Kanawha Coal Co. v. Director, Office of Workers' Compensation Programs

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2566
KANAWHA COAL COMPANY,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; MARTHA M. KUHN,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(12-0081-BLA)
Submitted: August 30, 2013 Decided: September 11, 2013
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Mark J. Grigoraci, ROBINSON & MCELWEE PLLC, Charleston, West
Virginia, for Petitioner. Timothy C. MacDonnell, WASHINGTON &
LEE UNIVERSITY SCHOOL OF LAW, Lexington, Virginia; M. Patricia
Smith, Solicitor of Labor, Rae Ellen Frank James, Associate
Solicitor, Sean G. Bajkowski, Counsel for Appellate Litigation,
Jeffrey S. Goldberg, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kanawha Coal Company (“Employer”) petitions for review
of the Benefits Review Board’s (“Board”) decision and order
affirming the administrative law judge’s (“ALJ”) grant of living
miner benefits to former employee Richard P. Kuhn 1 under the
Black Lung Benefits Act (“Act”), 30 U.S.C.A. §§ 901-945 (West
2007 & Supp. 2013). We deny the petition for review.
We review the BRB’s and the ALJ’s legal conclusions de
novo and “independent[ly] review . . . the record to determine
whether the ALJ’s findings of fact were supported by substantial
evidence.” Island Creek Coal Co. v. Compton, 211 F.3d 203, 207-
08 (4th Cir. 2000) (internal quotation marks omitted). Subject
to the substantial evidence requirement, we defer to the ALJ’s
credibility determinations and “evaluation of the proper weight
to accord conflicting medical opinions.” Harman Mining Co. v.
Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 310 (4th
Cir. 2012) (internal quotation marks omitted). The ALJ is not
bound to accept any medical expert opinion but “must evaluate
the evidence, weigh it, and draw [her] own conclusions,” giving
consideration to “the qualifications of the experts, the
opinions’ reasoning, their reliance on objectively determinable
1
Kuhn died on February 7, 2013. We granted counsel’s
motion to substitute Kuhn’s widow, Martha M. Kuhn, as a party to
this living miner claim.
2
symptoms and established science, their detail of analysis, and
their freedom from irrelevant distractions and prejudices.”
Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949, 951 (4th
Cir. 1997), superseded on other grounds as stated in Elm Grove
Coal Co. v. Dir., Office of Workers’ Comp. Programs, 480 F.3d
278, 287 (4th Cir. 2007).
Employer first contends that the ALJ erroneously found
that Kuhn was entitled to the rebuttable presumption,
resurrected by the Patient Protection and Affordable Care Act
(PPACA), Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260 (2010),
that he is totally disabled due to pneumoconiosis. 2
Specifically, Employer argues that the ALJ failed to establish
that the conditions of Kuhn’s above ground employment were
substantially similar to the work conditions in an underground
mine. In response, the Director of the Office of Workers’
Compensation Programs (“Director”) states that the Department of
2
Section 1556 of the PPACA, 124 Stat. at 260, amends the
Act by restoring the “fifteen-year presumption” contained in
Section 411(c)(4) of the Act, 30 U.S.C.A. § 921(c)(4). The
presumption provides that if a miner has been employed in an
underground coal mine for fifteen years or more, and if other
evidence demonstrates that he has “a totally disabling
respiratory or pulmonary impairment,” he is entitled to a
rebuttable presumption that he is totally disabled due to
pneumoconiosis. 30 U.S.C.A. § 921(c)(4). The renewed fifteen-
year presumption applies to claims filed under parts B and C of
the Act after January 1, 2005, that are pending after the
effective date of the PPACA, March 23, 2010. 124 Stat. at 260,
§ 1556(c).
3
Labor (“DOL”) interprets the regulations to include Kuhn’s above
ground duties as work in an “underground coal mine” and,
therefore, Kuhn was not required to prove that his work
conditions were substantially similar to the work conditions in
an underground mine.
If a miner was employed in underground coal mines for
fifteen or more years, has had a chest x-ray interpreted as
negative for complicated pneumoconiosis, and demonstrates that
he has a totally disabling respiratory or pulmonary impairment,
he is entitled to a rebuttable presumption that he is totally
disabled due to pneumoconiosis (“fifteen-year presumption”). 30
U.S.C.A. § 921(c)(4); 20 C.F.R. § 718.305(a) (2013). The term
“underground coal mine” is not defined in the Act. See 30
U.S.C. § 802(h)(2) (2006) (defining “coal mine”). The
regulations governing the Act define an underground coal mine as
“a coal mine in which the earth and other materials which lie
above and around the natural deposit of coal (i.e., overburden)
are not removed in mining; including all land, structures,
facilities, machinery, tools, equipment, shafts, slopes,
tunnels, excavations and other property, real or personal,
appurtenant thereto.” 20 C.F.R. § 725.101(a)(30) (2013).
Because Congress has expressly delegated to the
Secretary of Labor the authority to promulgate regulations to
carry out the provisions of the Act, see 30 U.S.C. § 936(a)
4
(2006), we must defer to the DOL’s “interpretation of ambiguous
provisions of the statutes it is authorized to implement.”
Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696 (1991); see
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 844 (1984) (“We have long recognized that considerable
weight should be accorded to an executive department’s
construction of a statutory scheme it is entrusted to administer
. . . .” (footnote omitted)). When, as here, “Congress has not
directly addressed the precise question at issue,” Chevron, 467
U.S. at 843, we will give the DOL’s regulations “controlling
weight unless they are arbitrary, capricious, or manifestly
contrary to the statute.” Id. at 844.
We conclude that the DOL’s definition of the term
“underground coal mine” in the regulations to the Act is not
arbitrary, capricious, or manifestly contrary to the Act.
Employer does not dispute the ALJ’s determination of the length
of Kuhn’s coal mine employment or her conclusion that Kuhn’s
above ground work with Employer was carried out at an
underground mine site. Thus, we conclude that, because Kuhn’s
work with Employer was at an underground mine, the ALJ properly
found that Kuhn’s above ground work was qualifying employment
for purposes of the fifteen-year presumption. Accordingly,
5
because all of the requirements of § 718.305(a) were met, 3 the
ALJ correctly determined that Kuhn is entitled to the rebuttable
presumption that he was totally disabled due to pneumoconiosis.
See 30 U.S.C.A. § 921(c)(4); 20 C.F.R. § 718.305(a).
Once the miner has established his entitlement to the
fifteen-year presumption, an employer “may rebut such
presumption only by establishing that (A) [the] miner does not,
or did not, have pneumoconiosis, or that (B) his respiratory or
pulmonary impairment did not arise out of, or in connection
with, employment in a coal mine.” 30 U.S.C.A. § 921(c)(4); see
20 C.F.R. § 718.305(a) (2013); Morrison v. Tenn. Consol. Coal
Co., 644 F.3d 473, 479-80 (6th Cir. 2011).
Employer contends that the ALJ erred in her decision
to discredit its expert physicians’ opinions, whose testimony
and medical opinions were offered to rebut the fifteen-year
presumption afforded to Kuhn. It is the ALJ’s responsibility to
make credibility determinations. Harman Mining, 678 F.3d at
310. In this case, the ALJ discredited Employers’ physicians as
to whether Kuhn suffered from legal pneumoconiosis because Dr.
George Zaldivar did not adequately explain why Kuhn’s coal dust
exposure did not contribute to his totally disabling respiratory
3
All of the x-ray evidence was negative for complicated
pneumoconiosis and Employer concedes that Kuhn suffered from a
totally disabling pulmonary impairment.
6
impairment and Dr. John Bellotte did not adequately account for
Kuhn’s level of dust exposure while working above ground. We
conclude that the ALJ’s decision to discredit Employer’s experts
on the issue of legal pneumoconiosis was supported by
substantial evidence.
Moreover, because the ALJ did not find Employer’s
physicians credible on the issue of legal pneumoconiosis, she
could not credit their opinions on the causation of total
disability absent “specific and persuasive reasons for
concluding that the doctor[s’] judgment on the question of
disability causation does not rest upon [their] disagreement
with the ALJ’s finding.” Toler v. E. Assoc. Coal Co., 43 F.3d
109, 116 (4th Cir. 1995). Thus, we conclude that the ALJ did
not err in finding that Employer failed to rebut the fifteen-
year presumption afforded to Kuhn. See 30 U.S.C.A. § 921(c)(4);
20 C.F.R. § 718.305(a).
Accordingly, we deny Employer’s petition for review.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
7