director, OWCP, 946 F.2d 554 (7th Cir.1991). Moreover, as in Sahara Coal, the panel required inquiry into the evidence behind the earlier decision, rather than merely accepting the factual predicate of the earlier decision as correct. Consequently, the panel remanded for an all-but-certain finding that Rutter had actually been eligible for benefits in 1986, so his current conceded eligibility could not evince a material change in condition. We disagree with this reasoning.

If the 1986 denial is "final" in a legal sense, we must accept the correctness of its legal conclusion--Rutter was not eligible for benefits at that time--and that determination is as off-limits to criticism by the respondent as by the claimant. Only by repudiating the 1986 judgment and its necessary factual underpinning can no change in Rutter's condition be found. We believe that such repudiation is improper.

Accepting the correctness of a final judgment is more than legalistic tunnel vision; it is a practical--perhaps the only practical--way to discern a concrete form in the mists of the past. The ease we might feel at second-guessing this final judgment ought not tempt us to overestimate our retrospective perspicacity; most black lung claims involve a mixed bag of test results and wildly divergent medical opinions. The final decision of the ALJ (or BRB or claims examiner) on the spot is the best evidence of the truth at the time.

In this regard, the panel opinion could be read to imply that the deputy commissioner made an express finding of fact in 1986 that Rutter had complicated pneumoconiosis. See 57 F.3d at 404 ("A Department of Labor deputy commissioner denied that claim, finding that although Rutter had presented evidence of complicated pneumoconiosis, he had not established that the disease was caused by coal mine work, or that he was totally disabled by the disease.") (emphasis added). This implication is mistaken. The form denial neither states that Rutter has complicated pneumoconiosis nor acknowledges that he "had presented evidence" of it. It may have been obvious to all who could and would see, but a finding that should have been made is not a finding that was made. ⁶

Not only does the denial of benefits itself necessarily imply the opposite finding, see 20 C.F.R. §§ 718.302 and .304, but the language of the summary denial form can logically lead only to that finding. In one part of the correspondence, Rutter was told that he had not proved total disability; in another, he was invited to submit additional evidence on that issue, and was told that proof of complicated pneumoconiosis would suffice. ⁷

We accept the final 1986 decision, as well as its necessary factual predicate, as correct. Rutter has shown a stark change in condition, and he is entitled to have his 1989 claim decided on its own considerable merits.

IV.

A.

Rutter's is just a single case, and our reasons for affirming the award could end here. However, the proper standard to determine whether a given claimant has proved a "material change in condition" has recently split the circuits, and we now take this opportunity to align ourselves with the Third and Sixth Circuits, rather than the Seventh.

In choosing the proper standard, we have three candidates: (1)...