United States Court of Appeals,
Eleventh Circuit.
No. 94-6265
Non-Argument Calendar.
BLACK DIAMOND COAL MINING COMPANY, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR; Edna Marcum (Widow of Herman T. Marcum),
Respondents.
Sept. 25, 1996.
Petition for Review of an Order of the Benefits Review Board.
(Benefits Review Board No. 92-0781-BLA).
Before ANDERSON, COX and BIRCH, Circuit Judges.
PER CURIAM:
Black Diamond Coal Mining Company ("Black Diamond") appeals
the decision of the Benefits Review Board ("BRB") awarding
disability benefits under the Black Lung Benefits Act, 30 U.S.C. §§
901 to 945 (1994) ("the Act"), and its accompanying regulations.
See 20 C.F.R. pt. 718 (1996). The sole issue on appeal is whether
Herman Marcum's total pulmonary disability was due to
pneumoconiosis. Because the BRB did not apply the proper causation
standard, we vacate and remand.
I. Background
Herman Marcum, an Alabama coal miner last employed by Black
Diamond, filed a claim for black lung disability benefits on
November 25, 1980. The Office of Workers Compensation Programs
("OWCP") within the Department of Labor made an initial
determination that Marcum was entitled to benefits. Black Diamond,
the coal mine operator responsible for the payment of Marcum's
benefits under the Act, requested a hearing before an
Administrative Law Judge ("ALJ"). Herman Marcum died on May 27,
1985, one month before the hearing. He was survived by his wife
Edna, who has since prosecuted his claim for benefits, as well as
a claim for survivor's benefits.
At the hearing, evidence was proffered by Marcum, Black
Diamond, and the Director of OWCP ("the Director"), who appeared as
a party in interest on behalf of Marcum. The evidence included
reports and letters from four physicians who examined Herman Marcum
before his death: Dr. Russakoff, Dr. Shelton, Dr. Branscomb, and
Dr. Hood. Dr. Russakoff examined Marcum in January 1991, and
concluded that Marcum's pulmonary disability might be due to his
coal mine exposure. Dr. Russakoff's 1981 report was based on the
assumption that Marcum did not have a significant smoking history.
In a letter written in 1985, Dr. Russakoff admitted that he had
overlooked Marcum's history of bronchial asthma in his 1981 report.
Dr. Russakoff concluded in the 1985 letter that, assuming Marcum
smoked a pack of cigarettes a day for 28 years, the miner's lung
disease probably had little to do with his coal mine employment.
Black Diamond attempted to introduce Dr. Russakoff's 1985 letter at
the hearing, but the ALJ excluded it on the grounds that Black
Diamond failed to give Marcum timely notice of intent to introduce
the letter.
Dr. Shelton, who examined Marcum in May 1981, concluded that
Marcum's respiratory difficulty was due to asthma, but that his
chest x-rays were consistent with inhalation lung disease. Dr.
Branscomb examined Marcum in June 1982, and his medical history of
Marcum indicates that Marcum daily smoked a pack of cigarettes from
ages 20 to 56. Dr. Branscomb concluded that 30% of Marcum's
pulmonary disability was due to occupational exposure.
Dr. Hood was Marcum's treating physician from 1980 until his
death in 1985. In a letter written shortly after Marcum's death,
Dr. Hood stated that Marcum's pneumoconiosis, as well as other
complications, had rendered the miner totally disabled. Dr. Hood's
letter was excluded by the ALJ on procedural grounds.
The ALJ awarded benefits based in part on the finding that
Marcum was totally disabled due to pneumoconiosis. Black Diamond
appealed to the Benefits Review Board ("BRB"). The BRB reversed
and remanded for reconsideration of several issues, including total
disability and causation.
On remand, the ALJ followed Wilburn v. Director, OWCP, 11
Black Lung Reporter (B.L.R.) 1-135, 1-137 (Ben.Rev.Bd.1988), and
applied the causation standard that a total pulmonary disability is
due to pneumoconiosis when the pneumoconiosis, in and of itself,
causes the disability. The ALJ denied benefits based on the
conclusion that, although Marcum established a total pulmonary
disability, he did not establish causation under the Wilburn
standard. After the ALJ's decision, this court held in Lollar v.
Alabama By-Products Corp., 893 F.2d 1258, 1265 (11th Cir.1990),
that a total pulmonary disability is due to pneumoconiosis if the
pneumoconiosis substantially contributes to the pulmonary
disability. Marcum appealed the ALJ's decision, and the BRB
reversed and remanded in light of Lollar.
Following the second remand,1 the ALJ concluded that Marcum
failed to show that his pneumoconiosis substantially contributed to
his total pulmonary disability. In making this determination, the
ALJ relied on Dr. Russakoff's 1985 report and Dr. Hood's report,
which had been marked for identification purposes, but were not
formally in the record. Marcum appealed the ALJ's decision to the
BRB. The BRB read Lollar to hold that only a showing that
pneumoconiosis played an infinitesimal or de minimis part in the
miner's total pulmonary disability would preclude a finding of
causation. The BRB found that the medical evidence in the record
satisfied the Lollar standard, and awarded benefits. Black Diamond
filed this appeal.
II. Jurisdiction
During the pendency of this appeal, the Director filed an
Application for an Order to Show Cause why Black Diamond's Petition
for Review Should not be Dismissed for Lack of Jurisdiction, which
we construe as a motion to dismiss for lack of jurisdiction. The
Director states that Black Diamond, formerly an Alabama
corporation, has been dissolved, and Black Diamond's benefits trust
has been depleted. The Director contends that this appeal is moot
because the court is powerless to grant Marcum meaningful relief.
If the Director is correct, then we lack jurisdiction to decide
this case. See Pacific Ins. Co. v. General Dev. Corp., 28 F.3d
1093, 1096 (11th Cir.1994). But the Director acknowledges that
before Black Diamond was dissolved, its coal mining assets were
1
On both remands, Marcum's case was heard by a different ALJ
than the one who conducted the hearing.
sold to Costain Coal, Inc. ("Costain"), and that Costain may be
liable as a successor operator under the Act. See 30 U.S.C. §
932(i)(1) (providing for successor operator liability). If Marcum
establishes a claim for benefits against Black Diamond, she may
then demonstrate that Costain is liable and obtain meaningful
relief in spite of Black Diamond's dissolution. Because meaningful
relief may still be available to Marcum in the form of a claim
against Costain, this appeal is not moot, and we have
jurisdiction.2
III. Standard of Review
Whether a miner's total pulmonary disability is "due to"
pneumoconiosis within the meaning of 20 C.F.R. § 718.204 is a mixed
question of law and fact. The ALJ's factual findings are entitled
to great deference, and they are to be upheld if they are supported
by substantial evidence. Lollar, 893 F.2d at 1261 & n. 4.
Substantial evidence is "more than a scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Id. at 1262 (quoting Richardson v. Perales,
402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). To
the extent that the BRB's factual conclusions differ from the
ALJ's, we owe them no deference. Id. at 1261 n. 4.
Courts generally owe deference to an agency policymaker's
interpretation of the agency's own regulation, but neither the ALJ
nor the BRB functions as a policymaker in this case. See id. at
1262. The ALJ's and the BRB's interpretations of the regulations
implementing the Act are legal conclusions that we review de novo.
2
The motion to dismiss is denied.
IV. Discussion
To establish eligibility for black lung benefits, a claimant
generally must show (1) that the miner has pneumoconiosis, (2) that
the pneumoconiosis arose from the miner's coal mine employment, (3)
that the miner has a total pulmonary disability, and (4) that the
total pulmonary disability is due to pneumoconiosis. Lollar, 893
F.2d at 1262-63. Marcum has established the first three
requirements, and whether she has shown the fourth requirement is
the sole issue on this appeal.
The third and fourth requirements for eligibility arise from
20 C.F.R. § 718.204, which states: "Benefits are provided under
the Act for or on behalf of miners who are totally disabled due to
pneumoconiosis...." Section 718.204 establishes standards for a
3
claimant to show the existence of a total pulmonary disability,
but the regulation is less clear about when a total disability is
"due to" pneumoconiosis. See id. As a result of the regulation's
ambiguity, problems arose in cases, like Lollar, where the miner's
medical history suggested several potential causes for the
pulmonary disability. For example, in addition to pneumoconiosis,
Lollar suffered from interstitial lung disease and chronic
bronchitis. Lollar, 893 F.2d at 1260.
3
Section 718.204 refers to a "total disability" rather than
a total pulmonary disability, but it is clear from the criteria
for establishing a total disability that only pulmonary
disabilities are relevant. See 20 C.F.R. § 718.204(c) (miner can
establish a total disability, in the absence of contrary
evidence, by reference to a pulmonary function test or an
arterial blood gas test). See also Lollar, 893 F.2d at 1267 n.
16 (stating that, "once a total pulmonary disability is
established, ... unrelated disabilities obviously are irrelevant
to the causation of the pulmonary disability") (emphasis
deleted).
This court addressed the "due to" causation standard of §
718.204 for the first time in Lollar. The Lollar court was
persuaded by decisions in three other circuits that the Wilburn
rule that pneumoconiosis must "in and of itself" cause the
pulmonary disability was "unduly stringent." Id. at 1265; see
Mangus v. Director, OWCP, 882 F.2d 1527 (10th Cir.1989), Bonessa v.
United States Steel Corp., 884 F.2d 726 (3d Cir.1989), Adams v.
Director, OWCP, 886 F.2d 818 (6th Cir.1989); but see Wilburn, 11
B.L.R. at 1-137.
In defining the "due to" causation test of § 718.204, the
Mangus, Bonessa, and Adams courts phrased the applicable test
differently. See Mangus, 882 F.2d at 1531 (pneumoconiosis must
contribute to the total disability); Bonessa, 884 F.2d at 733
(pneumoconiosis must be a substantial contributor to the total
disability); Adams, 886 F.2d at 825 (total disability must be due,
"at least in part" to pneumoconiosis). While the Lollar court
found all three decisions helpful to its analysis, it adopted the
causation standard used by the Third Circuit in Bonessa that
requires pneumoconiosis to be a substantial contributing cause of
the miner's total pulmonary disability. Lollar, 893 F.2d at 1265.
The Lollar court then noted:
[T]he Sixth Circuit in Adams, while not using the terms
"substantial" or "significant" in its standard, was careful to
observe that "nothing in this record suggests that Adams'
pneumoconiosis played only an infinitesimal or de minim[i]s
part in his totally disabling respiratory impairment, so we
need not consider here whether such a finding ... would
support a denial of benefits under the Act." We believe
Bonessa's phrasing of the test answers this concern.
Id. (quoting Adams, 886 F.2d at 826 n. 11) (alteration in
original).
Both the ALJ and the BRB purported to apply Lollar's
substantial contributing cause test to Marcum's claim. Although
the parties agree that the Lollar causation standard applies, we
note that the holding in Lollar does not, on its face, apply to
Marcum's claim. The Lollar court held that the substantial
contributing factor standard applies to black lung benefits claims
filed after January 1, 1982, Lollar, 893 F.2d at 1265, but Marcum's
claim was filed in 1980. The Lollar court apparently limited the
application of the causation standard because black lung claimants
who filed their claims before January 1, 1982 are entitled to a
presumption that a total pulmonary disability is due to
pneumoconiosis if they can show fifteen years of underground coal
mine employment. 20 C.F.R. § 718.305(a), (e); see Lollar, 893
F.2d at 1262 n. 6.
Marcum did not have fifteen years of underground coal mine
employment, and thus did not qualify for the § 718.305 presumption.
We hold that black lung claimants who file before January 1, 1982
and are not entitled to the § 718.305 presumption must satisfy the
Lollar causation standard in order to qualify for benefits under §
718.204.
Black Diamond argues that the BRB misapplied the Lollar
standard, and we agree. Although the BRB quoted Lollar as
requiring pneumoconiosis to be a "substantially contributing
cause," the BRB also read Lollar to hold that:
only a physician's medical opinion concluding that the miner's
pneumoconiosis " "played only an infinitesimal or de minim[i]s
part in his totally disabling respiratory impairment,' " would
be insufficient to establish causation pursuant to Section
718.204(b).
Marcum v. Black Diamond Coal Co., BRB No. 92-0781 (Jan. 31, 1994)
(quoting Lollar, 893 F.2d at 1265) (alteration in original). The
BRB took Lollar's quote from Adams out of context, and the standard
it applies is lower than the Lollar standard. The operative words
to describe the Lollar standard are "substantial contributing
cause," not "infinitesimal or de minimis part." A conclusion that
a contributing cause played more than an infinitesimal or de
minimis part does not mean that the contributing cause was
substantial.
Black Diamond argues that the ALJ properly applied the Lollar
standard, and that the ALJ's finding that Marcum did not establish
causation is supported by substantial evidence in the record. We
agree that the ALJ properly applied the Lollar standard, but
disagree that the ALJ's factual findings are entitled to deference
in this case. In determining that Marcum's pneumoconiosis was not
a substantial contributing cause of his total pulmonary disability,
the ALJ relied on Dr. Hood's report, and Dr. Russakoff's 1985
report, which are not part of the record in this case.4
Because we cannot defer to the ALJ's findings, we vacate the
BRB's award of benefits and remand to the BRB for a determination,
consistent with this opinion, of whether Marcum's total pulmonary
disability was due to pneumoconiosis. In answering this question,
the substantial contributing cause standard of Lollar applies, and
only evidence that is properly in the record should be considered.
VACATED and REMANDED.
4
Although it is unimportant to the resolution of this
appeal, we note that the BRB also considered Dr. Hood's report in
concluding that Marcum was entitled to benefits.