BRANDYWINE EXPLOSIVES & SUPPLY; Kentucky Employers Mutual Insurance, Petitioners, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS; Richard Dean Kennard, Respondents.
No. 14-3672.
United States Court of Appeals, Sixth Circuit.
Argued: March 6, 2015. Decided and Filed: June 15, 2015.
790 F.3d 657
Before: GRIFFIN and STRANCH, Circuit Judges; STEEH, District Judge.
IV
Accordingly, the district court‘s denial of the defendant officers’ motion to dismiss plaintiff‘s federal claim for malicious prosecution is REVERSED. The case is REMANDED for entry of an order dismissing this claim against defendants Moseley and Thomas, and for further proceedings, as appropriate, on plaintiff‘s state law claim for malicious prosecution against them, as well as on plaintiff‘s outstanding claims against defendant Smith-Johnson.
ARGUED: Mark E. Solomons, Greenberg Traurig, LLP, Washington, D.C., for Petitioners. Rebecca J. Fiebig, United States Department of Labor, Washington, D.C., for Federal Respondent. Evan B. Smith, Appalachian Citizens’ Law Center, Whitesburg, Kentucky, for Respondent Kennard. ON BRIEF: Mark E. Solomons, Laura Metcoff Klaus, Greenberg Traurig, LLP, Washington, D.C., for Petitioners. Sean G. Bajkowski, Rita A. Roppolo, United States Department of Labor, Washington, D.C., for Federal Respondent. Evan B. Smith, Appalachian Citizens’ Law Center, Whitesburg, Kentucky, for Respondent Kennard.
Before: GRIFFIN and STRANCH, Circuit Judges; STEEH, District Judge.*
JANE B. STRANCH, Circuit Judge.
Brandywine Explosives & Supply, along with its workers’ compensation insurer, seeks review of the findings by an Administrative Law Judge (ALJ) that its former employee Richard Kennard is entitled to benefits under the Black Lung Benefits Act, as amended,
I. FACTS
In August 2009, Kennard filed for black lung benefits. He underwent a number of medical tests and examinations. After the claims examiner initially recommended that his claim be denied, he sought a hearing before the Department of Labor Office of Administrative Law Judges. The ALJ concluded that Kennard was entitled to a rebuttable presumption that he had pneumoconiosis and that the disease caused his total disability because he had worked in conditions that were substantially similar to those in an underground mine. The ALJ further held that Brandywine successfully rebutted the presumption that Kennard had clinical pneumoconiosis. The employer failed, however, to rebut the presumption of legal pneumoconiosis or the presumption that Kennard‘s disability was caused by his employment in a coal mine. Brandywine appealed to the Benefits Review Board, arguing that the 15-year presumption should not apply to Kennard and, if the presumption did apply, the company had successfully rebutted it.
Between 1977 and 2009, Kennard worked for more than 21 years as a blaster on strip mines, sometimes directly for a coal company and sometimes for contractors. At the administrative hearing and in a deposition, Kennard testified about the environmental conditions of his blasting work:
Q: So, was there any rock dust or coal dust that you were exposed to?
A: Yeah, plenty of it. You couldn‘t get away from it. Most time, you‘d be right on the shot. You didn‘t have an air conditioner. You just had to work right there close to it. All the dust was flying and you was breathing it.
. . . .
There‘s a lot of dust flying and it wasn‘t self-contained. I mean, [the drill cover] couldn‘t contain all of it. You got some coming out.
Q: And whenever you would blast the holes in which were drilled, what would happen then?
A: A whole lot of dust. Dust would be flying because you‘re putting off a charge in the ground and you got a whole lot of dust comes in the air.
Q: Was that mainly rock dust or coal dust or—
A: Rock dust, coal dust, everything you could get.
. . . .
Whatever was in the ground. If you‘re drilling through little coal seams, sometimes you‘d drill through little seams five or six inches thick and then when you shoot that, it‘s all like a big cloud of smoke.
Tr. at 17:8-13, 17-19; 18:1–7, 12-15.
Q: And doing the blasting aspect of that job would you be exposed to coal, rock, sand or other types of dust?
A: Yes. Exposed to you know rock dust, coal dust and everything you know.
Q: Obviously though when the shot is set off you are well away from that area?
A: Yeah, but you have dust to contend with there because it takes so long to get back you know and get away from it. Do you know what I‘m saying? Q: Do they not wait before they go back in to check after a shot until it‘s settled?
A: There‘s still a lot of just in the air just floating in the air. It would be like two hours before you completely settle it on the ground.
Q: And would you be the one who would typically the first one to go back?
A: Yes, the blaster always does that and calls the all clear signals.
Kennard Dep., DX 26 at 16:19-17:15. Kennard performed his work immediately before the main coal production began at a given site.
Kennard also has a significant history of smoking—at least 60 pack-years. The smoking gave him cancer in his right lung, and the lung was removed. He also experiences shortness of breath (dyspnea), coughing, and sleep apnea. His treating physician diagnosed him with Chronic Obstructive Pulmonary Disorder (COPD). His breathing is extremely limited at approximately 25% of the expected level for a man his age, and he has significant trouble moving around, especially without external oxygen.
II. STATUTORY AND REGULATORY BACKGROUND
A. General Framework
The Black Lung Benefits Act (BLBA) provides benefits to coal miners who have become totally disabled due to pneumoconiosis resulting from their exposure to coal-mine dust. See
Pneumoconiosis is the technical term for lung disease caused by exposure to dust, commonly called Black Lung Disease. Under the statute, pneumoconiosis is defined broadly as “a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.”
The implementing regulations also establish the degree of causation required for a miner‘s respiratory disability to be considered “due to pneumoconiosis:”
A miner shall be considered totally disabled due to pneumoconiosis if pneumoconiosis . . . is a substantially contributing cause of the miner‘s totally disabling respiratory or pulmonary impairment. Pneumoconiosis is a “substantially contributing cause” of the miner‘s disability if it:
(i) Has a material adverse effect on the miner‘s respiratory or pulmonary condition; or
(ii) Materially worsens a totally disabling respiratory or pulmonary impairment which is caused by a disease or
exposure unrelated to coal mine employment.
This case concerns a rebuttable presumption for certain miners who worked in coal mines for at least 15 years and have a totally disabling respiratory impairment and are not otherwise eligible for a presumption of entitlement. These miners receive “a rebuttable presumption that such miner is totally disabled due to pneumoconiosis.”
The presumption was first added to the BLBA in 1972. See
B. The Revised Regulation
While Kennard‘s case was pending before the Benefits Review Board, the Department of Labor promulgated a revised regulation on the 15-year presumption. See Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act,
With regard to rebuttal, the former regulation stated: “The presumption may be rebutted only by establishing that the miner does not, or did not have pneumoconiosis, or that his or her respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.”
In a claim filed by a miner, the party opposing entitlement may rebut the presumption by—
(i) Establishing both that the miner does not, or did not, have:
(A) Legal pneumoconiosis as defined in
§ 718.201(a)(2) ; and(B) Clinical pneumoconiosis as defined in
§ 718.201(a)(1) , arising out of coal mine employment (see§ 718.203 ); or(ii) Establishing that no part of the miner‘s respiratory or pulmonary total disability was caused by pneumoconiosis as defined in
§ 718.201 .
We have already determined that the new regulation applies to all cases that were pending when it was promulgated—whether before an ALJ, the Benefits Review Board, or our court. See Central Ohio Coal Co., 762 F.3d at 489-90. The new regulation is an interpretive regulation, and “a new interpretive regulation
III. ANALYSIS
A. Unexhausted Issue
“Generally, this court will not review issues not properly raised before the [Benefits Review] Board.” Arch on the Green, Inc. v. Groves, 761 F.3d 594, 602 (6th Cir. 2014). “In providing for review of BRB determinations in the courts of appeals, Congress in effect required that a [petitioner] exhaust all [its] administrative remedies.” Blevins v. Dir., Office of Workers’ Comp. Programs, 683 F.2d 139, 143 (6th Cir. 1982) (internal quotation marks omitted). This allows “a party aggrieved by the decision of an administrative law judge [to] find corrective action at the BRB and thereby remove the need for judicial review.” Id. It also recognizes the particular familiarity and expertise of the agency with Black Lung Benefits matters. See McKart v. United States, 395 U.S. 185, 194-95 (1969) (discussing the general advantages of administrative exhaustion).
Though Brandywine now argues that the revised regulation on the 15-year presumption is invalid, it failed to present any arguments about the validity of the new regulation to the Benefits Review Board. The company argues that we should nonetheless consider its arguments “because any challenge in those proceedings would have been futile.” Pet. Br. at 13 n.6. We disagree. First, we note that the Benefits Review Board has statutory authority to review Department of Labor regulations for consistency with the Black Lung Benefits Act. Gibas v. Saginaw Min. Co., 748 F.2d 1112, 1117–19 (6th Cir. 1984). Second, Brandywine had notice of the new regulation and its application to this case. The Director of the Office of Workers’ Compensation Programs noted and relied on the new regulation in its response brief before the Benefits Review Board, but Brandywine did not address the validity of the regulation in its reply brief or otherwise attempt to raise the issue before the board. Finally, unlike the argument that we found to be futile in Kyle v. Dir., Office of Workers’ Comp. Programs, 819 F.2d 139 (6th Cir. 1987), rejection of the new rule would not have required the Board to re-
We proceed to address the issues that Brandywine did present to the Board: whether substantial evidence supports the ALJ‘s findings that Kennard was entitled to the 15-year presumption under the new rule and whether Brandywine failed to rebut the presumption.
B. Standard of Review
This court has jurisdiction over petitions for review of final decisions of the Benefits Review Board under
In summary, “[a] decision by the Board must be affirmed on appeal if the Board has not committed any legal error or exceeded its statutory scope of review of the ALJ‘s factual determination,” that is, substantial evidence review. Jonida Trucking, Inc., 124 F.3d at 742.
C. Kennard‘s Eligibility for the Presumption
Brandywine first challenges Kennard‘s eligibility for the 15-year presumption. Because Kennard worked exclusively on non-underground strip mines, he is eligible for the presumption only if he can prove that his working conditions at the strip mine were “substantially similar to conditions in an underground mine.”
The ALJ‘s decision was supported by substantial evidence. The ALJ particularly noted Kennard‘s testimony that “all the dust was flying around and you was breathing it” and his descriptions of “big cloud[s] of smoke” from coal dust, comparing them to the dust conditions experienced by underground miners. D & O at 14-15. The testimony easily supports a finding that Kennard was regularly exposed to coal-mine dust.
Brandywine makes two arguments to the contrary. First, it contends that the ALJ failed to consider that, while at Bran-
Second, Brandywine argues that Kennard was primarily exposed to rock dust and dirt, rather than coal dust, and that he therefore should not be entitled to the presumption. In the company‘s words: “Since rock dusting is a recognized method for suppressing coal dust and is used throughout the industry for this purpose, Kennard‘s suggestion that rock dust presents a risk of disease not only makes no sense, but it is supported by nothing.” Reply Br. at 14-15 n.5. Brandywine further cites our dicta in Central Ohio Coal Co., that the distinction between coal dust and dust from dirt “may be significant” in applying the presumption. 762 F.3d at 490.
Brandywine‘s proposed distinction between coal dust and rock dust has no merit. Although it is true that the mandatory safety standards for underground mines require the use of rock dusting to suppress coal dust, the rock dust is used to suppress the combustible nature of coal dust and to prevent explosions. See
The record contains substantial evidence that Kennard was regularly exposed to both coal and rock dust. He has therefore established that his working conditions were substantially similar to those in an underground mine and is entitled to the presumption.
D. Rebuttal
Having found Kennard eligible for the 15-year presumption, the ALJ addressed rebuttal: “As the Claimant has established the threshold requirements for invocation of the rebuttable presumption, the burden shifts to the Employer to rebut the presumption by establishing either (a) that the Claimant does not have pneumoconiosis; or (b) that his respiratory or pulmonary impairment does not arise out of, or in connection with, coal mine employment.” The parties now dispute the
Dr. Alam equivocally diagnosed Kennard with legal pneumoconiosis by virtue of his COPD. He acknowledged that the “number one cause” of the COPD was smoking but maintained, with varying degrees of certainty, that coal-mine dust exposure likely contributed to the disease. At various times, he described the dust exposure as responsible for “at least 10 percent” of Kennard‘s disability, or “at least 15% of total pulmonary impairment,” or that it “could have done some aggravation” of the emphysema. Dr. Alam also noted that Kennard‘s diminished lung capacity was significantly less than could be explained by the removal of his lung, such that he may have been totally disabled even if his lung had not been removed. Because of the equivocal nature of Dr. Alam‘s opinion, the ALJ gave less weight to his opinion on the legal-pneumoconiosis issue.
Dr. Broudy opined that Kennard did not have pneumoconiosis and his disability was therefore not related to his coal-mine employment. He noted Kennard‘s diagnosis of COPD and attributed the lung disease entirely to cigarette smoking. In deposition, he opined that “the respiratory impairment is easily explained by the fact that this gentleman has had a right pneumonectomy [lung removal] and damage to his lung from previous cigarette smoking” and “[t]here was no evidence of pneumoconiosis in the remaining lung.” Dr. Broudy, however, provided no other explanation for his opinion that coal-mine dust inhalation was not a factor causing the COPD, and for this reason, the ALJ discredited his testimony.
Dr. Dahhan noted that Kennard‘s respiratory impairment resulted from the removal of his right lung “which created anatomical loss of more than half of his respiratory capacity” and was “contributed to by his previous smoking habit and resulting bronchitis [(COPD)].” He opined that the degree of respiratory impairment was too severe to “be accounted for by the impact of coal dust on the respiratory system.” He also noted that Kennard‘s treating physician had prescribed bronchodilators for the COPD. Because lung disease caused by inhalation of coalmine dust is not responsive to bronchodilators, he considered the prescription to be evidence that dust inhalation had no causal role in the COPD. In deposition, he testified that 65% of the loss of lung function could be attributed to the removal of the right lung.
The ALJ discounted Dr. Dahhan‘s testimony on several grounds. First, he characterized the opinions as internally inconsistent, due to the varying degree to which Dr. Dahhan acknowledged the COPD and varied characterization of the impairment as obstructive or restrictive. Second, because several respiratory tests conducted by Dr. Dahhan and others showed that Kennard‘s disease was not responsive to bronchodilators, that aspect of the opinion was not well-reasoned. Finally, Dr. Dahhan insufficiently accounted for the possibility that Kennard‘s respiratory problems had multiple causes, even though the most significant cause was smoking and the resulting lung removal.
The ALJ found that Brandywine rebutted the presumption of clinical pneumoconiosis, but that the mixed evidence did not rebut the presumption of legal pneumoconiosis—the presumption that Kennard‘s COPD was caused, in part, by his coal-mine employment. Addressing the causation issue, the ALJ noted that “an employ-
Brandywine argues that the ALJ used the improper rebuttal standard; that it rebutted the presumption that Kennard has legal pneumoconiosis; and that it rebutted the presumption that Kennard‘s disability was caused by his coal-mine employment. None of these arguments is availing.
1. Rebuttal Standard
Brandywine first argues that the ALJ improperly limited its avenues of rebuttal. The 15-year presumption presumes three elements of a claim: (1) that the miner has pneumoconiosis, (2) that the pneumoconiosis arose out of his coal-mine employment, and (3) that the miner‘s total disability is due to the pneumoconiosis. Brandywine contends that the ALJ limited his analysis to the first two elements, without considering whether the pneumoconiosis was so mild that it did not cause Kennard‘s total disability.
We have already addressed and rejected this argument. See Big Branch Resources, 737 F.3d at 1069-71. There we began by noting the three elements of entitlement to benefits that the 15-year presumption affects, id. at 1069, then explained that a finding of legal pneumoconiosis establishes the first two elements, leaving only the third, id. at 1070. We found that an ALJ “d[oes] not err by collapsing the two-step causal chain—that coal mine employment caused pneumoconiosis which in turn caused total disability—into a single question: did the miner‘s disability arise out of his coal mine employment?” Id. The argument “that a miner‘s pneumoconiosis is mild and that the totally disabling respiratory impairment is the product of another disease . . . is not a unique third rebuttal method, but merely a specific way to attack the second link in the causal chain—that pneumoconiosis caused total disability.” Id. In this case, as in Big Branch Resources, “[n]othing in the record suggests that the [employer] was prevented from making this argument.” Id.
The company further argues that the ALJ erred by requiring it to prove that Kennard‘s legal pneumoconiosis “played no part” in his disabling respiratory impairment, rather than determining whether pneumoconiosis was a “substantially contributing cause.” We likewise rejected this argument in Big Branch Resources:
Simply put, the “play no part” or “rule-out” standard and the “contributing cause” standard are two sides of the same coin. Where the burden is on the employer to disprove a presumption, the employer must “rule-out” coal mine employment as a cause of the disability. Where the employee must affirmatively prove causation, he must do so by showing that his occupational coal dust exposure was a contributing cause of his disability. Because the burden here is on the [employer], the [employer] must show that the coal mine employment played no part in causing the total disability.
The ALJ‘s articulation of the rebuttal standard was appropriate.
Substantial evidence supports the ALJ‘s finding that Brandywine failed to rebut the presumption of legal pneumoconiosis. All three of the doctors who examined Kennard noted that he has COPD. There was disagreement about whether the COPD was solely a result of his cigarette smoking or was also caused or worsened by coal-mine dust. The ALJ found none of the medical opinions to be persuasive on the issue. “Dr. Alam‘s opinion is equivocal and vague; Dr. Broudy gives no reason for excluding coal dust as a cause of the Claimant‘s emphysema; and Dr. Dahhan is inconsistent and not well-reasoned.”
Focusing extensively on the uncontested issue of Kennard‘s lung cancer and minimizing the factual errors and inconsistencies in Dr. Dahhan‘s opinions, Brandywine urges us to reverse the ALJ‘s credibility determinations for Dr. Broudy and Dr. Dahhan. There is sufficient evidence supporting the ALJ‘s credibility determinations. Dr. Dahhan‘s opinions contained a number of leaps of logic, including ignoring the possibility that Kennard‘s COPD could have multiple causes—smoking and dust exposure. Dr. Dahhan‘s opinion also relied on his belief that the COPD was responsive to bronchodilators, but there was evidence before the ALJ that the disease did not respond to bronchodilators. As for Dr. Broudy, his opinion relied only on the lack of a finding of clinical pneumoconiosis, providing no explanation for why he did not believe dust exposure played a role in the COPD.
Brandywine also urges the court to weaken the presumption, so that Dr. Alam‘s equivocal opinion would be sufficient to rebut the presumption of legal pneumoconiosis. As we noted in Morrison, however, rebuttal requires “that the evidence affirmatively proved the absence of pneumoconiosis.” 644 F.3d at 480 n. 5. In the present case, there is evidence that Kennard suffers from COPD in addition to his lung cancer. The only question is whether smoking alone caused the COPD or whether it was also caused or worsened by the coal-mine dust exposure. Dr. Alam, the only credible medical opinion on the issue, largely opined that the COPD was partially caused by coal-mine dust exposure. Brandywine points to no affirmative proof of the absence of pneumoconiosis, in Dr. Alam‘s opinion evidence or elsewhere. The ALJ did not err in finding that Brandywine failed to rebut the presumption of legal pneumoconiosis.
3. Rebuttal of Causation
Brandywine next argues that the ALJ erred in finding that the causation element was not rebutted. The employer first argues that the ALJ failed to consider this issue, instead treating the causation issue as automatically resolved by the failure to rebut the presumption of legal pneumoconiosis. In fact, the ALJ considered this issue carefully, reviewing the opinions of all three doctors. Each doctor opined that Kennard‘s impairment was more severe than could be explained solely by the removal of his right lung. The ALJ relied on these opinions, and particularly Dr. Alam‘s opinion that Kennard‘s respiratory capacity was so low that he may have been disabled even with both lungs. At that juncture, the only remaining question was what caused the additional respiratory impairment—an issue resolved by the earlier finding of legal pneumoconiosis. There was no need for the ALJ to analyze the opinions a second time.
Brandywine insists that, because Kennard would be totally disabled had he never set foot in a mine (due to his lung cancer and lung removal), it would be unfair to hold the company responsible for his disability. The implementing regulations and our long-standing precedent
A review of the cases, the statute, its legislative history, and its interpretation by the benefits review board shows that the statute is intended to confer special benefits on miners who are disabled due to pneumoconiosis whether or not they are disabled from a different cause. Even when other causes are themselves independently disabling the concurrence of two sufficient disabling medical causes one within the ambit of the Act, and the other not, will in no way prevent a miner from claiming benefits under the Act.
93 F.3d at 217 (internal quotation marks and alterations omitted). Notably, Brandywine relies almost exclusively on cases decided before the “substantially contributing cause” standard was promulgated in 2000. (One of these cases, Shelton v. Dir., Office of Workers’ Comp. Programs, 899 F.2d 690 (7th Cir. 1990), was explicitly rejected in Cross Mountain. See 93 F.3d at 217.)
The ALJ did not err in finding that Brandywine failed to rebut the 15-year presumption of eligibility.
IV. CONCLUSION
For the foregoing reasons, we DENY the petition for review.
JANE B. STRANCH
UNITED STATES CIRCUIT JUDGE