W.Va. CWP Fund v. Bender, No. 12–2034.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBARBARA MILANO KEENAN, Circuit Judge
Citation782 F.3d 129
PartiesWEST VIRGINIA CWP FUND, as insurer for Logan Coals, Inc., Petitioner, v. Page BENDER, Jr.; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
Docket NumberNo. 12–2034.
Decision Date02 April 2015

782 F.3d 129

WEST VIRGINIA CWP FUND, as insurer for Logan Coals, Inc., Petitioner
v.
Page BENDER, Jr.; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 12–2034.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 29, 2015.
Decided: April 2, 2015.


782 F.3d 132

ARGUED:William Steele Mattingly, Jackson Kelly PLLC, Morgantown, West Virginia, for Petitioner. Sean Gregory Bajkowski, United States Department of Labor, Washington, D.C.; Roger Daniel Forman, Law Office of Roger D. Forman, Buckeye, West Virginia, for Respondents. ON BRIEF:M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor, Maia S. Fisher, Deputy Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, Office of the Solicitor, United States Department of Labor, Washington, D.C., for Respondent Director, Office of Workers' Compensation Programs, United States Department of Labor.

Before KEENAN, FLOYD, and HARRIS, Circuit Judges.

Opinion

Petition for review denied by published opinion. Judge KEENAN wrote the opinion, in which Judge FLOYD and Judge HARRIS joined.

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider the validity of an administrative regulation and its evidentiary standard under which coal mine operators may rebut a presumption of disability that otherwise qualifies certain coal miners for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901 through 945. Logan Coals, Inc.1 (the operator) seeks review of a decision of the Benefits Review Board affirming an administrative law judge's (ALJ) award of benefits to Page Bender, Jr. under the Act. Because Bender had worked as an underground coal miner for 21 years and suffered from a totally disabling respiratory condition, the ALJ applied to Bender's claim a rebuttable presumption of total disability due to pneumoconiosis, as provided by 30 U.S.C. § 921(c)(4) and 20 C.F.R. § 718.305.2 After considering the medical evidence, the ALJ concluded that the operator had not rebutted the presumption of total disability due to pneumoconiosis by “ruling out” any causal relationship between Bender's pneumoconiosis and his disability. The ALJ therefore awarded black lung benefits to Bender, and the Benefits Review Board affirmed the ALJ's decision.

In its petition for review, the operator argues that the ALJ erred in applying the “rule-out” rebuttal standard. We disagree and hold that the Department of Labor acted within its regulatory authority in requiring coal mine operators to show, in the case of miners who meet the statutory criteria for the presumption, that “no part of the miner's respiratory or pulmonary total disability was caused by pneumoconiosis.” 20 C.F.R. § 718.305(d). We also hold that the ALJ's decision is supported by substantial evidence. Accordingly, we affirm the award of benefits and deny the operator's petition for review.

782 F.3d 133

I.

We begin by stating the statutory and regulatory framework, including certain pertinent history. The Black Lung Benefits Act (the Act), 30 U.S.C. §§ 901 through 945, was first enacted in 1969.3 See Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 683–84, 111 S.Ct. 2524, 115 L.Ed.2d 604 (1991) (describing history of the Act). The Act is intended “to provide benefits ... to coal miners who are totally disabled due to pneumoconiosis [ (black lung disease ) ] and to the surviving dependents of miners whose death was due to such disease.” 30 U.S.C. § 901(a).

In general, to establish an entitlement to black lung benefits, a miner must show: “(1) that he has pneumoconiosis, in either its ‘clinical’ or ‘legal’ form; (2) that the pneumoconiosis arose out of coal mine employment; (3) that he is totally disabled by a pulmonary or respiratory impairment; and (4) that his pneumoconiosis is a substantially contributing cause of his total disability.” Mingo Logan Coal Co. v. Owens, 724 F.3d 550, 555 (4th Cir.2013) (citing 20 C.F.R. §§ 725.202(d)(2), 718.204(c)(1) ). Pneumoconiosis is a “substantially contributing cause” of a miner's disability if the pneumoconiosis (1) “[h]as a material adverse effect on the miner's respiratory or pulmonary condition” or (2) “[m]aterially worsens a totally disabling respiratory or pulmonary impairment which is caused by a disease or exposure unrelated to coal mine employment.” 20 C.F.R. § 718.204(c)(1).

In 1972, Congress added to the Act a rebuttable presumption of total disability due to pneumoconiosis (the presumption). See Black Lung Benefits Act of 1972, 92 Pub.L. No. 303, 86 Stat. 150, 154; 30 U.S.C. § 921(c)(4) (2012).4 The presumption is applicable to a miner's claim if he worked for at least 15 years in underground coal mines, if a chest x-ray does not show the presence of complicated pneumoconiosis,5 and “if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment.” § 921(c)(4). Section 921(c)(4) also specifies the manner in which the Secretary of Labor6 (the Secretary) can rebut the presumption:

782 F.3d 134
The Secretary may rebut such presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.

Four years after the presumption was added to the statute, the Supreme Court decided Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 35–37, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), holding that the rebuttal provision in Section 921(c)(4) applied by its plain terms only to the Secretary, not to coal mine operators opposing a miner's claim for benefits. Later, in 1980, the Department of Labor promulgated a regulation implementing the statutory presumption and clarifying the rebuttal standard for both the Secretary and the coal mine operators (the original regulation). See Standards for Determining Coal Miners' Total Disability or Death Due To Pneumoconiosis, 45 Fed.Reg. 13,678, 13,692 (Feb. 29, 1980) ; 20 C.F.R. § 718.305 (2012). The original regulation set forth the rebuttal standard as follows:

Where the cause of death or total disability did not arise in whole or in part out of dust exposure in the miner's coal mine employment or the evidence establishes that the miner does not or did not have pneumoconiosis, the presumption will be considered rebutted. However, in no case shall the presumption be considered rebutted on the basis of evidence demonstrating the existence of a totally disabling obstructive respiratory or pulmonary disease of unknown origin.

§ 718.305(d) (2012) (emphasis added).

In 1981, however, Congress entirely eliminated the statutory presumption from Section 921(c)(4) for claims filed on or after January 1, 1982. See Black Lung Benefits Revenue Act of 1981, 97 Pub.L. No. 119, 95 Stat. 1635. The original regulation was amended in 1983 to reflect this statutory change, but remained in effect as originally written for claims filed before January 1, 1982.7

The presumption was restored to the statute in March 2010, as part of the Patient Protection and Affordable Care Act. See Patient Protection and Affordable Care Act, 111 Pub.L. No. 148, 124 Stat. 119, § 1556 (2010). In reenacting this provision, Congress used language identical to that employed in the original statute. See 30 U.S.C. § 921(c)(4) (2012). This revived statutory presumption remains in effect at the time of this appeal.

In 2013, the Department of Labor promulgated a revised regulation (the revised regulation, or the regulation), which is at issue in this case. The revised regulation states the following evidentiary standard that is required to rebut the presumption:

In a claim filed by a miner, the party opposing entitlement may rebut the presumption by—
(i) Establishing both that the miner does not, or did not, have:
(A) Legal pneumoconiosis ...; and
(B) Clinical pneumoconiosis ..., arising out of coal mine employment ...; or
782 F.3d 135
(ii) Establishing that no part of the miner's respiratory or pulmonary total disability was caused by pneumoconiosis ....

20 C.F.R. § 718.305(d)(1) (2014) (emphasis added). Although the language of the revised regulation differs in some respects from the original regulation, both versions require that any party, including a coal mine operator, who seeks to rebut the presumption by disproving disability causation, “rule out” any connection between a miner's pneumoconiosis and his disability. The validity of this “rule-out standard” as applied to coal mine operators is the primary issue presented in this appeal.

II.

Bender, who was 60 years old at the time of the ALJ's decision, was employed in an underground coal mine for 21 years and ended his work in the mines around 1995. Bender also smoked between one and one half and two packs of cigarettes daily for over 40 years, and continues to smoke three or four cigarettes per day. Bender is in poor overall health, and was diagnosed with lung cancer in 2007....

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258 practice notes
  • W.Va. Coal Workers' Pneumoconiosis Fund v. Bell, No. 18-1317
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 6, 2019
    ...that the petitioner does not have legal pneumoconiosis. See 20 C.F.R. § 725.305(d)(1)(i)(A); see also W. Va. CWP Fund v. Bender, 782 F.3d 129, 137 (4th Cir. 2015). The Black Lung Benefits Act ("BLBA") defines legal pneumoconiosis as "any chronic restrictive or obstructive pulmonary disease ......
  • Helen Mining Co. v. Elliott, No. 16-1058
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 14, 2017
    ...presenting relevant evidence to rebut the link between pneumoconiosis and disability no longer pertain. See W. Va. CWP Fund v. Bender, 782 F.3d 129, 139 (4th Cir. 2015).13 Helen Mining also highlights Judge Niemeyer's reliance on Usery in his concurrence in Mingo Logan Coal Co. v. Owens to ......
  • Kiviti v. Pompeo, Civil Action No. TDC-19-2665
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 17, 2020
    ...106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (applying this principle to promulgated regulations); 467 F.Supp.3d 311 W. Va. CWP Fund v. Bender , 782 F.3d 129, 140 (4th Cir. 2015) (same). Finally, the Supreme Court has clarified that this principle applies "[w]here an agency's statutory constructio......
  • Reed v. L & M Coal Co., BRB 20-0571 BLA
    • United States
    • Court of Appeals of Black Lung Complaints
    • February 16, 2022
    ...of [his] death was caused by pneumoconiosis as defined in [20 C.F.R.] §718.201." 20 C.F.R. §718.305(d)(2); see W.Va. CWP Fund v. Bender, 782 F.3d 129 (4th Cir. 2015); Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 480 (6th Cir. 2011). Accordingly, the ALJ's Decision and Order Denying Mod......
  • Request a trial to view additional results
260 cases
  • W.Va. Coal Workers' Pneumoconiosis Fund v. Bell, No. 18-1317
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 6, 2019
    ...that the petitioner does not have legal pneumoconiosis. See 20 C.F.R. § 725.305(d)(1)(i)(A); see also W. Va. CWP Fund v. Bender, 782 F.3d 129, 137 (4th Cir. 2015). The Black Lung Benefits Act ("BLBA") defines legal pneumoconiosis as "any chronic restrictive or obstructive pulmonary disease ......
  • Helen Mining Co. v. Elliott, No. 16-1058
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 14, 2017
    ...presenting relevant evidence to rebut the link between pneumoconiosis and disability no longer pertain. See W. Va. CWP Fund v. Bender, 782 F.3d 129, 139 (4th Cir. 2015).13 Helen Mining also highlights Judge Niemeyer's reliance on Usery in his concurrence in Mingo Logan Coal Co. v. Owens to ......
  • Kiviti v. Pompeo, Civil Action No. TDC-19-2665
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 17, 2020
    ...106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (applying this principle to promulgated regulations); 467 F.Supp.3d 311 W. Va. CWP Fund v. Bender , 782 F.3d 129, 140 (4th Cir. 2015) (same). Finally, the Supreme Court has clarified that this principle applies "[w]here an agency's statutory constructio......
  • Reed v. L & M Coal Co., BRB 20-0571 BLA
    • United States
    • Court of Appeals of Black Lung Complaints
    • February 16, 2022
    ...of [his] death was caused by pneumoconiosis as defined in [20 C.F.R.] §718.201." 20 C.F.R. §718.305(d)(2); see W.Va. CWP Fund v. Bender, 782 F.3d 129 (4th Cir. 2015); Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 480 (6th Cir. 2011). Accordingly, the ALJ's Decision and Order Denying Mod......
  • Request a trial to view additional results
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