Four L Coal Co. v. Director, Office of Workers' Compensation Programs , 157 F. App'x 551 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2442
FOUR L COAL COMPANY; OLD REPUBLIC INSURANCE
COMPANY,
Petitioners,
versus
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR;
JACK LESTER (deceased),
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(02-693-BLA)
Argued: September 20, 2005 Decided: October 20, 2005
Before WILKINSON and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
ARGUED: Mark Elliott Solomons, GREENBERG TRAURIG, L.L.P.,
Washington, D.C., for Petitioners. Sarah Marie Hurley, UNITED
STATES DEPARTMENT OF LABOR, Office of the Solicitor, Washington,
D.C., for Respondents. ON BRIEF: Laura Metcoff Klaus, GREENBERG
TRAURIG, L.L.P., Washington, D.C., for Petitioners. Howard M.
Radzely, Solicitor of Labor, Donald S. Shire, Associate Solicitor,
Christian P. Barber, Counsel for Appellate Litigation, UNITED
STATES DEPARTMENT OF LABOR, Office of the Solicitor, Washington,
D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
Four L Coal Company and its insurer, Old Republic Insurance
Company, petition for review of the final decision and order of the
Benefits Review Board (the Board) directing them to pay medical
benefits on behalf of Jack Lester to the Black Lung Disability
Trust Fund (the Trust Fund).1 For reasons that follow, the
petition is denied.
I
Lester worked approximately twenty-eight years in the coal
mines, spending approximately twenty-seven of them underground. He
ended his mining career with Four L in 1976 at the age of fifty.2
Lester filed a claim for black lung benefits on March 10,
1980. After almost sixteen years of litigation, an award of black
lung benefits in his favor became final on March 26, 1996, when
Four L elected not to appeal the Board’s final award
determination.3
Following the Board’s March 26, 1996 decision, the Department
of Labor (the DOL) asked Four L to reimburse the Trust Fund the sum
1
We will refer to Four L Coal Company and Old Republic
Insurance Company collectively as Four L.
2
Lester is now deceased.
3
The final award determination was based on, inter alia, x-ray
and medical opinion evidence evincing the existence of
pneumoconiosis.
- 3 -
of $14,103.09 for Lester’s medical treatment expenses paid by the
Trust Fund. The DOL later reduced this request to $7,407.97. Four
L declined to reimburse the Trust Fund, so the dispute went before
an ALJ, who issued a decision and order directing Four L to
reimburse the Trust Fund in the amount of $7,407.97.
On appeal, the Board affirmed the ALJ’s finding that Lester
was entitled to the presumption that the conditions for which he
sought treatment were caused or aggravated by his pneumoconiosis,
see Doris Coal Co. v. DOWCP, 938 F.2d 492 (4th Cir. 1991), but
vacated the award of benefits and remanded the case. Specifically,
the Board directed the ALJ to reconsider the medical reports of Dr.
Gregory Fino and Dr. Michael Sherman, the only two doctors who
reviewed the medical opinion evidence in terms of the
compensability of the contested medical treatment expenses. In
light of its remand, the Board further instructed the ALJ to
determine whether the medical reports of Drs. Robert Baxter,
Bradley Berry, and Vinod Modi were credible in light of their fraud
convictions.
On remand, the ALJ reexamined the record, observed that Four
L failed to rebut the Doris Coal presumption, and concluded that
the DOL met its evidentiary burden through the medical opinion
evidence provided by Dr. Sherman. Accordingly, Four L once again
was directed to reimburse the Trust Fund. Four L appealed to the
Board, and on May 30, 2003, the Board affirmed the ALJ’s decision.
- 4 -
Four L moved for reconsideration, which the Board summarily denied.
Four L then timely petitioned this court for review.
II
A
Our review of the Board’s order is limited. We review the
Board’s decision to assess whether substantial evidence supports
the factual findings of the ALJ and whether the legal conclusions
of the Board and the ALJ are rational and consistent with
applicable law. Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528
(4th Cir. 1998). Substantial evidence “is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Bill Branch Coal Corp. v. Sparks, 213 F.3d 186, 190
(4th Cir. 2000) (citation and internal quotation marks omitted).
A miner is entitled to medical benefits to pay the cost of
medical treatment incurred as a result of his pneumoconiosis. 20
C.F.R. § 725.701(a). The medical benefits encompass “such medical,
surgical, and other attendance and treatment, nursing and hospital
services, medicine and apparatus, and any other medical service or
supply, for such periods as the nature of the miner’s
pneumoconiosis and disability requires.” Id. § 725.701(b).
Through Doris Coal and its progeny, this court has clarified
the process by which a miner whose lung disease has been adjudged
to be totally disabling may sustain a claim for medical benefits.
- 5 -
In order to demonstrate his eligibility, the miner must show that
the mine operator was responsible for his pneumoconiosis and that
the particular medical expenses for which he seeks reimbursement
were necessary to treat his disabling condition. Doris Coal, 938
F.2d at 495. An expense is deemed necessary to treat
pneumoconiosis if the treatment “relates to any pulmonary condition
resulting from or substantially aggravated by the miner’s
pneumoconiosis.” Id. at 496. In establishing this framework, we
presume that “most pulmonary disorders are going to be related or
at least aggravated by the presence of pneumoconiosis.” Id. As a
result, “when a miner receives treatment for a pulmonary disorder,
a presumption arises that the disorder was caused or at least
aggravated by the miner’s pneumoconiosis.” Id. at 496-97.
Thus, the Doris Coal presumption permits a miner to satisfy
his initial burden of production regarding his eligibility for
medical benefits by presenting his underlying award of black lung
benefits, which specifies the conditions and symptoms that were
found to be disabling and the expenses he claims are related to
those conditions and symptoms. Id. at 496. The mine operator may
then rebut the presumption of relatedness by showing that a
particular expense is actually: (1) “for a pulmonary disorder apart
from those previously associated with the miner’s disability”; (2)
“beyond that necessary to effectively treat a covered disorder”; or
(3) “not for a pulmonary disorder at all.” Gulf & Western Indus.
- 6 -
v. Ling, 176 F.3d 226, 231, 233 (4th Cir. 1999). Throughout the
process, however, the burden of persuasion as to relatedness
remains with the miner. Lewis Coal Co. v. DOWCP, 373 F.3d 570,
575 (4th Cir. 2004).
B
In this case, the record contains evidence that three of
Lester’s treating physicians, Drs. Baxter, Berry, and Modi, were
convicted of “fraudulent billing practices.” (J.A. 15a). Each of
these physicians opined, during their treatment of Lester, that
Lester suffered from, among other things, coal workers’
pneumoconiosis.
The record also reflects that Dr. Dale Sargent saw Lester five
times between October 1994 and June 1996. Dr. Sargent found that
Lester suffered from mild to moderate obstructive lung disease due
to previous cigarette smoking and possibly due to asthma. Dr.
Sargent also observed that Lester’s respiratory symptoms may have
been related to left ventricular function and congestive heart
failure, not to any “obtained airways disease.” (J.A. 308). Dr.
Sargent did note, however, that Lester had “some airways disease.”
(J.A. 308). He further observed that Lester’s pulmonary function
tests showed moderate obstruction.
Dr. Sherman reviewed Lester’s medical records, the contested
medical treatment bills, and Four L’s reasons for denying
- 7 -
responsibility for the payment of those bills. Based on Lester’s
coal mine employment history of twenty-eight years, his respiratory
symptoms, his pulmonary function test results showing moderate
obstructive lung disease, his chest x-ray consistent with
pneumoconiosis, and his blood gas study results revealing a widened
arterial-alveolar oxygen gradient, Dr. Sherman diagnosed
“obstructive chronic bronchitis (a form of chronic obstructive lung
disease or COPD), which is a known pulmonary complication of
exposure to coal dust, and therefore meets the legal criteria for
coal workers’ pneumoconiosis (CWP).” (J.A. 107).4 Dr. Sherman
also acknowledged that Lester suffered from other medical problems
including diabetes mellitus and coronary artery disease. He
reasoned that medications, office visits, and diagnostic tests
prescribed for COPD were reimbursable, “as were antibiotics when
they were clearly given for COPD flares.” (J.A. 107). According
to Dr. Sherman, the Trust Fund was entitled to receive the
$7,407.97 it requested from Four L.
Dr. Gregory Fino also reviewed Lester’s medical records and
the disputed medical bills. He assumed that Lester had
pneumoconiosis, which he defined as including all diseases caused
or aggravated by the inhalation of coal dust. In his view,
4
COPD is an acronym for chronic obstructive pulmonary disease,
which includes asthma, chronic bronchitis, certain types of
emphysema, and other conditions. Glen Coal Company v. Seals, 147
F.3d 502, 509 n.6 (6th Cir. 1998).
- 8 -
however, none of Lester’s pulmonary function studies revealed an
obstruction. Dr. Fino acknowledged Dr. Sargent’s 1994 diagnosis
of mild to moderate obstructive lung disease “due to previous
cigarette smoking and possible asthma,” but Dr. Fino observed that
“clinical obstructive lung disease requiring treatment with
bronchodilators was clearly not present in the 1980s when this
man’s lung function was normal.” (J.A. 80). According to Dr.
Fino, Lester developed chronic obstructive pulmonary disease with
bronchospasm long after he left coal mine employment.
Consequently, Dr. Fino found that Lester’s pulmonary disease could
not be attributable to coal dust inhalation. Rather, he opined
that Lester must have developed asthma.
C
In his decision, the ALJ concluded that Four L failed to rebut
the Doris Coal presumption and that the DOL carried its burden of
proof. In finding that Four L failed to rebut the Doris Coal
presumption, the ALJ found Dr. Fino’s opinion to be inadequate.
The ALJ discredited Dr. Fino’s opinion because he failed to
indicate how Lester’s disabling pneumoconiosis manifested itself.
Moreover, the ALJ discredited Dr. Fino’s opinion because his
conclusion, that the pulmonary conditions complained of by Lester
in 1994 could not have been the result of coal dust exposure
because Lester left coal mine employment in 1976, was inconsistent
- 9 -
with 20 C.F.R. § 718.201(c), which notes that pneumoconiosis is
recognized as a latent and progressive disease which may first
become detectable only after cessation of coal dust exposure. In
rendering his decision, the ALJ found that the criminal convictions
of Drs. Baxter, Berry, and Modi did not necessarily render
fraudulent the treatment they provided. The ALJ reasoned that, in
1994, Dr. Sargent had diagnosed Lester as suffering from a
pulmonary impairment of undetermined etiology and that his opinion
lent credence to the diagnoses and treatment provided by the three
other physicians.
In our view, the ALJ correctly concluded that Four L failed to
meet its evidentiary burden under the Doris Coal presumption. The
ALJ understandably was troubled by the fact that, although Dr. Fino
acknowledged that Lester was totally disabled by pneumoconiosis
(the premise of Lester’s medical benefits award), Dr. Fino
identified no physical manifestations of this disability.
Moreover, the ALJ rightfully was troubled by Dr. Fino’s opinion
because his opinion was based in part on the flawed premise that a
miner with no apparent pulmonary impairment upon leaving the coal
mines could never thereafter develop a coal dust related
impairment. We have consistently recognized that little weight
should be given to medical findings that conflict with the
implementing regulations of the Black Lung Benefits Act (BLBA),
which recognize that clinically disabling pneumoconiosis is a
- 10 -
“‘progressive disease.’” Lewis Coal Co., 373 F.3d at 580 (quoting
20 C.F.R. § 718.201(c)); see also Roberts & Schaefer Co. v. DOWCP,
400 F.3d 992, 999 (7th Cir. 2005) (affirming the ALJ’s decision to
discount the doctor’s opinion because it conflicted with
“§ 718.201(c)’s recognition that pneumoconiosis can be latent and
progressive”).5
D
Four L also argues that the Doris Coal presumption is no
longer good law in light of the Supreme Court’s decisions in Black
& Decker Disability Plan v. Nord, 538 U.S. 822 (2003), Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81 (2002), and DOWCP v.
Greenwich Collieries, 512 U.S. 267 (1994). We disagree.
Initially, it should be noted that we have applied the Doris
Coal presumption after the Supreme Court decided Nord, Ragsdale,
and Greenwich Collieries. See Lewis Coal Co., 373 F.3d at 576-80.
In any event, an analysis of these cases makes their
inapplicability pellucid.
In Nord, the Court declined to extend to ERISA benefits claims
the treating physician rule applicable in Social Security cases,
under which deference is due to the opinion of a claimant’s regular
5
We also note that, in finding in favor of the DOL, the ALJ
correctly placed the ultimate burden of persuasion on the DOL. In
holding that the DOL met its burden of proof, the ALJ decided to
credit Dr. Sherman’s opinion over that of Dr. Fino’s, and we
certainly cannot say that the ALJ erred in this regard.
- 11 -
treating physician. 538 U.S. at 831-34. Initially, the Court
noted that no agency deference was required because the Secretary
of Labor opposed the application of the treating physician rule to
ERISA benefits claims. Id. at 831-32. The Court next observed
that whether a treating physician rule would increase the accuracy
of ERISA determinations was a question for the “Legislature or
superintending administrative agency” because “[i]ntelligent
resolution of the question . . . might be aided by empirical
investigation of the kind courts are ill equipped to conduct.” Id.
at 832. Finally, the Court relied on the “critical differences”
between the Social Security disability program and ERISA benefits
plans. Id. The Court noted that the former involves an
obligatory, nationwide program and the latter involves a company’s
voluntary establishment of an ERISA benefits plan. Id. at 833.
Understandably, the Court stressed the need to give plan
administrators the most flexibility possible because a claim for
ERISA benefits will likely turn on the interpretation of the terms
of the ERISA benefits plan. Id. In contrast, an ALJ applies
uniform federal criteria in adjudicating a social security
disability claim, so the need for flexibility was not evident. Id.Moreover, in contrast to ERISA, the treating physician rule grew
out of the need to administer a large benefits program efficiently
and fostered “uniformity and regularity in Social Security benefits
- 12 -
determinations made in the first instance by a corps of
administrative law judges.” Id.Nord is of no help to Four L. Unlike the ERISA benefits plans
at issue in Nord, we see no need to give ALJs in the black lung
medical benefits context greater flexibility to adjudicate claims.
This certainly would not foster “uniformity and regularity” in the
administration of these claims in which a uniform set of federal
criteria is applied. Furthermore, unlike Nord, the administrative
agency, here the DOL, supports the Doris Coal presumption.
Finally, we do not agree with Four L’s position that we are
“ill-equipped” to engage in the kind of “empirical investigation
necessary to validate” the Doris Coal presumption. Petitioner’s
Br. at 28. As we noted in Ling, the threshold creating entitlement
to black lung medical “benefits--that the pulmonary condition
treated be merely aggravated by the miner’s pneumoconiosis--is low
enough to permit a rational conclusion that a particular
respiratory infirmity will likely be covered.” 176 F.3d at 233.
In Ragsdale, after taking thirty weeks of leave to recover
from cancer, the employee requested additional leave. 535 U.S. at
84-85. Her employer denied the request for an extension and fired
her after she failed to return to work. Id. at 85. Because her
employer had never notified her that twelve weeks of absence would
count as her Family Medical Leave Act (FMLA) leave, the employee
subsequently sued under the FMLA, alleging that as the result of
- 13 -
her employer’s failure to comply with certain DOL regulations she
was entitled to twelve weeks of FMLA leave in addition to the
thirty weeks she had already taken. Id. The specific provision
the employee relied on was 29 C.F.R. § 825.700(a), which provided
that, “[i]f an employee takes paid or unpaid leave and the employer
does not designate the leave as FMLA leave, the leave taken does
not count against an employee’s FMLA entitlement.” The Supreme
Court invalidated 29 C.F.R. § 825.700(a), holding that the
regulation “effects an impermissible alteration of the statutory
framework.” Ragsdale, 535 U.S. at 96. In so ruling, the Court
noted that 29 C.F.R. § 825.700(a) automatically required an
employer to give an employee an additional twelve weeks of leave in
the event the employer failed to comply with the notice
regulations, whether or not the employee was able to prove “any
real impairment of their rights and resulting prejudice[,]” thus,
fundamentally altering the FMLA cause of action. Ragsdale, 535
U.S. at 90. The Court further reasoned that mandating additional
leave in the event of a notice violation even if the employee
suffered no harm “amends the FMLA’s most fundamental substantive
guarantee--the employee’s entitlement to ‘a total of 12 workweeks
of leave in any 12-month period.’” Id. at 93 (quoting 29 U.S.C.
§ 2612(a)(1)). The Court thus affirmed summary judgment in favor
of the employer, finding that the employee’s FMLA rights were not
prejudiced by the lack of notice, Ragsdale, 535 U.S. at 90, and
- 14 -
that the FMLA guaranteed the employee only twelve weeks of leave,
not twelve weeks in addition to the thirty she had already taken.
Ragsdale, 535 U.S. at 96.
In our case, the Doris Coal presumption has none of the
deficiencies the Court found in the Ragsdale regulation. Most
importantly, the Doris Coal presumption is rebuttable. Once the
employer marshals credible rebuttal evidence that the treated
pulmonary problem is not related to the miner’s pneumoconiosis, the
presumption evaporates. Further, the Doris Coal presumption does
not alter the remedial scheme in a manner contrary to the BLBA.
Consistent with the BLBA, the burden of persuasion remains at all
times with the miner. Lewis Coal Co., 373 F.3d at 575.
Turning to the Supreme Court’s decision in Greenwich
Collieries, we have specifically rejected the argument that the
Doris Coal presumption is no longer good law in light of the
Court’s decision in Greenwich Collieries, where the Court held that
the DOL’s true doubt rule, which required an ALJ to find in favor
of the claimant when the evidence was evenly balanced, violated § 7
of the Administrative Procedures Act. See Ling, 176 F.3d at 234(“In as much as the presumption does not shift the burden of proof
in medical benefit cases from the claimant to the party opposing
the claim, it is not contrary to the Supreme Court’s decision in
Greenwich Collieries.”). Obviously, as a panel of this court, we
have no authority to overrule a prior panel’s decision; only an en
- 15 -
banc court has such authority. Jones v. Angelone, 94 F.3d 900, 905
(4th Cir. 1996).
III
For the reasons stated herein, the petition for review is
denied.
PETITION DENIED
- 16 -