West Virginia CWP Fund v. Page Bender, Jr.
2015 U.S. App. LEXIS 5319
| 4th Cir. | 2015Background
- Page Bender Jr., a 21-year underground coal miner, filed a 2009 claim under the Black Lung Benefits Act alleging total respiratory disability; he also had long-term heavy smoking history and lung cancer with surgery/treatment.
- ALJ found Bender met statutory presumption of total disability due to pneumoconiosis (15+ years underground employment and total respiratory disability), shifting burden to the operator (Logan Coals) to rebut.
- Department of Labor regulation 20 C.F.R. § 718.305(d)(1)(ii) requires a party opposing entitlement to rebut the presumption by proving “no part” of the miner’s disability was caused by pneumoconiosis (the “rule-out” standard).
- Operator presented three medical experts attributing Bender’s disability to smoking, cancer, and surgery; claimant’s expert (Dr. Rasmussen) attributed at least a material contribution from coal-dust–related disease.
- ALJ discredited the operator’s experts for failing to explain why pneumoconiosis played no part in the disability and credited claimant’s expert; Benefits Review Board affirmed.
- Operator appealed, arguing (1) the rule-out standard is invalid as applied to operators under Chevron/Usery, and (2) the ALJ’s weighing of medical opinions was not supported by substantial evidence.
Issues
| Issue | Operator's Argument | Claimant's Argument | Held |
|---|---|---|---|
| Validity of the regulatory “rule-out” rebuttal standard for operators | Usery limits statutory rebuttal language to the Secretary; statute is unambiguous so agency cannot impose the rule-out on operators; a lesser preponderance/substantial-contribution standard should apply | DOL may fill statutory gap; regulation reasonably requires operators to prove pneumoconiosis played no part in disability to preserve the presumption’s effect | Regulation is a lawful, reasonable exercise of agency authority under Chevron; rule-out standard applies to operators |
| Consistency with Congress’ intent | Applying rule-out to operators exceeds statute by imposing Secretary-only limitation on operators | Rule-out furthers Congress’ remedial purpose of easing miners’ access to benefits; Congress reenacted presumption aware of prior regulation | Court rejects operator’s reading of Usery and defers to agency construction |
| Substantial evidence supporting ALJ’s credibility findings | Operator’s experts explained non-pneumoconiosis causes (smoking, cancer, surgery) and thus ruled out pneumoconiosis causation | Experts failed to consider pneumoconiosis together with other causes or adequately explain why it played no part; claimant’s expert persuasively showed coal dust materially contributed | ALJ permissibly discredited operator experts and credited claimant’s expert; factual findings supported by substantial evidence |
| Due process / notice of applicable standard | Operator lacked notice of rule-out standard during proceedings; unfair to apply now | Original 1980 regulation and precedent put operators on notice; operator litigated under analogous standard | No due-process violation; operator had adequate notice historically and may have had opportunity to develop evidence |
Key Cases Cited
- Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) (held statutory rebuttal limitation applied only to Secretary, not operators)
- Pauley v. BethEnergy Mines, Inc., 501 U.S. 680 (1991) (discusses history and remedial purpose of Black Lung Act)
- Mullins Coal Co. v. Dir., Office of Workers' Comp. Programs, 484 U.S. 135 (1987) (administration and payment scheme for claims before/after 1973)
- Bethlehem Mines Corp. v. Massey, 736 F.2d 120 (4th Cir. 1984) (upheld rule-out standard in interim regulation as within agency authority)
- Stiltner v. Island Creek Coal Co., 86 F.3d 337 (4th Cir. 1996) (applied rule-out standard to interim presumption)
- Big Branch Resources, Inc. v. Ogle, 737 F.3d 1063 (6th Cir. 2013) (upheld rule-out standard as applicable to employers)