Little T Coal Co. v. Dir., Office of Workers' Comp. Programs
| Decision Date | 02 February 2023 |
| Docket Number | 22-3135 |
| Parties | LITTLE T COAL COMPANY; OLD REPUBLIC INSURANCE COMPANY, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; MARY BAILEY, widow of Andy M. Bailey, Respondents. |
| Court | U.S. Court of Appeals — Sixth Circuit |
LITTLE T COAL COMPANY; OLD REPUBLIC INSURANCE COMPANY, Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; MARY BAILEY, widow of Andy M. Bailey, Respondents.
No. 22-3135
United States Court of Appeals, Sixth Circuit
February 2, 2023
NOT RECOMMENDED FOR PUBLICATION
ON PETITION FOR REVIEW OF A DECISION AND ORDER OF THE BENEFITS REVIEW BOARD
Before: BATCHELDER, STRANCH, and DAVIS, Circuit Judges.
OPINION
JANE B. STRANCH, CIRCUIT JUDGE
Petitioners Little T Coal Company and its insurer seek review of the Black Lung Benefits Board's affirmance of an Administrative Law Judge's determination that Little T Coal's former employee, Andy Bailey, was entitled to benefits under the Black Lung Benefits Act. Because the Board correctly concluded that substantial evidence supported the ALJ's factual findings, we DENY the petition for review.
I. FACTUAL BACKGROUND
This case relates to a claim for disability benefits under the Black Lung Benefits Act (BLBA), 30 U.S.C. §§ 901-944, initially filed by the decedent Andy Bailey, a former coal miner, and now pursued by his widow, Mary Bailey (the Claimant).
Andy Bailey was born in 1942 and was 75 years old at the time of his 2017 deposition. He worked in coal mines in Tennessee intermittently from 1977 to 1987. From 1977 through 1981, he worked for Little T Coal, Inc. In 1987, Bailey was working for another coal company when he sustained a serious injury on the job that required four back surgeries. He later had four heart attacks and three heart surgeries, the last of which was in 1998. By 2000, Bailey had both legs amputated due to peripheral vascular disease and circulatory problems. He was on two liters of oxygen at the time of his deposition. Bailey testified that he started smoking cigarettes in about 1984 and that he was smoking one half pack to one pack daily at the time of his 2017 deposition.
Bailey filed this claim for federal black lung benefits on November 3, 2016.[1] After the District Director of the Department of Labor's (DOL) Office of Workers' Compensation Programs (OWCP) determined that Bailey was entitled to benefits in January 2017, Petitioners Little T Coal requested a de novo hearing before the Office of Administrative Law Judges. The ALJ held a hearing in June 2019. Bailey did not attend that hearing, but the ALJ considered his 2017 deposition.
On April 23, 2020, the ALJ issued an order and opinion upholding the District Director's award of benefits to Bailey and ordering Little T Coal to pay those benefits. The ALJ found that "33 pack years beginning in 1984 and continuing" was a reasonable estimate of Bailey's smoking
history and credited Bailey with 2.96 years of coal mine employment. Based on the length of his coal mine employment, Bailey was not eligible for the statutory presumption that any totally disabling respiratory or pulmonary impairment was "due to pneumoconiosis." 30 U.S.C. § 921(c)(4). Instead, Bailey was required to show that he had pneumoconiosis through medical evidence.
The ALJ reviewed the following medical evidence to make her findings. First, the ALJ considered two x-ray readings: (1) a November 2016 x-ray that was interpreted by one radiologist to be positive for clinical pneumoconiosis and by two radiologists to be negative for clinical pneumoconiosis; and (2) an August 2017 x-ray that was interpreted by only one radiologist, who found it negative for clinical pneumoconiosis. The ALJ also evaluated three medical opinions that are relevant here: (1) a report from Dr. Elie Mansour based on his exam of Bailey provided by the Department of Labor; (2) an employer-submitted report from Dr. Abdul K. Dahhan, and (3) an employer-submitted report from Dr. David M. Rosenberg. In short, all three physicians agreed that Bailey suffered from COPD and that Bailey's respiratory impairment was caused by cigarette smoking; only Dr. Mansour and Dr. Rosenberg found Bailey totally disabled due to that impairment; and only Dr. Mansour found that the impairment was also caused by Bailey's coal mine employment.
Specifically, Dr. Dahhan diagnosed Bailey with an obstructive ventilatory impairment, relying on statistical averaging to conclude that the impairment was consistent with Bailey's smoking habit and not caused or aggravated by coal dust inhalation. Conceding that he could not rule out that coal dust caused the pulmonary injury, Dr. Dahhan represented that he did not believe that coal dust was a "significant contributory or causative factor." Dr. Rosenberg found that Bailey was totally disabled due to a pulmonary injury but attributed that disability solely to smoking,
basing his conclusion on the assumption that cigarette smoke is more harmful to the lungs and causes a different kind of lung injury than coal dust inhalation.
Dr. Mansour's report diagnosed Bailey with COPD, finding a severe and totally disabling pulmonary impairment based on the positive reading of the 2016 x-ray, a physical exam, pulmonary function tests (PFTs), arterial blood gas studies, and a review of Bailey's employment and smoking history. Mansour determined that Bailey's COPD was caused by a combination of cigarette smoking and coal dust exposure. Mansour responded to a DOL form question by attributing 90% of Mr. Bailey's disabling disease to smoking and 10% to coal dust inhalation, based on Bailey's initially recorded employment history of six years of coal mining.[2] The DOL District Director asked Mansour to reconsider his conclusions after the Director found that Bailey had been employed as a coal miner for two years and ten months. Mansour responded with a letter that reaffirmed his belief that Bailey had COPD caused by smoking and coal dust exposure but estimating that Bailey's chronic respiratory failure was 95% attributable to smoking and 5% attributable to coal dust inhalation.
Petitioners deposed Dr. Mansour two years after he examined Bailey. When asked why he picked the 5% causation figure, Dr. Mansour acknowledged that the estimate was "just [his] opinion," in that he was "not aware of studies showing equivalency of how many years" of mining might equate to a given percentage. When asked whether the five percent cut-off was "kind of like arbitrary," Dr. Mansour answered "yes," reiterating that it was based on his opinion of the amount of damage to Bailey's airways in addition to damage caused by smoking. Finally, Dr. Mansour added that he had also based his conclusion on the positive reading of the 2016 x-ray.
When asked whether his opinion would be influenced by a negative x-ray finding, Dr. Mansour agreed that it would-but he also agreed that the positive x-ray reading had only "bolstered" his opinion.
Based on this medical record, the ALJ first concluded that substantial evidence did not support a finding of clinical pneumoconiosis, which consists of "those diseases recognized by the medical community as pneumoconioses." 20 C.F.R. § 718.201(a)(1). The ALJ determined that the x-ray evidence did not support a clinical pneumoconiosis finding, because the 2017 x-ray was found negative for pneumoconiosis and the 2016 x-ray was "in equipoise" due to the split opinions of the radiologists who interpreted it. The ALJ likewise concluded that medical opinion evidence did not support a clinical pneumoconiosis finding: Dr. Dahhan and Dr. Rosenberg found no clinical pneumoconiosis, and the ALJ reasoned that Dr. Mansour's opinion finding of clinical pneumoconiosis was entitled to diminished weight because it relied on the 2016 x-ray that the ALJ had found inconclusive.
However, the ALJ then concluded that the record supported a finding of legal pneumoconiosis, a category that is broader than clinical pneumoconiosis and includes "any chronic lung disease or impairment and its sequelae arising out of coal mine employment." 20 C.F.R. § 718.201(a)(2). Weighing each medical expert's opinion, the ALJ concluded that Dr. Dahhan's and Dr. Rosenberg's opinions suffered from critical flaws: Dr. Dahhan's opinion conflicted with the DOL's position that coal dust and smoking caused the same type of emphysema, and both Dr. Dahhan and Dr. Rosenberg's opinions relied on statistical averaging, which the Preamble to the Black Lung Benefits regulations recognizes can understate the effects of coal mine dust exposure in individuals. See Fed.Reg. 79,920, 79,941 (Dec. 20, 2000). In contrast, the ALJ found that Dr. Mansour's opinion concluding that coal dust played a significant role in causing Bailey's
impairment was "impartial, well-reasoned, and well-documented" and therefore "entitled to significant weight." The ALJ credited Dr. Mansour's opinion and found that Bailey's COPD constituted legal pneumoconiosis.
Finally, the ALJ concluded that Bailey was "totally disabled" by his impairment, noting that Dr. Mansour and Dr. Rosenberg agreed that Bailey was totally disabled by his COPD and that the PFTs supported a finding of total disability. The ALJ also concluded that the legal pneumoconiosis was a "substantially contributing cause" of Bailey's total disability, reasoning that "[e]xtended discussion" of the factor was unnecessary, because the ALJ had already determined that Bailey suffered from legal pneumoconiosis and that the COPD was totally disabling.
The employer appealed this decision to the DOL's Benefits Review Board, which affirmed Bailey's award on December 21, 2021, over the dissent of Chief Judge Boggs. The Board held that substantial evidence supported the ALJ's finding of legal pneumoconiosis, rejecting as forfeited and meritless Petitioners' contentions that the ALJ overlooked Dr. Mansour's partial reliance on the 2016 x-ray with respect to his legal pneumoconiosis opinion. Petitioners now seek review of the Board's decision.
II. STANDARD OF REVIEW
"In reviewing an appeal from the Board, we review the Board's legal conclusions de...
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