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W. VA. CWP FUND v. BENDER, NO. 12-2034

Decided: April 2, 2015 

The Fourth Circuit held that the Department of Labor acted within its regulatory authority in requiring the operators of coal mines to show, in the case of miners who meet the criteria under the Black Lung Benefits Act for the presumption, that “no part of the miner’s respiratory or pulmonary total disability was caused by pneumoconiosis.” 20 C.F.R § 718.35(d) (2014). Additionally, the Fourth Circuit held that the decision from the Administrative Law Judge (ALJ) to award benefits to the miner was supported by substantial evidence.

This appeal stemmed from an award of benefits to Page Bender, Jr. under the Black Lung Benefits Act. 30 U.S.C. §§ 901 through 945. The Act is intended to provide benefits to coal miners who are completely disabled due to pneumoconiosis (black lung disease) and to surviving family dependents of those miners who died due to the disease. Under § 921(c)(4) of the Act, there is a rebuttable presumption of total disability due to pneumoconiosis. This presumption exists if the miner worked for at least 15 years in underground coal mines, if a chest x-ray does not show the presence of complicated pneumoconiosis, and if there is other evidence that shows the existence of a totally disabling respiratory or pulmonary impairment. In 2013, the Department of Labor promulgated a revised regulation, which was at issue in this case. The regulation stated that the party opposing the award of benefits may rebut this presumption by “establishing that no part of the miner’s respiratory or pulmonary total disability was caused by pneumoconiosis….” 20 C.F.R. § 718.305(d)(1) (2014). Basically, any party who is looking to rebut the presumption must “rule out” any connection between a miner’s pneumoconiosis and his disability.

Bender was employed by an underground coal mine for 21 years and stopped working in the mines around 1995. Additionally, Bender smoked daily one to two packs of cigarettes for over 40 years, and Bender continues to smoke three to four cigarettes each day. Bender is in extremely poor health suffering from lung cancer and diabetes. Bender filed a claim to receive black lung benefits in 2009 after previously being denied benefits in 2003. The ALJ applied the statutory presumption due to the 21 years Bender had worked in the mine and the medical consensus of his disabling respiratory condition. At the time of the ALJ’s decision, the current “rule-out” version of the regulation providing the standard for rebuttal had not yet been promulgated. However, the ALJ applied an analogous “rule-out” standard that had been used in previous instances. During the hearing, the coal mine operator provided expert opinions from three physicians to rebut this presumption stating that Bender’s pneumoconiosis was not do to the inhalation of coal mine dust, but due to his cigarette use, lung surgery, and cancer treatments. The ALJ accorded very little weight to these opinions because the experts did not sufficiently explain why Bender’s worsened condition could not be due to coal workers’ pneumoconiosis, a progressive disease. Bender provided an expert with conflicting evidence, stating that Bender’s exposure to coal dust was a major contributor. The ALJ determined that the operator had failed to rebut the presumption by showing that Bender’s pneumoconiosis did not in any way contribute to his disability, and determined Bender should be awarded benefits.

In addressing the operator’s legal challenge to the “rule-out” rebuttal standard of the regulation promulgated by an executive agency, the Fourth Circuit applied the principles of deference presented in Chevron v. Natural Resources Defense Council. Under the first step of Chevron, the operator argued that the rebuttal standard in the statute is unambiguous and applied only to the Secretary. The operator believed the proper rebuttal standard would be one that would allow the operator to rebut the presumption in the statute through showing the miner’s pneumoconiosis is not a “substantially contributing cause” of their total disability. The Fourth Circuit distinguished the holding of the Supreme Court in Usery v. Turner Elkhorn Mining Co., where the “rule-out” standard did not apply to operators, by explaining that Usery was decided before the 1978 amendments to the Black Lung Benefits Act. Additionally, the Supreme Court in Usery did not answer whether Congress left a gap in § 921(c)(4) that the agency was permitted to fill by regulation, or whether application of the “rule-out” standard to coal mine operators in a regulation would be a reasonable exercise of agency authority in filling the gap in the statute. The Fourth Circuit determined that because the statute does not speak to the standard operators must meet to rebut the presumption, Congress intended for the “gap” to be filled by the agency.

Further, under the second step of Chevron, the Fourth Circuit determined that the regulation set forth by the Department of Labor was a reasonable exercise of authority within the gap left open to the agency by Congress. There was no showing that Congress intended a different interpretation of the statute, and the “rule-out” standard unquestionably advances Congress’ purpose and intent in enacting the statutory presumption. Congress implemented the statutory presumption to make it easier for those miners most likely disabled by the coal dust to obtain benefits. In practice, the operators will only have to satisfy the “rule-out” standard when necessary elements of presumption exist. The alternative rebuttal standard, suggested by the operators, would effectively nullify the statutory presumption for coal miners whom Congress intended to protect. Therefore, the “rule-out” standard presented in § 718.305(d) is a reasonable exercise of the agency’s authority under Chevron, and the regulation applies to both the Secretary and coal mine operators.

Finally, the operator argued that the decision of the ALJ to award benefits was not supported by substantial evidence due to the ALJ declining to give credit to the operator’s medical experts. Following the regulation, an operator must establish that the miner’s disability is attributable exclusively to a cause other than pneumoconiosis. A medical expert must explain why pneumoconiosis was not at least a partial cause of the disabilities of the miner. The Fourth Circuit deferred to the determination of the ALJ concerning the proper weight to be accorded competing medical evidence. It was clearly within the discretion of the ALJ to weigh the credibility of the experts. The Fourth Circuit concluded that they would not go against the decision of the ALJ to credit the opinion of one expert to another. Accordingly, the decision from the ALJ to award benefits to Bender was affirmed.

Full Opinion

Austin T. Reed