Last week, the U.S. Court of Appeals for the Sixth Circuit affirmed a surface miner’s award of federal black lung benefits in Premium Coal Co. v. Director, OWCP [Byrge], 619 F. App’x 447 (6th Cir. 2015), (slip opinion here). The court rejected three arguments made by the company: that the 2013 amendments the black lung regulations are invalid, that a subsequent claim cannot be based on a change in law, and that the ALJ used the wrong standard for Premium Coal’s burden to rebut the fifteen-year presumption of disability due to pneumoconiosis.
The court had previously addressed each of these issues so the decision does not break new ground, but the case represents another win for a coal miner who is able to invoke the fifteen-year presumption. Unfortunately, Mr. Byrge passed away while his case was before the Sixth Circuit.
(Disclosure: I represented the claimant in this case and briefed the case before the Sixth Circuit.)
The case concerned a subsequent claim filed by Reddin Byrge, a Tennessee surface miner who was a lifelong nonsmoker. In Mr. Byrge’s first claim (filed in 2007), he proved he was disabled from a respiratory perspective, but the Department of Labor determined that he did not prove he had pneumoconiosis.
After passage of the Affordable Care Act in 2010, Mr. Byrge filed a subsequent claim. This claim was awarded by an ALJ in January 2013. The ALJ determined that because Mr. Byrge was disabled and had more than fifteen years of surface mine employment that was “substantially similar” to the dust conditions in underground mines, Mr. Byrge was entitled to the “fifteen-year presumption” that his disability was caused by pneumoconiosis. The ALJ found that entitlement to the presumption constitutes a sufficient change in a “condition of entitlement” under 20 C.F.R. § 725.309(c) to warrant a subsequent claim. Because Premium Coal failed to rebut the presumption, the ALJ awarded benefits to Mr. Byrge.
While Premium Coal’s appeal to the Benefits Review Board was pending, the Department of Labor amended its regulations governing black lung benefits claims and clarified the standards that surface miners must meet to invoke the fifteen-year presumption (for explanation of this change, see pages 163–166 of an essay I wrote last year) and that operators must meet to rebut the presumption. Premium Coal did not challenge the new regulations before the Board—even though it filed a motion for reconsideration after the regulations were effective.
Before the Sixth Circuit, Premium Coal raised three issues. It argued: (1) the 2013 amendments to the black lung benefits regulations are invalid because they treat surface miners similarly to underground miners, (2) Mr. Byrge did not satisfy the requirement for a subsequent claim, and (3) the ALJ applied the wrong standard to Premium Coal’s burden on rebuttal.
Sixth Circuit Decision
In an unpublished decision authored by Judge Guy (and joined by Judges Moore and McKeague), the Sixth Circuit rejected each argument and issued three holdings.
- As in Brandywine Explosives & Supply, Any Challenge to the Department of Labor’s 2013 Amendments to the Black Lung Benefits Regulations Must First Be Brought Before the Benefits Review Board. Similar to the last case that the Sixth Circuit decided, Brandywine Explosives & Supply v. Director, OWCP [Kennard] (see previous post here), Premium Coal challenged the Department of Labor’s 2013 amendments to the regulations governing black lung benefits claims. However, because Premium Coal failed to raise its challenge before the Benefits Review Board, then—as in Brandywine Explosives & Supply—the court held that the company failed to exhaust its administrative remedies and that this failure precluded the court’s review. As a result, the court did not address the validity of the 2013 amendments to the regs, but applied them to Mr. Byrge’s case.
- Mr. Byrge’s Subsequent Claim Was Supported by New Evidence and Did Not Violate Res Judicata. The court also did not directly address whether a subsequent claim can be based on a change in law. Instead, the court held that it did not need to reach this issue because the ALJ credited new evidence showing that Mr. Byrge’s disability was caused by pneumoconiosis. That is, because the new claim was supported by both new facts and new law, the court did not decide whether a change in law alone was sufficient. The court also followed its binding precedent from Buck Creek Coal Co. v. Sexton, 706 F.3d 756, 759-60 (6th Cir. 2013), that a subsequent claim does not violate res judicata.
- The ALJ Applied the Correct Standard for the Operator’s Burden to Rebut the Fifteen-year Presumption. The court rejected a series of related arguments against the ALJ’s approach towards Premium Coal’s burden to rebut the fifteen-year presumption. Regarding Premium Coal’s argument that it should be able to rebut by proving that pneumoconiosis was not a “substantially contributing cause,” the court explained that different standards apply when the burden is on the miner and when the burden is on a party opposing entitlement:
The ‘substantially contributing cause’ standard is the appropriate standard to prove disease causation (proof that the miner’s pneumoconiosis is a ‘substantially contributing cause’ of his total disability) when the burden of proof is on the miner. . . . Because Byrge properly invoked the 15-year presumption, we have held that the ‘rule out’ standard applies—’the employer must rule out the causal relationship between the miner’s total disability and his coal mine employment’ to rebut the 15-year presumption.”
slip op. at 10 (emphasis in original) (quoting Big Branch Resources, Inc. v. Ogle, 737 F.3d 1063, 1070–71 (6th Cir. 2013).
The court also rejected Premium Coal’s argument that it “should have been allowed to rebut the 15-year presumption with evidence that Byrge’s pneumoconiosis was too mild to have contributed to his total disability.” The court held that Ogle resolved this issue as well.
Premium Coal stands as another solid example of the Sixth Circuit’s reticence to engage in novel legal questions related to the Byrd Amendments to the Black Lung Benefits Act. The court’s first two holdings show the importance of raising legal issues on a record that properly presents the issues. The court’s holding on the rebuttal standard applicable to operators offers a succinct restatement on the law in this area—law which becomes more settled with each passing case that rejects challenges to the “rule out” standard.
It is too bad that Mr. Byrge did not live to see the court affirm his award. In my conversations with him, he was primarily concerned about leaving something for his wife. It took eight years, but in the end, Mr. Byrge left an award that will automatically entitle his wife to survivor’s benefits.
Premium Coal Co. and Old Republic Insurance co. were represented by Mark E. Solomons and Laura Metcoff Klaus of Greenberg Traurig, LLP.
The Director, OWCP was represented by Sean G. Bajkowski and Kathleen Kim of the Department of Labor’s Solicitor’s Office.
As mentioned above, I represented Mr. Byrge before the Sixth Circuit on behalf of Appalachian Citizens’ Law Center. Before the ALJ and District Director, Mr. Byrge had assistance from Sandra Webber of Community Health of East Tennessee.