W.Va. Coal Workers' Pneumoconiosis Fund v. Bell, 18-1317

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtRICHARDSON, Circuit Judge
Docket NumberNo. 18-1317,18-1317
Decision Date06 August 2019

as a carrier for Mountain Laurel Coal Company, Petitioner,

No. 18-1317


Argued: January 29, 2019
August 6, 2019


On Petition for Review of an Order of the Benefits Review Board. (17-0175-BLA)

Before THACKER and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Petition granted by unpublished opinion. Judge Richardson wrote a separate opinion and announced the judgment. Judge Traxler wrote an opinion concurring in the judgment. Judge Thacker wrote a dissenting opinion.

ARGUED: Jeffrey Robert Soukup, JACKSON KELLY, PLLC, Lexington, Kentucky, for Petitioner. S.F. Raymond Smith, Charleston, West Virginia; Barry H. Joyner, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

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ON BRIEF: Kate S. O'Scannlain, Solicitor of Labor, Kevin L. Lyskowski, Acting Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent.

Unpublished opinions are not binding precedent in this circuit.

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RICHARDSON, Circuit Judge, writing separately and announcing the judgment:

Respondent Donald R. Bell, Sr., is a former coal miner who left that line of work in 1984. He is also a heavy smoker: he smoked as many as two packs of cigarettes per day for over 50 years, although by 2012 he was down to a pack and a half. He suffers from lung problems and constantly uses oxygen as prescribed by his doctors.

In 2010, Bell applied for benefits available to coal miners with pneumoconiosis, a term that refers to several medical conditions but is colloquially called black lung disease. Petitioner West Virginia Coal Workers' Pneumoconiosis Fund (the "CWP Fund"), which is on the hook for any benefit payments to Bell, opposed his request. The case turned into a classic battle of the experts: Bell's expert said that his lung problems were caused largely by his exposure to coal dust, while the CWP Fund's experts attributed Bell's health problems to his smoking.

Bell's case was assigned to a Department of Labor Administrative Law Judge, Kenneth A. Krantz. Judge Krantz found the CWP Fund's experts more persuasive and denied Bell's request for benefits. Bell appealed to the Benefits Review Board, which vacated that decision and remanded for further consideration. After Judge Krantz reaffirmed his earlier decision, the Board again vacated and remanded. The case was then reassigned to another ALJ, Paul C. Johnson, Jr. Judge Johnson took a different view of the facts and sided with Bell. This time, the Board affirmed. The CWP Fund argues that the Board erred in vacating Judge Krantz's decisions denying benefits, and asks us to reinstate them.

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This case raises several issues. First, I must determine whether this court may review the Board's prior, interlocutory orders. If the answer is yes, then I must also determine whether the Respondents have forfeited their case: both Bell and the Director of the Office of Workers' Compensation Programs, who has sided with Bell, have failed to defend the Board's interlocutory orders on appeal. And if I get past those hurdles, I reach the merits.

I conclude that we have jurisdiction to review the Board's interlocutory orders. I also conclude that although Bell and the Director have forfeited their response to the CWP Fund's chief arguments, the court should overlook that forfeiture in part. Finally, I conclude that the Board erred in vacating Judge Krantz's decisions. By statute, the Board is bound by an ALJ's factual findings so long as they are supported by substantial evidence. While the Board found that Judge Krantz had erred, those purported errors did not warrant vacating his decisions under the substantial-evidence standard. Under the circumstances of this case, the correct remedy is to grant the CWP Fund's petition for review and order the Board to reinstate Judge Krantz's denial of benefits.


Bell worked as a coal miner for over 15 years, until 1984. He then became a truck driver. He retired in 2008 at the age of 63. Throughout his adult life, Bell was a heavy smoker. He smoked two packs of cigarettes daily for over 50 years. By the time of his retirement, Bell had significant respiratory problems. He has reported frequent colds as well as multiple bouts of pneumonia, some of which required hospitalization.

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In 2008, while Bell was in the hospital, one of his doctors told him that he had black lung disease. In 2010, Bell submitted a claim for benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. His application for benefits rested largely on a report prepared by a board-certified allergist and pediatrician, Dr. Forehand. Dr. Forehand concluded that Bell suffered from a respiratory disability caused primarily by coal-dust exposure and to a lesser extent by smoking. He based this conclusion on a review of Bell's medical history, a physical examination, and several tests he performed in October 2010: a ventilatory study (that is, a test of Bell's lung function), an arterial blood-gas study (that is, an analysis of the levels of carbon dioxide, oxygen, and acidity in Bell's blood), and a chest x-ray. This chest x-ray became a key piece of evidence in Bell's case. Dr. Forehand concluded that the 2010 x-ray showed large opacities (that is, bright spots) in Bell's lungs that were characteristic of pneumoconiosis. Dr. Forehand is a certified "B reader," which means he has demonstrated proficiency in reviewing x-rays for signs of pneumoconiosis. See generally Adkins v. Director, OWCP, 958 F.2d 49, 51 n.2 (4th Cir. 1992) (explaining definition of "B reader").

In response to Bell's application for benefits, the CWP Fund engaged its own medical experts. These experts concluded that Bell did not suffer from pneumoconiosis, for several reasons. First, two of the CWP Fund's experts disagreed with Dr. Forehand's interpretation of the 2010 x-ray. These experts were Dr. Shipley (a board-certified radiologist) and Dr. Castle (a board-certified pulmonologist), who like Dr. Forehand are also "B readers." Both doctors found no large opacities characteristic of pneumoconiosis on the 2010 x-ray, although they did note certain irregularities in the middle of Bell's

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lungs. Dr. Shipley explained that, "[b]ecause of the absence of background small rounded opacities, these are unlikely to represent large opacities of pneumoconiosis. Comparison with any prior or subsequent radiographs should be considered to rule out malignancy." J.A. 15. Dr. Castle opined that the "middle lung zone[] . . . is not where you find large opacities of pneumoconiosis, and those did not have the characteristic appearance of pneumoconiosis. Those opacities . . . were most likely due to previous scarring from inflammation or infection." J.A. 82-83.1

Two of the CWP Fund's experts also reviewed the results of Bell's lung-function tests, including the tests conducted by Dr. Forehand and additional tests they performed. These experts were Dr. Castle and another pulmonologist, Dr. Ghio. Dr. Ghio concluded, using the guidelines of the American Thoracic Society, that Bell's breathing was not "impaired," just at the low end of the normal range. Dr. Castle offered a different opinion: he found that Bell's breathing was impaired, but in three ways uncharacteristic of black lung disease. First, Dr. Castle found "mild to moderate airway obstruction without restriction." J.A. 24. Second, he found that Bell's lung function had varied over time, sometimes getting worse and sometimes getting better. In his view, these two findings suggested Bell did not have pneumoconiosis, which "generally" causes "a mixed, irreversible obstructive and restrictive ventilatory defect." Id. Dr. Castle also

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found that, when Bell exhaled, air remained in his lungs. Such "gas trapping," in Dr. Castle's opinion, typically resulted from smoking, not coal-dust exposure. J.A. 85-86.

Dr. Ghio and Dr. Castle also reviewed the results of arterial blood-gas tests (again, both the results obtained by Dr. Forehand and results from additional testing). Both experts concluded that these results also suggested smoking-related disease rather than black lung: the testing showed low levels of oxygen and high levels of carbon dioxide, a combination not typical of black lung disease.


In 2012, Judge Krantz held a hearing on Bell's claim. Only Bell testified in person before Judge Krantz; the parties otherwise relied on the documentary evidence and deposition transcripts. Bell explained that he had to use oxygen "24/7" and that, despite his doctors' advice to quit smoking, he was only down to a "pack and a half a day." J.A. 134.

In 2013, Judge Krantz issued a decision rejecting Bell's claim for benefits. He began by making several factual findings that are not disputed. He found that Bell had worked for just over 15 years as a coal miner for the Mountain Laurel Resources Company (represented by the CWP Fund, its insurance carrier, in this appeal). Judge Krantz also found that Bell had a smoking history of approximately 100 "pack years" (meaning he smoked, on average, about two packs a day for a period of about fifty years). J.A. 153-54. Judge Krantz further concluded that Bell had a totally disabling respiratory condition. While Judge Krantz credited Dr. Ghio's opinion that Bell did not have a respiratory disability, he found it was outweighed by other evidence in the record.

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Next, Judge Krantz found that Bell does not have pneumoconiosis—the key finding at issue in this appeal. He analyzed this issue in two steps, each of which related to a different presumption afforded by the black lung statute.

Judge Krantz first considered whether Bell was entitled to an irrebuttable presumption that he was disabled due to...

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