Gulley v. Director, Office of Workers' Compensation Programs ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-1427 & 04-1645
EVALENE GULLEY,
Petitioner/
Cross-Respondent,
v.
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
Respondent,
and
SAHARA COAL TRUST,
Respondent/
Cross-Petitioner.
____________
On Petition for Review of a Decision and Order of the
Benefits Review Board, United States Department of Labor.
BRB No. 03-BLA-123
____________
SUBMITTED DECEMBER 6, 20041—DECIDED FEBRUARY 8, 2005
____________
Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.
1
On December 1, 2004, we granted a motion to waive oral
argument. The case, therefore, is decided on the briefs and the
record.
2 Nos. 04-1427 & 04-1645
EVANS, Circuit Judge. In October of 1976, blindness
forced Denzle Gulley to stop working as a coal miner for the
Sahara Coal Company. In 1977 he sought to recover
disability benefits for black lung disease, also known as
pneumoconiosis, under the Black Lung Benefits Act, 30
U.S.C. §§ 901-945. Unfortunately, as is often the case,
Gulley’s petition for benefits survived him—he died in 1990.
An administrative law judge (ALJ) eventually awarded
benefits to Gulley’s widow, Evalene, who we refer to by
her first name as we move along. The award was then
set aside by the Benefits Review Board of the Department
of Labor (the Board). Evalene appeals from that determina-
tion.
Before addressing the merits, a procedural note. After
Evalene filed her petition for review, Sahara filed its own
separate cross-appeal. But § 921 of the Longshore and
Harbor Workers’ Compensation Act, 33 U.S.C. § 921(c),
incorporated by reference in the Black Lung Benefits Act,
30 U.S.C. § 932(a), authorizes a party to petition for re-
view only if it is “adversely affected or aggrieved by a final
order of the Board . . . .” Because Sahara was not injured by
the Board’s order, which overturned an award of benefits,
Sahara cannot seek our review. See Bath Iron Works Corp.
v. Coulombe, 888 F.2d 179, 180 (1st Cir. 1989) (per curiam).
Accordingly, we dismiss Sahara’s cross-petition for review,
no. 04-1645, for lack of jurisdiction.
Gulley was a miner for 18 years. In 1976 he was blinded
by a work-related accident, forcing him to retire at the
age of 50. As a result of his condition, Gulley received social
security disability benefits. He filed a claim for black lung
benefits in 1977.
Proceedings on Gulley’s claim traveled a tortuous proce-
dural route. Gulley’s petition was initially denied, followed
by a confounding, 18-year administrative quagmire of
motions and orders. Eventually, a third presiding ALJ
Nos. 04-1427 & 04-1645 3
granted a request for modification and awarded Evalene
survivor’s benefits based on a change in conditions under 20
C.F.R. § 725.310 (2004). The Board reversed that decision.
On remand, the ALJ awarded Evalene benefits under the
“interim presumption” regulatory scheme previously set
forth in 20 C.F.R. § 727.203 (2000). See Freeman United
Coal Mining Co. v. Foster, 30 F.3d 834, 835-36 (7th Cir.
1994). The ALJ concluded that Gulley established a pre-
sumption that he was totally disabled by pneumoconiosis
based on his 18 years in the mine and an arterial blood gas
result taken in 1984 that revealed a disabling pulmonary
condition. See 20 C.F.R. § 727.203(a)(3) (2000). Further, she
concluded that Sahara failed to rebut the interim presump-
tion. See id. § 727.203(b). The Board again reversed,
concluding that Sahara rebutted the interim presumption
as a matter of law under § 727.203(b)(3) by establishing
that Gulley’s presumed black lung disease did not contrib-
ute to his disability from blindness. See Peabody Coal Co. v.
Vigna, 22 F.3d 1388, 1395 (7th Cir. 1994). Nevertheless, the
Board remanded, instructing the ALJ to consider whether
Gulley established eligibility for benefits under the perma-
nent eligibility regulations found in 20 C.F.R. § 718 (2004).
See id. § 727.203(d) (claimant who fails to establish eligibil-
ity under interim presumption scheme may do so under
§ 718); Strike v. Director, OWCP, 817 F.2d 395, 399 (7th Cir.
1987).
In September of 2002, the fourth ALJ to consider the
petition again awarded benefits. He concluded that Gulley’s
18 years in a mine, two positive chest X-rays (one from June
of 1977, the other from April of 1982), and the positive
arterial blood gas test result, created a presumption that he
was totally disabled by pneumoconiosis under § 718.305(a)
(2004). The ALJ further concluded that Sahara failed to
rebut the presumption and accordingly awarded benefits
retroactive to May of 1977. The Board reversed. Citing
Foster, Vigna, and Kennellis Energies, Inc. v. Hallmark, 333
4 Nos. 04-1427 & 04-1645
F.3d 822, 829 (7th Cir. 2003), it concluded that recovery was
precluded because Gulley was totally disabled by a condi-
tion other than pneumoconiosis:
In this case, the record indicates that the miner
became totally disabled by blindness on or about
October 22, 1976. The record contains no evidence
establishing a nexus between the miner’s presumed
condition as of July of 1984 based upon the arterial
blood gas study, and his total disability which occurred
in 1976. Because the record demonstrates that the
miner’s total disability was caused by blindness in
1976, prior to his presumed total disability due to
pneumoconiosis, entitlement is precluded as a matter of
law.
(Citations omitted.) The Board later denied Evalene’s
request for reconsideration.
In black lung benefits cases, we review the ALJ decision,
not the Board’s, to ensure that it is rational, supported
by substantial evidence, and consistent with governing law.
Peabody Coal Co. v. Estate of Goodloe, 299 F.3d 666, 670
(7th Cir. 2002). This is true even where the Board
has overturned the ALJ decision. Lovilia Coal Co. v.
Williams, 143 F.3d 317, 322 (7th Cir. 1998). If the ALJ
decision is supported by substantial evidence and in
accordance with the law, we must reverse the Board’s
decision even if that decision is itself supported by substan-
tial evidence. Old Ben Coal Co. v. Prewitt, 755 F.2d 588, 589
(7th Cir. 1985). Though we defer to the ALJ’s factual
determinations, we review questions of law de novo. Zeigler
Coal Co. v. Director, OWCP, 326 F.3d 894, 897 (7th Cir.
2003).
On appeal, Evalene urges that the ALJ got it right by
concluding that Gulley was still eligible for black lung
benefits under §§ 727 and 718 despite his disabling blind-
ness. We do not agree. The interim regulations promulgated
in former § 727.203 (2000) apply because Gulley’s petition
Nos. 04-1427 & 04-1645 5
was filed between July 1, 1973, and April 1, 1980. Zeigler
Coal Co. v. Kelley, 112 F.3d 839, 842 (7th Cir. 1997); Old
Ben Coal Co. v. Director, OWCP, 62 F.3d 1003, 1007 (7th
Cir. 1995); Foster, 30 F.3d at 835; Vigna, 22 F.3d at 1393;
Old Ben Coal Co. v. Battram, 7 F.3d 1273, 1275 (7th Cir.
1993). Under these interim regulations, Gulley cannot
recover benefits if he was totally disabled by an unrelated,
nonpulmonary condition notwithstanding his probable
pneumoconiosis. See Foster, 30 F.3d at 839; Vigna, 22 F.3d
at 1395; Patrich v. Old Ben Coal Co., 926 F.2d 1482, 1489
(7th Cir. 1991). And it is undisputed that Gulley was forced
to stop working because of blindness, not black lung
disease; therefore, recovery is precluded under
§ 727.203(b)(3).
Evalene cannot prevail under the permanent eligibility
regulations contained in § 718 for the same reason. The
standard for rebutting the presumption that pneumoconio-
sis caused a miner’s disability under that regulation mirrors
that of § 727.203. See Kennellis Energies, 333 F.3d at 839
(applying Vigna to § 718 analysis); Patrich, 926 F.2d at
1490 (rebuttal standards are the same under §§ 718.305(a)
and 727.203). That is, if another ailment, unrelated to coal
dust exposure, caused the disability, the claimant cannot
recover black lung benefits. And here, blindness was the
sole cause of Gulley’s disability— his presumed pneumoco-
niosis played no role in his inability to work, which pre-
cludes recovery under § 718. Patrich, 926 F.2d at 1490; see
also Shelton v. Director, OWCP, 899 F.2d 690, 693 (7th Cir.
1990) (pneumoconiosis must be necessary condition for
miner’s disability under § 718).
Evalene argues that she was entitled to benefits under an
amended version of § 718.204(a), which became effective in
January of 2001, and under this court’s recent decision in
Midland Coal Co. v. Director, OWCP, 358 F.3d 486 (7th Cir.
2004). Under § 718.204(a), black lung benefits may be
awarded based only on whether the miner was totally
6 Nos. 04-1427 & 04-1645
disabled by pneumoconiosis, without regard to any other
nonpulmonary condition that may have left him otherwise
disabled. See Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d
849, 864 (D.C. Cir. 2002). Thus, this new regulation ex-
cludes all evidence of nonpulmonary or nonrespiratory
disease in making the disability determination. See Mid-
land Coal, 358 F.3d at 495. If this new regulation applies,
Gulley’s blindness would not preclude an award of black
lung benefits. Kennellis Energies, 333 F.3d at 829. But as
the Board correctly noted, § 718.204(a) does not apply in
this case. The Department of Labor made this clear by
specifying that the amended regulation applies only to
claims filed after January 19, 2001. See 20 C.F.R. § 718.2(2004); 68 Fed. Reg. 69935 (Dec. 15, 2003).
Evalene also cannot prevail under Midland Coal. In
that case, we analyzed a petition under § 718 and con-
cluded, among other things, that a miner is entitled to
benefits if he “suffers from multiple conditions, including
those related to exposure to coal dust and those that are
not, that are each independently sufficient to render the
miner totally disabled.” Midland Coal, 358 F.3d at 496.
Evalene claims that Gulley suffered from two independent
disabilities, blindness and pneumoconiosis, and that the
former does not preclude recovery for the latter under
this case. The problem with this contention is that there
is no evidence that Gulley’s presumed pneumoconiosis
played any factor in his inability to work. As the Board
correctly noted, Gulley’s disability was caused solely
by blindness; it is undisputed that exposure to coal dust
played no role in his leaving work after his accident in 1976.
Accordingly, we AFFIRM the Board’s judgment in case no.
04-1427 and DISMISS the appeal in no. 04-1645.
Nos. 04-1427 & 04-1645 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-8-05