Peabody Coal Co. v. Smith

• Decision Date: 07 October 1997
• Docket Number: No. 96-3598,96-3598
• Citation: 127 F.3d 504
• Parties: PEABODY COAL COMPANY; and Old Republic Insurance Company, Petitioners, v. Harlan O'Bryan SMITH; and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 504

127 F.3d 504

PEABODY COAL COMPANY; and Old Republic Insurance Company, Petitioners, v. Harlan O'Bryan SMITH; and Director, Office of Workers'

Compensation Programs, United States Department of

Labor, Respondents.

No. 96-3598.

United States Court of Appeals, Sixth Circuit.

Argued July 30, 1997.

Decided Oct. 7, 1997.

Laura Metcoff Klaus (briefed), Mark E. Solomons (argued and briefed), Arter & Hadden, Washington, DC, for Petitioners.

Joseph H. Kelley (argued and briefed), Monhollon & Kelley, Madisonville, KY, for Respondent Harlan O'Bryan Smith.

Christian P. Barber, Gary K. Stearman, U.S. Department of Labor, Office of the Solicitor, Washington, DC, for Respondent Director, Office of Workers' Compensation Programs, United States Department of Labor.

Before: NORRIS, BATCHELDER, and DAUGHTREY, Circuit Judges.

NORRIS, J., delivered the opinion of the court, in which BATCHELDER, J., joined. DAUGHTREY, J. (pp. 507-10), delivered a separate dissenting opinion.

ALAN E. NORRIS, Circuit Judge.

Petitioner, Peabody Coal Company ("Peabody"), and its insurer seek review of a decision and order of the United States Department of Labor's Benefits Review Board ("Board"), affirming a decision and order of an administrative law judge ("ALJ") granting black lung disability benefits to claimant, Harlan O'Bryan Smith. Peabody argues that the Board erred by allowing Smith to prove that his totally disabling respiratory or pulmonary impairment was due to pneumoconiosis so long as Smith could show that his pneumoconiosis played any role, no matter how slight or inconsequential, in his disability. We disagree that this is the proper causation standard and therefore hold that total disability cannot be said to be "due to pneumoconiosis" if the miner's pneumoconiosis is but infinitesimally involved in his disability. Accordingly, we reverse the Board's order and remand this case for reconsideration of the evidence under the proper standard.

I.

Smith submitted an application for disability benefits pursuant to the Black Lung Benefits Act, 30 U.S.C. §§ 901-945, on April 28, 1991. Smith has seven years of formal education, and he was fifty-five years old when he filed the application. The record discloses that Smith worked as a coal miner for a total of thirty-three years, ending in 1991, of which he spent only two years working underground. The record further discloses that he has been smoking cigarettes from the time he was a teenager. The Office of Workers' Compensation Programs ("OWCP") initially determined that Smith was entitled to benefits. Peabody disagreed and requested a formal hearing before an ALJ.

A hearing was held on November 2, 1992. The evidence indicated that Smith suffers from a totally disabling respiratory impairment, that he suffers from pneumoconiosis, and that his pneumoconiosis arose out of his coal mine employment. The evidence, however, was equivocal regarding the degree of causation between the pneumoconiosis and Smith's total disability. On March 1, 1993, the ALJ issued a decision and order, concluding that Smith was not entitled to benefits because the evidence failed to establish that his total disability was due, at least in part, to pneumoconiosis or that the disease contributed thereto. Smith appealed the decision to the Board, contending that the ALJ applied the wrong standard for establishing disability causation, and that he mischaracterized some of the evidence. On appeal, the Board concluded that while the ALJ did apply the correct causation standard, he improperly discredited or discounted some of the medial evidence regarding disability causation. Accordingly, the Board remanded the case to the ALJ with instructions to reconsider the evidence and to determine whether Smith established that he is totally disabled due to pneumoconiosis.

On remand, the ALJ concluded that, after reconsideration, the evidence was in fact sufficient to establish that Smith's total pulmonary disability is due, at least in part, to his coal miner's pneumoconiosis. Regarding the necessary degree of causation, the ALJ wrote "[s]ince it appears that no guidance will be, or perhaps cannot be, provided regarding the meaning of 'at least in part', it must be and is assumed that, if pneumoconiosis plays any role, however slight, in a miner's total disability, he is entitled to benefits." The ALJ concluded, that "[s]ince a miner need not do anything more than produce evidence that his pneumoconiosis which arose out of coal mine employment is some how or some way, however slight, involved in his total disability, which this Claimant has accomplished, benefits must be awarded." The ALJ's decision and order was affirmed by the Board on September 25, 1995. This timely petition for review followed.

II.

The scope of this court's review of a decision of the Board is limited to determining whether it committed legal error or exceeded its statutory scope of review of the ALJ's factual findings, and whether it properly determined that the ALJ's decision is supported by substantial evidence and was reached consistent with applicable law. See, e.g., Director, OWCP v. Quarto Mining Co., 901 F.2d 532, 536 (6th Cir.1990). An award of black lung benefits must be affirmed so long as the ALJ's decision is supported by substantial evidence and is in accordance with the law. See, e.g., Peabody Coal Co. v. Greer, 62 F.3d 801, 804 (6th. Cir.1995). Questions of law are, of course, subject to de novo review. See, e.g., Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1119 (6th Cir.1984).

In order to establish eligibility for black lung benefits under the Secretary of Labor's permanent regulations found at 20 C.F.R. Part 718, a miner must prove (1) that he suffers from pneumoconiosis; (2) that his pneumoconiosis arose at least in part out of his coal mine employment; and (3) that he is totally disabled due to pneumoconiosis. See 20 C.F.R. §§ 718.2, 718.202-204; Adams v. Director, OWCP, 886 F.2d 818, 820 (6th Cir.1989). Except where a presumption is applicable, the claimant bears the burden of proving each of these elements by a preponderance of the evidence. See 20 C.F.R. § 718.403; Adams, 886 F.2d at 820. In the present case, it is undisputed that Smith suffers from pneumoconiosis, that his pneumoconiosis arose out of his coal mine employment, and that he suffers from a totally disabling respiratory or pulmonary impairment. The only question presented on this petition for review is whether the ALJ correctly concluded that Smith proved that he is totally disabled "due to" pneumoconiosis under § 718.204. Specifically, we must determine whether the ALJ found the proper amount of causal connection between pneumoconiosis and total disability before awarding benefits.

Section 901(a) of the Black Lung Benefits Act states that a miner is entitled to benefits only if he is "totally disabled due to pneumoconiosis." 30 U.S.C. § 901(a). We have previously addressed the degree of necessary causation embodied in the term "due to" in Adams. In that case, we held that the term "due to" does not require a miner to prove total disability by pneumoconiosis "in and of itself." Rather, we decided that the miner needed only to show that his total disability was due "at least in part" to his pneumoconiosis. 886 F.2d at 825. We believed that this more lenient interpretation is more consistent with the remedial purpose of the Act. Id. However, we expressly left open the question of whether evidence that pneumoconiosis has played only an infinitesimal or de minimis part in a miner's totally disabling respiratory impairment would be sufficient to support an award of benefits. 886 F.2d 826 n. 11.

Other circuits that have examined the degree of causation required to prove total disability due to pneumoconiosis have reached different results. The Third Circuit and the Eleventh Circuit have held that a miner must prove by a preponderance of the evidence that pneumoconiosis was a "substantial" contributing cause of his total disability. See Lollar v. Alabama By-Products Corp., 893 F.2d 1258 (11th Cir.1990); Bonessa v. U.S. Steel Corp., 884 F.2d 726 (3d Cir.1989). The courts based this standard upon 20 C.F.R. § 718.205 which specifically provides that a miner will be considered to have died "due to" pneumoconiosis if it was a "substantially contributing cause or factor leading to the miner's death." See Bonessa, 884 F.2d at 733; Lollar, 893 F.2d at 1264. In contrast, the Fourth Circuit, the Seventh Circuit and the Tenth Circuit have held that a miner must prove by a preponderance of the evidence that his pneumoconiosis was at least a contributing cause of his totally disabling respiratory impairment. See Robinson v. Pickands Mather & Co., 914 F.2d 35, 38 (4th Cir.1990); Shelton v. Director, OWCP, 899 F.2d 690, 693 (7th Cir.1990); Mangus v. Director, OWCP, 882 F.2d 1527, 1531 (10th Cir.1989).

Peabody argues that the ALJ in this case applied an incorrect causation standard because he assumed that any degree of nexus between pneumoconiosis and total disability, no matter how slight or infinitesimal, is sufficient to establish that Smith's total respiratory disability is "due to" pneumoconiosis. We agree with Peabody that the ALJ did in fact apply a de minimis disability causation standard. Indeed, the ALJ went out of his way to stress in his decision that it is inconsequential whether a miner's pneumoconiosis is but infinitesimally involved in his total disability. We further agree with Peabody that the term "due to" in 30 U.S.C. § 901(a) requires a miner to prove more than a de minimis or infinitesimal contribution by pneumoconiosis to his total disability. A miner's disability simply cannot be said to be due to pneumoconiosis when the causation link is so tentative. As we held in Adams, the miner does not need to prove total disability by pneumoconiosis "in and of itself." 886 F.2d at 825. Moreover, we believe that the substantial contributing cause standard...