Youghiogheny and Ohio v. Milliken
| Decision Date | 29 October 1999 |
| Docket Number | No. 98-4395,98-4395 |
| Citation | 200 F.3d 942 |
| Parties | (6th Cir. 1999) The Youghiogheny and Ohio Coal Company, Petitioner, v. Evelyn Milliken, Widow of Harold Milliken, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
John G. Paleudis, HANLON, DUFF, PALEUDIS & ESTADT CO., St. Clairsville, Ohio, for Petitioner.
Paul A. Pachuta (argued and briefed), Reynoldsburg, OH, Jennifer U. Toth, U.S. DEPARTMENT OF LABOR, OFFICE OF THE SOLICITOR, Washington, D.C., for Respondents.
GILMAN, J., delivered the opinion of the court, in which MOORE, J., joined. WELLFORD, J. (pp. 957-62), delivered a separate dissenting opinion.
Before: WELLFORD, MOORE, and GILMAN, Circuit Judges.
This is a black lung benefits case that began nearly twenty-five years ago with the death of a coal-mining employee named Harold Milliken. Since then, the case has involved three formal hearings before an administrative law judge (ALJ), three appeals to the Benefits Review Board, and two petitions to this court for judicial review. On its third trip through the adminstrative process, the ALJ concluded that Evelyn Milliken was entitled to survivor's benefits, and the Benefits Review Board affirmed. Harold Milliken's former employer, the Youghiogheny and Ohio Coal Company (Y & O), has petitioned this court for judicial review. For the reasons set forth below, we conclude that the Board's affirmance was not legally erroneous and that the ALJ's decision was supported by substantial evidence. We therefore DENY Y & O's petition for review.
Harold Milliken worked in the coal mines for approximately forty years. He ceased working in the mines in 1973 due to health problems, and he died two years later. Evelyn Milliken, Harold Milliken's widow, filed a claim in August of 1975 for surviving spouse benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945.
The ALJ to whom the claim was assigned concluded in 1986 that Milliken's autopsy evidence was sufficient to trigger the so-called "Part C" interim presumption of 20 C.F.R. §727.203(a)(1). Under that interim presumption, a miner engaged in coal mine employment for at least ten years is entitled to a rebuttable presumption that he was totally disabled from, and died due to, pneumoconiosis arising from his coal mine employment if a chest X-ray, biopsy, or autopsy establishes the existence of pneumoconiosis. See id. Coal workers' pneumoconiosis is a pulmonary disease that in its "complicated" form "involves progressive massive fibrosis as a complex reaction to dust and other factors (which may include tuberculosis or other infection), and usually produces significant pulmonary impairment and marked respiratory disability." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 7 (1976) (footnote omitted). "This disability limits the victim's physical capabilities, may induce death by cardiac failure, and may contribute to other causes of death." Id. (footnote omitted). For the purposes of federal black lung benefits law, however, "pneumoconiosis" is a term of art that means any "chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment," and encompasses a number of coal dust-related pulmonary diseases in addition to coal workers' pneumoconiosis. See 20 C.F.R. § 727.202.
Harold Milliken's autopsy results disclosed, among other ailments, anthracosis (which is included in the § 727.202 definition of pneumoconiosis) and fibrosis. Evelyn Milliken, the ALJ concluded, was thus entitled to the interim presumption under 20 C.F.R. § 727.203(a)(1). This interim presumption, however, can be rebutted by evidence that the miner's death "did not arise in whole or in part out of coal mine employment." 20 C.F.R. § 727.203(b)(3). The ALJ, in a decision and order dated January 16, 1986, concluded that the interim presumption in this case was so rebutted. This determination was based on the opinion of physicians who had reviewed pertinent medical records and concluded that Harold Milliken was not disabled due to coal dust exposure when he died, and that his death was not in any way affected by coal dust exposure because his level of pneumoconiosis at the time he died could not have caused any disability or impairment. The primary cause of death listed on Harold Milliken's death certificate, in fact, was heart disease, although pneumoconiosis was listed as a contributing factor.
Evelyn Milliken then filed a pro se appeal. A divided Benefits Review Board reversed, awarding her benefits. The Board considered itself bound by this court's decision in Kyle v. Director, OWCP, 819 F.2d 139 (6th Cir. 1987), to adjudicate her claim under the regulations ordinarily applicable to "Part B" claims, which are set forth at 20 C.F.R. Part 410. Generally, "Part B" claims are those that were filed before July 1, 1973 and processed by the Social Security Administration pursuant to regulations promulgated by the Secretary of Health and Human Services (formerly Health, Education and Welfare). The benefits for "Part B" claims are funded by the government. "Part C" claims, in contrast, are those filed on or after July 1, 1973, and processed by the Office of Workers' Compensation Programs pursuant to regulations promulgated by the Secretary of Labor. The benefits for "Part C" claims are employer-funded.
The regulations pertinent to "Part B" claims provide for an "interim presumption" that a miner who died before January 1, 1974 was, at the time of his death, totally disabled from, and died due to, pneumoconiosis if a chest X-ray, biopsy, or autopsy establishes the existence of pneumoconiosis. See 20 C.F.R. § 410.490(b)(1). This "Part B" interim presumption is similar to the "Part C" interim presumption established by Labor Department regulation at 20 C.F.R. §727.203, although the "Part B" interim presumption does not have a rebuttal provision similar to the one that applies to the interim presumption in "Part C" claims. Compare 20 C.F.R. §727.203(b) with 20 C.F.R. § 410.490(c). Instead, the regulations provide that the "Part B" interim presumption can be rebutted only upon a showing that the miner is "doing his usual coal mine work or comparable and gainful work," 20 C.F.R. § 410.490(c)(1), or that the miner is able to do such work, see 20 C.F.R. § 410.490(c)(2). Another significant difference between the "Part B" and "Part C" interim presumptions is that the "Part C" regulations require at least ten years of coal mining employment before the interim presumption can be invoked. See 20 C.F.R. § 727.203(a)(1). The "Part B" regulations, however, do not impose the ten-year requirement for the presumption to be invoked if a chest X-ray, biopsy, or autopsy establishes the existence of pneumoconiosis. See 20 C.F.R. § 410.490(b)(1)(i).
Because Harold Milliken died after January 1, 1974, one might ordinarily presume that the regulations pertinent to "Part B" claims have nothing to do with this case. But the statute authorizing the Secretary of Labor to promulgate regulations for "Part C" claims, 30 U.S.C. § 902(f), requires that the criteria for entitlement to black lung benefits adopted by the Secretary be "not . . . more restrictive than the criteria applicable to a claim filed on June 30, 1973," when the "Part B" regulations adopted by the Secretary of Health, Education and Welfare were in effect.
In Kyle, this court held that a coal miner who had worked in the coal mines for less than ten years, but who had a positive x-ray reading for pneumoconiosis that would have entitled him to the interim presumption under the "Part B" regulations but not the "Part C" regulations, should have had his claim considered under the "Part B" regulations. See Kyle, 819 F.2d at 144. This was because the Labor Department regulations' criteria, which included a requirement of ten years of coal mine work before the "Part C" interim presumption could be applied, were "more restrictive" than the Health, Education and Welfare Department regulations' criteria that imposed no such requirement for the interim presumption applicable to "Part B" claims. The Labor Department regulations thus exceeded the Secretary of Labor's rulemaking authority under 30 U.S.C. § 902(f). See id.
Following the Board's reversal of the ALJ and its award of benefits to Evelyn Milliken, Y&O petitioned this court for review. The petition was granted, the Board was reversed, and the ALJ's order denying benefits was reinstated in an opinion filed on January 23, 1989. See Youghiogheny and Ohio Coal Co. v. Milliken, 866 F.2d 195, 203 (6th Cir. 1989). In so ruling, this court held that its prior decision in Kyle was limited to holding that the criteria for initially invoking the "Part C" interim presumption had to be "not . . . more restrictive" than the criteria for invoking the "Part B" interim presumption, but that Kyle did not apply to the methods of rebutting the interim presumption. See id. at 202.
On February 14, 1989, Evelyn Milliken filed a petition for rehearing, a motion...
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