In three cases in the past couple weeks, the U.S. Court of Appeals for the Fourth Circuit affirmed awards of federal black lung benefits.
The unpublished cases don’t represent a shift in the law, but do reflect current trends in black lung cases before the Fourth Circuit and—importantly—successes for the miners involved.
The most interesting of the three is the first: Island Creek Coal v. Carles Dykes, 611 F. App’x 119 (4th Cir. 2015) (slip opinion here). Dykes followed the Fourth Circuit’s April decision in W. Va. CWP Fund v. Bender, holding that the “rule out” standard applies to operators seeking to rebut the fifteen-year presumption. Because Judge Niemeyer—who previously expressed his disagreement with this interpretation in a 2013 concurring opinion—joined the opinion in Dykes, this represents a shift in his approach and shows that even he considers Bender to have settled the question. (As previously covered on this blog, Judge Niemeyer had joined earlier summary decisions applying the “rule out” standard, but Dykes is more notable because it is a reasoned opinion following Bender). The other two judges in Dykes were Judges Agee and Diaz.
Dykes also held that substantial evidence supported the ALJ’s decision to discredit Dr. Fino and Dr. Castle. One of the problems with Dr. Fino’s report is that he said that pneumoconiosis is progressive in only 10-15% of miners, while the Department of Labor’s regulations codify the agency’s view that pneumoconiosis is generally latent and progressive. The Fourth Circuit stated that the ALJ properly discredited Dr. Fino and affirmed the Board’s decision.
The other two decisions are summary, per curiam decisions in which the Fourth Circuit used its standard language: “Our review of the record discloses that the Board’s decision is based upon substantial evidence and is without reversible error. Accordingly, we deny the petition for review for the reasons stated by the Board.”
These two cases are:
- NBL Coal Co. v. Director, OWCP [Moore] (decision here) (panel made up of Keenan, Wynn, and Diaz),
- Holding that the Benefits Review Board (Board decision here) correctly held that the ALJ’s decision to credit Mr. Moore’s testimony—which meant that he worked for NBL Coal for long enough for it to be responsible operator.
- Island Creek Coal Co. v. Hargett (decision here) (panel made up of Wilkinson, Shedd, and Thacker)
All three miners were represented by Joseph E. Wolfe of Wolfe, Williams & Reynolds. (Ryan Gilligan was also involved in Mr. Dykes’s and Mr. Hargett’s representation.)
Island Creek Coal was represented by George E. Roeder, III & Kathy L. Snyder of Jackson Kelly in Dykes and by Ashley M. Harman of Jackson Kelly in Hargett.
NBL Coal Co. was represented by John R. Sigmund & Nathaniel Moore of Penn, Stuart & Eskridge.
Sean G. Bajkowski & Helen H. Cox from the Department of Labor’s Solicitor’s Office represented the Director, OWCP in Dykes. Mr. Bajkowski & Barry H. Joyner represented the Director, OWCP in Moore. Gary K. Stearman and Rita A. Roppolo represented the Director, OWCP in Hargett.