Black Diamond v. Director, OWCP, 95 F.3d 1079, 11th Cir. (1996)
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Scribd Government Docs95 F.
3d 1079
BLACK DIAMOND COAL MINING COMPANY, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; Edna Marcum (Widow
of
Herman T. Marcum), Respondents.
No. 94-6265
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
Sept. 25, 1996.
James N. Nolan, Birmingham, AL, for petitioner.
Robert M. Weaver, Nakamura & Quinn, Birmingham, AL, Donald S.
Shire, Jeffrey S. Goldberg, Steven Breeskin, Jennifer U. Toth, U.S. Dept.
of Labor, Washington, DC, for respondents.
Petition for Review of an Order of the Benefits Review Board.
Before ANDERSON, COX and BIRCH, Circuit Judges.
PER CURIAM:
Black Diamond Coal Mining Company ("Black Diamond") appeals the
decision of the Benefits Review Board ("BRB") awarding disability benefits
under the Black Lung Benefits Act, 30 U.S.C. 901 to 945 (1994) ("the Act"),
and its accompanying regulations. See 20 C.F.R. pt. 718 (1996). The sole issue
on appeal is whether Herman Marcum's total pulmonary disability was due to
pneumoconiosis. Because the BRB did not apply the proper causation standard,
we vacate and remand.
I. Background
Herman Marcum, an Alabama coal miner last employed by Black Diamond,
filed a claim for black lung disability benefits on November 25, 1980. The
Office of Workers Compensation Programs ("OWCP") within the Department
of Labor made an initial determination that Marcum was entitled to benefits.
Black Diamond, the coal mine operator responsible for the payment of
Marcum's benefits under the Act, requested a hearing before an Administrative
Law Judge ("ALJ"). Herman Marcum died on May 27, 1985, one month before
the hearing. He was survived by his wife Edna, who has since prosecuted his
claim for benefits, as well as a claim for survivor's benefits.
At the hearing, evidence was proffered by Marcum, Black Diamond, and the
Director of OWCP ("the Director"), who appeared as a party in interest on
behalf of Marcum. The evidence included reports and letters from four
physicians who examined Herman Marcum before his death: Dr. Russakoff,
Dr. Shelton, Dr. Branscomb, and Dr. Hood. Dr. Russakoff examined Marcum
in January 1991, and concluded that Marcum's pulmonary disability might be
due to his coal mine exposure. Dr. Russakoff's 1981 report was based on the
assumption that Marcum did not have a significant smoking history. In a letter
written in 1985, Dr. Russakoff admitted that he had overlooked Marcum's
history of bronchial asthma in his 1981 report. Dr. Russakoff concluded in the
1985 letter that, assuming Marcum smoked a pack of cigarettes a day for 28
years, the miner's lung disease probably had little to do with his coal mine
employment. Black Diamond attempted to introduce Dr. Russakoff's 1985 letter
at the hearing, but the ALJ excluded it on the grounds that Black Diamond
failed to give Marcum timely notice of intent to introduce the letter.
Dr. Shelton, who examined Marcum in May 1981, concluded that Marcum's
respiratory difficulty was due to asthma, but that his chest x-rays were
consistent with inhalation lung disease. Dr. Branscomb examined Marcum in
June 1982, and his medical history of Marcum indicates that Marcum daily
smoked a pack of cigarettes from ages 20 to 56. Dr. Branscomb concluded that
30% of Marcum's pulmonary disability was due to occupational exposure.
Dr. Hood was Marcum's treating physician from 1980 until his death in 1985.
In a letter written shortly after Marcum's death, Dr. Hood stated that Marcum's
pneumoconiosis, as well as other complications, had rendered the miner totally
disabled. Dr. Hood's letter was excluded by the ALJ on procedural grounds.
The ALJ awarded benefits based in part on the finding that Marcum was totally
disabled due to pneumoconiosis. Black Diamond appealed to the Benefits
Review Board ("BRB"). The BRB reversed and remanded for reconsideration
of several issues, including total disability and causation.
7
On remand, the ALJ followed Wilburn v. Director, OWCP, 11 Black Lung
Reporter (B.L.R.) 1-135, 1-137 (Ben.Rev.Bd.1988), and applied the causation
standard that a total pulmonary disability is due to pneumoconiosis when the
pneumoconiosis, in and of itself, causes the disability. The ALJ denied benefits
based on the conclusion that, although Marcum established a total pulmonary
disability, he did not establish causation under the Wilburn standard. After the
ALJ's decision, this court held in Lollar v. Alabama By-Products Corp., 893
F.2d 1258, 1265 (11th Cir.1990), that a total pulmonary disability is due to
pneumoconiosis if the pneumoconiosis substantially contributes to the
pulmonary disability. Marcum appealed the ALJ's decision, and the BRB
reversed and remanded in light of Lollar.
Following the second remand,1 the ALJ concluded that Marcum failed to show
that his pneumoconiosis substantially contributed to his total pulmonary
disability. In making this determination, the ALJ relied on Dr. Russakoff's 1985
report and Dr. Hood's report, which had been marked for identification
purposes, but were not formally in the record. Marcum appealed the ALJ's
decision to the BRB. The BRB read Lollar to hold that only a showing that
pneumoconiosis played an infinitesimal or de minimis part in the miner's total
pulmonary disability would preclude a finding of causation. The BRB found
that the medical evidence in the record satisfied the Lollar standard, and
awarded benefits. Black Diamond filed this appeal.
II. Jurisdiction
9
During the pendency of this appeal, the Director filed an Application for an
Order to Show Cause why Black Diamond's Petition for Review Should not be
Dismissed for Lack of Jurisdiction, which we construe as a motion to dismiss
for lack of jurisdiction. The Director states that Black Diamond, formerly an
Alabama corporation, has been dissolved, and Black Diamond's benefits trust
has been depleted. The Director contends that this appeal is moot because the
court is powerless to grant Marcum meaningful relief. If the Director is correct,
then we lack jurisdiction to decide this case. See Pacific Ins. Co. v. General
Dev. Corp., 28 F.3d 1093, 1096 (11th Cir.1994). But the Director
acknowledges that before Black Diamond was dissolved, its coal mining assets
were sold to Costain Coal, Inc. ("Costain"), and that Costain may be liable as a
successor operator under the Act. See 30 U.S.C. 932(i)(1) (providing for
successor operator liability). If Marcum establishes a claim for benefits against
Black Diamond, she may then demonstrate that Costain is liable and obtain
meaningful relief in spite of Black Diamond's dissolution. Because meaningful
relief may still be available to Marcum in the form of a claim against Costain,
this appeal is not moot, and we have jurisdiction. 2
III. Standard of Review
10
Whether a miner's total pulmonary disability is "due to" pneumoconiosis within
the meaning of 20 C.F.R. 718.204 is a mixed question of law and fact. The
ALJ's factual findings are entitled to great deference, and they are to be upheld
if they are supported by substantial evidence. Lollar, 893 F.2d at 1261 & n. 4.
Substantial evidence is "more than a scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion." Id. at
1262 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427,
28 L.Ed.2d 842 (1971)). To the extent that the BRB's factual conclusions differ
from the ALJ's, we owe them no deference. Id. at 1261 n. 4.
11
Courts generally owe deference to an agency policymaker's interpretation of the
agency's own regulation, but neither the ALJ nor the BRB functions as a
policymaker in this case. See id. at 1262. The ALJ's and the BRB's
interpretations of the regulations implementing the Act are legal conclusions
that we review de novo.
IV. Discussion
12
To establish eligibility for black lung benefits, a claimant generally must show
(1) that the miner has pneumoconiosis, (2) that the pneumoconiosis arose from
the miner's coal mine employment, (3) that the miner has a total pulmonary
disability, and (4) that the total pulmonary disability is due to pneumoconiosis.
Lollar, 893 F.2d at 1262-63. Marcum has established the first three
requirements, and whether she has shown the fourth requirement is the sole
issue on this appeal.
13
The third and fourth requirements for eligibility arise from 20 C.F.R. 718.204,
which states: "Benefits are provided under the Act for or on behalf of miners
who are totally disabled due to pneumoconiosis...." Section 718.204 establishes
standards for a claimant to show the existence of a total pulmonary disability,3
but the regulation is less clear about when a total disability is "due to"
pneumoconiosis. See id. As a result of the regulation's ambiguity, problems
arose in cases, like Lollar, where the miner's medical history suggested several
potential causes for the pulmonary disability. For example, in addition to
pneumoconiosis, Lollar suffered from interstitial lung disease and chronic
bronchitis. Lollar, 893 F.2d at 1260.
14
15
This court addressed the "due to" causation standard of 718.204 for the first
time in Lollar. The Lollar court was persuaded by decisions in three other
circuits that the Wilburn rule that pneumoconiosis must "in and of itself" cause
the pulmonary disability was "unduly stringent." Id. at 1265; see Mangus v.
Director, OWCP, 882 F.2d 1527 (10th Cir.1989), Bonessa v. United States
Steel Corp., 884 F.2d 726 (3d Cir.1989), Adams v. Director, OWCP, 886 F.2d
818 (6th Cir.1989); but see Wilburn, 11 B.L.R. at 1-137.
In defining the "due to" causation test of 718.204, the Mangus, Bonessa, and
Adams courts phrased the applicable test differently. See Mangus, 882 F.2d at
1531 (pneumoconiosis must contribute to the total disability); Bonessa, 884
F.2d at 733 (pneumoconiosis must be a substantial contributor to the total
disability); Adams, 886 F.2d at 825 (total disability must be due, "at least in
part" to pneumoconiosis). While the Lollar court found all three decisions
helpful to its analysis, it adopted the causation standard used by the Third
Circuit in Bonessa that requires pneumoconiosis to be a substantial contributing
cause of the miner's total pulmonary disability. Lollar, 893 F.2d at 1265. The
Lollar court then noted:
16 Sixth Circuit in Adams, while not using the terms "substantial" or
[T]he
"significant" in its standard, was careful to observe that "nothing in this record
suggests that Adams' pneumoconiosis played only an infinitesimal or de minim[i]s
part in his totally disabling respiratory impairment, so we need not consider here
whether such a finding ... would support a denial of benefits under the Act." We
believe Bonessa's phrasing of the test answers this concern.
17
Id. (quoting Adams, 886 F.2d at 826 n. 11) (alteration in original).
18
Both the ALJ and the BRB purported to apply Lollar's substantial contributing
cause test to Marcum's claim. Although the parties agree that the Lollar
causation standard applies, we note that the holding in Lollar does not, on its
face, apply to Marcum's claim. The Lollar court held that the substantial
contributing factor standard applies to black lung benefits claims filed after
January 1, 1982, Lollar, 893 F.2d at 1265, but Marcum's claim was filed in
1980. The Lollar court apparently limited the application of the causation
standard because black lung claimants who filed their claims before January 1,
1982 are entitled to a presumption that a total pulmonary disability is due to
pneumoconiosis if they can show fifteen years of underground coal mine
employment. 20 C.F.R. 718.305(a), (e); see Lollar, 893 F.2d at 1262 n. 6.
19
Marcum did not have fifteen years of underground coal mine employment, and
thus did not qualify for the 718.305 presumption. We hold that black lung
claimants who file before January 1, 1982 and are not entitled to the 718.305
presumption must satisfy the Lollar causation standard in order to qualify for
benefits under 718.204.
20
Black Diamond argues that the BRB misapplied the Lollar standard, and we
agree. Although the BRB quoted Lollar as requiring pneumoconiosis to be a
"substantially contributing cause," the BRB also read Lollar to hold that:
21 a physician's medical opinion concluding that the miner's pneumoconiosis "
only
'played only an infinitesimal or de minim[i]s part in his totally disabling respiratory
impairment,' " would be insufficient to establish causation pursuant to Section
718.204(b).
22
Marcum v. Black Diamond Coal Co., BRB No. 92-0781 (Jan. 31, 1994)
(quoting Lollar, 893 F.2d at 1265) (alteration in original). The BRB took Lollar'
quote from Adams out of context, and the standard it applies is lower than the
Lollar standard. The operative words to describe the Lollar standard are
"substantial contributing cause," not "infinitesimal or de minimis part." A
conclusion that a contributing cause played more than an infinitesimal or de
minimis part does not mean that the contributing cause was substantial.
23
Black Diamond argues that the ALJ properly applied the Lollar standard, and
that the ALJ's finding that Marcum did not establish causation is supported by
substantial evidence in the record. We agree that the ALJ properly applied the
Lollar standard, but disagree that the ALJ's factual findings are entitled to
deference in this case. In determining that Marcum's pneumoconiosis was not a
substantial contributing cause of his total pulmonary disability, the ALJ relied
on Dr. Hood's report, and Dr. Russakoff's 1985 report, which are not part of the
record in this case.4
24
Because we cannot defer to the ALJ's findings, we vacate the BRB's award of
benefits and remand to the BRB for a determination, consistent with this
opinion, of whether Marcum's total pulmonary disability was due to
pneumoconiosis. In answering this question, the substantial contributing cause
standard of Lollar applies, and only evidence that is properly in the record
should be considered.
25
VACATED and REMANDED.
On both remands, Marcum's case was heard by a different ALJ than the one
On both remands, Marcum's case was heard by a different ALJ than the one
who conducted the hearing
The motion to dismiss is denied
Section 718.204 refers to a "total disability" rather than a total pulmonary
disability, but it is clear from the criteria for establishing a total disability that
only pulmonary disabilities are relevant. See 20 C.F.R. 718.204(c) (miner can
establish a total disability, in the absence of contrary evidence, by reference to a
pulmonary function test or an arterial blood gas test). See also Lollar, 893 F.2d
at 1267 n. 16 (stating that, "once a total pulmonary disability is established, ...
unrelated disabilities obviously are irrelevant to the causation of the pulmonary
disability") (emphasis deleted)
Although it is unimportant to the resolution of this appeal, we note that the
BRB also considered Dr. Hood's report in concluding that Marcum was entitled
to benefits
