The Department of Labor’s Benefits Review Board has issued an important, precedential decision in Minich v. Keystone Coal Mining Corp. (available here) regarding black lung benefits cases involving the “fifteen-year presumption,” which provides disabled miners with at least fifteen years of qualifying employment to a presumption of entitlement that the employer must rebut.
The Boards decision is favorable to miners and clarifies how ALJs should approach subsequent claims and operators seeking the rebut the presumption that a miner’s disability is caused by pneumoconiosis.
Minich v. Keystone Coal Mining Corp. involved a subsequent claim for benefits filed by James A. Minich. Although Mr. Minich’s 2004 claim for benefits was denied in 2006 for failing to prove that he had pneumoconiosis causing his respiratory disability, after passage of the Affordable Care Act in 2010, Mr. Minich filed a subsequent claim.
This claim was awarded by Administrative Law Judge Swank (decision here). In Judge Swank’s decision, he first determined whether Mr. Minich proved a change in condition to justify a subsequent claim. Judge Swank found that Mr. Minich proved the existence of clinical pneumoconiosis, establishing a change in condition and justifying a full analysis. Judge Swank found that Mr. Minich’s undebated respiratory disability and twenty-nine years of underground coal-mine employment invoked the “fifteen-year presumption.”
The Employer’s two experts (Dr. Fino & Dr. Basheda) both opined that although coal-mine dust may play a role in Mr. Minich’s breathing problems, that it was clinically insignificant compared to Mr. Minich’s smoking history.
Judge Swank held that the opinions of the Employer’s experts were insufficient to rebut the fifteen-year presumption because “neither physician [could] state that coal dust exposure is not responsible for at least a part of claimant’s pulmonary/respiratory disability.” Accordingly, because the Employer did not rebut the presumption, Judge Swank awarded benefits to Mr. Minich.
Appealing Judge Swank’s decision, the Employer argued that Judge Swank applied the wrong rebuttal standard and that a physician’s opinion which says that pneumoconiosis plays an insubstantial role in causing the miner’s disability is sufficient to rebut the presumption of disability causation.
In a divided decision authored by Chief Judge Hall and joined by Judge McGranery, the Board held on four issues:
1. To rebut the presumption of disability causation, an operator must “rule out” pneumoconiosis as a cause of the miner’s disability. The Board adopted the Director’s position that the Department of Labor’s regulation at 20 C.F.R. § 718.305(d) is a reasonable gap-filling regulation that rationally requires that operators rule out any contribution of pneumoconiosis.
As the Board explained
Because the Act requires miners to prove that their disability is caused by pneumoconiosis, Section 718.305(d)(1)(ii) appropriately provides that employers may rebut the element of disability causation by proving that the miner’s respiratory disability is not due to pneumoconiosis. However, Section 718.305(d)(1)(ii) provides a different disability causation rebuttal standard than the disability causation standard for claims governed by the general Part 718 criteria. Although under 20 C.F.R. §718.204(c)(1) a miner must establish that pneumoconiosis is a “substantially contributing cause” of his disability, under Section 718.305(d)(1)(ii), an employer must establish that no part of the miner’s respiratory or pulmonary disability is due to pneumoconiosis. This difference is warranted because Congress determined that miners with fifteen or more years of qualifying coal mine employment should bear a lesser burden to obtain benefits. See 78 Fed. Reg. 59,102, 59,106 (Sept. 25, 2013). The regulation effectuates the statutory language providing for rebuttal by establishing that the miner’s “respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.” 30 U.S.C. §921(c)(4). By requiring proof that the miner’s totally disabling impairment did not arise out of, or in connection with, employment in a coal mine, Congress imposed a very high burden which the Secretary reasonably interpreted as requiring proof that “no part of the miner’s respiratory or pulmonary total disability was caused by pneumoconiosis as defined in [20 C.F.R.] §718.201.” 20 C.F.R. §718.305(d)(1)(ii).
The Board agreed with the Fourth Circuit’s analysis from West Virginia CWP Fund v. Bender (see previous post here) that allowing for rebuttal by showing that pneumoconiosis was an insubstantial cause would force miners affirmatively to submit evidence showing that it was a substantial cause. This would eliminate the goal or reducing the burden of production for miners entitled to the fifteen-year presumption.
Judge Boggs dissented from this portion of the Board’s decision. She argued that the contribution of pneumoconiosis must be material. However, because Judge McGranery concurred with Chief Judge Hall’s opinion, Judge Boggs’s opinion is a minority opinion.
2. To determine whether a subsequent claim proves a change in one of the “applicable conditions of entitlement,” the change in law brought by the revival of the fifteen-year presumption is a sufficient change—even if the predicate fact of disability and at least 15 years of qualifying coal-mine employment were proven in the previous claim. The Board held that Judge Swank erred by first analyzing whether Mr. Minich affirmatively proved the existence of pneumoconiosis. Instead, Judge Swank should have recognized that the change in law brought by the Affordable Care Act constitutes a change in one of the “applicable conditions of entitlement” under 20 C.F.R. § 725.309(c) even though Mr. Minich proved that he was disabled by a respiratory impairment in his previous claim. This holding adopts the Seventh Circuit’s holding from Consolidation Coal Co. v. Director, OWCP [Bailey], 721 F.3d 789, 794 (7th Cir. 2013).
3. In assessing clinical pneumoconiosis, an ALJ must weigh all relevant evidence, including digital x-ray evidence and medical opinion evidence. The Board vacated Judge Swank’s finding of clinical pneumoconiosis because the Board believed it was based solely on analog x-ray evidence.
4. The question for disability causation is whether pneumoconiosis caused the disability, not whether coal-mine dust caused the disability. The Board held that Judge Swank erred by conflating coal-mine dust with pneumoconiosis because this confuses the rebuttal of legal pneumoconiosis (any chronic lung disease arising out of coal-mine employment) with the rebuttal of disability causation (which as held at #1 above requires ruling out pneumoconiosis as a cause).
Because Judge Swank’s decision made errors by first analyzing whether Mr. Minich affirmatively proved the existence of pneumoconiosis, by limiting his analysis of clinical pneumoconiosis to the analog x-rays, and by requiring the Employer to rule out coal-mine dust as a cause of Mr. Minich disability, the Board vacated Judge Swank’s decision in part and remanded the case to him.
Minich is a significant, favorable case for disabled coal miners who are entitled to the fifteen-year presumption.
The Board’s approval of the “rule out” standard for rebuttal of disability causation clarifies the standard for cases that arise in states where a U.S. Court of Appeal has not issued a decision on this issue. For example, because Mr. Minich’s case arose in Pennsylvania and the Third Circuit has not issued a holding on the “rule out” standard, the Board’s decision in Minich sets the law for other cases in Pennsylvania. (To date, the Fourth, Sixth, and Tenth Circuits have agreed that the “rule out” standard applies, but other circuits in which black lung cases regularly arise such as the Third, Seventh, and Eleventh have not issued decisions.)
This standard is favorable to miners with at least fifteen years of qualifying coal-mine employment and should help some miners with borderline cases receive benefits and should avoid future appeals for even more miners.
A second significant holding in the case is the Board’s adoption of the rule from the Seventh Circuit’s decision in Bailey that a miner who proved in previous, pre-Affordable Care Act claim that he is disabled and has at least fifteen years of qualifying coal-mine employment, can pursue a subsequent claim based on the change in law brought by the Affordable Care Act. This holding is important because otherwise a miner would have the burden to affirmatively prove a medical fact that the presumption is meant to relieve him of the burden of proving. This approach is also legally sound because as the Seventh Circuit explained in Bailey, “we see no reason why a subsequent change analysis should treat a change in the applicable law any differently than a material change in the physical condition of the miner. In either situation, it is possible to say that the initial denial was correct but that the miner is now entitled to benefits.” 721 F.3d at 794.
The Board’s holding about the evidence relevant to clinical pneumoconiosis was already largely reflected in last summer’s amendment to the regulations which puts digital x-rays on equal footing with analog x-rays. (See previous post here).
The Board’s holding about the distinction between disability caused by coal mine dust and disability caused by pneumoconiosis is formally correct, but the Board’s decision to vacate Judge Swank’s decision on this basis without engaging in a harmless error analysis could further bog down the black lung benefits system. Because the facts related to legal pneumoconiosis and disability causation overlap in cases involving COPD caused by coal-mine dust and because many ALJ decisions (such as Judge Swank’s in this case) have been issued before the regulations were amended to clarify how a rebuttal analysis should proceed, it is understandable that an ALJ’s disability causation analysis would shade into a legal pneumoconiosis analysis. For an example of a decision approving of collapsing the two inquiries, see the Sixth Circuit’s decision in Big Branch Resources, Inc. v. Ogle, 737 F.3d 1063, 1070 (6th Cir. 2013).
Without having access to all of the evidence, it is hard to know whether the error would be harmless because the Board also vacated Judge Swank’s finding of clinical pneumoconiosis. However, because there are many ALJ opinions in which a similar error would be harmless, it would have been helpful to reiterate that a formal error does not warrant the administrative burden caused by reversal when the error is harmless.
Mr. Minich was represented before the Board by Professor Tim MacDonnell and student caseworker Paul M. Wiley of Washington & Lee Law School’s Black Lung Clinic. (See here for a previous post about Mr. Wiley’s work on the case.) Lynda D. Glagola of Lungs at Work represented Mr. Minich before Judge Swank.
The Director, OWCP was represented by Rebecca Fiebig and Michael Rutledge of the Department of Labor’s Solicitor’s Office.
The Employer was represented by Margaret M. Scully of Thompson, Calkins & Sutter, LLC.