SUNNYSIDE COAL COMPANY; OLD REPUBLIC INSURANCE COMPANY, Petitioners, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; RONALD A. FOSSAT, Respondents.
No. 23-9517
United States Court of Appeals for the Tenth Circuit
August 13, 2024
FEDERICO, Circuit Judge.
PUBLISH
FILED
United States Court of Appeals Tenth Circuit
August 13, 2024
Christopher M. Wolpert Clerk of Court
Amanda Torres, Sarah M. Hurley, Attorneys (Seema Nanda, Solicitor of Labor; Barry H. Joyner, Associate Solicitor; Jennifer L. Jones, Deputy Associate Solicitor; and Michael P. Doyle, Counsel for Appellate Litigation with them on the brief), Department of Labor, Washington, D.C., for the Federal Respondent.
Brad A. Austin, Wolfe Williams & Reynolds, Norton, VA, for Respondent Ronald A. Fossat.
Before HARTZ, McHUGH, and FEDERICO, Circuit Judges.
FEDERICO, Circuit Judge.
In 2013, Ronald Fossat, a coal miner, filed a claim for benefits under the Black Lung Benefits Act (BLBA),
Sunnyside now petitions this Court for review. The Director of the Office of Workers’ Compensation Programs at the United States Department of Labor (OWCP) joins Fossat as a Respondent.
Sunnyside makes three arguments to support its request that we remand this case with instructions to deny benefits to Fossat. First, it argues that the agency‘s interpretation of the relevant section of the BLBA —
Exercising jurisdiction under
I
To receive benefits under the BLBA, “a claimant must establish four elements:
- Disease (the miner suffers from [clinical or legal3] pneumoconiosis),
- Disease causation (the pneumoconiosis arose out of coal-mine employment),
-
Disability (the miner is totally disabled because of a respiratory or pulmonary impairment), and - Disability causation (the pneumoconiosis is a substantially contributing cause of the miner‘s total disability).”
Energy W. Mining Co. v. Est. of Blackburn, 857 F.3d 817, 821 (10th Cir. 2017).
“Ordinarily, claimants [such as Fossat] must рrove each of the four elements[;]” however, the BLBA “softens his burden” with the inclusion of a rebuttable presumption. Id. at 821–22. If a miner, inter alia, “was employed for fifteen years or more in one or more underground coal mines, and . . . if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis.”
If an employer opposes the claim entitlement, it “may rebut the presumption by” either “(i) [e]stablishing both that the miner does nоt, or did not, have: (A) [l]egal pneumoconiosis . . . and (B) [c]linical pneumoconiosis . . . arising out of coal mine employment” or “(ii) [e]stablishing that no part of the miner‘s respiratory or pulmonary total disability was caused by pneumoconiosis . . . .”
Energy W. Mining Co., 857 F.3d at 822. With this legal framework in mind, we next turn to Fossat‘s history of working in coal mines and his health conditions.
II
A
Fossat was sixty-seven years old when he filed his claim for BLBA benefits in 2013. He had worked as a coal miner for twenty-four years, frоm 1970 to 1994, ten
Fossat smoked cigarettes “off and on since 1966, from a half pack a day up to a pack and a half a day . . . .” Aplt. App‘x I at 206. When he was deposed for this claim in February 2014, he testified that he last smoked six months prior, and it had been four or five years since he smoked regularly. He quit smoking after he was hospitalized with a heart problem.
After he left his jоb at the coal mine in 1994, Fossat held several part-time jobs. He stopped working completely in 2004 when he started to receive Social Security Disability because of back, knee, and shoulder problems. After he left the coal mines, Fossat did not think he could continue to do his job because his breathing problems prohibited it. According to Fossat, even when he stopped smoking, his breathing problems persisted and stayed the same.
After filing for BLBA benefits in 2013, Fossat underwent OWCP-sponsored medical testing, as well as testing requested by Sunnyside. At issue on appeal are Sunnyside‘s requested evaluations from Dr. Robert Farney (Dr. Farney) and Dr. David Rosenberg (Dr. Rosenberg) and the OWCP-sponsored evaluation from Dr. Shane D. Gagon (Dr. Gagon). A summary of the medical evidence is as follows.
- Dr. Gagon. Dr. Gagon examined Fossat on September 7, 2013, at the OWCP‘s request. He was aware of Fossat‘s employment history and the physical demands of his last coal mine job and concluded Fossat could not perform this job. Dr. Gagon conceded that the percentage of Fossat‘s symptoms caused by coal dust versus smoking or obesity was a guess.
In addition to Dr. Gagon‘s opinions, the OWCP‘s medical evidence included arterial blood gas studies to measure Fossat‘s “lungs’ ability to oxygenate blood,” a pulmonary function study to “measure impairment of lung function and any obstruction in the lungs’ airways,” and chest x-rays to detect pneumoconiosis. Aplt. App‘x I at 206–08. Fossat‘s carbon dioxide levels measured by the arterial blood gas studies qualified him for black lung benefits, regardless of the elevation at which he was tested.4 See App‘x C to
As for the x-rays, some of the readings qualified while others did not. The ALJ provided two charts summarizing the x-ray readings, as well as a footnote explaining
- Dr. Farney. One of Sunnyside‘s doctors, Dr. Farney, examined Fossat on March 13, 2014. “Dr. Farney thought that [Fossat] would be in the same position if he had not worked in the mines,” id. at 215, and that his “disabling respiratory impairment and other conditions did not arise in whole or in part from his coal mine employment or coal dust exposure,” id. at 213. Dr. Farney also stated that “if you‘re going to get a disease is [sic] probably the exposure that you have the most exposure to, which in his case was clearly tobacco smoke.” Id. at 214. “Dr. Farney felt that it was possible for [Fossat] to have lung disease related to coal dust exрosure, but he thought the risk was relatively low” given the amount of time Fossat worked underground. Id. He further opined that “it was highly improbable to have coal dust related disease emerge years after stopping work otherwise.” Id. at 236.
- Dr. Rosenberg. Sunnyside also requested Dr. Rosenberg review Fossat‘s medical records, and he produced a report dated April 7, 2014. He concluded that Fossat did not have a totally disabling respiratory impairment from a primary pulmonary problem but nonetheless concluded that Fossat was disabled. Dr. Rosenberg stated that “the development of obstruction due to coal dust exposure after a miner leaves the mines is rare . . . .” Id. at 239. He further explained that although a combined effect of cigarette smoke and coal dust was possible, for Fossat, his coal dust exposure “would not be expected to have contributed any significant additive effect on the adverse effects from cigarette smoking.” Id. at 221.
B
Before the ALJ,5 Sunnyside stipulated to Fossat‘s completion of fifteen years of coal mine employment but contested whether Fossat was totally disabled due to pneumoconiosis arising out of his coal mine employment. Sunnyside also objected to the admission of a supplemental report from Dr. Gagon that the OWCP obtained pursuant to an OWCP pilot program in which the physician who conducted the initial OWCP-sponsored evaluation rebuts medical evidence presented by an employer.
The ALJ admitted the supplemental report and concluded that Fossat was totally disabled based on Fossat‘s qualifying arterial blood gas studies and the medical opinions of Drs. Gagon and Farney. The ALJ further concluded that Sunnyside failed to disprove legal pneumoconiosis or establish that no part of Fossat‘s respiratory disability was due to coal dust. Thus, Sunnyside failed to rebut the presumption, and Fossat was awarded benefits.
Following the ALJ‘s decision, Fossat passed away, and his widow pursued his claim on behalf of his estate. Sunnyside appealed to the Board but later requested the appeal be dismissed as premature because Fossat had moved for the ALJ to amend his award onset date. The ALJ granted the motion, Sunnyside appealed to the Board again, and the Board affirmed. The Board did not address whether the
III
A
For questions of law, we review the Board‘s decision de novo. Antelope, 743 F.3d at 1341. We give no deference to the Board‘s interpretation of the statute, the BLBA. Lukman v. OWCP, 896 F.2d 1248, 1251 (10th Cir. 1990). Neither is the OWCP‘s interpretation of statutes entitled to deference. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2261 (2024).
For questions of fact, our review is formally of the Board‘s decision, but we focus our аnalysis on the factual findings of the ALJ. Energy W. Mining Co., 857 F.3d at 822. “[W]e do not reweigh the evidence,” and it is “the sole province of the ALJ” to weigh conflicting medical evidence. Spring Creek Coal Co. v. McLean ex rel. McLean, 881 F.3d 1211, 1217 (10th Cir. 2018) (quoting Antelope, 743 F.3d at 1341). We refrain from doing so because “[w]here medical professionals . . . disagree[], the trier of fact is in a unique position to determine credibility and weigh the evidence.” Antelope, 743 F.3d at 1341 (alterations in original) (quoting Hansen v. OWCP, 984 F.2d 364, 370 (10th Cir. 1993)).
As such, our judicial review is “limited” to whether, based on the record as a whole, “substantial evidence supports the factual findings of the ALJ.” Spring Creek, 881 F.3d at 1217 (quoting Westmoreland Coal Co. v. Stallard, 876 F.3d 663, 668 (4th Cir. 2017)). “Substantial evidence is ‘such relevant evidence as a reasonablе mind might accept as adequate to support a conclusion.‘” Hansen, 984 F.2d at 368 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
B
1
When we review the language of a statute, it “is not merely an exercise in ascertaining ‘the outer limits of [a word‘s] definitional possibilities.‘” FCC v. AT&T Inc., 562 U.S. 397, 407 (2011) (alteration in original) (quoting Dolan v. Postal Serv., 546 U.S. 481, 486 (2006)). “A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42 (1979).
Context is also important. A word “gathers meaning from the words around it.” Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961) (explaining “[t]he maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescaрable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress“). “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because the same terminology is used elsewhere in a context that makes its meaning clear . . . or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law . . . .” United Sav. Assoc. of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988).
After conducting this analysis, if the text of the statute is clear, “reliance on legislative history is unnecessary.” Id. at 458–59 (quoting Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 236 n.3 (2010)).
2
With these legal principles in mind, we turn to the merits of the appeal. Sunnyside argues: (1) Fossat does not qualify for the rebuttable presumption based on fifteen years of work in an underground coal mine because Fossat was not underground for at least fifteen years, and (2) as such, Fossat must show the conditions of his above-ground employment were substantially similar to the conditions of an underground coal mine.
Starting with his first proposition, at issue is whether Fossat‘s employment constitutes fifteen years of work in an underground coal mine. As previously stated, Fossat worked as a coal miner for twenty-four years, ten years below ground and fourteen years above ground. For purposes of the rebuttal presumption, “coal mine” means an area of land and all structures, facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real or рersonal, placed upon, under, or above the surface of such land by any person . . . .”
Sunnyside‘s reading also improperly implies that while Fossat was below ground, his employment was in an underground coal mine, but while he was above ground, his employment was in a coal mine other than an underground mine. Yet Fossat worked at a single mine throughout his employment; one mine did not become two simply because Fossat was above ground for part of his employment there. Neither does the nature of the mine — surface or underground — change depending on Fossat‘s location. See Carcieri v. Salazar, 555 U.S. 379, 391 (2009) (A word‘s “susceptibility to alternative meanings” “does not render the word . . . ambiguous,” particularly where “all but one of the meanings is ordinarily eliminated by context.” (quoting Deal v. United States, 508 U.S. 129, 131–32 (1993))).
Sunnyside likewise argues that Congress‘s use of the preposition “in” within the rebuttable presumption provision shows that Fossat must be underground
Such an understanding of the word “in” is consistent with the ordinary and common meaning of “in” when “used as a function word to indicate location or position in space or in some materially bounded object.” In, Websters Third New International Dictionary 1139 (Philip Babcоck Gove ed., 1971); see Perrin, 444 U.S. at 42 (“A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.“). In this context, “in” indicates Fossat‘s position within the bounds of a coal mine, including “an area of land and all structures, facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon, under, or above the surface of such land by any person . . . .”
3
Although we could rest our opinion solely upon the reading of the statute set forth above, a review of the legislative purpose of the BLBA, even if unnecessary, also supports our reading of the statute. This Court has determined that Congress‘s purpose in enacting the BLBA, including the causation standard used to rebut the presumption, is “broad[ly] remedial” and that “because the BLBA ‘is intended to be remedial in nature, . . . doubts should be resolved in favor of the disаbled miner or his or her survivors.” Consolidation Coal Co. v. OWCP, 864 F.3d 1142, 1151 (10th Cir. 2017) (second alteration in original) (quoting Bridger Coal Co. v. OWCP, 669 F.3d 1183, 1190 (10th Cir. 2012)). Our understanding of Congress‘s purpose in passing the law is verified by a Senate Report from the Labor and Public Welfare Committee commenting on a piece of legislation
Under the current law, the miners who have worked their entire adult lives at above ground facilities of an underground coal mine are eligible for benefits if they are totally disabled by coal miners pneumoconiosis but those who may have workеd their entire adult lives at even dustier above ground facilities of surface mines are not eligible, even if they have complicated pneumoconiosis. This is grossly unfair and was not intended by the legislation passed by the Senate in 1969. The first Black Lung Benefits legislation, approved by a roll call vote of 90-0 in the Senate would have applied to all coal miners. Unfortunately, that provision was lost in the conference of the two Houses. The Committee amendment remedies this unfair treatment.
Where the possibility of the diseasе exists, a miner should not be denied the benefits of the black lung program because of circumstance — simply because he has always worked above the ground rather than below it. This provision would correct the inequity by striking the word ‘underground’ from the present law, so that the program would apply to all coal miners, regardless of the physical characteristics of the mine.
S. Rep. No. 92-743, at 2305, 2326–27 (1972).
This excerpt indicates the Senate‘s awareness of the benefits afforded to miners working physically above ground at an underground coal mine in сomparison with miners working at surface mines. Congress‘s response was not to take away the benefits to miners working physically above ground at an underground coal mine. Rather, Congress made miners working at surface mines also eligible for benefits. As such, the legislative purpose supports our reading of the statute, which in turn renders a decision in favor of Fossat on this question.
C
1
Regarding the disability argument, Sunnyside stipulated to Fossat‘s completion of fifteen years of coal mine employment but contested whether Fossat was totally disаbled due to pneumoconiosis arising out of his coal mine employment. The ALJ concluded that Fossat was totally disabled based on the arterial blood gas studies and the medical opinions of Drs. Gagon and Farney.
Sunnyside‘s arguments taking issue with the ALJ‘s application of the rebuttable presumption likewise fail. First, Fossat need not show regular dust exposure to qualify for the fifteen-year presumption. A showing of substantial similarity in conditions is only necessary for a miner employed in a coal mine other than an underground coal mine, see
Second, the ALJ did not impermissibly place the burden of establishing total respiratory disability on Sunnyside, thereby creating a “non-existent disability presumption.” Aplt. Br. at 44. A review of the ALJ‘s decision shows that he was merely citing a regulation regarding how a miner may establish total disability. See
2
Turning now to the supplemental medical report. To start, we reiterate that our precedent provides that this Court‘s review includes whether the legal conclusions of the Board and the ALJ are “rational and consistent with the applicable law.” Spring Creek, 881 F.3d at 1217 (quoting Westmoreland, 876 F.3d at 668). Sunnyside is incorrect, therefore, that the OWCP‘s arguments regarding the supplemental report should be based on the ALJ‘s decision only. The OWCP is permitted to make arguments based on, and by consequence seek judicial review of, the Board‘s decision as well.
Our precedent also provides that when reviewing the decisiоns of the Board and the ALJ, we consider harmless error. Antelope, 743 F.3d at 1347. We have stated as follows:
We do not decide whether the rebuttal limitations apply to [the coal company] because any error in the ALJ‘s invocation of the rebuttal limitations was harmless. See
5 U.S.C. § 706(2)(F) (“[D]ue account shall be taken of the rule of prejudicial error.“) . . . . After careful review of the record and the ALJ‘s opinion and reasoning, we conclude the rebuttal limitations did not affect the outcome. The ALJ did not limit [the coal company‘s] evidence, and any alleged error was harmless because [the claimant] would have prevailed even without the rebuttal limitations.
Because the ALJ‘s conclusions were supportable without the supplemental report, the Board did not address on the merits whether the ALJ erred in admitting the supplemental report. Notably, Sunnyside does not proffer any argument that the ALJ relied on something in the supplemental report that was not supported by other evidence. Rather, without citing any authority, it argues that “the ‘harm’ inquiry centers on the failed agency process, itself,” and that “when an agency disenfranchises stakeholders like Sunnyside by dispensing with APA formalities, the resulting prejudice is innate, obvious, and undeniable.” Reply Br. at 22. But that is not the legal standard; in fact, any alleged error is harmless if the claimant would have prevailed regardless. Antelope, 743 F.3d at 1348.
Such is the case here, where Dr. Farney determined that Fossat had a totally disabling respiratory or pulmonary impairment. In other words, even without the report, the outcome is the same. Because the ALJ‘s conclusions were supportable without the supplementаl report, we need not address whether the supplemental report was authorized by the regulations or violated the Administrative Procedure Act.
3
We agree with the ALJ‘s conclusions that Sunnyside failed to (1) disprove legal pneumoconiosis or (2) establish that no part of Fossat‘s respiratory disability was due to coal dust. We reemphasize that “we do not reweigh the evidence,” and it is “the sole province of the ALJ” to weigh conflicting medical evidence. Spring Creek, 881 F.3d at 1217 (quoting Antelope, 743 F.3d at 1341). Our judicial review is “limited” and pertains to whether, based on the
| Exhibit No. | Date | Physician | pCO2 | pO2 | pH | Rest/exercise | Qualifying |
|---|---|---|---|---|---|---|---|
| DX 13 | 10-18-09 | Potter | 72 | 134 | 7.28 | At rest | Yes |
| DX 13 | 10-18-09 | Potter | 64 | 134 | 7.32 | At rest | Yes |
| DX 106 | 9-17-13 | Gagon | 55 | 52 | 7.36 | At rest | Yes |
| DX 15 | 3-13-14 | Farney | 68 | 57.7 | 7.32 | At rest | Yes |
| CX 1 | 3-7-16 | Potter | 62 | 40 | 7.36 | At rest | Yes |
| CX 9* | 1-13-17 | Potter | 76.2 | 61 | 7.33 | At rest | Yes |
| CX 9* | 1-13-17 | Potter | 76.0 | 49 | 7.31 | At rest | Yes |
| CX 9* | 1-12-17 | Potter | 73.6 | 200 | 7.31 | At rest | Yes |
Aplt. App‘x I at 208. The above table is the ALJ‘s summary of the arterial blood gas studies, all of which established Fossat‘s disability. The ALJ also provided in his evidentiary summary and legal discussion that Dr. Farney, Sunnyside‘s expert, concluded Fossat was disabled from work due to his respiratory failure. Id. at 213, 229. The ALJ‘s conclusion that Fossat was disabled was supported by substantial evidence, and the remainder of Sunnyside‘s arguments asks us to reweigh the evidence — a task beyond our limited role. See Spring Creek, 881 F.3d at 1217.
IV
The petition for review is DENIED.