Today the U.S. Court of Appeals for the Sixth Circuit issued a published decision (available here) which clarifies that surface miners with pending black lung benefits claims are helped by last year’s amendments to the regulations (these amendments make it easier for surface miners to qualify for the fifteen-year presumption).
In Central Ohio Coal Co. v. Director, OWCP [Sterling], 762 F.3d 483 (6th Cir. 2014), Judge Gibbons authored an opinion (joined by Judges Siler and Clay), which held on 3 issues:
- The 2013 amendments to the regulations governing black lung benefits apply to pending cases. Accordingly, surface-mine work counts towards the fifteen-year presumption as long as the miner was “regularly exposed to coal-mine dust while working.” 20 C.F.R. § 718.305(b)(2). Larry Sterling’s testimony that it was “very dusty” was thus sufficient to support the ALJ’s decision to count Sterling’s work history and invoke the fifteen-year presumption.
- The ALJ properly weighed the medical evidence.
- The ALJ properly relied on the preamble to the 2000 regulations to discredit Dr. Rosenberg’s opinion that the decrease in Sterling’s FEV1/FVC ratio suggests that Sterling’s COPD was caused by smoking rather than coal-mine dust. The court explained that Dr. Rosenberg’s position on this medical question is contrary to the Department of Labor’s position and thus until a coal company submits the “type and quality of medical evidence that would invalidate” the agency’s position, an ALJ can properly rely on the agency’s position.
- The ALJ properly discounted the opinion of Dr. Grodner who reasoned that because Sterling did not have x-ray evidence of black lung, his COPD did not arise from his coal-mine employment. The court explained that even if there is no evidence of clinical pneumoconiosis, legal pneumoconiosis may still exist.
- The ALJ properly determined that even if Dr. Diaz said that many of Sterling’s symptoms result from cigarette smoking, Dr. Diaz’s statement that “both cigarette smoking and coal dust exposure contributed to [Sterling’s] COPD” supported a finding of legal pneumoconiosis
- Even if the ALJ did not fully find how many pack years of cigarettes Sterling smoked, any error was harmless because there was no allegation that Dr. Diaz used an inaccurate smoking history, and the ALJ relied heavily upon Dr. Diaz’s opinion.
The first issue is the major issue in this case. It is good to see that the Sixth Circuit held in accordance with the Tenth Circuit’s decision earlier this year in Antelope Coal Co./Rio Tinto Energy America v. Goodin, 743 F.3d 1331, 1342 (10th Cir. 2014), and thus all circuits to consider the issue agree that the new regs apply to pending cases. (See previous post about Antelope Coal here).
This is good news for surface miners in the Sixth Circuit who will more easily be able to qualify for the fifteen-year presumption. Because nearly every surface miner should be able to show that they are “regularly exposed to coal-mine dust while working,” functionally there is now little difference between underground miners’ and surface miners’ entitlement to the fifteen-year presumption.
The ALJ’s summary of Sterling’s testimony shows that testimony describing typical surface mine conditions is sufficient, even if the miner works in an enclosed cab:
Claimant described the conditions during his coal mine employment as “very dust[y].” When he operated the dozer, he would push dirt to remove overburden and place dirt back on the strip mine, which generated a lot of dust. The trucks driving past on the haul road would also generate dust. Claimant testified that there was always dust, but on days when it would snow or rain there would be less dust. The equipment Claimant operated had enclosed cabs the last 20 years Claimant worked; he operated machines without enclosed cabs for “probably five years.” The cabs would help with the dust “[f]or awhile but then they would . . . leak.” The cabs would no longer be sealed after about a year. Claimant stated that at the end of each day his clothes would be dirty from dust, grease, and oil.
The court’s decision to credit Sterling with 15 years implies that even when working in the cabs, the court understood Sterling to have been “regularly exposed to coal-mine dust.”
I have some concerns about the analytical route that the court used, but the important thing is that the court reached the right conclusion. (In short, I think the D.C. Circuit’s retroactivity analysis in National Mining Association v. Department of Labor, 292 F.3d 849, 859 (D.C. Cir. 2002) is problematic and the Sixth Circuit’s en banc decision in Combs v. Commissioner, 459 F.3d 640, 645–49 (6th Cir. 2006) (en banc),provides a better approach. I explain these concerns in a short article that is currently under submission to law journals and will be posted once it is forthcoming).
Congratulations to Heath M. Long for his success on behalf of Mr. Sterling and to Sean Bajkowski and Helen Cox for their work on behalf of the Department of Labor’s Solicitor’s Office.
(Disclosure: I provided my thoughts on why the new regulations apply to Heath Long, however, I authored no part of the brief.)