Roberts & Schaefer v. OWCP

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 04-2030
ROBERTS & SCHAEFER COMPANY,
Petitioner,
v.

DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS and
WILLIAM L. WILLIAMS,
Respondents.

____________
Petition for Review of an Order of the Benefits Review
Board, United States Department of Labor.
No. 03-386-BLA
____________
ARGUED DECEMBER 8, 2004—DECIDED MARCH 14, 2005
____________

Before FLAUM, Chief Judge, and POSNER and SYKES,
Circuit Judges.
FLAUM, Chief Judge. An administrative law judge (“ALJ”)
ordered petitioner Roberts & Schaefer Company (“R&S”) to
pay benefits to respondent William L. Williams under the
Black Lung Benefits Act (“BLBA”), 30 U.S.C. § 901 et seq.
Following affirmance by the Benefits Review Board, R&S
petitioned this Court for review. For the reasons stated
herein, we affirm.
2 No. 04-2030

I. Background
Respondent Williams was a coal miner in the traditional
sense for little more than three years but he worked in coal
mine construction for much longer. Petitioner R&S employed
Williams between 1974 and 1984 as a laborer, demolishing
old tipples and other mining structures and repairing and
building new ones. After 1984, Williams worked for other
companies in various mining and non-mining jobs until he
retired in 1991 at the age of 58. Williams was also a
smoker. He quit in 1999 after smoking approximately one
pack of cigarettes per day for 46 years.
Williams first received treatment for respiratory problems
in 1991. Over the course of the next decade, he saw several
different doctors about his worsening condition. One of the
first doctors he consulted was Dr. Harold Johnson, whose
notes, dating from 1991 to 1995, refer to a diagnosis of
chronic obstructive pulmonary disease (“COPD”), but do not
indicate the cause of the condition. In 1992, Drs. Mason
Baker and Carroll Boyle, also without opining on etiology,
each diagnosed Williams with emphysema.
In November 1998, Williams filed an application for pneu-
moconiosis benefits with the Department of Labor’s Office
of Workers’ Compensation Programs (“OWCP”). Within a
month, the OWCP’s district director notified Amax Coal
Company that it had been designated the responsible oper-
ator liable for the payment of any benefits due to Williams.1

1
The Secretary of Labor and the Secretary of Heath and Human
Services are vested with the authority to promulgate regulations
for the implementation and administration of the BLBA. See 30
U.S.C. § 936. The implementing regulations provide that a district
director shall designate a “responsible operator liable for the
payment” of a miner’s pneumoconiosis benefits. 20 C.F.R.
(continued...)
No. 04-2030 3

In March of the following year, Williams saw Dr. Reynaldo
Carandang who, after examining him and evaluating his
employment and smoking history, concluded that Williams
was totally disabled by COPD due to coal dust exposure and
smoking. Despite Dr. Carandang’s report, the OWCP denied
Williams’s claim three months later. Williams sought
reconsideration through the modification procedure set forth
in 20 C.F.R. § 725.310 in May 2000. In June, after deter-
mining that Amax Coal had been named in error, the district
director notified R&S that it was the responsible operator
in Williams’s case. In November, the OWCP denied
Williams’s request for modification.
Understanding that Williams would not be precluded from
filing another modification request, R&S sent him to be
examined by Dr. Jeff Selby, who diagnosed COPD and
asthma and opined that Williams’s condition was caused by
smoking and untreated asthma. He reasoned that, because
Williams’s lung function continued to deteriorate even after
he retired, the COPD was not “at all related to coal dust
exposure.” Also noting that Williams was unable to smoke
while working at the coal mines, Dr. Selby stated that,
“[c]learly coal mines actually probably helped preserve this
man’s lung function, not allowing him to smoke while there,
and this had a much more significant positive effect on his
health, than whatever small amount of negative effect of
breathing in coal mine dust may have had.” This opinion
was later contradicted by Dr. David Marder, who examined

1
(...continued)
§ 725.410(a)(3). Generally, this is the owner or operator of a coal
mine, or the independent contractor performing construction work
at a coal mine, that most recently employed the miner for a
cumulative period of not less than one year. See 20 C.F.R.
§§ 725.491-725.497. Where there is no employer that qualifies as
a responsible operator, a miner may receive benefits from the
Black Lung Disability Trust Fund. 26 U.S.C. § 9501(d)(1)(B).
4 No. 04-2030

Williams and found him to be totally disabled by COPD
“due in substantial part to coal dust exposure,” and Dr.
Robert Cohen, who concluded from a review of Williams’s
file that he was totally disabled by pneumoconiosis due to
both coal dust exposure and smoking.
Williams requested that his claim for pneumoconiosis
benefits be transferred to the Office of Administrative Law
Judges and, on January 28, 2003, following a formal hear-
ing, an ALJ granted modification and ordered R&S to pay
BLBA benefits to Williams. The ALJ’s decision and order
were affirmed by the Benefits Review Board. R&S has peti-
tioned this Court for review.

II. Discussion
When a party appeals a final decision of the Benefits
Review Board, “our task is to review the ALJ’s decision
which the Board affirmed.” Old Ben Coal Co. v. Director,
OWCP, 292 F.3d 533, 538 (7th Cir. 2002) (internal quotations
omitted). “We do so under a deferential standard of review:
We will not overturn the ALJ’s decision if it is rational, sup-
ported by substantial evidence and consistent with govern-
ing law.” Id. We affirm an ALJ’s factual findings “if they are
supported by relevant evidence that a rational mind might
accept as adequate to support a decision.” Zeigler Coal Co.
v. Director, OWCP, 326 F.3d 894, 897 (7th Cir. 2003) (internal
quotations omitted). “We do not reweigh the evidence,
resolve inconsistencies in the record, make credibility
determinations, or substitute our inferences for those drawn
below.” Freeman United Coal Mining Co. v. Summers, 272
F.3d 473, 478 (7th Cir. 2001). “Though we defer to the ALJ’s
factual determinations, we review questions of law de novo.”
Gulley v. Director, OWCP, 397 F.3d 535, 538 (7th Cir. 2005).
R&S asserts that Williams’s claim for benefits is proce-
durally barred and, in the alternative, that the ALJ’s deci-
sion is not supported by substantial evidence. We consider
each assertion in turn.
No. 04-2030 5

A. Procedural Bars
R&S argues that Williams’s claim is barred by the
BLBA’s statute of limitations, the doctrine of laches, and
the Due Process Clause of the Fifth Amendment to the
United States Constitution.
The BLBA provides that any claim for benefits by a miner
“shall be filed within three years after . . . a medical
determination of total disability due to pneumoconiosis.” 30
U.S.C. § 932(f). The implementing regulations recognize “a
rebuttable presumption that every claim for benefits is
timely filed,” and add that the limitations period begins to
run when “a medical determination of total disability due to
pneumoconiosis” is “communicated to the miner.” 20 C.F.R.
§§ 725.308(a), (c). The term “pneumoconiosis” is defined in
the BLBA as “a chronic dust disease of the lung and its
sequelae, including respiratory and pulmonary impair-
ments, arising out of coal mine employment.” 30 U.S.C.
§ 902(b).
R&S attempts to rebut the presumption of timeliness by
arguing that Williams must have the same disease now that
he had in 1992 when he saw Drs. Johnson, Baker, and
Boyle and, therefore, that the statute of limitations began
to run upon the first diagnosis of COPD or emphysema by
one of those doctors. In other words, if Williams’s current
condition was caused by coal dust exposure as the ALJ
found, then the COPD and emphysema diagnosed in 1992
were also caused by coal dust exposure and Williams was
required to bring his claim within three years of those
original diagnoses. This reasoning, however, is based on a
misinterpretation of the regulation. The limitations period
does not begin to run until the claimant is informed either
that his respiratory or pulmonary impairment is “pneu-
moconiosis” or that the impairment arose out of exposure to
coal dust. It is undisputed that Dr. Carandang’s 1999
medical report concluding that Williams’s condition was
6 No. 04-2030

caused at least in part by exposure to coal dust was the first
such determination to be communicated to Williams.
Therefore, Williams’s 1998 application for benefits is not
time-barred.
Next, R&S claims that the equitable doctrine of laches
bars Williams’s claim. It contends that the lengthy gap
between Williams’s last day of employment with R&S and
the filing of his claim compromised its ability to defend the
action. A party who asserts a laches defense must show “an
unreasonable lack of diligence by the party against whom
the defense is asserted” and “prejudice arising therefrom.”
Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 820 (7th
Cir. 1999). We will reverse a decision as to whether to apply
the doctrine of laches only for abuse of discretion. Id. at
819. Given his finding that Williams was first diagnosed
with pneumoconiosis in 1999 after he filed his claim, the
ALJ correctly concluded that Williams could not have been
expected to file a claim any earlier. The ALJ’s finding of no
lack of diligence is supported by substantial evidence and it
was not an abuse of discretion to decline to apply the
doctrine of laches to Williams’s claim.
Finally, R&S contends that its procedural due process
rights were violated by the OWCP’s delay in notifying it of
its potential liability as the responsible operator. R&S
states that its ability to mount a meaningful defense was
compromised by the delay and believes that it should not be
prejudiced by the OWCP’s error in initially notifying Amax
Coal, rather than R&S. On this basis, R&S seeks to have
liability transferred to the Black Lung Disability Trust
Fund.
We have recognized the general proposition that “[t]here
can be no due process without ‘the opportunity to be heard
at a meaningful time and in a meaningful manner.’ ” Baird
v. Bd. of Educ. for Warren Cmty. Unit Sch. Dist. No. 205,
389 F.3d 685, 690 (7th Cir. 2004) (quoting Mathews v.
Eldridge, 424 U.S. 319, 333 (1976)). Not every delay, how-
No. 04-2030 7

ever, will deprive a litigant of a meaningful opportunity to
be heard. For instance, in Midland Coal Co. v. Director,
OWCP [“Kelly”], 120 F.3d 64 (7th Cir. 1997), the responsible
operator alleged a due process violation where the miner
filed his claim in 1976, the district director denied the claim
in 1980, the miner died in 1982, and the district director
notified the responsible operator of its potential liability two
months after the miner’s death. We held that the delay
alone did not constitute a due process violation absent a
showing that the employer had been unable to defend
against the claim after the claimant’s death.2
Here, the delay in notification was even shorter than in
Kelly and R&S has not shown that it was denied a meaning-
ful opportunity to defend against the claim. When R&S
received notice of potential liability in June 2000, Williams
had only recently obtained counsel and filed for modification
of the district director’s denial. After R&S was notified, two
years passed before the ALJ’s hearing, during which time
R&S had the opportunity to subject Williams to a medical
examination by its expert, obtain his medical records, serve
interrogatories, and investigate his employment and medical
history. These circumstances provided R&S with a suffi-
cient opportunity to defend against the claim and its vague
assertion that earlier notification might have enabled it to
develop the case more fully does not make the delay
unconstitutional. R&S has failed to demonstrate that
liability must be shifted to avoid a due process violation.

2
R&S argues that Kelly is inapplicable because it was based on
a different regulation. Such a distinction is of no consequence,
however, because regulations cannot abrogate, or authorize vio-
lations of, a party’s constitutional rights. We held that the delay
in Kelly did not result in a deprivation of due process and that
holding properly guides our decision in this case.
8 No. 04-2030

B. Substantial Evidence
R&S next argues that the ALJ’s decision was not sup-
ported by substantial evidence. Under the BLBA, “benefits
are provided to miners who are totally disabled due to pneu-
moconiosis.” 20 C.F.R. § 718.1(a). A claimant is entitled to
benefits if he establishes that: (1) he suffers from pneumoco-
niosis; (2) the pneumoconiosis arose at least in part out of
his employment as a coal miner; (3) he is totally disabled;
and (4) the pneumoconiosis contributes to his total disability.
See 20 C.F.R. §§ 725.202(d), 718.202-718.204. R&S contends
that there is insufficient evidence to satisfy the first two
elements.
Chest x-rays, biopsies, and physicians’ medical opinions
are among the types of evidence that may be relied upon in
determining whether a claimant suffers from pneumoconio-
sis. See 20 C.F.R. § 718.202(a). The record did not contain
any biopsy evidence and of the 24 interpretations of 13
chest x-rays, 13 were negative for pneumoconiosis, 1 was
positive, and 10 were silent. Although the ALJ concluded
that this evidence did not support a finding of pneumoco-
niosis, he went on to find that the medical opinions of
Williams’s doctors did.
Contrary to R&S’s assertion that it was unreasonable for
the ALJ to overlook the negative x-ray interpretations in
evaluating the medical opinions, the regulations expressly
provide that pneumoconiosis may be determined to exist
based on the judgment of a physician, notwithstanding
negative x-ray evidence. Id. In addition to highlighting
Williams’s chest x-rays, R&S suggests that the ALJ’s finding
of pneumoconiosis may not stand because his assessment of
the medical opinion evidence was unreasonable. Under the
BLBA, pneumoconiosis is a “chronic dust disease of the
lung.” 30 U.S.C. § 902(b). Williams’s doctors agreed that he
suffered from a serious respiratory impairment but disa-
No. 04-2030 9

greed about whether his condition arose from exposure to
coal dust. Drs. Marder and Carandang diagnosed COPD
due substantially to coal dust exposure. Drs. Baker, Boyle,
and Johnson each diagnosed COPD or emphysema but
did not discuss etiology. Dr. Selby diagnosed COPD due to
smoking and asthma, opining that Williams’s worsening
lung function in recent years could not be due to coal dust
exposure because he was no longer working in or around
coal mines. Finally, Dr. Cohen diagnosed pneumoconiosis
due to coal dust exposure and smoking. In his analysis,
Dr. Cohen addressed Dr. Selby’s diagnosis of asthma and
found it to be without merit because there had been no pre-
vious diagnoses of that disease, no treatment had been
administered for asthma, and Williams had not responded
to bronchodilators (medications commonly given to asthma
sufferers that widen the air passages of the lungs).
In considering the medical opinion evidence, the ALJ gave
less weight to Dr. Selby’s opinion in part because it is
contrary to the Department of Labor’s recognition of pneu-
moconiosis “as a latent and progressive disease which may
first become detectible only after the cessation of coal mine
dust exposure.” 20 C.F.R. § 718.201(c). Greater weight was
assigned to Dr. Cohen’s opinion because of his standing in
the field, “substantial expertise,” and “well-reasoned and
well-documented opinion.” The ALJ concluded: “In sum, the
substantial weight of Dr. Cohen’s opinion buttressed by
those of Drs. Marder and Carandang outweigh the dis-
counted opinion of Dr. Selby. Therefore, I find that the
weight of the evidence of record supports a finding of pneu-
moconiosis.” (Jan. 28, 2003 ALJ Order at 17.)
An ALJ does not exceed his authority in discounting a
medical opinion that is influenced by the physician’s “sub-
jective personal opinions about pneumoconiosis which are
contrary to the congressional determinations implicit in the
Act’s provisions.” Midland Coal Co. v. Director, OWCP, 358
10 No. 04-2030

F.3d 486, 491-92 (7th Cir. 2004) (internal quotations
omitted). Dr. Selby’s medical opinion conflicts with
§ 718.201(c)’s recognition that pneumoconiosis can be latent
and progressive, and his statement that coal mine employ-
ment “helped preserve [Williams’s] lung function” and had
a “positive effect on his health” is contrary to the congres-
sional findings and purpose central to the BLBA. See 30
U.S.C. § 901(a). Because these are appropriate reasons to
limit the weight assigned to Dr. Selby’s opinion, and because
the finding of pneumoconiosis is supported by substantial
evidence, we will not disturb the ALJ’s conclusion. The first
requirement for receiving benefits remains satisfied.
As to the causation element, if a claimant was employed
for ten years or more as a miner, there is a rebuttable pre-
sumption that his pneumoconiosis arose out of his coal mine
employment. 20 C.F.R. § 718.203(b). A coal mine construc-
tion worker is deemed a miner to the extent he “was ex-
posed to coal mine dust as a result of employment in or
around a coal mine or coal preparation facility.” 20 C.F.R.
§ 725.202(b). R&S contends that the ALJ’s determination
that Williams was exposed to coal dust for more than ten
years, and thus entitled to the causation presumption, is
not supported by substantial evidence.
The ALJ found Williams to be a credible witness and
relied primarily on his testimony in calculating the length
of his employment as a miner. The ALJ determined that
prior to 1974, Williams worked for 3¼ years as a traditional
miner and that he worked in mine construction for R&S and
other companies from 1974 to 1984. The majority of his
work was performed at actively operating mines with coal
sifting and grinding occurring nearby. In addition, Williams
testified that in tearing out the old beams and trenches
from the tipples as part of the construction work, there was
“dust flying all the time” and his face was black with coal
dust by the end of the day. Although concrete dust also was
No. 04-2030 11

present, Williams testified that he could tell the difference
between dust from coal and concrete. Based on these facts,
the ALJ found that Williams worked for 13¼ years in coal
mine employment.
R&S first attacks the ALJ’s finding by asserting that it
was unreasonable to credit Williams’s testimony because it
was contradicted by other evidence. It contends that
Williams was incorrect in stating that the “biggest major-
ity” of his work assignments were at functioning mines. In
particular, R&S points to its own project 7515, where
Williams was employed for almost 17 months from 1977 to
1979. R&S cites a former employee’s testimony in a dif-
ferent case that R&S was building a new plant during this
time and that the employees were not exposed to coal dust.
The ALJ considered this evidence but found that it did not
outweigh Williams’s own credible testimony about his work
experience. R&S asks us to second guess the ALJ’s credibility
determination and reweigh the evidence but, as stated above,
we may not do so. Freeman United Coal Mining Co., 272
F.3d at 478.3
R&S also argues that the ALJ should have discounted
Williams’s testimony that he regularly was exposed to coal
dust because his claim that he was able to distinguish
between coal and concrete dust was incredible. Williams
explained that he could identify coal dust because it is of a
darker color than concrete dust and has a different taste in
the air. In addition, he recalled coal being run through the
plants while he was working, having a face black with coal

3
R&S contends that the documentary evidence establishes that
Williams worked for only 7½ months, rather that a full year,
between 1983 and 1984. Even if true, this would not bring the
cumulative length of Williams’s mine employment below the 10
years sufficient to trigger the presumption.
12 No. 04-2030

dust by the end of the day, and seeing “black stuff” when he
blew his nose. Although R&S criticizes Williams’s “taste
test” as an “unfounded scientific theory,” it points to no
authority for the proposition that only scientific evidence is
admissible to prove exposure to coal dust. It was appropri-
ate for the ALJ to credit the firsthand observations of one
experienced in working with and around coal.
R&S has not succeeded in undermining the ALJ’s finding
that Williams worked as a miner for more than ten years
and therefore has not shown that the ALJ should not have
employed the presumption that Williams’s pneumoconiosis
arose out of coal mine employment. Because R&S also has
not rebutted the causation presumption, the second require-
ment for receiving benefits remains satisfied.

III. Conclusion
Having held that Williams’s claim is not procedurally
barred and that the ALJ’s findings are supported by sub-
stantial evidence that a rational mind could accept as ade-
quate, we AFFIRM the award of benefits.
No. 04-2030 13

A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—3-14-05