Today the U.S. Court of Appeals for the Sixth Circuit issued a published decision that turns upon the different legal standards used to determine whether a breathing problem is caused by coal-mine dust and whether a respiratory disability is caused by black lung.
In Arch on the Green, Inc. v. Groves, 761 F.3d 594 (6th Cir. 2014) (slip opinion here), the court (in an opinion written by Circuit Judge Rogers and joined by Circuit Judge Cook and District Judge Murphy) held on five issues:
- Dr. Rasmussen’s statement that “most of Mr. Groves impairment is secondary to cigarette smoking and and that coal mine dust and that coal mine dust contributes to a minor degree” was sufficient to prove pneumoconiosis under the Black Lung Benefits Act—which need only “arise at least in part out of coal mine employment.” 20 C.F.R. § 718.203(b).
- However, the Administrative Law Judge (ALJ) erred by applying an “in part” standard to the question whether Mr. Groves affirmatively proved that his pneumoconiosis caused his respiratory disability because following the 2000 amendments to the black lung regulations, the proper standard for claimants is whether pneumoconiosis was a “substantially contributing cause.” 20 C.F.R. § 718.204. The court remanded so that the ALJ could consider whether the evidence (including Dr. Rasmussen’s statement that “coal mine dust contributes minimally to [Groves’s] disabling chronic lung disease“) is sufficient.
- The ALJ properly relied on the preamble to the 2000 regulations as a reference point to “test whether the theories of Arch’s doctors were consistent with medical literature.” (slip op. at 9). (Reaffirming A & E Coal Co. v. Adams, 694 F.3d 798 (6th Cir. 2012), in which Steve Sanders of Appalachian Citizens’ Law Center defended an ALJ’s use of the preamble)
- The ALJ properly relied on “regulatory intent” when this phrase functionally meant reliance upon the preamble to the regulations.
- Groves’s argument that he should be entitled to the “fifteen-year presumption” was not properly presented to the court because it was “raised only tangentially in the facts section of his brief” and raised before the Benefits Review Board in “only a cursory fashion.” (slip op. at 10–11).
The interaction between the first two holdings is the main takeaway from the case. In short, there’s a different causation standard to prove that coal-mine dust caused pneumoconiosis than to prove that pneumoconiosis caused a miner’s disabling breathing problem. Pneumoconiosis causation can be proven using the lower “at least in part” standard, while disability causation must be proven using the higher “substantially contributing” standard. (Note that when the fifteen-year presumption applies, the same “rule out” standard is used for both pneumoconiosis and disability causation.) The sufficiency of Dr. Rasmussen’s “contributes to a minor degree” statement shows how low the “at least in part” standard is for pneumoconiosis causation.
It is also notable that the court chose to remand the case to the ALJ for consideration under the “substantially contributing” standard for disability causation rather than holding that Dr. Rasmussen’s statement that “coal mine dust contributes minimally to [Groves’s] disabling chronic lung disease” is not sufficient under the “substantially contributing” standard. This suggests that even “minimally” contributing can be sufficiently “substantial” under the Black Lung Benefits Act because otherwise, the court likely could have simply reversed the award and instructed the ALJ to deny benefits.
This decision followed the Sixth Circuit’s 2012 unpublished decision in Island Creek Coal Co. v. Calloway, 460 F. App’x 504 (6th Cir. 2012), and reaffirms that the Sixth Circuit’s 1997 decision in Peabody Coal Co. v. Smith, 127 F.3d 504 (6th Cir. 1997), does not apply following the 2000 amendments to the regulations governing black lung benefits claims.
The other holdings are less notable, but the court’s decision not to take up the fifteen-year presumption argument should caution litigants to more directly present issues they wish the court to review. Because Mr. Groves worked as a strip miner for 20 years it is very likely that he should be eligible for the fifteen-year presumption using the “regularly exposed” standard for comparing surface-mine conditions to underground conditions. As the ALJ’s decision described: “According to Claimant, only some of the equipment he used had cabs that protected him from dust. During work, he did not use anything to cover his mouth or nose. Claimant stated that he would have to take a bath after he came home from work because his face would be covered in dust. Claimant also recalls coughing up yellow and black material when he got home.” This certainly sounds like regular exposure…
(See this previous post regarding the Tenth Circuit’s decision in Goodin for an example of a case in which the lower “regularly exposed” standard made a difference in a surface miner’s case.)
The court’s decision was mixed, so congratulations should be given to both Brent Yonts for his work on behalf of Mr. Groves and to Mark Solomons & Laura Klaus for their work on behalf of Arch on the Green, Inc.
(Disclosure: Following law school, I clerked for Judge Rogers. I had no role in this case and have had no communications with Judge Rogers or his staff about this case.)
[This post was updated on September 8, 2014 to fix a typo and clarify some portions.]