Underwood v. Quarto Mining Co.

• Decision Date: 25 October 2019
• Docket Number: 18-0555 BLA
• Court: Court of Appeals of Black Lung Complaints
• Parties: DONLEY F. UNDERWOOD Claimant-Respondent v. QUARTO MINING COMPANY and CONSOL ENERGY, INCORPORATED Employer/Carrier-Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

DONLEY F. UNDERWOOD Claimant-Respondent v. QUARTO MINING COMPANY and CONSOL ENERGY, INCORPORATED Employer/Carrier-Petitioners

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest

No. 18-0555 BLA

Court of Appeals of Black Lung

October 25, 2019

UNPUBLISHED OPINION

Appeal of the Decision and Order Awarding Benefits of Drew A. Swank Administrative Law Judge, United States Department of Labor.

Heath M. Long (Pawlowski, Bilonick & Long), Ebensburg Pennsylvania, for claimant.

Cheryl L. Intravaia (Feirich Mager Green Ryan) Carbondale, Illinois for employer/carrier.

Jeffrey S. Goldberg (Kate S. O'Scannlain, Solicitor of Labor; Barry H. Joyner, Associate Solicitor; Michael J. Rutledge, Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.

Before: BUZZARD, ROLFE, and GRESH, Administrative Appeals Judges.

DECISION AND ORDER

PER CURIAM.

Employer/carrier (employer) appeals the Decision and Order Awarding Benefits (2017-BLA-05951) of Administrative Law Judge Drew A. Swank rendered on a subsequent claim filed on September 25, 2015, ^[1] pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2012) (the Act).

The administrative law judge credited claimant with at least twenty-one years of underground coal mine employment^[2] and found he is totally disabled. 20 C.F.R. §718.204(b)(2). The administrative law judge therefore found claimant invoked the presumption he is totally disabled due to pneumoconiosis. 30 U.S.C. §921(c)(4) (2012).^[3]He further found employer failed to rebut the presumption and awarded benefits.

On appeal, employer argues the administrative law judge applied the wrong legal standard and otherwise erred in finding that it failed to rebut the Section 411(c)(4) presumption.^[4] Claimant responds in support of the award of benefits. The Director, Office of Workers' Compensation Programs (the Director), has filed a limited response urging the Board to reject employer's argument that invocation under Section 411(c)(4) does not give rise to a presumption of legal pneumoconiosis. Employer has filed replies to both claimant's and the Director's briefs reiterating its arguments on appeal.

The Board's scope of review is defined by statute. We must affirm the administrative law judge's Decision and Order Awarding Benefits if it is rational, supported by substantial evidence, and in accordance with applicable law. 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Because claimant invoked the Section 411(c)(4) presumption, the burden shifted to employer to establish he has neither legal nor clinical pneumoconiosis, ^[5] 20 C.F.R. §718.305(d)(1)(i), or "no part of [his] respiratory or pulmonary total disability was caused by pneumoconiosis as defined in [20 C.F.R.] §718.201." 20 C.F.R. §718.305(d)(1)(ii). The administrative law judge found employer failed to establish rebuttal by either method.^[6]

To disprove legal pneumoconiosis, ^[7] employer must demonstrate claimant does not have a chronic lung disease or impairment that is "significantly related to, or substantially aggravated by, dust exposure in coal mine employment." 20 C.F.R. §§718.201(a)(2), (b), 718.305(d)(1)(i)(A); see Minich v. Keystone Coal Mining Corp., 25 BLR 1-149, 1-1-55 n.8 (2015) (Boggs, J., concurring and dissenting).

The administrative law judge considered the medical opinions of Drs. Fino and Zaldivar that claimant does not have legal pneumoconiosis. Decision and Order at 13-14; Employer's Exhibits 3-7, 10-11. Both doctors diagnosed a disabling respiratory impairment and attributed it to asthma. Employer's Exhibits 3, 4, 6. They explained asthma is a disease of the general population and is not caused or aggravated by coal mine dust exposure.^[8] Id. The administrative law judge discredited their opinions because he found their explanations for excluding a diagnosis of legal pneumoconiosis contrary to the preamble to the 2001 revised regulations.^[9] Decision and Order at 15, 26.

Employer asserts the administrative law judge erred in finding Drs. Fino and Zaldivar expressed views on asthma that conflict with the preamble. Employer's Brief at 7-8, 10. Employer's argument has no merit. The administrative law judge correctly noted that in the preamble the Department of Labor (DOL) recognized that chronic obstructive pulmonary disease (COPD) includes three disease processes characterized by airway dysfunction: chronic bronchitis, emphysema, and asthma. Decision and Order at 15, 26, citing 65 Fed. Reg. 79, 920, 79, 939 (Dec. 20, 2000). It further sets forth that coal mine dust exposure may cause COPD, 65 Fed. Reg. at 79, 939, and "cites at least one example of a study that demonstrates the link between coal [mine] dust exposure and asthma." Helen Mining Co. v. Elliott, 859 F.3d 226, 240 (3d Cir. 2017), citing 65 Fed. Reg. at 79, 943. In light of the medical literature the DOL relied upon in the preamble, the administrative la w judge permissibly found the opinions of Drs. Fino and Zaldivar that coal mine dust does not cause asthma to be an unpersuasive explanation for why claimant does not have legal pneumoconiosis. See Cent. Ohio Coal Co. v. Director, OWCP [Sterling], 762 F.3d 483, 491 (6th Cir. 2014); A & E Coal Co. v. Adams, 694 F.3d 798, 801-02 (6th Cir. 2012); Elliott, 859 F.3d at 240 (holding administrative law judge permissibly discredited medical opinions that coal mine dust does not cause asthma as inconsistent with preamble); Decision and Order at 15, 26.

On the issue of whether employer rebutted the Section 411(c)(4) presumption by establishing that "no part of the miner's respiratory or pulmonary total disability was caused by pneumoconiosis as defined in [20 C.F.R.] §718.201," the administrative la w judge again weighed the opinions of Drs. Fino and Zaldivar. 20 C.F.R. §718.305(d)(1)(ii); Decision and Order at 26. As discussed above, both doctors attributed claimant's disabling respiratory impairment to asthma. Employer's Exhibits 3-7, 10-11. We have affirmed the administrative law judge's finding that employer did not disprove that claimant's asthma is legal pneumoconiosis. Thus the administrative law judge rationally found the same reasons he provided for discrediting the opinions of Drs. Fino and Zaldivar on legal pneumoconiosis also undermined their opinions that claimant's disabling respiratory impairment was not caused by pneumoconiosis.^[10] See Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1074 (6th Cir. 2013); Island Creek Ky. Mining v. Ramage, 737 F.3d 1050, 1062 (6th Cir. 2013); Decision and Order at 26. We therefore affirm the administrative la w judge's determination that employer failed to establis h that no part of claimant's respiratory or pulmonary total disability was caused by pneumoconiosis. See 20 C.F.R. §718.305(d)(1)(ii).

Accordingly, the administrative law judge's Decision and Order Awarding Benefits is affirmed.

SO ORDERED.

GREG J. BUZZARD Administrative Appeals Judge JONATHAN ROLFE Administrative Appeals Judge DANIEL T. GRESH Administrative Appeals Judge.

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Notes:

^[1] Claimant's prior claim, filed on March 26, 1999, was finally denied by the district director on July 2, 1999, because he did not establis h any element of entitlement. Director's Exhibit 1.

^[2] This case arises within the jurisdiction of the United States Court of Appeals for the Sixth Circuit as claimant's coal mine employment was in Ohio. See Shupe v. Director, OWCP, 12 BLR 1-200 1-202 (1989) (en banc); Director's Exhibit 4; Tr. at 13.

^[3] Under Section 411(c)(4) of the Act, claimant is entitled to a rebuttable presumption he is totally disabled due to pneumoconiosis if he establishes at least fifteen years of underground or substantially similar surface coal mine employment and a totally disabling respiratory or pulmonary impairment. 30 U.S.C. §921(c)(4) (2012); 20 C.F.R. §718.305(b).

^[4] We affirm, as unchallenged on appeal, the administrative law judge's finding that claimant invoked the Section 411(c)(4) presumption. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983); 20 C.F.R. §725.309(c); Decision and Order at 7, 23.

^[5] "Legal pneumoconiosis" includes any chronic lung disease or impairment and its sequelae arising out of coal mine employment. 20 C.F.R. §718.201(a)(2). "Clinical pneumoconiosis" consists of "those diseases recognized by the medical community as pneumoconioses, i.e., the conditions characterized by permanent deposition of substantial amounts of particulate matter in the lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust exposure in coal mine employment." 20 C.F.R. §718.201(a)(1).

^[6] The administrative law judge found that employer disproved clinical pneumoconiosis. Decision and Order at 15.

^[7] Employer's argument that invocation of the Section 411(c)(4) presumption does not include a presumption of legal pneumoconiosis lacks merit and is rejected. See 20 C.F.R. §718.305(d)(1)(i)(A); Consolidation Coal Co. v. Director, OWCP [Ross], 911 F.3d 824, 844-45 (7th Cir. 2018) (rejecting identical argument); Consolidation Coal Co. v. Director, OWCP [Noyes], 864 F.3d 1142, 1146-50 (10th Cir. 2017) (same); Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1070 (6th Cir. 2013) (affirming the administrative la w judge's determination that the employer failed to rebut the presumed fact of legal pneumoconiosis); Barber v. Director, OWCP, 43 F.3d 899, 900-01 (4th Cir. 1995); Employer's Brief at 8-10.

^[8] Dr. Fino stated that "[a]lthough one may have exacerbation of asthma in the coal mines, there...