Major Black Lung Decision: Fourth Circuit Affirms “Rule Out” Standard for Disability Causation (West Virginia CWP Fund v. Bender)

Yesterday in West Virginia CWP Fund v. Bender, 782 F.3d 129 (4th Cir. 2015), the U.S. Court of Appeals for the Fourth Circuit issued an important decision that rejects one of the most common arguments being made by coal companies against awards of black lung benefits.  I recommend reading for yourself the clearly written opinion by Judge Keenan (and joined by Judges Floyd & Harris), but below is my first take on the decision and why it is important.

The issue in Bender arises in cases involving disabled miners with at least 15 years of qualifying coal-mine employment.  For these claims, the Affordable Care Act revived a presumption that shifts the burden to the coal company opposing the miner’s claim of benefits to disprove the existence of pneumoconiosis or show that it did not contribute to his respiratory disability.  This major change affects thousands of claims, making it easier for disabled miners and their families to receive federal black lung benefits.

The issue is what standard of causation coal operators must meet to rebut the presumption that a miner’s disability was caused by his pneumoconiosis.  Coal operators argue that they can rebut by showing that pneumoconiosis was not a “substantially contributing cause” of the miner’s disability.  The Department of Labor and claimants disagree and argue that a coal company must “rule out” any connection between pneumoconiosis and disability.

Although the marginal difference should only matter in the rare case that the weight of the medical evidence suggests that pneumoconiosis was a cause—albeit an insubstantial one—the issue has repeatedly been raised in at least 15 cases pending before Courts of Appeals.  (Full disclosure:  I represent claimants in a few of these cases.)

In yesterday’s decision in Bender, the Fourth Circuit unequivocally upheld the “rule out” standard.


The facts of Mr. Bender’s claims are fairly typical for black lung benefits claims.  Mr. Bender worked in an underground coal mine for 21 years, ending in 1995.  He also smoked 1 1/2 to 2 packs of cigarettes a day for over 40 years and continues to smoke 3 or 4 cigarettes a day.  In 2003, Mr. Bender filed a claim for black lung benefits which was denied because he could not prove that he was disabled.  In 2007, Mr. Bender was diagnosed with lung cancer, which resulted in the removal of a portion of his lung.

Mr. Bender filed his current claim in 2009.  By the time his claim reached an Administrative Law Judge, the Affordable Care Act was passed and Mr. Bender became eligible for the 15-year presumption at 30 U.S.C. § 921(c)(4).

The consensus of the medical evidence in Mr. Bender’s 2009 claim was that he was disabled and had pneumoconiosis (in the form of “clinical pneumoconiosis” as proven via surgical pathology slides).   The physicians  disagreed about the extent to which pneumoconiosis caused Mr. Bender’s disability.  In short, the companies’ experts (Dr. Tuteur, Dr. Zaldivar, & Dr. Caffrey) each thought that pneumoconiosis was not a cause.  Dr. Tuteur used the phrase “no clinical effect,” Dr. Zaldivar said “zero percent” causation, and Dr. Caffrey said that because the lesions caused by pneumoconiosis only occupied 5% of Mr. Bender’s observed lung tissue, then Mr. Bender’s disability was caused by the removal of his lung tissue, not his pneumoconiosis.  Dr. Rasmussen—the physician who performed the Department of Labor’s evaluation of Mr. Bender—disagreed with the company’s physicians and said that pneumoconiosis was a “material contributor” and there was no basis to exclude coal-mine dust as a cause of Mr. Bender’s impairment.

The ALJ (whose decision is available here) weighed this evidence and gave little credit to the opinions of the company’s experts, finding that they failed to rule out any relationship between Mr. Bender’s pneumoconiosis and his disability.  The Board affirmed this decision (Board decision available here) and the company petitioned the U.S. Court of Appeals for the Fourth Circuit for review.

While Mr. Bender’s claim was pending before the Fourth Circuit, the U.S. Department of Labor amended the regulations and clarified the rebuttal standard that applies to operators.  The Department of Labor’s new regulation at 20 C.F.R. § 718.305(d)(1)(ii) says that an operator must show that “no part” of a miner’s disability was caused by pneumoconiosis.

Fourth Circuit Decision

In Bender, the Fourth Circuit’s analysis began by applying the deference doctrine from Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).  The court held that “Section 921(c)(4) is silent regarding the standard that an operator must meet to rebut the presumption. . . . Although operators must necessarily meet some unarticulated standard to rebut the presumption, the statute specifies none.”

The court distinguished the Supreme Court’s 1976 decision in Usery v. Turner Elkhorn Mining Co.—which held that the “rule out” standard did not apply to operators—for multiple reasons.  The Fourth Circuit explained that Usery was decided before the 1978 amendments to the Black Lung Benefits Act expanded the definition of pneumoconiosis, thus the concerns that animated Usery (that is, that a miner will be compensated for a disability caused by a respiratory disease other than clinical pneumoconiosis) no longer apply.  In addition, the Fourth Circuit noted that Usery did not address any regulation implementing the statute and at footnote 40 expressly left open the potential for the Secretary to promulgate regulations regarding a rebuttal standard.  The Fourth Circuit concluded “Usery did not answer either the question whether Congress left a gap in Section 921(c)(4) that the agency was permitted to fill by regulation, or the question whether application of the rule-out standard to coal mine operators in a regulation would be a reasonable exercise of agency authority.”

After determining that § 921(c)(4) contains a gap subject to agency regulations, the court held that the Department of Labor’s regulation was a reasonable exercise of such authority.  The court first noted that the Department of Labor codified the rule-out standard in its 1980 regulations, so the standard existed before Congress revived the presumption in 2010.  The court explained, “We therefore may assume, in the absence of a contrary showing, that Congress intended to retain the agency’s interpretation of the prior version of the statute.”  The court also said,

The rule-out standard unquestionably advances Congress’ purpose in enacting the statutory presumption.  Congress instituted the statutory presumption to make it easier for those miners most likely to be disabled due to coal dust exposure to obtain benefits, in response to the high rate of claim denials that miners experienced without the statutory presumption.  The strict nature of the regulatory rule-out standard furthers this goal by placing a significant burden on operators seeking to rebut the statutory presumption.  (citations omitted)

The court noted the limited class of clients that its decision applied to (that is, miners with 15 years of qualifying employment who suffer from a respiratory disability and in whose claims companies cannot disprove the existence of pneumoconiosis) and said “this class of cases is indisputably serious and encompasses claimants whose disabilities are likely attributable at least in part to pneumoconiosis.”

The court was also troubled by the implications of adopting a “substantially contributing cause” standard because it “effectively would nullify the statutory presumption for coal miners such as Bender” because a miner would be “placed back at ‘square one,’ forced to prove the ‘substantial’ impact of pneumoconiosis on his disability, which is the very situation that Congress intended to eliminate in enacting the presumption.

The court noted that is decision was consistent with the Sixth Circuit’s decision in Big Branch Resources, Inc. v. Ogle, 737 F.3d 1063 (6th Cir. 2013) as well as Fourth Circuit precedent.

The court said “Although the rule-out standard undeniably places a substantial burden on coal mine operators, we cannot say that the agency acted unreasonably.”

The court also provided guidance regarding the application of the rule-out standard.  Because this language will be important going forward, I will quote at some length:

To rebut the presumption of disability due to pneumoconiosis, an operator must establish that “no part of the miner’s respiratory or pulmonary total disability was caused by pneumoconiosis.” 20 C.F.R. § 718.305(d). Therefore, the rule-out standard is not satisfied by showing that pneumoconiosis was one of several causes of a miner’s disability, or that pneumoconiosis was a minor or even an incidental cause of the miner’s respiratory or pulmonary impairment. See Carozza v. U.S. Steel Corp., 727 F.2d 74, 78 (3d Cir. 1984) (comparing the interim presumption to Section 921(c)(4), and explaining that “Congress did not intend to exclude benefits for total disability resulting from multiple causes, one of which is pneumoconiosis”); Massey, 736 F.2d at 123 (“Pneumoconiosis . . . must be a causative factor in the miner’s total disability, but it need not be the exclusive causative factor rendering the claimant totally disabled . . . .”).

Instead, an operator opposing an award of black lung benefits affirmatively must establish that the miner’s disability is attributable exclusively to a cause or causes other than pneumoconiosis. See Massey, 736 F.2d at 123-24 (to rebut the interim presumption, an operator must “rule out the causal relationship between the miner’s total disability and his coal mine employment”). Thus, to make the required showing when a miner has qualified for the statutory presumption, a medical expert testifying in opposition to an award of benefits must consider pneumoconiosis together with all other possible causes, and adequately explain why pneumoconiosis was not at least a partial cause of the miner’s respiratory or pulmonary disability.

The court then applied this standard and held that the ALJ’s decision about how to weigh the medical evidence was supported by substantial evidence, saying “It is the prerogative of the ALJ, rather than of a reviewing court, to resolve such as battle of the experts.”


The Fourth Circuit’s decision speaks for itself, so I have little to add as far as analysis, but I would call attention to the court’s explanation that rule-out standard is not met by showing that pneumoconiosis was “a minor or even incidental cause” rather an operator must affirmatively establish that the disability is attributable “exclusively” to something other than pneumoconiosis.  This description provides a concise description of what the rule-out standard means.

I would also point out that due to Mr. Bender’s lung cancer and resulting lung removal procedure, his is the type of claim that almost certainly would not have been awarded without the 15-year presumption.

The remaining issue after Bender is the other rebuttal prong—disproving the existence of pneumoconiosis, including legal pneumoconiosis.  Because the definition of legal pneumoconiosis incorporates a causation standard, a similar issue arises for rebuttal in 15-year presumption claims that do not involve clinical pneumoconiosis.  The facts of Bender did not require a holding on this issue, but the court’s reasoning suggests that it is comfortable with the “strict nature” of the 15-year presumption and the “significant burden” it places on operators and sees these as “unquestionably” advancing Congress’ purpose.  Further, the court’s concern that requiring proof of substantial causation would nullify the purpose of the 15-year presumption should also apply to disease causation.

It is interesting that the Court issued its decision in Bender before its decision in Hobet Mining LLC v. Epling (Case No. 13-1738) because Epling is the case that the court has referred to in explaining its decision to hold over a dozen cases in abeyance.  Bender and Epling were argued back-to-back, so a decision in Epling should be coming very soon.  In the meantime, maybe we will see if the court starts lifting its abeyance motions or it wants to continue to keep other black lung cases on hold pending Epling.  Because it is in the interest of claimants’ attorneys to get final decisions in these cases so that they can collect their fees—which they have been waiting on for usually at least five years—the court should expect a wave of Rule 28(j) letters and motions to lift abeyance orders.

Congratulations to Roger D. Forman for his work on behalf of Mr. Bender and to the team from the Solicitor’s Office at the Department of Labor (Sean Gregory Bajkowski, Maia S. Fisher, & Gary K. Stearman) for their major success in this case.

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