721 F.3d 789
7th Cir.2013Background
- Miner George Bailey worked 26 years at a dusty surface coal mine, operated bulldozers, and has a history of light-to-moderate cigarette smoking (disputed pack-years). He was diagnosed with COPD and sought black lung benefits.
- Bailey filed four claims (2000, 2003, withdrawn third, and 2007). Earlier claims were denied during the period when the statutory 15-year presumption had been removed.
- Congress reenacted the 15-year presumption for claims filed after Jan. 1, 2005 that remained pending on or after Mar. 23, 2010; Bailey’s 2007 claim was pending when the presumption was restored.
- ALJ found (1) Bailey had a material change in condition (now totally disabled) and (2) under the revived 15-year presumption Bailey established pneumoconiosis and disability causation, and awarded benefits.
- The Benefits Review Board affirmed. Coal appealed, arguing the presumption could not be used to satisfy the subsequent-claim change-in-condition inquiry and that the ALJ failed to consider rebuttal of the presumption during that inquiry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 15-year presumption may be used to satisfy the "change in condition" requirement for a subsequent claim | Bailey: The presumption is part of the regulatory definitions of pneumoconiosis and disability causation and may be applied to a subsequent claim | Coal: The presumption cannot be used to establish an element for the change-in-condition inquiry | Held: The presumption may be used to show a material change in condition; change in law can supply the changed element (deference to Director/regs) |
| Whether application of the presumption here violates res judicata by applying new law to old facts | Bailey: Applying current law to a pending claim is proper; Spese permits subsequent claims when relevant conditions change | Coal: Using a new presumption on previously adjudicated facts is precluded by res judicata | Held: Not barred by res judicata; subsequent-claim framework allows material changes (including change in law) |
| Whether Bailey satisfied the factual prerequisites of the 15-year presumption (work conditions and total disability) | Bailey: Extensive dusty work comparable to underground conditions and medical evidence (PFTs and physicians) show total disability | Coal: Challenges height inconsistencies in PFTs and disputes disability causation | Held: Substantial evidence supports comparable dusty conditions and total disability (medical opinions corroborate PFTs); Toler distinguishable on height issue |
| Whether ALJ’s failure to consider rebuttal of the presumption in the subsequent-claim step required reversal | Coal: ALJ erred by not addressing rebuttal during the change-in-condition analysis | Bailey: ALJ addressed rebuttal in the merits analysis; any omission in the subsequent-claim step was harmless | Held: Omission was harmless; ALJ considered and rejected rebuttal on the merits and substantial evidence did not support successful rebuttal |
Key Cases Cited
- Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) (background on Black Lung Act purpose)
- Peabody Coal Co. v. Spese, 117 F.3d 1001 (7th Cir. 1997) (subsequent-claim material-change framework)
- Keene v. Consolidation Coal Co., 645 F.3d 844 (7th Cir. 2011) (construction of 2010 restoration of 15-year presumption)
- Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (deference to reasonable agency interpretation)
- Midland Coal Co. v. Director, OWCP, 358 F.3d 486 (7th Cir. 2004) (codification/deference to Spese in later regs)
- Blakley v. Amax Coal Co., 54 F.3d 1313 (7th Cir. 1995) (recognizing excessively dusty surface conditions comparable to underground work)
- Toler v. Eastern Ass'n Coal Co., 43 F.3d 109 (4th Cir. 1995) (height discrepancy in PFTs can be reversible error when dispositive)