Westmoreland Coal Co. v. Stallard

• Decision Date: 29 November 2017
• Docket Number: No. 16-1460,16-1460
• Citation: 876 F.3d 663
• Parties: WESTMORELAND COAL COMPANY, Petitioner, v. Herskel D. STALLARD; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

876 F.3d 663

WESTMORELAND COAL COMPANY, Petitioner,

v.Herskel D. STALLARD; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 16-1460

United States Court of Appeals, Fourth Circuit.

Argued: September 12, 2017

Decided: November 29, 2017

As Amended December 21, 2017

ARGUED: Fazal Afaque Shere, BOWLES RICE LLP, Charleston, West Virginia, for Petitioner. Barry H. Joyner, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Joseph E. Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton, Virginia, for Respondents. ON BRIEF: Paul E. Frampton, BOWLES RICE LLP, Charleston, West Virginia, for Petitioner. M. Patricia Smith, Solicitor of Labor, Maia S. Fisher, Acting Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, Rebecca J. Fiebig, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent Director, Office of Workers' Compensation Programs. Victoria S. Herman, WOLFE WILLIAMS & REYNOLDS, Mt. Hope, West Virginia, for Respondent Herskel D. Stallard.

Before KEENAN and WYNN, Circuit Judges, and John A. GIBNEY, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.

Petition denied by published opinion. Judge Wynn wrote the opinion, in which Judges Keenan and Gibney joined.

WYNN, Circuit Judge:

Petitioner Westmoreland Coal Company challenges a final decision and order by the U.S. Department of Labor Benefits Review Board (the "Board") granting federal disability benefits to Respondent Herskel Stallard, a retired coal miner, under the Black Lung

Benefits Act (the "Black Lung Act"), 30 U.S.C. § 901 et seq. The Board affirmed a decision by the Administrative Law Judge ("ALJ") concluding that Stallard timely brought his claim and that Westmoreland failed to rebut the statutory presumption that Stallard was entitled to benefits. Because substantial evidence supports the award of benefits and the award accords with applicable law, we deny Westmoreland's petition for review.

I.

A.

Herskel Stallard worked as a coal miner throughout much of his adult life. In total, Stallard's career included more than thirty years of mining employment either underground or in conditions that were substantially similar to underground mines. Throughout much of this time, Stallard also smoked cigarettes. In particular, he testified that on workdays he smoked "one cigarette, maybe two"—and as much as half a pack per day otherwise—for thirty-nine years before quitting in 1993. J.A. 450.

Near the end of Stallard's career, several physicians advised him not to return to work due to breathing difficulties. In particular, around 1990 Dr. Charles P. Maine told Stallard that he had black lung disease

that was "not real severe" but would continue progressing the longer he worked in the mines. Id. at 447. Several years later, in March 1993, Stallard experienced carbon monoxide poisoning while working in a Westmoreland machine shop. Upon seeking treatment for the poisoning, two other physicians—Drs. Estocino and Dorman—each advised him not to return to work due to breathing difficulties. Dr. Estocino determined that the carbon monoxide poisoning would dissipate, but nonetheless advised Stallard to stop working in the mines to prevent further damage to his lungs. Dr. Dorman told Stallard that he was "permanently disabled" as a result of his impaired respiratory function. Id. at 448. Soon thereafter, on Dr. Dorman's advice, Stallard retired from the coal industry.

Nearly twenty years later, on March 22, 2011, Stallard filed a claim for Black Lung

Act benefits. In connection with this claim, three physicians examined Stallard—Drs. Ronald Jay Klayton, James Gallai, and David M. Rosenberg. A fourth doctor, Dr. George L. Zaldivar, provided a medical opinion without conducting his own examination. Drs. Klayton and Gallai diagnosed Stallard with black lung disease.¹ Although Dr. Gallai opined that exposure to coal dust caused Stallard's condition, Dr. Klayton said that he could not "quantitate the relative contributions" of Stallard's exposure to coal dust and cigarette smoke in reaching his diagnosis. Id. at 223.

By contrast, Drs. Rosenberg and Zaldivar diagnosed Stallard not with black lung disease

, but instead with severe chronic obstructive pulmonary disease ("COPD"). Based on his review of Stallard's treatment history, as well as his suspicion that Stallard concealed the true extent of his smoking habit, Dr. Rosenberg concluded that cigarette smoke was the "sole culprit" responsible for Stallard's breathing difficulties. Id. at 406. Similarly, Dr. Zaldivar testified that Stallard did not have black lung disease, attributing his severe lung impairment to a lifetime of asthma and smoking.

B.

On July 10, 2014, the ALJ presiding over Stallard's claim conducted a hearing to consider the medical and other evidence regarding Stallard's eligibility for Black

Lung

Act benefits. In addition to Stallard's live testimony at the hearing, the ALJ considered various exhibits, including transcripts of the depositions of Drs. Rosenberg and Zaldivar.

Roughly six months later, the ALJ issued a decision and order granting Stallard Black Lung

Act benefits. The ALJ first found Stallard's claim timely filed. 30 U.S.C. § 932(f) ; see also 20 C.F.R. § 725.308(a). Next, in light of Stallard's long career in the mining industry, the ALJ applied a statutory presumption that Stallard's work in the mines caused or substantially contributed to any disabling lung disease he experienced. 30 U.S.C. § 921(c)(4) ; see also 20 C.F.R. § 718.305(b). The ALJ then concluded that: (1) the medical evidence demonstrated that Stallard suffered from a disabling lung disease; and (2) Westmoreland failed to rebut the statutory presumption that Stallard's disease was caused by exposure to coal dust. Accordingly, the ALJ determined that Stallard was entitled to benefits under the Black Lung Act and found Westmoreland liable for those benefits as of March 1, 2011.

The Board affirmed the ALJ's decision on February 24, 2016. As to timeliness, the Board upheld the ALJ's finding that the medical advice Stallard received in the early 1990s did not put him on notice that he was totally disabled due toblack lung disease

. Likewise, the Board agreed that substantial evidence supported the ALJ's conclusion that the opinions of Drs. Rosenberg and Zaldivar were insufficient to rebut the presumption that Stallard's chronic lung disease was caused by his long-term exposure to coal dust. Westmoreland timely petitioned this Court for review.

II.The Black Lung

Act provides disability benefits to former coal miners suffering from black lung disease (known medically as "pneumoconiosis"). 30 U.S.C. § 901(a). To be eligible for such benefits, miners must demonstrate that: (1) they have black lung disease ; (2) the disease arose out of coal mine employment; (3) they are totally disabled; and (4) their black lung disease contributes to that total disability. 20 C.F.R. § 725.202(d).

Under applicable Department of Labor ("Labor Department") regulations, black lung disease

is defined as "a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment." Id. § 718.201(a). The disease manifests in two forms: (1) "clinical" black lung disease, which includes a number of specific diagnoses associated with the accumulation of particulate matter in the lungs; and (2) "legal" black lung disease, which is defined as "any chronic lung disease or impairment and its sequelae arising out of coal mine employment." Id. § 718.201(a)(1)–(2).

As revised in 2000, the Labor Department regulations are preceded by an extensive Preamble that "sets forth the medical and scientific premises relied on by the Department in coming to [its medical] conclusions in [crafting] its regulations." Harman Mining Co. v. Dir., Office of Workers' Comp. Programs , 678 F.3d 305, 314 (4th Cir. 2012). The product of notice-and-comment rulemaking, this Court must accord these conclusions substantial deference. E. Associated Coal Corp. v. Dir., Office of Workers' Comp. Programs , 805 F.3d 502, 512 (4th Cir. 2015). Accordingly, we repeatedly have held that ALJs may look to the Preamble in weighing medical opinions addressing the cause of a claimant's disabling lung disease. See, e.g. , Harman Mining Co. , 678 F.3d at 314–16 ; Westmoreland Coal Co. v. Cochran , 718 F.3d 319, 323 (4th Cir. 2013).

Once the Board makes a merits determination, the Black Lung

Act allows for only "limited" judicial review to determine "whether substantial evidence supports the factual findings of the ALJ and whether the legal conclusions of the [Board] and ALJ are rational and consistent with applicable law." Hobet Mining, LLC v. Epling , 783 F.3d 498, 504 (4th Cir. 2015) (alteration in original) (quoting Harman Mining Co. , 678 F.3d at 310 ). Accordingly, we review the ALJ's factual findings for "substantial evidence"—i.e., "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[,]" Consol. Edison Co. of N.Y. v. NLRB , 305 U.S. 197, 217, 59 S.Ct. 206, 83 L.Ed. 126 (1938) —and the Board's legal conclusions de novo, Harman Mining Co. , 678 F.3d at 310. To this end, "we must be careful not to substitute our judgment for that of the ALJ," and thus "defer to the ALJ's evaluation of the proper weight to accord conflicting medical opinions." Harman Mining Co. , 678 F.3d at 310 (quoting Stiltner v. Island Creek Coal Co. , 86 F.3d 337, 342 (4th Cir. 1996) ).

III.

In the instant petition, Westmoreland lodges four separate objections to the Board's determination that Stallard is entitled to Black Lung

Act benefits. As a threshold matter, the company contends that Stallard's Black Lung Act application, which he filed nearly two decades after retiring from the coal industry due to breathing difficulties, is untimely under the statute's three-year limitations period. Next, assuming Stallard's...