Energy W. Mining Co. v. Dir., Office of Workers’ Comp. Programs

49 F.4th 1362

ENERGY WEST MINING COMPANY, Petitioner,

v.DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, United States Department of Labor ; Cecil E. Bristow, Respondents.

No. 21-9569

United States Court of Appeals, Tenth Circuit.

FILED September 27, 2022

Submitted on the briefs:^*

William S. Mattingly, Jackson Kelly PLLC, Lexington, Kentucky, for Petitioner.

Austin P. Vowels, Vowels Law PLC, Henderson, Kentucky, for Respondent Cecil E. Bristow.

Seema Nanda, Solicitor of Labor; Berry H. Joyner, Associate Solicitor; Jennifer L. Feldman, Deputy Associate Solicitor; Gary K. Stearman, Counsel for Appellate Litigation; Steven Winkelman, Counsel for Enforcement; United States Department of Labor, Washington, D.C., for Federal Respondent.

Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.

BACHARACH, Circuit Judge.

This case involves a claim for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901 – 45. Under the Act, individuals can obtain benefits for chronic lung diseases that arise out of work in a coal mine and cause a total disability.

Mr. Cecil Bristow suffers from a chronic lung disease, COPD, and attributes it to coal-mine dust from years of working in coal mines. An administrative law judge and the Benefits Review Board agreed with Mr. Bristow and awarded him benefits.¹ His most recent employer (Energy West Mining Company) petitions for judicial review, and we deny the petition.

1. An administrative law judge ultimately found satisfaction of all statutory requirements for benefits.

The award of benefits followed two rounds of administrative appeals. In these appeals, the administrative law judges and the Benefits Review Board considered the four elements for benefits: (1) disease, (2) disease causation, (3) disability, and (4) disability causation. Energy W. Mining Co. v. Est. of Blackburn , 857 F.3d 817, 821 (10th Cir. 2017).

First, the individual must show affliction with pneumoconiosis, which can be "clinical" or "legal." See id. (stating the need to show pneumoconiosis ); 20 C.F.R. § 718.201(a) (stating that pneumoconiosis can be " ‘clinical’ " or " ‘legal’ "). "[C]linical pneumoconiosis consists of those lung diseases the medical community refers to as pneumoconiosis." Andersen v. Dir., OWCP , 455 F.3d 1102, 1104 (10th Cir. 2006). "In contrast, legal pneumoconiosis encompasses a broader class of lung diseases that are not pneumoconiosis as the term is used by the medical community." Id. Legal pneumoconiosis exists only if the claimant has satisfied the second element, disease causation, by showing that a chronic lung disease had arisen out of coal-mine work. 20 C.F.R. § 718.201(a)(2) ; Est. of Blackburn , 857 F.3d at 821.

The administrative law judge found "legal pneumoconiosis,"² and this finding remained intact through both rounds of administrative appeals. R. vol. 1, at 5–7; id. vol. 3, at 6–8.³ Energy West acknowledges the existence of a chronic lung disease, but denies that it arose out of Mr. Bristow's work in the coal mines.

Third, the individual must show a total disability. Energy W. Mining Co. v. Lyle ex rel. Lyle , 929 F.3d 1202, 1207–08 (10th Cir. 2019). The administrative law judge found a total disability, and this finding remained intact through both administrative appeals. Energy West doesn't question this finding.

Fourth, the individual must show that the pneumoconiosis was a substantially contributing cause of the total disability. 20 C.F.R. § 718.204(c)(1). The first administrative law judge found that Mr. Bristow had not satisfied this requirement, and the Board reversed. In reversing, the Board concluded that the administrative law judge had applied the wrong test when assessing the cause of Mr. Bristow's disability. The Board applied a different test, concluded that no factual issues existed, and remanded for an award of benefits.

On remand, the second administrative law judge awarded benefits;⁴ and the Board affirmed.

2. We review the Board's decisions for legal and factual errors.

We review the Board's decisions rather than the administrative law judge's. Mangus v. Dir., OWCP , 882 F.2d 1527, 1532 (10th Cir. 1989). In conducting this review, we consider de novo whether the Board applied the proper legal tests. Energy W. Mining Co. v. Est. of Blackburn , 857 F.3d 817, 822 (10th Cir. 2017). And when factual findings are challenged, we consider whether they're supported by substantial evidence. Spring Creek Coal Co. v. McLean ex rel. McLean , 881 F.3d 1211, 1217 (10th Cir. 2018).

3. The Board didn't err in upholding the administrative law judge's finding of legal pneumoconiosis.

Legal pneumoconiosis exists when a chronic lung disease arises out of work in a coal mine. 20 C.F.R. § 718.201(a)(2) ; see Part 1, above. Energy West doesn't question the existence of a chronic lung disease (COPD), but does deny that it arose out of work in a coal mine.

Energy West bases this denial on Mr. Bristow's long-time smoking habit. He had smoked cigarettes for over 40 years and had worked in coal mines for only about 6 ½ years. Mr. Bristow's cigarette habit led all of the medical experts to consider smoking the dominant cause of the COPD. But two of the medical experts, Dr. Sanjay Chavda and Dr. Akshay Sood, opined that exposure to coal dust had also substantially contributed to the COPD or had aggravated it. R. vol. 4, at 706, 1361.⁵

Energy West insists that the administrative law judge used the wrong test to assess a causal link between Mr. Bristow's COPD and his exposure to coal dust. For this challenge, Energy West points to the administrative law judge's discussion of Dr. Chavda's opinion. There the administrative law judge considered whether Mr. Bristow's exposure to coal dust had contributed " ‘at least in part’ " to the COPD. R. vol. 4, at 31 (quoting Arch on the Green, Inc. v. Groves , 761 F.3d 594, 597–98 (6th Cir. 2014) ). Energy West argues that this test conflicts with the regulations and our precedent. We disagree.

Under the regulations, legal pneumoconiosis turns on whether the COPD had "aris[en] out of coal mine employment." 20 C.F.R. § 718.201(a)(2) ; see p. 3, above. Based on this test, the regulations provide two sources of guidance:

1. The respiratory impairment must be "significantly related to, or substantially aggravated by, dust exposure in coal mine employment." 20 C.F.R. § 718.201(b).

2. The pneumoconiosis must have "ar[i]se[n] at least in part out of coal mine employment." 20 C.F.R. § 718.203(a).

The Sixth Circuit has synthesized these sources of guidance by holding that claimants can prove "legal pneumoconiosis" if the respiratory impairment had been caused in part by work in a coal mine. Arch on the Green, Inc. v. Groves , 761 F.3d 594, 597–99 (6th Cir. 2014) ; Island Creek Coal Co. v. Young , 947 F.3d 399, 404–06 (6th Cir. 2020). Similarly, the Seventh and Eleventh Circuits recognize that "legal pneumoconiosis" requires proof only that exposure to coal dust had constituted a partial cause of the respiratory impairment. See Freeman United Coal Mining Co. v. Dir., OWCP , 957 F.2d 302, 303 (7th Cir. 1992) (stating that the Black Lung Benefits Act allows benefits for "any chronic lung disease caused in whole or part by exposure to coal dust"); Stomps v. Dir., OWCP , 816 F.2d 1533, 1536 (11th Cir. 1987) (stating that the claimant need not prove that his coal mining employment was the "sole cause" of the disease).

Energy West contends that we viewed causation differently in Andersen v. Director, OWCP , 455 F.3d 1102 (10th Cir. 2006). But there we didn't address the test for causation. In Andersen , "[t]he Board rejected [the claimant's] argument he was entitled to a rebuttable presumption that his COPD [had been] related to coal dust exposure because he proved he worked in a mine for over ten years and was afflicted with COPD." Id. On appeal, the claimant argued that the Board had erroneously interpreted the definition of "legal pneumoconiosis" because "the issue of whether [the claimant's] coal-mine employment [had] caused his COPD [was] a separate element of entitlement that [could] be met by invoking the rebuttable presumption, and not part of the definition of legal pneumoconiosis." Id. at 1105. But we upheld the Board's decision. Id.

Unlike the Andersen claimant, Mr. Bristow hasn't invoked a regulatory presumption; and Andersen didn't address whether legal pneumoconiosis could exist when exposure to coal dust had constituted only a secondary cause of the impairment.

We agree with the Sixth, Seventh, and Eleventh Circuits. In our view, the regulatory language unambiguously requires only that the respiratory impairment had arisen partly out of work in a coal mine. 20 C.F.R. § 718.203(a). So the work in the coal mines had to bear a significant or substantial relation to at least part of the reason for Mr. Bristow's COPD. The Board thus didn't err in upholding the administrative law judge's (1) consideration of Dr. Chavda's opinion or (2) finding of legal pneumoconiosis.

4. The Board didn't err in reversing the administrative law judge's first decision.

In the first round of administrative proceedings, the administrative law judge made three findings:

1. Mr. Bristow had legal pneumoconiosis, consisting of COPD that had arisen at least partly out of his coal-mining employment.

2. He was totally disabled by his respiratory impairment.

3. The pneumoconiosis had not been a substantial contributing cause of his disabling impairment.

R. vol. 4, at 31, 33–34, 36–38.

In the first administrative appeal, Mr. Bristow challenged the third finding. The Board reversed that finding, concluding that the administrative law judge had misapplied the regulations. For this conclusion, the Board reasoned that

• the finding of legal pneumoconiosis had left only the question of a causal link between the legal pneumoconiosis and the disability and

• the administrative law judge had improperly broadened the inquiry by considering a causal link between the disability and exposure to coal dust.

This broadening of...