Last week in Quarto Mining Co. v. Marcum, the U.S. Court of Appeals for the Sixth Circuit rejected a coal company’s arguments against a miner’s award of federal black lung benefits in an opinion that further undermines medical causation arguments based on an FEV1/FVC ratio.
The unpublished, per curiam decision (slip opinion available here, also available at 604 F. App’x 477) was issued by Judges Norris, Rogers, and White. It held on two issues:
- Although Mr. Marcum did not work underground for at least 15 years, his above ground work for Consol was at an underground mine site, and thus counts towards the 15-year presumption. (In the Benefits Review Board’s decision below, it relied upon the Sixth Circuit’s 2013 decision in Island Creek Ky. Mining v. Ramage, 737 F.3d 1050 (6th Cir. 2013), for the proposition that above ground workers at underground mines do not have to prove comparability the way that above ground workers at surface mines do.)
- When analyzing the presence of legal pneumoconiosis, the ALJ properly discounted the opinion of Dr. David M. Rosenberg. Dr. Rosenberg’s opinion that Mr. Marcum’s reduced FEV1/FVC ratio indicated that his impairment was not related to coal-mine dust is contrary to the Department of Labor’s preamble to the 2001 amendments to the regulations. (The court relied heavily on its 2014 decision in Central Ohio Coal Co. v. Director, OWCP [Sterling], 762 F.3d 483 (6th Cir. 2014)—see here for a previous post analyzing Central Ohio.)
The court’s holding on the second issue is the most notable.
Central Ohio rejected Dr. Rosenberg’s FEV1/FVC theory in Mr. Sterling’s case for being inconsistent with DOL’s position, but said that an employer could challenge DOL’s position by submitting “‘the type and quality of medical evidence that would invalidate’ the DOL’s position in that scientific dispute.” Central Ohio, 762 F.3d at 491 (quoting Midland Coal Co. v. Director, OWCP, 358 F.3d 486, 490 (7th Cir. 2004)).
In last week’s decision Marcum, the employer argued that Dr. Rosenberg’s opinion in this case is just such medical evidence because Dr. Rosenberg’s opinion in Mr. Marcum’s case cited post-Preamble studies that the employer contended invalidate DOL’s position.
The court rejected this argument, saying:
we find nothing to distinguish [Dr. Rosenberg’s] evidence from the evidence that he relied upon, and that we rejected, in Central Ohio. The ALJ could therefore appropriately discount the opinions of Drs. Rosenberg and Tuteur, both of whom drew conclusions that were at odds with the position taken by the Department of Labor without establishing the invalidity of that position.
Marcum clarifies that for a physician’s opinion to be of “the type and quality” to invalidate DOL’s FEV1/FVC position, the physician must do more than cite post-2000 studies in his etiology opinion for an individual miner.
It is not clear exactly how a coal company who wants to challenge DOL’s position can provide the right “type and quality” of evidence. Due to the evidentiary limitations in individual claims, a challenge to an award will be a difficult route to invalidate DOL’s position. A better route would likely be a direct challenge to the DOL’s position through an Administrative Procedure Act § 553(e) petition to amend the DOL’s position or through an declaratory judgment/injunctive action in district court.
Combined with Central Coal, Marcum provides strong support for awards in which ALJs rejected arguments based upon the FEV1/FVC ratio.
Congratulations to Heath M. Long for his success on behalf of Mr. Marcum and to Jonathan Peter Rolfe, Sean Bajkowski, and Rita Roppolo of the Solicitor’s Office of the Department of Labor for their success on behalf of the Department.