On September 6, 2017, the U.S. Department of Labor’s Benefits Review Board issued a precedential decision in Griffith v. Terry Eagle Coal Co., No. 16-0587 BLA (available here) concerning the rebuttal standard applicable to the “fifteen-year presumption” at 30 U.S.C. § 921(c)(4).
Rebuttal of the fifteen-year presumption is a confusing legal issue that has produced much litigation since Congress revived the fifteen-year presumption in 2010 as part of the Affordable Care Act. (For previous examples of litigation of this issue, see here, here, here, or here.)
Due to the importance of the fifteen-year presumption in federal black lung benefits litigation, the Board’s recent decision in Griffith warrants attention for attorneys and others who represent parties claims. Griffith though does not represent a change in law since the Board’s last published decision on this issue in Minich v. Keystone Coal Co. Mining Co. Rather, Griffith is mainly an application of Minich and reaffirmation that the presumption shifts the burden to a coal company to disprove pneumoconiosis and that, under the Board’s approach, the causation inquiries for legal pneumoconiosis and disability causation are distinct.
Roland L. Griffith worked as a West Virginia coal miner for 28 years. Mr. Griffith suffers from a totally disabling breathing problem.
Because Mr. Griffith is disabled and worked more than 15 years underground, he is entitled to the fifteen-year presumption at 30 U.S.C. § 921(c)(4) (codified in the regulations at 20 C.F.R. § 718.305).
Mr. Griffith’s former employer, Terry Eagle Coal Co., relied on opinions by Dr. Zaldivar and Dr. Bellotte who said that Mr. Griffith’s respiratory disability was caused by asthma due to cigarette smoke, not coal-mine dust. The company thus sought to rebut the fifteen-year presumption.
The legal question in Mr. Griffith’s case was exactly what that means. What did the coal company that opposed his claim have to prove to rebut the presumption?
The ALJ in Mr. Griffith’s claim (Judge Drew A. Swank) began his analysis by considering whether Mr. Griffith could prove that he had clinical pneumoconiosis (that is, the type of black lung that often can be seen on x-rays, CT scans, or biopsies). The ALJ found that Mr. Griffith did not affirmatively prove clinical pneumoconiosis.
The ALJ then shifted to legal pneumoconiosis (that is, the type of black lung that is broader and includes disease like COPD caused by coal-mine dust). The ALJ said that the fifteen-year presumption meant that “whether [Claimant] ha[s] coal workers’ pneumoconiosis was determined” and “the single issue to be determined is whether Claimant’s total disability arose from his coal workers’ pneumoconiosis.” ALJ D&O at 14.
The ALJ considered the company’s doctors’ opinions and found them to be flawed and unpersuasive and thus, insufficient “to rebut the legal presumption that coal workers’ pneumoconiosis is a ‘substantially contributing cause’ of Claimant’s total pulmonary or respiratory disability.” ALJ D&O at 17.
The ALJ awarded benefits to Mr. Griffith and Terry Eagle Coal Co. appealed, arguing that the ALJ’s rebuttal analysis was improper.
The Board agreed with Terry Eagle Coal that the ALJ’s decision was erroneous. The Board though found that the ALJ made errors that not only harmed the Employer, but also Mr. Griffith as well.
The first error that the Board pointed out was the ALJ’s decision to ask whether Mr. Griffith proved clinical pneumoconiosis. As the Board held, the ALJ “placed the burden of proof on the wrong party.” (The ALJ also failed to consider the medical evidence regarding clinical pneumoconiosis.) BRB D&O at 5.
The second error that the Board identified was applying the wrong legal rebuttal standard regarding legal pneumoconiosis. As mentioned above, the ALJ asked whether the Employer could “rebut the legal presumption that coal workers’ pneumoconiosis is a ‘substantially contributing cause’ of Claimant’s total pulmonary or respiratory disability.” ALJ D&O at 17.
The Board, applying Fourth Circuit law, held that this was wrong on two levels. It improperly ignored the question of whether the Employer could disprove legal pneumoconiosis by proving that Mr. Griffith’s dust exposure in coal-mine employment did not “significantly relate to or substantially aggravate” his respiratory impairment. The ALJ’s erroneous inquiry also applied the wrong disability-causation standard. The ALJ should have asked whether the Employer could “rule out” disabling pneumoconiosis by proving that “no part” of Mr. Griffith’s disability was caused by his pneumoconiosis, not whether the Employer could should that his pneumoconiosis was not a “substantially contributing cause” of his disability. BRB D&O at 5.
The Board held that these error were not harmless because it was “unable to discern the extent to which it affected his credibility determinations.” The Board thus vacated the ALJ’s award and remanded for re-analysis. BRB D&O at 5.
The Board’s decision does not break new ground.
Instead, it reaffirms the Board’s holding and instructions from Minich: For rebuttal, the burden is on the Employer to disprove the presence of pneumoconiosis (both clinical and legal) or to “rule out” any connection between pneumoconiosis and the disability.
What Griffith does show is that a failure to follow Minich can be reversible error—at least when the Board cannot “discern the extent to which it affected [an ALJ’s] credibility determinations.”
In my opinion, there are still tensions between the Board’s approach from Minich and the law of at least some circuits (especially the Sixth Circuit).
But I wholly agree that the ALJ’s decision in Griffith got it wrong in multiple ways under any circuit’s law.
Hopefully, Griffith will signal to ALJs that the fifteen-year presumption requires burden shifting for all forms of pneumoconiosis and that the more stringent “rule out” standard applies to disability causation in presumption cases.
Terry Eagle Coal Co. was represented by Ashley M. Harmon, Esq. of Jackson Kelly PLLC’s Morgantown, West Virginia office.
Neither Mr. Griffith nor the U.S. Department of Labor’s Director, OWCP filed a brief before the Board.