Tenth Circuit Affirms Miner’s Black Lung Award Holding Coal-Mine Dust and Cigarette Smoke Are Additive (Energy West Mining Co. v. The Estate of Morris E. Blackburn )

Map of Jurisdiction of U.S. Court of Appeals for the 10th Circuit

Today, the U.S. Court of Appeals for the Tenth Circuit issued a published opinion affirming a coal miner’s award of federal black lung benefits.

In Energy West Mining Co. v. The Estate of Morris E. Blackburn, 857 F.3d 817 (10th Cir. 2017) (slip opinion available here), the Court held on multiple issues that regularly arise in black lung benefits litigation.  This precedential decision is favorable for coal miners and their families and is most notable for holding that the U.S. Department of Labor has recognized that coal-mine dust and cigarette smoke are additive in causing lung diseases.  The Tenth Circuit also agreed with the Benefits Review Board that the first ALJ decision was insufficiently explained and found any error having to do with the ALJ’s application of the “rule out” standard in this fifteen-year presumption case to be harmless.

(Disclosure:  I represented Mr. Blackburn—and after he died, his widow—before the Tenth Circuit.)

Facts

Morris Blackburn was a Utah coal miner who became disabled due to emphysema following 23 years in underground coal mines doing dusty work as a beltman.  He was also a cigarette smoker for 50 years.

Mr. Blackburn filed a claim for federal black lung benefits in November 2009.  After it was awarded in January 2011 by the U.S. Department of Labor’s District Director’s office, Energy West Mining sought review by an administrative law judge (“ALJ”).

As is typical in disputed black lung claims, expert pulmonologists disagreed about the cause of Mr. Blackburn’s disabling emphysema.  Dr. David S. James (the pulmonologist providing the Department of Labor’s examination) said that Mr. Blackburn’s emphysema did arise from his coal-mine employment while Dr. Robert J. Farney and Dr. Peter G. Tuteur (the pulmonologists hired by Energy West Mining) said that it did not.

In August 2012, ALJ Richard Malamphy denied Mr. Blackburn’s claim.  ALJ Malamphy found that although Mr. Blackburn invoked the fifteen-year presumption, Energy West Mining rebutted the presumption.  The key portion of ALJ Malamphy’s decision read as follows:

Drs. James, Farney, and Tuteur have given detailed reasoning for their opinions. Each party has relied on published treatises for their positions. [Mr. Blackburn’s] history of smoking is clearly more extensive than he acknowledged at the hearing.
I find [Energy West] has rebutted the 15-year presumption by showing that [Mr. Blackburn] does not have pneumoconiosis. All of [Mr. Blackburn’s] X-ray readings and his CT-scan readings were negative for pneumoconiosis. Further, the medical opinion evidence does not support a finding of legal pneumoconiosis.
Therefore, I find that evidence does not support a finding that [Mr. Blackburn] has pneumoconiosis.

Mr. Blackburn appealed this denial and, in July 2013, the Benefits Review Board agreed with Mr. Blackburn that ALJ Malamphy did not sufficiently explain how he found the medical opinions to rebut the presumption of legal pneumoconiosis.  The Benefits Review Board then remanded the claim back to the Office of Administrative Law Judges for a more detailed decision.

On remand, Mr. Blackburn’s claim was reassigned to ALJ Paul Johnson, Jr. due to ALJ Malamphy’s retirement.  ALJ Johnson then reanalyzed the evidence and awarded Mr. Blackburn’s claim in April 2015.  ALJ Johnson found the opinions of Dr. Farney and Tuteur not to be credible for multiple reasons.  Among these was Dr. Farney’s failure “to recognize that the Department of Labor has determined that coal dust and smoking have additive effects.

Energy West Mining then appealed ALJ Johnson’s award of benefits to the Benefits Review Board.  In 2016, the Board affirmed this award and Energy West then petitioned the U.S. Court of Appeals for the Tenth Circuit for review of both Board decisions.

Sadly, Mr. Blackburn died in December 2016 while the case was pending before the Tenth Circuit.

Tenth Circuit Decision

In a decision by Circuit Judge Robert E. Bacharach (and joined by Circuit Judge Paul Joseph Kelly, Jr. and Senior Circuit Judge David M. Ebel), the Tenth Circuit affirmed the Benefits Review Board and denied Energy West Mining’s petition for review.

The Court issued seven holdings:

  1. ALJ Malamphy’s 2012 Decision Was Insufficiently Explained.  The Court explained “Judge Malamphy’s decision failed to provide an adequate explanation. The relevant portion of his written opinion consisted almost entirely of summaries of the medical evidence and block quotations from the physicians’ reports. . . . Like the Board, we are unable to discern Judge Malamphy’s reasoning. Perhaps some readers may believe that they can glean Judge Malamphy’s reasoning from his selection of quotations. But these readers would ultimately only be guessing at Judge Malamphy’s reasoning. This kind of guesswork should be unnecessary because administrative law judges must articulate why they credit one medical expert over another. Gunderson [v. U.S. Dep’t of Labor], 601 F.3d [1013,] 1022 [(10th Cir. 2010)]. As a result, we decline to look between the lines and into the mind of Judge Malamphy, hoping to find a rationale where none has been articulated.The Court rejected Energy West Mining’s argument that ALJ Malamphy’s references to the negative CT scans was an explanation for his legal pneumoconiosis conclusion.  The Court found this argument to be “waived and unpersuasive.”  It was waived because it was raised at oral argument and it was unpersuasive because “everyone agrees that Mr. Blackburn had emphysema; Judge Malamphy did not say that the CT-scans had supported Dr. Farney’s conclusion about the cause of the emphysema. As a result, we can only speculate about why Judge Malamphy might have regarded the CT-scans as relevant to his conclusion on legal pneumoconiosis.”
  2. ALJ Johnson’s 2015 Decision Was Not Beyond the Scope of the Remand.  During the first appeal to the Board, the Board rejected Mr. Blackburn’s argument that Energy West Mining’s experts were insufficient as a matter of law to support rebuttal.  Before the Tenth Circuit, Energy West Mining argued that this meant that on remand, the ALJ had to find Energy West Mining’s experts credible.  The Tenth Circuit rejected this argument:  “The Board was simply saying that the opinions by Doctor Farney and Doctor Tuteur were not necessarily insufficient to rebut the presumption—rather, that determination could be made only after the administrative law judge determined which medical opinions were persuasive. . . . Otherwise the remand would have been pointless.
  3. ALJ Johnson Properly Discredited Dr. Farney’s Opinion as “Internally Inconsistent” for Relying on a Medical Article About the Risk of Pneumoconiosis in Nonsmoking Utah Coal Miners and then Emphasizing Mr. Blackburn’s Smoking.  The Court explained:  “The record supports Judge Johnson’s finding of an inconsistency. Judge Johnson noted that according to the Department of Labor, medical evidence shows that smoking can increase the risk of a miner developing pneumoconiosis from coal-mine dust. Petitioner’s Opening Br., Attachment C at 14-15. Based on the Department of Labor’s position, Judge Johnson could reasonably find it inconsistent for Doctor Farney to conclude that Mr. Blackburn had a low risk for legal pneumoconiosis just because the risk was low for miners who had not smoke.
  4. ALJ Johnson Properly Discredited Dr. Farney for Failing to Consider the Additive Effects of Coal-Mine Dust and Cigarette Smoke.  Energy West Mining argued that ALJ Johnson erred in two related ways:  (1) Dr. Farney did in fact recognize the potential additive effects of coal-mine dust and cigarette smoke, (2) the ALJ erred by stating that coal-mine dust and cigarette smoke always “have” additive effects instead of recognizing that the preamble only said that dust and smoking “can” have additive effects.  The Tenth Circuit rejected both arguments.Regarding the first, factual issue the Court said:  “Doctor Farney stated that coal-mine dust can cause legal pneumoconiosis ‘independent’ of smoking, and he regarded this risk as low. Respondents’ Supp. App’x at 111-12. Doctor Farney then concluded that Mr. Blackburn’s risk of legal pneumoconiosis was the same as the risk for a non-smoker. See id. at 112. Judge Johnson could reasonably conclude that Doctor Farney had failed to consider the additive effects of coal-mine dust and smoking.“Regarding the second, legal issue, the Court explained in detail:
    Judge Johnson did not misunderstand the preamble. The preamble favorably cites studies saying that coal-mine dust and smoking have additive effects:
    [Lung function] decline occurs at a similar rate in smokers and nonsmokers, although the loss of lung function overall is greater in smokers, the two effects being additive. . . .
    . . . .
    . . . Smokers who mine have additive risk for developing significant obstruction. . . . [¶]
    The message from the Marine study is unequivocal: Even in the absence of smoking, coal mine dust exposure is clearly associated with clinically significant airways obstruction and chronic bronchitis. The risk is additive with cigarette smoking.
    . . . .
    . . . “[T]he combined effects of coal mine dust and smoking on [lung function] appear to be additive.” . . .
    . . . [“I]t appears that the major damages caused by cigarette smoking is additive to the minor damage which can be attributed to coal dust.”
    (quoting Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as amended, 65 Fed. Reg. 79,920, 79,939–41 (Dec. 20, 2000) (“the Preamble”) (emphasis in Court opinion)).
    The Court even provided a color Venn diagram to explain the additive effects:

    Venn Diagram Showing Additive Effects of Cigarette Smoking and Coal-Mine Dust in Causing Pneumoconiosis

    Diagram of Additive Effects of Cigarette Smoke and Coal-Mine Dust From Tenth Circuit Decision Energy West Mining v. Blackburn

    The Court explained, “This additive effect results in increased susceptibility to lung disease for the group of coal miners who both smoked cigarettes and exposed themselves to coal-mine dust.

  5. ALJ Johnson Did Not Interject His Own Medical Opinion, But Rather Properly Weighed the Evidence. ALJ Johnson did not find Dr. Farney’s and Dr. Tuteur’s opinions to be credible because, among other reasons, they relied on medical articles that ALJ Johnson did not find to support their conclusions or general statistics. The Court held that ALJ Johnson did not exceed his appropriate role in doing so:  “Judge Johnson simply weighed the different medical opinions, as he was required to do. Administrative law judges sometimes improperly exceed their role by making their own medical diagnoses or using nonscientific evidence to resolve a conflict between medical experts. Here, though, Judge Johnson simply resolved a medical conflict on scientific grounds.
  6. ALJ Johnson Did Not Improperly Rely on the Preamble to the Regulations. The Tenth Circuit explained that its precedent allowed an ALJ to consider the Preamble “as a tool to gauge an expert’s credibility” and that ALJ Johnson properly limited its use to a claim-by-claim basis, looking at the individual facts.  The Tenth Circuit also noted that the Preamble “provides the medical principles that underlie the Department of Labor’s current regulations.”
  7. Any Error Regarding ALJ Johnson’s Application of the Rebuttal Standard Was Harmless.  Energy West Mining argued the ALJ Johnson improperly applied the “rule out” standard and did not consider whether the contribution of coal-mine dust was insignificant. The Tenth Circuit said that this argument was “straightforward“, but did not make a difference because any error was harmless. “For the sake of argument, we can assume that Energy West is correct regarding the standard and Judge Johnson’s failure to apply that standard. Even with these assumptions, the alleged error would have been harmless because Judge Johnson did not base his decision on Energy West’s failure to rule out every connection between coal-mine dust and Mr. Blackburn’s lung disease. Instead, Judge Johnson reasoned that Energy West’s evidence was not credible.” The Court distinguished Mr. Blackburn’s case from Minich v. Keystone Coal Mining Corp., 25 B.L.R. 1-149 (BRB 2015), because in Minich the doctors said that the contribution was “insignificant” and the ALJ had taken the doctors’ opinions at face value. The Court said “That is not the case here, for Judge Johnson did not take the medical opinions at face value. Instead, Judge Johnson decided that the opinions of Doctor Farney and Doctor Tuteur were not credible. In reaching this decision, Judge Johnson had no reason to rely on the rule-out standard and he didn’t. As a result, Minich bears little relevance and the alleged error here was harmless.

Accordingly, the Tenth Circuit affirmed Mr. Blackburn’s award of benefits.

Analysis

As a published decision analyzing multiple issues that regularly arise in black lung benefits litigation, Blackburn is a decision that is worth becoming familiar with for black lung benefits practitioners.  The decision is in the mainstream of U.S. Courts of Appeals and is another case demonstrating the difficulty that parties have in overturning decisions by the U.S. Department of Labor’s adjudicators.

A few of the holding stand out and warrant particular attention.

The first is the Court’s holding (and diagram) regarding the additive effects of coal-mine dust and cigarette smoke in causing breathing problems among coal miners.  The relatives roles of these two exposures are more often than not the issue that is in dispute in a black lung benefits claim.  The Tenth Circuit’s holding that these two toxins have an additive effect is a recognition that the medical consensus reflected in the U.S. Department of Labor’s Preamble can be applied to resolve disputes in individual claims.  An ALJ can go beyond recognizing that there can be an additive effect and can properly discredit physicians who do not recognize that there is an additive effect.  This difference may seem semantic, but it can be meaningful in cases like (Mr. Blackburn’s) involving the fifteen-year presumption in which the coal company has the burden to disprove a sufficient relationship between coal-mine dust and the miner’s disabling respiratory impairment.

Especially now that the Tenth Circuit has recognized that coal-mine dust has an additive effect with cigarette smoke, it cannot be enough for a coal company’s experts to argue that this miner’s impairment might not be contributed to or aggravated by coal-mine dust.  I am not sure of the best way to cite an appellate court’s Venn diagram, but the above image summarizes this medical fact clearly and succinctly.

The second notable holding has to do with the ALJ’s duty of explanation.  As recently discussed on here regarding an unpublished Sixth Circuit case (Grayson Coal & Stone Co. v. Teague) while everyone agrees that ALJs must sufficiently explain their decisions, there is not a lot of law on exactly what is a sufficient explanation. Blackburn adds some marginal clarity by holding that an ALJ’s selective quotations of medical opinions is not sufficient to replace an articulation of why some physicians’ opinions were credited over others.

And, lastly, the Tenth Circuit once again (see previous post on Antelope Coal Co./Rio Tinto Energy America v. Goodin) saved for another day whether the Tenth Circuit will (1) join the Sixth and Third Circuits in holding that a coal operator must rule out pneumoconiosis and disability causation or (2) join the Benefits Review Board (as exemplified in the Minich decision) and hold that the rule out standard only applies to the disability causation element.  In the meantime, attorneys or benefits counselors representing claimants within the Tenth Circuit’s jurisdiction would be wise to assume that the more operator-friendly Minich standard applies to play it on the safe side.

Energy West Mining Co. was represented by William S. Mattingly of Jackson Kelly PLLC.

As mentioned above, Morris Blackburn and his widow Phyllis Blackburn were represented by me at Appalachian Citizens’ Law Center, Inc.  (Mr. Blackburn was represented below by attorney Jon Wilderman and, previous to that, a benefits counselor from a black lung clinic:  Western Region Respiratory Care Services.)

The Director, OWCP did not participate before the Tenth Circuit

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