By Kaitlin Price

On April 2, 2015, in the published opinion West Virginia CWP Fund v. Bender the Fourth Circuit denied petition for review of the award of benefits granted to the petitioner because it agreed that  the Department of Labor acted within its regulatory authority and the Administrative Law Judge had substantial evidence to support his decision.

The Black Lung Benefits Act 

The Black Lung Benefits act was enacted in 1969 “to provide benefits…to coal miners who are totally disabled due to pneumoconiosis (black lung disease) and to surviving dependents of miners whose death was due to such disease.” 30 U.S.C. Section 901(a). For a miner to establish he is entitled to black lung benefits he must show: (1) that he has black lung disease, in either it’s clinical or legal form; (2) that the black lung disease arouse out of the coal mine employment; (3) that he is totally disabled by a pulmonary or respiratory impairment; and (4) that his black lung disease is a substantially contributing cause of his total disability. There is now a rebuttable  presumption of total disability, the third element. This presumption is applied if a miner worked for at least 15 years in underground coal mines, if a chest x-ray does not show the presence of complicated black lung disease, and “if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment.” Section 921(c)(4).

If the miner qualifies for the rebuttable presumption of total disability then the Secretary of Labor may rebut the presumption 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 the coal mine.”

Although Usery v. Turner Elkhorn Mining Co., a Supreme Court case, held that the rebuttable presumption of total disability only applied to the Secretary of Labor and not coal mine operators, in 1980 the Department of Labor promulgated a regulation that clarifies that the presumption applied both the the Secretary of Labor and Coal Mine Operators. In 1981, Congress eliminated the statutory presumption completely and following that the regulation was amended to reflect the statutory change.

Congress reenacted the exact same statutory presumption in March 2010 and then the Department of Labor promulgated a revised regulation in 2013. The 2013 regulation is the regulation that is at issue here. The regulation provides the evidentiary standard that is required to rebut the presumption of total disability. 20 C.F.R. Section 718.305(d)(1). This regulation creates a “Rule Out” requirement by which the coal mine operator, who seeks to rebut the presumption, must “rule out any connection between a miner’s pneumoconiosis and his disability.”

Procedural Posture 

In 2010, an Administrative Law Judge granted Page Bender, Jr., an underground coal miner, benefits under the Black Lung Benefits Act. The Administrative Law Judge applied the rebuttable presumption of total disability because Mr. Bender had been working as an underground coal miner for 21 years and there was a consensus among all medical experts that Bender suffered from a totally disabling respiratory condition.

The burden then shifted to the operator to disprove this presumption. Although the 2013 rule-out regulation was not promulgated at the time of the decision, the ALJ did apply an analogous rule-out standard. The operator attempted to rebut the presumption of total disability with three medical experts who agreed that Bender’s respiratory disability was not caused by his pneumoconiosis because he suffered from simple clinical pneumoconiosis. The experts testified that Bender’s lung cancer, cigarette use, and lung surgery were the causes of the total disability not working in the coal mines. Then, Bender presented conflicting medical evidence that the coal mines were a cause of his total impairment.

The ALJ considered the conflicting evidence and credited Bender’s expert’s causation opinion over the Petitioner’s because the ALJ did not find the evidence of other conditions strong enough to exclude coal dust exposure as a cause to Bender’s impairment. The Benefits Review Board affirmed the Administrative Law Judge’s Decision. Logan Coals, Inc., the named plaintiff is Logan Coals insurer, appealed to the Fourth Circuit seeking review of the Board’s decision.

Legal Challenge to the Rule-Out Rebuttal Standard 

The Fourth Circuit applied Chevron deference in evaluating the Rule-Out Regulation. The first step of Chevron is “whether Congress has directly spoken on the precise issue.” If Congress has directly spoken on the precise issue then both the court and the agency must give effect to Congress’s expressed intent. However, if the statute is silent or ambiguous to the issue, then the Court must determine “whether the agency’s answer is based on a permissible construction of the statute.”

Chevron Step One Application 

At Chevron step one, the Fourth Circuit determined that Section 921(c)(4) is silent regarding the evidentiary standard for the rebuttable presumption. The Fourth Circuit reasoned that the rebuttable presumption applies both to the Secretary of Labor and operators, but the statute only specifies how the Secretary overcomes this presumption. Therefore, the statute is silent on the evidentiary standard operators must satisfy to overcome the presumption.

The Fourth Circuit explained that the Supreme Court decision is Usery does not impact it’s analysis because the Court was interpreting the statute and not the regulation. The statute that the Supreme Court was interpreting merely addressed the elements of a claim that can be rebutted, whereas the regulation is providing the evidentiary standard that must be met to overcome the presumption. The Fourth Circuit concluded that Usery does not address whether the application of the rule-out standard applies to coal mine operators and if the regulation, which was promulgated after Usery, was within the agency’s authority.

Chevron Step Two Analysis 

Since the Fourth Circuit found that Congress did not express its intent regarding the evidentiary standard for overcoming the rebuttable presumption of total disability, it proceeded to Chevron step two. Under Chevron step two, the court should defer to the agency’s interpretation if its “choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute. The Fourth Circuit explained that it will not upset the agency’s choice “unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.”

The Fourth Circuit determined that the agency’s interpretation was not. First, Department of Labor’s regulation in question 20 C.F.R. Section 718.305 was enacted when Congress reenacted the statutory presumption, but Congress did not change the rebuttable standard for coal mine operators. Therefore, the Fourth Circuit assumes that Congress intended to keep the agency’s interpretation of the statute. Second, the Fourth Circuit concluded that the rule-out evidentiary standard advances Congress’ purpose for enacting the statutory presumption. The Fourth Circuit also noted that the rule-out standard will only have to be satisfied by operators in cases of very serious conditions. Finally, any other type of rebuttal standard would thwart Congress’ intent in creating the presumption in the first place.

The Fourth Circuit also noted that the Sixth Circuit addressed this same issue of whether “the regulatory rule-out standard lawfully applies to coal mine operators” and the Sixth Circuit, in Big Branch Res., Inc., v. Ogle, also concluded that it lawfully applies.

The Administrative Law Judge’s Decision is Supported By Substantial Evidence 

The Petitioner argues that the Administrative Law Judge’s decision was not supported by substantial evidence because the ALJ did not credit the Petitioner’s experts. However, the standard to rebut the presumption of disability due to pneumoconiosis is that an operator must establish “no part of the miner’s respiratory or pulmonary total disability was caused by pneumoconiosis.” Here, the Petitioner’s experts simply asserted there were other contributing cause’s to the miner’s conditions, which is not enough to overcome the presumption. Instead, the experts needed to be able to explain why pneumoconiosis (black lung disease) was not at least one of the causes of the miner’s respiratory or pulmonary disability.

The Fourth Circuit found that it was within the ALJ’s power to weigh the credibility of the experts in making his determination. The ALJ reasonably determined that the Petitioner’s experts opinions were inadequate to rebut the presumption. Therefore, the Fourth Circuit concluded that there was substantial evidence to support the ALJ’s opinion.

The Fourth Circuit denied Petitioner’s petition for review because the agency regulation does apply to mine operators and the ALJ had substantial evidence to support his determination.

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