FILED
United States Court of Appeals
Tenth Circuit
February 20, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ENERGY WEST MINING
COMPANY,
Petitioner,
v.
No. 07-9588
JOHN OLIVER; OFFICE OF
WORKERS’ COMPENSATION
PROGRAMS,
Respondents.
Petition for Review
From the Benefits Review Board
(BRB No. 07-0123-BLA)
William S. Mattingly, of Jackson Kelly, PLLC, Morgantown, West Virginia, for
Petitioner.
Martin J. Linnet (Jonathan Wilderman with him on the brief), of Wilderman &
Linnet, P.C., Denver, Colorado, for Respondent John Oliver.
Helen H. Cox, Attorney (Gregory F. Jacob, Solicitor of Labor; Rae Ellen James,
Acting Associate Solicitor; and Patricia M. Nece, Counsel for Appellate
Litigation, with her on the brief), U.S. Department of Labor, Washington, D.C.,
for Respondent Office of Workers’ Compensation Programs.
Before McCONNELL, EBEL, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge.
This is a petition to review the judgment of the Department of Labor’s
Benefits Review Board. The Board upheld retired miner John Oliver’s claim to
black lung benefits from his longtime employer, Energy West Mining Company.
Energy West’s petition asserts two grounds for relief. First, it claims the Board’s
benefits award is not supported by substantial evidence. Second, Energy West
argues that its liability to Mr. Oliver should be transferred to the Black Lung
Disability Trust Fund—that is, to the government—because the government
destroyed the records associated with a prior claim filed by Mr. Oliver in 1980.
The company argues that the destruction of these records deprived it of a fair
opportunity to defend Mr. Oliver’s present claim, in violation of the Due Process
Clause. After careful review, we deny the petition in both respects.
I
A
The Black Lung Benefits Act (“BLBA” or “Act”), 30 U.S.C. § 901 et seq.,
compensates coal miners who become totally disabled after contracting
pneumoconiosis, or black lung disease, on the job. The Act defines
pneumoconiosis as “a chronic dust disease of the lung and its sequelae, including
respiratory and pulmonary impairments, arising out of coal mining employment.”
30 U.S.C. § 902(b). It is caused by inhaling coal dust into the lungs over a long
period, and “encompasses a cruel set of conditions that afflict a significant
-2-
percentage of the nation’s coal miners with ‘severe, and frequently crippling,
chronic respiratory impairment.’” Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d
849, 854 (D.C. Cir. 2002) (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S.
1, 6 (1976)). Black lung benefits are normally paid by a miner’s employer, id.;
30 U.S.C. § 932, but if no employer is held responsible, the claim is paid from the
Black Lung Disability Trust Fund (“Black Lung Trust”) administered by the
government, Nat’l Mining Ass’n, 292 F.3d at 854.
To obtain benefits under the Act, a miner must demonstrate that he satisfies
three conditions: (1) he or she suffers from pneumoconiosis; (2) the
pneumoconiosis arose out of coal mining employment; and (3) the
pneumoconiosis is totally disabling. Wyoming Fuel Co. v. Dir., OWCP, 90 F.3d
1502, 1505 (10th Cir. 1996); 30 U.S.C. § 901(a); 20 C.F.R. §§ 718.201-04. The
miner must initially file a claim with a district director of the Office of Workers’
Compensation Programs (“OWCP”). Either side may appeal the district director’s
decision to an administrative law judge (“ALJ”), then to the Board of Benefits
Review, and finally to the court of appeals for the circuit in which the miner’s
injury occurred. Nat’l Mining Ass’n, 292 F.3d at 854; 33 U.S.C. § 921(c), as
incorporated by the BLBA at 30 U.S.C. § 932(a); 20 C.F.R. §§ 725.481-82.
B
Mr. Oliver began his mining career with Energy West in 1967. Over the
course of some twenty-five years, he worked at two of Energy West’s Utah coal
-3-
mines. At various times, he worked as a shuttle car operator, a belt man, and
finally a bath house attendant. All of these activities exposed him to coal dust.
Mr. Oliver was also exposed to dust (though not of the coal variety) through his
work as a cattle rancher. He now suffers from chronic obstructive pulmonary
disease (“COPD”), a progressive and debilitating narrowing of the airways. Mr.
Oliver now experiences shortness of breath, coughing fits, and difficulty lifting
things. He is on continuous oxygen treatment.
Though COPD is not one of the diseases doctors call pneumoconiosis, it
can nevertheless qualify under the legal definition of the term if it arises out of
coal mining employment. A longstanding interpretation of the BLBA recognizes
that Congress intended to compensate miners for “a broader class of lung diseases
that are not pneumoconiosis as that term is used by the medical community.”
Andersen v. Dir., OWCP, 455 F.3d 1102, 1103-04 & n.2 (10th Cir. 2006); see also
Gulf & Western Indus. v. Ling, 176 F.3d 226, 231-32 (4th Cir. 1999). As we
noted in Andersen, the Labor Department codified this interpretation at 20 C.F.R.
§ 718.201(a). The regulation defines “legal” pneumoconiosis to encompass “any
chronic lung disease or impairment and its sequelae,” including “any chronic
restrictive or obstructive pulmonary disease arising out of coal mine
employment.” 20 C.F.R. § 718.201(a)(2); see also Andersen, 455 F.3d at 1104.
COPD arises out of coal mining employment if it is “significantly related to, or
substantially aggravated by, dust exposure in coal mine employment.” 20 C.F.R.
-4-
§ 718.201(b). Because COPD is most frequently caused by cigarette smoking and
is commonly found among the general population, we have held that a miner
whose claim to black lung benefits is based on COPD is not entitled to the
ordinary rebuttable presumption that his or her disease arose out of coal mining
employment provided he worked in the mines for at least ten years. Andersen,
455 F.3d at 1104, 1106-07; cf. 30 U.S.C. § 921(c); 20 C.F.R. § 718.203(b)
(establishing presumption).
Mr. Oliver filed his first claim for black lung benefits in 1980. Because
OWCP destroyed the records associated with that claim in 1999 pursuant to its
record-retention policy, we know very little about the claim’s adjudication aside
from the fact that it was denied. A memo left in place of the file suggests that,
while Mr. Oliver had established the first two elements of his claim
(pneumoconiosis arising out of coal mining employment), the claim was denied
because he failed to show he was totally disabled in 1980. Following the denial
of his original claim, Mr. Oliver continued to perform mining work for Energy
West until his retirement in 1993.
Mr. Oliver filed his present claim for benefits in 2002. Because it follows
a prior denial, it is a “subsequent claim” that must also be denied “unless the
claimant demonstrates that one of the applicable conditions of entitlement has
changed since the date upon which the order denying the prior claim became
final.” 20 C.F.R. § 725.309(d) (citations omitted). Under the applicable
-5-
regulations, the adjudication of a subsequent claim is subject to special
procedures. First, “any evidence submitted in connection with any prior claim
shall be made a part of the record in the subsequent claim.” § 725.309(d)(1).
Then, limiting the inquiry to those conditions of entitlement on which the prior
denial was actually based, § 725.309(d)(2), if the reason for the denial relates to
the miner’s physical condition, the subsequent claim may be approved only “if
new evidence submitted in connection with the subsequent claim establishes at
least one applicable condition of entitlement,” § 725.309(d)(3). Once the
claimant establishes one of the previously denied elements solely on the basis of
new evidence, any prior findings on the remaining elements are deprived of
preclusive effect. § 725.309(d)(4). Finally, if the claimant prevails, his or her
benefits are limited to the period after the prior claim was denied.
§ 725.309(d)(5).
The destruction of Mr. Oliver’s 1980 claim file threw a wrench into these
procedures. Because OWCP destroyed it, the evidence associated with the prior
claim was not made a part of the record as § 725.309(d)(1) requires. As a result,
both sides were deprived of whatever support that evidence might have lent them
with respect to two of the three elements. Ordinarily, after establishing one of the
elements by new evidence alone, a claimant would be entitled to rely on both old
and new evidence to support the other two. Instead, Mr. Oliver was forced to
establish all three elements of his claim by new evidence rather than just one,
-6-
while Energy West was forced to defend all three elements without the ability to
counter or impeach new evidence with old.
In a hearing before the ALJ, each side pressed its case on the basis of
expert medical testimony. Though the regulations establish four possible methods
of proving a black lung claim—X-rays, a biopsy, applicable legal presumptions,
and a physician’s diagnosis based on “objective medical evidence” and
“supported by a reasoned medical opinion,” 20 C.F.R. § 718.202(a)—the ALJ
found that Mr. Oliver could not prove his case by any of the first three methods.
As a result, his proof consisted of the testimony of three doctors: Dr. Morgan, his
treating physician, and Drs. Poitras and James. Energy West introduced rebuttal
opinions from two of its own experts, Drs. Farney and Fino.
In a thorough thirty-page opinion, the ALJ found Mr. Oliver’s experts more
credible than Energy West’s, placing particular reliance on the opinion of the
treating physician. On the issue of the first two elements—whether Mr. Oliver
had pneumoconiosis and whether it arose out of coal mining employment—the
ALJ credited the opinion of all three of Mr. Oliver’s doctors. She concluded that
Dr. James and Dr. Poitras offered well-reasoned, well-documented opinions that
were, importantly, “consistent with the opinion of [Mr. Oliver’s] treating
physician,” Dr. Morgan. ALJ Op. at 23-24. She also noted that, unlike most
COPD sufferers, Mr. Oliver has never been a smoker. Id. at 22. By contrast, Dr.
Farney’s conclusion for the company that Mr. Oliver’s exposure to coal dust had
-7-
been “quite minimal” was “simply not credible.” Both Mr. Oliver and a co-
worker, Mr. McElprang, gave “credible and convincing” descriptions of Mr.
Oliver’s job site as a place filled with coal dust. Mr. McElprang testified that
“the bath house was a filthy place and that coal dust was everywhere,” and that in
the mines themselves, “it was so dusty that the mine operator could not see the
shuttle car by the time it was loaded with coal.” Id. at 24. The ALJ similarly
accorded “less weight” to Dr. Fino’s opinion that Mr. Oliver suffered from asthma
(not pneumoconiosis) because Dr. Fino never examined Mr. Oliver, but instead
based his opinion solely on medical records; his opinion, moreover, conflicted
with those of the other physicians, none of whom diagnosed Mr. Oliver with
asthma. Id. at 24-25.
On the issue of total disability, the ALJ credited two of Mr. Oliver’s
physicians (Drs. Morgan and Poitras), and neither of the company’s. Dr. Farney’s
opinion was “not well-reasoned” and conflicted with some of the ALJ’s own
factual findings that Mr. Oliver’s job required moderate exertions with periods of
heavy labor. Id. at 27-28. And Dr. Fino’s opinion was similarly unpersuasive
because he argued that test results that qualify as disabling under the regulations
were in fact normal. Id. at 28. Chiefly on the basis of these credibility
determinations, the ALJ found in favor of Mr. Oliver on all elements of his claim,
and ordered Energy West to pay benefits.
-8-
The ALJ also rejected Energy West’s argument that the destruction of the
1980 claim file has the effect of depriving it of due process of law. Energy West
contended that it was fundamentally unfair for the government to order it to pay
benefits to Mr. Oliver when it was the government—OWCP—that failed in its
charge to preserve the 1980 file and produce it for use in this proceeding. Energy
West argued it should be excused as the responsible party because it was unable
to mount a meaningful defense, and liability for Mr. Oliver’s benefits should be
borne instead by the Black Lung Trust administered by OWCP. The ALJ
disagreed, holding that the lost file did not impair the fundamental fairness of the
proceedings.
On appeal, the Board of Benefits Review affirmed the ALJ in all respects.
This petition for review followed. Because Mr. Oliver’s injury allegedly occurred
in Utah, we have jurisdiction to review the Board’s decision. Broyles v. Dir.,
OWCP, 143 F.3d 1348, 1349 (10th Cir. 1998). We will first address its
conclusion that the benefits award was supported by substantial evidence, and
then turn to Energy West’s due process challenge.
II
“Our task is to determine whether the Board properly concluded that the
ALJ’s decision was supported by substantial evidence.” Hansen v. Dir., OWCP,
984 F.2d 364, 368 (10th Cir. 1993); Bd. Op. at 8. In making this assessment, we
will not reweigh the evidence considered by the agency, but only inquire into the
-9-
existence of evidence in the record that “a reasonable mind might accept as
adequate to support” its conclusion. Hansen, 984 F.2d at 368; Kaiser Steel Corp.
v. Dir., OWCP, 748 F.2d 1426, 1430 (10th Cir. 1984). We are especially mindful
that “the task of weighing conflicting medical evidence is within the sole
province of the ALJ,” Hansen, 984 F.2d at 368, and that “where medical
professionals are in disagreement, the trier of fact is in a unique position to
determine credibility and weigh the evidence,” id. at 370.
Given that standard, we have no trouble concluding that the Board’s
decision has adequate support. The company’s objections chiefly consist of
challenges to the ALJ’s credibility determinations. The most significant of these
is an objection to the ALJ’s special reliance on the opinion of the treating
physician, so we will clarify that the ALJ acted properly in this respect.
Labor Department regulations require an ALJ to perform a two-step inquiry
when considering the report of a claimant’s treating physician. First, the ALJ
must consider the extent of the physician’s familiarity with the claimant in light
of four factors: (1) the nature of the doctor-patient relationship, and specifically
whether the physician treated the claimant for respiratory or pulmonary
conditions, (2) the duration of the relationship, (3) the frequency of treatment,
and (4) the extent of treatment. 20 C.F.R. § 718.104(d). Second, if these factors
warrant, the ALJ may choose “to give that physician’s opinion controlling weight,
provided that the weight given to the opinion of a miner’s treating physician shall
-10-
also be based on the credibility of the physician’s opinion in light of its reasoning
and documentation, other relevant evidence and the record as a whole.” 20
C.F.R. § 718.104(d)(5).
The ALJ properly applied the regulatory framework to Dr. Morgan’s
opinion. First, the ALJ gave due consideration to the circumstances attending Dr.
Morgan’s report. Specifically, she found that Dr. Morgan had been Mr. Oliver’s
treating physician since 1995; that Dr. Morgan had treated Mr. Oliver for his
respiratory problems “on a frequent basis,” including caring for him during
hospitalization; and that, therefore, Dr. Morgan “was in a unique position to
render an opinion in this matter.” ALJ Op. at 23. On that basis, the ALJ made a
preliminary finding that if Dr. Morgan’s opinion proved credible, it “may be
entitled to a controlling weight.” Id. Energy West has not challenged the
accuracy of the ALJ’s findings with respect to the first prong of the § 718.104(d)
analysis. Then, though she ultimately declined to treat Dr. Morgan’s opinion as
controlling, the ALJ decided to accord it “great weight” because it appeared well-
reasoned, well-documented, and consistent with the record evidence. ALJ Op. at
23, 27, 29.
Energy West claims the decision to credit Dr. Morgan’s opinion lacks
adequate support because it was “equivocal.” Dr. Morgan recognized two
contributing causes to Mr. Oliver’s COPD: coal mine dust and dust exposure due
to cattle ranching. But as the Board explained, Mr. Oliver was not required to
-11-
establish that coal mine dust was the only cause of his COPD; it is enough that his
respiratory disease was “significantly related to, or substantially aggravated by”
mining exposure to coal dust. Cornett v. Benham Coal, Inc., 227 F.3d 569, 575
(6th Cir. 2000); 20 C.F.R. § 718.201(b). Dr. Morgan concluded Mr. Oliver’s
COPD was “significantly related to his dust exposure” in the coal mines, ALJ Op.
at 22, which is all the regulation requires. His opinion was therefore not
“equivocal” about the relevant legal question, and a reasonable mind could
certainly accept the ALJ’s decision to credit it. Given her preliminary findings
that Dr. Morgan had extensive experience treating Mr. Oliver for respiratory
disease, the ALJ’s decision to rely heavily on his credible opinion was consistent
with the regulations.
Energy West also appears to quarrel with the rationality of the treating
physician rule as such. The company complains that a physician’s opinion is only
as forceful as its “power to persuade.” Pet.’s Br. at 29. No doubt. But whether a
medical opinion is ultimately persuasive depends on the very factors enumerated
in the regulation: the nature and length of the doctor-patient relationship, the
frequency and extent of treatment, the reasoning and support contained in the
opinion, and the opinion’s consistency with other evidence. It is precisely the
object of § 718.104(d) to structure the ALJ’s credibility assessment by requiring
her to consider whether, in light of these factors, the treating physician’s opinion
really is persuasive after all. See Nat’l Mining Ass’n, 292 F.3d at 861-62. We
-12-
have long recognized the good sense of affording, in appropriate circumstances,
special deference to the opinion of the doctor most familiar with the patient,
Hansen, 984 F.2d at 368 (recognizing treating physician rule in this circuit, since
codified with some modifications by § 718.104(d)); Micheli v. Dir., OWCP, 846
F.2d 632, 636 (10th Cir. 1988) (same), though we of course agree with Energy
West that this deference must not be abject. Treating physicians’ opinions should
not “automatically be presumed to be correct.” Peabody Coal Co. v. Groves, 277
F.3d 829, 834 (6th Cir. 2002). But here, the ALJ’s deference to Dr. Morgan was
manifestly not abject: stopping short of treating his opinion as
dispositive—something the regulation contemplates, § 718.104(d)(5)—the ALJ
simply treated Dr. Morgan’s opinion as especially persuasive while considering
the merits of each expert’s report on each issue.
Having properly applied the treating physician rule, the ALJ was within her
rights to afford “great weight” to Dr. Morgan’s opinion. The rest of Energy
West’s potpourri of objections to the ALJ’s credibility determinations do not
warrant significant discussion. This court cannot substitute its assessment of the
credibility of experts for that of the ALJ, and thus cannot accept Energy West’s
invitation to reexamine the weight of the medical evidence supporting the ALJ’s
decision. Both the Board and the ALJ have shown their work. We therefore
sustain the ALJ’s findings for substantially the same reasons given by the Board
in its opinion.
-13-
III
We next turn to the company’s argument that it was deprived of due
process of law by being forced to litigate this case without the contents of Mr.
Oliver’s 1980 claim file. Pursuant to its record-retention policy, OWCP
destroyed the file nineteen years after it was closed, in 1999. Energy West
contends that, without the missing records, it was unable to mount a meaningful
defense to Mr. Oliver’s present claim. As a result, the company argues that the
agency cannot now require it to pay benefits to Mr. Oliver without violating the
Due Process Clause. It’s all the same to Mr. Oliver, though: if Energy West is
excused from liability, his claim will be paid from OWCP’s Black Lung Trust.
See Island Creek Coal Co. v. Holdman, 202 F.3d 873, 883-84 (6th Cir. 2000)
(agency’s failure to preserve records deprived employer of due process; liability
imposed on Black Lung Trust); Lane Hollow Coal Co. v. Dir.,OWCP, 137 F.3d
799, 807 (4th Cir. 1998) (agency’s excessive delay in giving notice to employer
of black lung claim rendered imposition of liability unfair). But because Energy
West cannot demonstrate prejudice resulting from the destruction of Mr. Oliver’s
1980 claim file, we are unable to agree that imposing liability on the company
would violate due process.
The Due Process Clause protects against the deprivation of life, liberty, or
property by fundamentally unfair or unreliable procedures. The government must
provide a litigant with “a fair opportunity to mount a meaningful defense to the
-14-
proposed deprivation of its property.” Consolidation Coal v. Borda, 171 F.3d
175, 183 (4th Cir. 1999) (quoting Lane Hollow, 137 F.3d at 807)). In some cases,
it will be unnecessary for a party to show any specific prejudice in order to
establish that it was prevented from mounting a meaningful defense. For
example, when the government entirely fails to give notice of a claim, or delays
so excessively in providing notice that the party’s ability to mount a defense is
impaired, due process is offended regardless whether the party can show
prejudice; the unfairness of such a procedure impugns its results. Betty B Coal
Co. v. Dir., OWCP, 194 F.3d 491, 501 (4th Cir. 1999); Lane Hollow, 137 F.3d at
807-808.
But apart from core due-process violations such as the failure to give notice
or any opportunity to be heard, when (as here) a party “complains about the
course of administrative proceedings,” that party must demonstrate that the
adjudication was infected by “some prejudicial, fundamentally unfair element.”
Betty B Coal, 194 F.3d at 501; cf. Lane Hollow, 137 F.3d at 808 (noting prejudice
requirement for non-core due process challenges to the course of criminal
proceedings). That is because the Constitution is concerned with procedural
outrages, not procedural glitches. Litigation is rarely pristine and is filled with
risk: evidence gets lost, witnesses lie, judges err. The Due Process Clause does
not protect against these missteps as such. Its interest is only in whether an
adjudicative procedure as a whole is sufficiently fair and reliable that the law
-15-
should enforce its result. Thus, Energy West must demonstrate that the contents
of Mr. Oliver’s lost claim file were so vital to its case that it would be
fundamentally unfair to make the company live with the outcome of this
proceeding without access to those records.
Energy West proposes three ways in which it was prejudiced by the
destruction of Mr. Oliver’s 1980 claim file. First, it appears to suggest that
whenever the government loses or destroys evidence that might impact a future
adjudication, due process has been violated. Second, the company argues that
materials in the original claim file might support a statute of limitations defense
in the present action. Third, Energy West says that without the ability to compare
the evidence introduced in this case with that introduced in 1980, it is impossible
for Mr. Oliver to demonstrate (or Energy West to refute) that “one of the
applicable conditions of entitlement has changed” since the denial of the original
claim. 20 C.F.R. § 725.309(d) (citations omitted). We reject each of these
contentions.
A
Energy West correctly points out that 20 C.F.R. § 725.309(d)(1) instructs
that “[a]ny evidence submitted in connection with any prior claim shall be made a
part of the record in the subsequent claim,” and this instruction was not complied
with in this case. But we are unable to agree that this failure is, by itself,
sufficient to establish a due process violation. No one knows what the evidence
-16-
in the destroyed file would show; certainly there is no specific reason to believe it
supports Energy West’s position in this litigation. And even in the criminal
context, when the government destroys evidence not known to be exculpatory (for
example, a blood sample that has not been tested), due process is not offended in
the absence of prosecutorial bad faith. California v. Trombetta, 467 U.S. 479,
488-89 (1984); United States v. Smith, 534 F.3d 1211, 1224 (10th Cir. 2008);
United States v. Beckstead, 500 F.3d 1154, 1158 (10th Cir. 2007). 1 We do not
imagine that the Due Process Clause holds the government to a higher standard
when it seeks to require a coal company to pay disability benefits to one of its
employees than when it seeks to deprive a citizen of his or her physical freedom.
Here there is no allegation that OWCP acted in bad faith or with knowledge that
the contents of the destroyed file would favor Energy West. The undisputed
evidence is that OWCP destroyed the file because it thought it would no longer be
useful after nineteen years gathering dust. Perhaps, in hindsight, that was unwise
in light of the liberality with which successive black lung claims would be filed
and the continuing relevance of prior evidence in subsequent claims. But lack of
1
This situation should be distinguished from that where the withheld
evidence is known to exculpate the criminal defendant. See Brady v. Maryland,
373 U.S. 83 (1963). In that circumstance, the only inquiry is whether there is “a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the [criminal] proceeding would have been different.” United States v.
Bagley, 473 U.S. 667, 681-82 (1985). We need not decide today whether a
similar test would apply if the contents of Mr. Oliver’s 1980 claim were known
and favorable to Energy West.
-17-
foresight is not the same as deliberate misconduct. In the absence of the latter,
the mere failure to preserve evidence—evidence that may be helpful to one or the
other party in some hypothetical future proceeding—does not violate the Fifth
Amendment. 2
The Sixth Circuit’s decision in Holdman, on which Energy West heavily
relies, is not to the contrary. In that case, OWCP, remarkably, lost a critical part
of the record (the transcript of the claimant’s own testimony) during an ongoing
adjudication, making it impossible to evaluate the ALJ’s findings on appeal. The
Board concluded it “could not resolve the appeal without the completed record,”
and repeatedly dismissed it over a period of seven years. Holdman, 202 F.3d. at
883. Fourteen years after his original decision awarding benefits—and seven
years after the claimant had died awaiting final judgment—the ALJ was asked to
reconstruct the record for the Board’s review. But because the missing evidence
was “critical” to the resolution of the claim, the ALJ concluded that “the case
could not fairly be resolved without [it].” Id. The Sixth Circuit concluded that
2
Analogously, in civil litigation, we require a showing of “intentional
destruction or bad faith” before issuing a spoliation instruction permitting the jury
to draw an adverse inference from the destruction of evidence. Henning v. Union
Pac. R. Co., 530 F.3d 1206, 1219-20 (10th Cir. 2008). And even a lesser
sanction, such as striking part of a party’s proof, still requires that the party who
destroyed the evidence “knew, or should have known, that litigation was
imminent.” Id. at 1220 & n.6 (emphasis supplied) (quoting Burlington N. & Santa
Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007)). In this case, Energy
West seeks the ultimate sanction, a judgment, but can show neither bad faith, nor
intentional destruction, nor imputed knowledge of “imminent” litigation.
Nineteen years in the future is hardly imminent.
-18-
this conduct implicated the company’s “core” due process rights, and excused it
from liability. Id. at 883-84.
This case does not present such fundamental concerns. The critical fact in
Holdman was not the unadorned loss of evidence, but rather the centrality of that
evidence to the dispute and the resulting impossibility of fairly assessing the
ALJ’s findings without considering one of the key pieces of evidence on which
those findings were actually based. But as we will discuss, see infra Parts III. B
and C, Mr. Oliver’s 1980 claim file cannot be said to be similarly “critical” to this
adjudication. In fact, it is irrelevant to the issues on which Energy West claims to
have been prejudiced by the file’s destruction.
B
Energy West’s next suggestion of prejudice relates to the statute of
limitations. Under the regulations, a miner must bring a black lung claim “within
three years after a medical determination of total disability due to pneumoconiosis
. . . has been communicated to [him],” 20 C.F.R. § 725.308(a), and there is a
presumption that all black lung claims are timely filed, 20 C.F.R. § 725.308(c).
Energy West argues that materials in the 1980 claim file might reveal that Mr.
Oliver received a communication of total disability from a physician long ago,
“thereby rendering his current application untimely.” Petr.’s Br. at 22.
Energy West is mistaken. Because black lung is a progressive disease,
miners are permitted to file successive claims; if a claimant is not found to be
-19-
totally disabled at the time of their initial claim for benefits, he or she can re-file
at a later time and demonstrate that the disease has advanced to point of
incapacity. For this reason, we have previously recognized that “a final finding
by [OWCP] that a claimant is not totally disabled due to pneumoconiosis
repudiates any earlier medical determination to the contrary,” and resets the
statute of limitations for filing a black lung claim. Wyoming Fuel, 90 F.3d at
1507 (citing Sharondale Corp. v. Ross, 42 F.3d 993, 996 (6th Cir. 1994)). But it
is not necessary to have the actual prior findings in front of us. As our sister
circuit has explained, a new limitations period begins after every denial of a black
lung claim, “provided the miner works in the coal mines for a substantial period
of time after the denial and a new medical opinion of total disability due to
pneumoconiosis is communicated [to him].” Sharondale, 42 F.3d at 996.
In this case, there can be no doubt that Mr. Oliver’s limitations period has
reset. The denial of his previous claim invalidated whatever medical opinions
formed the basis of that adjudication. More importantly, he continued to perform
mining work for Energy West for thirteen years after the denial of his original
claim—unquestionably a substantial period. And it is not disputed here that his
present claim was filed within three years of a new disability diagnosis being
communicated to him by Dr. Morgan. That is all the regulations require.
-20-
C
Finally, Energy West argues that, without access to the evidence submitted
in connection with the original proceeding, it is impossible to prove or disprove
whether one of Mr. Oliver’s conditions of entitlement (the elements of his claim)
has changed since 1980—the standard for bringing a “subsequent claim” under 20
C.F.R. § 725.309(d). After a closer look at the nature of the proceedings in this
particular case, however, we cannot say that the loss of the original evidence
rendered the proceedings fundamentally unfair to Energy West.
The previous version of § 725.309(d) required a miner filing a second or
subsequent claim for benefits to prove that there had been a “material change in
conditions” since the prior denial of benefits. Wyoming Fuel, 90 F.3d at 1508.
But the regulations did not define the phrase “material change in conditions,” and
a serious division of authority over its meaning emerged. In Wyoming Fuel, the
Labor Department urged us to adopt the interpretation now codified by the
regulation, the so-called “one element rule.” Under that rule, a material change in
condition would be inferred if “new evidence . . . establishes at least one of the
elements of entitlement previously adjudicated against the miner.” Id. at 1509.
“If one element is established, a material change has been demonstrated and then
the [ALJ] considers whether all the evidence of record—including evidence
predating the denial of the prior claim—supports an entitlement to benefits.” Id.
The Department’s interpretation was entitled to deference if reasonable, id. at
-21-
1510, and at the time of Wyoming Fuel, three of our sister circuits had upheld it,
Lisa Lee Mines v. Dir., OWCP, 86 F.3d 1358, 1363 (4th Cir. 1996) (en banc);
Labelle Processing Co. v. Swarrow, 72 F.3d 308, 317-18 (3d Cir. 1995);
Sharondale, 42 F.3d at 997-98 (6th Cir. 1994). But see Sahara Coal Co. v.
OWCP, 946 F.2d 554 (7th Cir. 1991) (adopting a different test).
We concluded, however, that the “one-element” interpretation was not
reasonable. In part, we were concerned that it contravened res judicata principles
by “allow[ing] a claimant to demonstrate a material change using only evidence
that shows conditions identical to [those] presented—and rejected—at the time of
the claimant’s earlier claim.” Wyoming Fuel, 90 F.3d at 1510; accord Lisa Lee
Mines, 86 F.3d at 1366 (Luttig, J., dissenting). Having rejected the Department’s
interpretation of the phrase “material change in conditions,” we announced our
own. Under our test, a claimant was required to prove “for each element that
actually was decided adversely to [him] in the prior denial” that the element “has
worsened materially” since that denial. Wyoming Fuel, 90 F.3d at 1511 (emphasis
supplied). To address our concern over identical conditions leading to different
results, we suggested that the most straightforward way to decide whether a
condition had materially worsened would be to compare the old evidence with the
new. While new medical tests showing different, worsened results could satisfy
our standard, a mere “new interpretation” of old evidence or identical results
could not. Id.
-22-
Wyoming Fuel’s material worsening test has now been supplanted.
Regulatory authorities are not always stuck with judicial interpretations of their
regulations with which they are unhappy. Having been told that § 725.309(d) was
not susceptible of its preferred reading, the Department of Labor availed itself of
the policymaker’s most efficacious remedy: it sought to rewrite the rule. In
2001, after notice and comment, the Secretary of Labor published an amended
version of § 725.309(d) that codifies a new version of the one-element rule we
rejected in Wyoming Fuel: “the [subsequent] claim shall be denied unless the
claimant demonstrates that one of the applicable conditions of entitlement . . . has
changed since the date upon which the order denying the prior claim became
final.” 20 C.F.R. § 725.309(d); see Wyoming Fuel, 90 F.3d at 1509-10.
The meaning and validity of this regulation are open to question. An
interpretive regulation published by the Secretary of Labor explains that this
amendment “allow[s] the miner to litigate his entitlement to benefits without
regard to any previous findings by producing new evidence that establishe[s] any
of the elements of entitlement previously resolved against him.” Regulations
Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended
(“Interpretive Regulation”), 65 F.R. 79920–01, 2000 WL 1852809, at 79968
(Dep’t of Labor 2000). Once that is done, according to the Secretary, “an
administrative law judge must conduct a de novo weighing of the evidence
relevant to the remaining elements, regardless of whether any of that evidence is
-23-
newly submitted.” Id. at 79973. Whether such an interpretation is consistent
with the regulation’s requirement that at least one essential condition of
entitlement must have changed between the denial of an initial order and a later
application may be subject to some debate. So may be the question whether
traditional res judicata principles constrain the Secretary’s authority to prescribe
procedures for relitigating black lung claims. On the one hand, the Secretary’s
interpretation might permit a miner to take new, identical X-rays and then
relitigate exactly the same claim over and over (albeit after the statute of
limitations has reset) until he finds an ALJ who agrees with his interpretation of
the medical evidence. On the other, in light of the broad authority conferred on
the Secretary by Congress, such a result might be both permissible and exactly
what the Secretary had in mind.
All of these, happily, are questions we need not decide in this case. At oral
argument before us, Energy West conceded that, in his 1980 application, Mr.
Oliver established both that he suffered from pneumoconiosis and that the disease
arose out of his coal mining employment. His application failed, according to
Energy West, only because he failed to establish the third and final condition of
entitlement, total disability. And, the company acknowledged, Mr. Oliver has
established a change of condition on that score. Indeed, even without a
comparison to the lost file, it is beyond serious dispute that Mr. Oliver’s disability
status has changed since 1980. At the time of his original claim, Mr. Oliver
-24-
surely was not totally disabled because he continued to perform mining work until
1993. Now, the ALJ has found, his lung disease has totally disabled him from
continuing that labor. Under anyone’s test, that is an evident change in Mr.
Oliver’s condition, one established without relitigating any prior finding.
The upshot of all this is that the company cannot demonstrate prejudice
from the loss of Mr. Oliver’s original claim file. With respect to the one element
that was found lacking in the prior claim, old evidence from the original Board
proceedings is simply irrelevant because everyone concedes a material change in
Mr. Oliver’s disability status has occurred since then. If anything, one could
argue that, under these circumstances, only Mr. Oliver could seriously claim
prejudice by the destruction of his 1980 application materials. Because Energy
West concedes that Mr. Oliver originally established both that he had
pneumoconiosis and that the disease arose out of his coal mining employment, it
is surely more likely that the records from the earlier proceeding would support
Mr. Oliver’s position with respect to those elements than Energy West’s. In that
scenario, and under any imaginable reading of the current rule, Mr. Oliver could
be required to do no more than demonstrate by new evidence that he was totally
disabled; he might elect to rest on the previously submitted evidence to prove the
nature and cause of his disease. But because his file was destroyed, Mr. Oliver
was forced to establish all three elements of his claim by new evidence. This he
did. Energy West was likely advantaged by this additional burden on its
-25-
opponent, not disadvantaged. In any event, we certainly cannot say that Energy
West was subjected to a fundamentally unfair process.
The petition for review is denied.
-26-