Consolidation Coal Company v. Theodore Latusek, Jr.
16-1768
| 4th Cir. | Jan 9, 2018Background
- Theodore Latusek, a non-smoker who worked ~24 years as a coal miner for Consol, has total respiratory disability diagnosed as interstitial pulmonary fibrosis (IPF).
- Latusek initially applied for black lung benefits in 1994; this case reached the Fourth Circuit twice, with the court vacating or reversing prior awards in Latusek I and Latusek II for insufficient support of causation findings.
- Within the statutory modification period, Latusek submitted new evidence (including pathology from a 2006 lung explant, expert depositions, and additional medical literature) and sought modification alleging a mistake of fact in the earlier denial of benefits.
- An ALJ found the new evidence established a mistake of fact and awarded benefits; the Benefits Review Board affirmed in part and remanded, and on remand the ALJ again awarded benefits; the Board affirmed and Consol appealed.
- Consol argued modification was barred by the law of the case/mandate, that the new record still lacked substantial evidence linking IPF to coal dust, and that the ALJ improperly credited certain experts and medical articles.
- The Fourth Circuit denied Consol’s petition, holding the ALJ did not abuse discretion in granting modification and that the causation finding was supported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ’s modification based on a "mistake of fact" violated law-of-the-case/mandate | Latusek argued the modification statute permits reopening where a mistake is shown and presented new corroborating evidence | Consol argued the earlier Fourth Circuit decision precluded reopening and that modification would annul a final judgment | ALJ acted within discretion; modification allowed because Latusek submitted new evidence and modification statute displaces finality |
| Whether new evidence supports causation (IPF caused by coal dust) | Latusek: pathology from explanted lung, treating physicians, expert testimony, and articles establish causation | Consol: evidence remains insufficient; some relied-upon articles predate earlier hearings and were previously rejected | Court held ALJ’s causation finding was supported by substantial evidence considering the total record, including explant pathology and corroborating literature |
| Whether ALJ improperly credited experts previously deemed unreliable because they relied on flawed articles | Latusek: those experts’ testimony is corroborated by new pathology and additional literature; prior reliance on flawed articles does not forever discredit their other bases | Consol: prior rejection of articles undermines those experts’ credibility | Court held ALJ permissibly credited experts on other valid bases and the ALJ adequately explained reasons for crediting/discrediting evidence |
| Whether ALJ needed ‘‘startling new evidence’’ or to address every asserted logical flaw | Latusek: modification may rest on cumulative or additional evidence, not necessarily startling new evidence; ALJ need only adequately explain weighing | Consol: absence of new/changed evidence and many unaddressed logical gaps render modification improper | Court rejected this, noting modification standard is broad and ALJ adequately explained his evaluation |
Key Cases Cited
- O’Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254 (1971) (ALJ has broad discretion to correct factual mistakes on modification)
- Jessee v. Dir., O.W.C.P., 5 F.3d 723 (4th Cir. 1993) (modification does not require startling new evidence; allows correction of factual mistakes)
- Betty B Coal Co. v. Dir., O.W.C.P., 194 F.3d 491 (4th Cir. 1999) (modification procedure permits correction of mistaken factual findings)
- Sharpe v. Dir., O.W.C.P., 495 F.3d 125 (4th Cir. 2007) (ALJ must conclude reopening would render justice under the Act; modification reviewed for abuse of discretion)
- Sea "B" Mining Co. v. Addison, 831 F.3d 244 (4th Cir. 2016) (ALJ must adequately explain why evidence is credited or discredited)
- Hobet Mining, LLC v. Epling, 783 F.3d 498 (4th Cir. 2015) (courts defer to ALJ’s weighting of conflicting medical opinions when all relevant evidence is analyzed)
- W. Va. CWP Fund v. Bender, 782 F.3d 129 (4th Cir. 2015) (substantial-evidence standard for ALJ factual findings)