Shelton v. Director, Office of Workers' Compensation Programs

• Decision Date: 13 April 1990
• Docket Number: No. 89-2232,89-2232
• Citation: 899 F.2d 690
• Parties: Carl SHELTON, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, et al., Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 690

899 F.2d 690

Carl SHELTON, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, et al Respondents.

No. 89-2232.

United States Court of Appeals Seventh Circuit.

Argued March 2, 1990.

Decided April 13, 1990.

Harold B. Culley, Jr., Raleigh, Ill., for Carl Shelton.

Cathryn C. Helm, Appellate Litigation, Donald S. Shire, Sol. Gen., Michael J. Denney, Carla Chapman, Benefits Review Bd., Dept. of Labor, John H. Secaras, Sol. Gen., Dept. of Labor, Washington, D.C., for Inland Steel Co., Office of Workers' Compensation Programs and Benefits Review Bd.

Louis R. Hegeman, Jay D. Stein, Gould & Ratner, Chicago, Ill., for Consolidation Coal Co.

Before CUMMINGS, POSNER and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

Carl Shelton, a former coal miner, seeks disability benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901 et seq. He is conceded to be totally disabled as a result of respiratory disease, and to have black lung disease (pneumoconiosis). The question is the causal relationship between his black lung disease and his total disability, and is not adequately illuminated by the pertinent regulation: "benefits are provided under the Act for or on behalf of miners who are totally disabled due to pneumoconiosis." 20 C.F.R. Sec. 718.204(a) (emphasis added). In finding that Shelton had shown total disability due to pneumoconiosis, the administrative law judge relied primarily on a report by a Dr. Partridge, who had examined Shelton in 1980 (while he was still working), found that he had chronic obstructive lung disease "related to" Shelton's exposure to coal dust in mines--Shelton had been working underground in coal mines for 27 years--but noted that Shelton continued to work daily with little difficulty and also that he had been smoking a pack of cigarettes a day for 40 years. The administrative law judge discounted testimony by a Dr. Getty, who, examining Shelton four years after Partridge, concluded that Shelton had simple miner's pneumoconiosis and chronic obstructive lung disease, the latter being due, in Getty's opinion, to Shelton's smoking. Getty also testified that he did not think that simple pneumoconiosis was totally disabling.

The Benefits Review Board reversed the administrative law judge's award of benefits. The Board invoked a doctrine that it had announced in Wilburn v. Director, 11 Black Lung Rep. 1-135 (Benefits Rev.Bd.1988): the claimant must show that his pneumoconiosis is, "in and of itself, totally disabling." Dr. Partridge's report did not show that.

A number of courts have rejected, implicitly or explicitly, the Board's "in and of itself" standard, and have held that all the claimant need show is that his pneumoconiosis was a "contributing cause" or "substantial contributing cause" of his total disability. Lollar v. Alabama By-Products Corp., 893 F.2d 1258, 1265 (11th Cir.1990); Adams v. Director, 886 F.2d 818 (6th Cir.1989); Bonessa v. United States Steel Corp., 884 F.2d 726, 732-34 (3d Cir.1989); Mangus v. Director, 882 F.2d 1527, 1531 (10th Cir.1989) (per curiam). Our court has not spoken to the issue directly, but has endorsed the "contributing cause" formulation in cases interpreting a related black-lung regulation. Wetherill v. Director, 812 F.2d 376, 380 (7th Cir.1987); Pancake v. AMAX Coal Co., 858 F.2d 1250, 1257 (7th Cir.1988). Shelton's main brief in this court did not cite Wilburn or even mention the "in and of itself" standard, let alone challenge that standard. Ordinarily this would spell waiver. In re Bear, 789 F.2d 577, 579 (7th Cir.1986); United States v. Rodriguez, 888 F.2d 519, 525 (7th Cir.1989). However, the Director of the Office of Workers' Compensation Programs, which enforces the Black Lung Benefits Act and is a statutory respondent in a proceeding to review decisions by the Benefits Review Board, has confessed error on the Board. His action, coupled with the company's indifference to the standard of causation--the company did not cite Wilburn either, or even mention the "in and of itself" standard, and at argument told us that it took no position on the correct causal standard--persuades us to relieve Shelton from the consequences of his lawyer's default. In effect, both respondents have waived the argument for affirmance that they could have based on Shelton's waiver. United States v. Rodriguez, supra, 888 F.2d at 524.

We were distressed to discover at argument that none of the lawyers in this case is able to explain the meaning of the competing causal standards that are bandied about in these cases. The standards (or their articulation) rather than the lawyers may be to blame; in any event, we are compelled to approach the issue from the standpoint of first principles rather than of precedent.

The causal issue in a black lung case is whether the claimant shall win or lose under different assumptions concerning the state of his health if history had been different in particular respects. Two respects are potentially relevant here: working in a coal mine for a given length of time, and smoking cigarettes at a given level for a given length of time. Implicitly the administrative law judge had to determine whether Shelton would have been totally disabled if he had not worked in a coal mine all those years but had smoked, if he had not smoked all those cigarettes but had worked in a coal mine, and if he had neither worked in a coal mine nor smoked. The last counterfactual is the easiest. If Shelton had neither worked in a mine nor smoked, the probability is very small that he would be totally disabled as a result of lung disease, and this suggests that his total disability was caused either by working in a...