TN Consolidated Coal v. Kirk

Decision Date02 August 2001
Docket NumberNo. 00-3316,00-3316
Citation264 F.3d 602
Parties(6th Cir. 2001) Tennessee Consolidated Coal Company, Petitioner, v. Jack Kirk; and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

On Appeal from a Decision of the Benefits Review Board.No. 98-1380 BLA. [Copyrighted Material Omitted] Ronald E. Gilbertson, BELL, BOYD & LLOYD, Washington, D.C., for Petitioner.

Jack Kirk, South Pittsburgh, TN, pro se.

Patricia Nece, Jennifer U. Toth, UNITED STATES DEPARTMENT OF LABOR, OFFICE OF THE SOLICITOR, Washington, D.C., for Respondents.

Before: BOGGS and DAUGHTREY, Circuit Judges; and WEBER, District Judge*.


BOGGS, Circuit Judge.

Petitioner Tennessee Consolidated Coal Co. ("TCC") appeals a final decision of the Benefits Review Board ("the Board") affirming an award to their former employee Jack Kirk, made pursuant to the Black Lung Benefits Act, 30 U.S.C § 901 et seq. Kirk had sought and been denied these benefits three times before, beginning in 1979. TCC claims that Kirk's fourth, successful, application was untimely. TCC also disputes that Kirk showed a "material change in condition" sufficient to overcome the preclusive effect of the prior denials. Finally, TCC argues that even if Kirk's application could be considered on its merits, the Board erred in affirming an award, because Kirk's respiratory illness was caused by his chronic cigarette habit rather than his employment in the mines1. We affirm.


Jack Kirk was born in 1927, and ceased working in a coal mine in 1984 due to his increasingly severe respiratory problems; the parties have stipulated that Mr. Kirk worked in the mines for at least 15 years. Kirk filed his first claim for black-lung benefits in 1979. This was denied because medical evidence showed that Kirk (1) was not totally disabled, (2)did not have pneumoconiosis, and (3) such respiratory difficulties as he had were due to his cigarette smoking, a pack-a-day habit pursued for thirty-five years. At that time, Kirk reported some difficulty breathing at night, but indicated that he had sought no medical attention for his problem and that he was still able to work as a miner. Over the last two decades, however, there is no dispute that the record reflects a progressive deterioration of Kirk's condition.

Kirk's second application for benefits occurred in October 1985, just after he ceased working in any capacity for TCC2. This application was denied because there was no medical evidence to establish (1) total disability, or (2)pneumoconiosis. In denying the claim, the decision also noted "it would not be unusual" for people to have respiratory symptoms of the type experienced by Kirk if they were long-time smokers. Kirk's third application for benefits occurred in the year after his previous application had been finally denied, in August 1988. This claim was also denied on the grounds that he (1) had failed to show a material change in condition since his previous denial, (2) he did not show he had pneumoconiosis, (3) did not show that his problems were caused by coal mining, and (4) did not show that he was totally disabled "because of a breathing impairment caused by pneumoconiosis." Cf. 20 CFR §718.204(b)(1) (defining the term "totally disabled" without reference to causation).

Kirk's pulmonary test results, attached to the denial of his third application, demonstrated "total disability" under Part 718 regulations. His respiratory function had now declined below the levels specified in C.F.R. § 718(b)(2)(i)(B). Both parties agree that scores showing total disability were obtained. (Gov't Br. at 8; TCC Br. at 14). The rejection of Kirk's third application did not deny the presence of a breathing impairment constituting "total disability" as a general matter, but it reiterated the finding that Kirk's "breathing impairment" was not due to coal mining or pneumoconiosis.

The current claim for benefits was filed by Kirk in March 1992. Although Kirk's respiratory health had worsened by 1992, and his pulmonary capacity was further into the "totally disabled" range, his claim was initially denied. The reasons given by the district director were lack of total disability due to pneumoconiosis, and no change in material condition. The initial 1992 denial, unlike previous denials, did not rely on either the absence of pneumoconiosis or the failure of coal mining to contribute to pneumoconiosis. Although the form denial is not explicit, it appears to indicate a summary finding by the district director (not inconsistent with the medical evidence) that (1) Kirk did indeed have pneumoconiosis caused by his coal mining, and that (2) he was totally disabled, but that (3) the two were not causally connected, because the severity of Kirk's condition arose from his other respiratory ailments. Since these other respiratory conditions were not compensable (and not caused by coal mining), Kirk's claim was denied3.

Kirk sought review before an Administrative Law Judge ("ALJ") in 1993, and was awarded benefits in 1994. This decision was based on new medical opinions by Drs. Adcock and Soteres, who attributed Kirk's disability in substantial part to coal-induced pneumoconiosis. The ALJ also relied on a 1988 diagnosis by Dr. Gilley, which had implied a similar etiology for Kirk's problems, but which had not been convincing enough to sustain Kirk's third application - notably, Gilley's 1988 diagnosis had not made an explicit finding of total disability.

TCC appealed the ALJ's 1994 decision and, although affirming in large part, the Board remanded it in 1996 for reconsideration in light of our intervening decision in Sharondale v. Ross, 42 F.3d 993 (6th Cir. 1994). This remand was with special reference to whether, under the Sharondale standards, Kirk's fourth application was timely filed and had established a material change in conditions. In 1998, the ALJ determined that, although Kirk had not done any mining work between 1988 and 1992, the communication of a new medical opinion to him in March 1992 (shortly after he filed his fourth application) should be deemed the start of the limitations period contained in C.F.R. § 725.308. The ALJ also determined that Kirk had shown a material change in conditions because Adcock and Soteres had found in 1992 that he was now totally disabled, and Kirk's "third claim had been denied by district director on January 18, 1989 for failure to establish either pneumoconiosis or total disability." Since the ALJ found Kirk had proven one of the elements "previously adjudicated against him[,]" Sharondale, 42 F.3d at 997, he concluded that a material change had been shown.

TCC appealed to the Board, which affirmed the ALJ's award in 1999. The Board held that the statute of limitations could not begin to run until a medical opinion had been communicated to the miner of a finding of "total disability due to pneumoconiosis." It found that neither of Dr. Gilley's (1985 and 1988) medical opinions had come to that conclusion and that Dr. Soteres's 1992 opinion was the first to do so. Sharondale had suggested that in order for the statute to begin again, an applicant miner, in addition to receiving a new medical opinion, must "work[] in the coal mines for a substantial period after the denial . . . ." 42 F.3d at 996. The Board concluded that in this case this language was not determinative, and relied on Sharondale's statement that a "claimant must be free to reapply for benefits if his first filing was premature." Ibid. The Board also affirmed the ALJ's finding that there had been a material change in conditions because the denial of the 1988 claim had been based not merely on "claimant's failure to show any disability was due to pneumoconiosis . . . [but] on the ground that claimant failed to establish any of the elements of entitlement, including total disability." The Board did not discuss Kirk's 1988 pulmonary tests.

TCC now appeals the Board's 1999 decision as erroneous on several grounds. It argues, inter alia, that the Board ignored one of the preconditions Sharondale imposed for restarting the statute of limitations, that the applicant return to work after the previous denial. TCC also asserts that the ALJ and the Board erred in finding Kirk's total disability in 1992 represented a "material change of condition," because Kirk was totally disabled well before that time. The claimant is not currently participating in the litigation. The Director, however, defends the Board's interpretation of Sharondale, and claims that even if TCC's argument regarding total disability is accepted, there was another clear basis for finding a change in condition, based on the new 1992 diagnoses of pneumoconiosis. (Gov't Br. at 40)4.

II Standard of Review

This court must affirm the Board's decision if the Board has not committed any legal error or exceeded its scope of review of the ALJ's determination. Glen Coal Co. v. Seals, 147 F.3d 502, 510 (6th Cir. 1998). The court reviews the ALJ's decision only to decide whether it is supported by substantial evidence and is in accordance with the applicable law. Ibid.We do not reweigh the evidence or substitute our judgment for that of the ALJ. Gray v. SLC Coal Co., 176 F.3d 382, 387 (6th Cir. 1999). Thus, as long as the ALJ's conclusions are supported by the evidence, they will not be reversed, "even if the facts permit an alternative conclusion." Youghiogheny & Ohio Coal Co. v. Webb, 49 F.3d 244, 246 (6th Cir. 1995).

The Timeliness of Kirk's Claim

Claims for black lung benefits are presumptively timely. 20 C.F.R § 725.308(c). To be timely, the claim must have been filed before three years after a "medical determination of total disability due to pneumoconiosis" is communicated to the miner. 30 U.S.C. § 932(f); 20 C.F.R. § 725.308(a). Since the current claim was filed in March 1992, it is the...

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