Sixth Circuit Upholds DOL Regs for Surface Miners to Qualify for Fifteen-Year Presumption, Affirms Surface Miner’s Award (Zurich American Insurance Group v. Duncan)
Earlier this month, the U.S. Court of Appeals for the Sixth Circuit issued a precedential decision in a federal black lung benefits claim: Zurich American Insurance Group v. Duncan, 889 F.3d 293 (6th Cir. 2018) (slip op. here). The court affirmed awards of benefits to a surface miner and to his widow—even though they did not have an attorney to assist them in the nine-year fight for the benefits.
The court issued four holdings. The most significant one is the court’s rejection of the company’s direct challenge to the Department of Labor’s regulations regarding how surface miners can qualify for the powerful fifteen-year presumption to 30 U.S.C. § 921(c)(4). Duncan makes clear that the “regularly exposed” standard from 20 C.F.R. § 718.305(b)(2) is legal.
The court’s other holdings concern the statute of limitations, Mr. Duncan’s dust exposure, and whether legal pneumoconiosis can be latent and progressive. Given the precedential force of Duncan, these holdings should be noted for these issues that frequently arise in federal black lung benefits claims.
Facts
As the Sixth Circuit explained, Raymond Duncan was a Kentucky coal miner and a U.S. Air Force veteran. He worked in the coal industry for over twenty years, including for Straight Creek Coal (which was insured by Zurich American Insurance Group). All of his work was on surface mines or coal-preparation plants. He wrote that he “had to breathe coal dust all my work in the mines” and worked “under some of the worst condition[s] ever.” After he died in 2011, his widow testified that when he came home from work “you could only see the color of his eyes” and would have to wash his clothes, “several times to even get them clean and they still wouldn’t come clean.”
Medical providers at the Veterans Affairs (VA) Medical Center charted that he was totally disabled in 2003 (without mentioning black lung). Mrs. Duncan was unsure when a doctor first told him that he was totally disabled due to black lung. Mrs. Duncan testified that it was before their 2009 marriage. She guessed at 2000, 2004, and 2005 but ultimately said “I don’t know. I don’t know the date.” The first medical record documenting disability due to black lung was from 2011, after Mr. Duncan filed his claim.
Mr. Duncan filed his claim in May 2009. After he was awarded benefits by the District Director, the company asked for a hearing before a judge.
While waiting on this hearing, Mr. Duncan died in 2011. He was 64 years old.
His widow pursued his claim and filed her own survivor’s claim. In March 2016, the ALJ awarded benefits in both claims finding (1) that Mrs. Duncan’s testimony was credible enough to trigger the statute of limitations; (2) Mr. Duncan was “regularly exposed” to coal-mine dust during his surface-mine employment to invoke the fifteen-year presumption, and (3) the company did not rebut the presumption that Mr. Duncan’s disability was due to legal pneumoconiosis.
The Board affirmed in full and the insurance company sought further review before the Sixth Circuit.
Sixth Circuit Opinion
In an opinion written by Judge Moore and joined in full by Judge Clay, the Sixth Circuit affirmed the Duncans’ awards.
The court issued four holdings:
1. Mr. Duncan’s Claim Was Timely Despite His Wife’s Testimony that There Might Have Been an Oral Statement by a Physician that Would Trigger the Statute of Limitations.
A black lung claim must generally be filed within three years of a “medical determination of total disability due to pneumoconiosis.” 30 U.S.C. § 932(f)(1). The company argued that because Mrs. Duncan testified that before she and her husband were married in 2009, her husband was told he was disabled due to pneumoconiosis and she mentioned several dates (2000, 2004, and 2005), even if the latest date was used (i.e., 2005), then Mr. Duncan’s 2009 claim was too late. The court rejected this explaining, “the ALJ credited none of the dates that Joanna mentioned during her testimony, because she stated they were all guesses.” The court also noted that the ALJ buttressed his decision by noting that the medical records did not document informing Mr. Duncan of disability due to pneumoconiosis until 2011 after the claim was filed.
2. 20 C.F.R. § 718.305(b)(2) is valid.
The court rejected the company’s argument that the “regularly exposed” standard at 20 C.F.R. § 718.305(b)(2) is illegal. (For background on the “regularly exposed” standard, see the discussion starting on page 164 of this article I wrote in 2014.) The court’s majority applied the two-step test from Chevron and found that the “substantially similar” language from the Black Lung Benefits Act was ambiguous and the Department of Labor reasonably filled this gap when it created the “regularly exposed” standard. The majority explained, “Logically, miners who are employed at surface coal mines and who are regularly exposed to coal dust face the same risks of developing pneumoconiosis as underground miners.” In doing so, the Sixth Circuit joined the Tenth Circuit which upheld the regulation against a similar challenge in Spring Creek Coal Co. v. McLean, 881 F.3d 1211 (10th Cir. 2018).
One judge of the panel found a different reason to reach the same conclusion. Judge Kethledge wrote a separate opinion concurring only in the majority’s judgment. Judge Kethledge wrote that the “substantially similar” language was clear and thus Chevron deference was not needed. He said that the “regularly exposed” standard “is no different than mine” and “is both thoughtful and well-reasoned.” Judge Kethledge wrote separately to emphasize his preference for judicial interpretation of statutes (as opposed to Chevron deference) where possible.
3. The ALJ Properly Applied the “Regularly Exposed” Standard and Found Mr. Duncan’s Work Sufficiently Dusty.
The company argued that even if the “regularly exposed” standard is legal, that the evidence of dust exposure in this case does not meet the standard.
The Sixth Circuit held that the ALJ had good reasons to find Mr. Duncan’s work sufficiently dusty. The ALJ relied on four pieces of evidence: (1) Mr. Duncan’s indication on his claim form that he was exposed to “dust, gases, or fumes” as a coal miner; (2) Mr. Duncan’s written statement that he “had to breathe coal dust all my work in the mines;” (3) physicians’ statements that Mr. Duncan was exposed to at least adequate levels of dust while a miner to get pneumoconiosis; and (4) Mrs. Duncan’s testimony about her husband’s dusty face and clothes.
The court rejected the company’s argument that this evidence should not be sufficient because it is all anecdotal. The court noted (as the Department of Labor recognized) that information about dust conditions “will be inherently anecdotal” and that allowing for such anecdotal evidence is necessary to achieve the goal of the fifteen-year presumption—”to assist claimants in proving entitlement to benefits.”
4. The ALJ Properly Weighed the Medical Evidence and Chose Not to Credit a Medical Opinion that Relied on the Latent Nature of Mr. Duncan’s Impairment.
Lastly, the Sixth Circuit quickly dismissed the company’s arguments about the medical evidence in this case.
The court rejected one specific argument made by the company: that the ALJ erred in discounting a physician’s opinion because the doctor said that the miner’s respiratory problems were not due to coal-mine dust because they arose too late after Mr. Duncan stopped working as a miner. The company argued that although 20 C.F.R. § 718.201(c) says the pneumoconiosis is “latent and progressive,” this only refers to clinical pneumoconiosis and that there is no medical evidence that legal pneumoconiosis (which is the form of pneumoconiosis that Mr. Duncan had) is latent and progressive.
The court held that relying on latency is “an impermissible factor“ and that § 718.201(c) refers to both clinical and legal pneumoconiosis. Regarding the alleged lack of medical evidence, the court said that this is “a feature not a bug” because legal pneumoconiosis “is a legal fiction—long recognized by courts and later codified into the regulations—designed to facilitate the remedial purpose of the Black Lung Benefits Act.” (latter quote from Sunny Ridge Mining Co. v. Keathley, 773 F.3d 734, 738 (6th Cir. 2014)).
Analysis
In large part, the Sixth Circuit’s decision in Duncan maintains the status quo: the black lung regulations as written are still valid law and surface miners can still qualify for the fifteen-year presumption by demonstrating that they were “regularly exposed” to coal-mine dust in their work. Another judicial holding affirming the validity of this regulation brings even more certainty to black lung benefits law.
And when surface miners demonstrate that their work was dusty, then their claims are treated the same as underground miners’ because, as the court stated, they “face the same risks of developing pneumoconiosis as underground miners.”
The court’s statement about the latent nature of legal pneumoconiosis is the Sixth Circuit’s strongest statement yet. By saying that reliance on the duration between a coal miner’s occupational exposure and the onset of his respiratory impairment is an “impermissible factor,” the court gave some additional force to its prior holdings. For example, in Keathley in 2014, the court held that an ALJ “may” give a physician’s opinion less weight when it does not recognize the latent and progressive nature of all forms of pneumoconiosis. But the court’s current phrasing in Duncan makes it sound more like an ALJ must give a physician’s less weight because this factor is “impermissible.”
On a related note, Duncan was a little too quick to accept the company’s argument that there is a lack of medical evidence supporting the latent and progressive nature of COPD caused by coal-mine dust (i.e., legal pneumoconiosis). The Department of Labor’s preamble to the 2001 amendments to the regulations addressed the latent and progressive nature of legal pneumoconiosis and cited a study showing the progressive nature of functional impairments due to coal-mine dust. 65 Fed. Reg. at 79,971. The study found that even retired, nonsmoking coal miners experience an average loss each year of 49.6 mL of FEV1. See Dimich-Ward & Bates, Reanalysis of a Longitudinal Study of Pulmonary Function in Coal Miners in Lorraine, France 25 Am. J. Indus. Med. 613, 619 (1994). This loss is greater than the loss based on age alone. Other researchers have found likewise. See Soutar & Hurley, Relation Between Dust Exposure and Lung Function in Miners and Ex-Miners, 43 British J. Indus. Med. 307 (1986); Henneberger & Attfield, Coal Mine Dust Exposure and Spirometry in Experienced Miners, 153 Am. J. Respiratory & Critical Care Med. 1560, 1564 (1996). The definition of “legal pneumoconiosis” is both a broad definition meant to facilitate the remedial purpose of the Black Lung Benefits Act and a scientifically accurate acknowledgment of the wide-ranging effects of coal-mine dust on the lungs.
The Sixth Circuit’s holdings regarding the statute of limitations and application of the “regularly exposed” standard are fact dependent, but they are instructive for the types of facts that can support an award of benefits. Neither holding is surprising, they both represent typical fact patterns that are generally good enough even if they are subject to challenge.
And more broadly, Duncan is demonstrative of two major systemic problems in black lung benefits litigation: long delays in deciding cases and lack of legal representation for coal miners and their widows. (These two problems are a frequent them here, but see here for a discussion of these policy issues from a forthcoming article.)
It took the Duncans nine years to resolve Mr. Duncan’s claim even though the Duncans won at every step of the process. And during this time, Mr. Duncan sadly died at the age of 64. This means that Mr. Duncan did not live to receive the past-due benefits that he was entitled to.
And during those long nine years, the Duncans did not have an attorney. They received important help before the ALJ from the benefits counselors at a black lung clinic, Community Health of East Tennessee. The great work of people there like Heather Lane should be applauded. But the Duncans had no representation as the legal issues became more complex on appeal.
The Duncans’ success after nearly a decade shows again that even coal miners with strong claims cannot find attorneys and must wait too long for their claims to be decided.
The Sixth Circuit’s decision in Duncan demonstrates, again, that claims of surface miners like Mr. Duncan are winnable under current law and deserve more assistance.
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Raymond and Joanna Duncan were not represented on appeal. They were represented before the ALJ by a nonattorney benefits counselor, Heather Lane of Community Health of East Tennessee.
Zurich American Insurance Group and Straight Creek Coal Resources were represented by Cheryl Lynn Intravaia, Esq. of Feirich / Mager / Green / Ryan of Carbondale, Illinois.
The Director, OWCP was represented by the team of attorneys at the U.S. Department of Labor’s Solicitor’s Office. Gary K. Stearman, Esq. and Anne Marie Scarpino, Esq. were the agency’s attorneys before the Sixth Circuit.
One Response to “Sixth Circuit Upholds DOL Regs for Surface Miners to Qualify for Fifteen-Year Presumption, Affirms Surface Miner’s Award (Zurich American Insurance Group v. Duncan)”
[…] –Another by Dr. Sheiphali Gandhi and three other researchers also looked at how the effects of coal-mine dust continue to harm lung function even after a coal miner stops working in the mines. The study found that 26.9% of the miners who had normal lung function shortly after they stopped working suffered from below normal lung function later on—even though they did not breathe any more coal-mine dust. This finding lends further support to yesterday’s discussion about the latent and progressive effects of coal-mine dust on minerR…. […]
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