E-Alert Case Updates
The Fourth Circuit Denies Employer’s Petition for Review of Orders Awarding Black Lung Benefits to Deceased Coal Mine Worker
Harman Mining Company v. Director, Office of Workers’ Compensation Programs
In Harman Mining Company v. Director, Office of Workers’ Compensation Programs (OWCP), the Court of Appeals for the Fourth Circuit affirmed the award of the Benefits Review Board (“Board”) for black lung benefits payable to the widow of a coal miner. The appeal to the Fourth Circuit arose from an Order by an administrative law judge (“ALJ”), affirmed by the Board, finding that the decedent (“Mr. Looney”) suffered from disabling obstructive lung disease due to his work as a coal miner. Writing for the Court, Judge Motz deferred to the ALJ’s evaluation of expert medical testimony and found no error in the weight accorded those conflicting medical opinions.
For nearly seventeen (17) years, from 1969 to 1991, Gary Looney worked in coal mines in Virginia, the final ten (10) years of which he spent working as a roof bolter for Harman Mining Company (“Harman”). Mr. Looney was also a smoker of cigarettes for several decades. He retired from coal mining in February 1991 and filed a claim for black lung benefits in 1993 under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., which grants benefits to persons (or their surviving dependents) afflicted with pneumoconiosis or “black lung disease.” In 2003, Mr. Looney was diagnosed with lung cancer and died seven (7) years later.
The procedural history of Mr. Looney’s case was tumultuous: the claim was brought before an ALJ seven (7) times, with each resulting in a finding that Looney was totally disabled due to legal pneumoconiosis and an award of black lung benefits, payable by Harman. Nonetheless, each of six (6) appeals by Harman resulted in remand of the case for further consideration, due to some deficiency in the ALJ’s decision. On the seventh appeal, however, the Board affirmed the ALJ’s award of benefits. Harman moved the Board for reconsideration en banc, but the Board denied the motion on March 30, 2005.
Two months later, Harman filed a Petition for Modification with the Department of Labor, asserting that the ALJ had made a mistake of fact in determining that Looney’s disability arose from his employment as a coal miner. On May 27, 2005, Harman appealed the original Order awarding Looney black lung benefits to the Fourth Circuit and asked to stay its appeal of the award pending resolution of Harman’s Petition for Modification. On June 30, 2009, the ALJ denied the Petition for Modification, which was appealed by Harman and, again, denied by the Board. Harman appealed the denial of his Petition to the Court of Appeals for the Fourth Circuit, and the Court consolidated Harman’s first and second appeals. The sole issue before the appellate court was the cause of Looney’s chronic obstructive pulmonary disease (“COPD”).
The Court of Appeals began its analysis by stating that, in black lung cases, its review of the Board’s Order is “limited” to an assessment of whether substantial evidence supports the factual findings of the ALJ and whether the legal conclusions of the Board and ALJ are rational and consistent with applicable law. It acknowledged that the ALJ’s factual findings merit deference and, without reason to the contrary, must be sustained even if the appellate court disagrees. Because Harman opted not to challenge the substantiality of evidence supporting the ALJ’s findings of fact, the Court of Appeals shifted its attention to Harman’s alleged grounds for reversal: namely, a violation of the Administrative Procedure Act (APA) by the Board and ALJ in awarding black lung benefits.
First, Harman objected to the ALJ’s and the Board’s invocation of the Preamble to the 2000 regulations as the major basis for their decision, a foundation that Harman considered to be unreliable, at best. The Preamble to the regulations sets forth the medical and scientific premises upon which the Department of Labor may rely in resolving black lung cases. Harman contends that the ALJ violated the APA by finding Harman’s expert medical witness to be less credible than the Department’s expert simply because his views conflicted with those of the Preamble. The Court of Appeals, however, rejected this argument, explaining that although an ALJ is not required to rely upon the Preamble in assessing the credibility of expert testimony, she is entitled to do so. Citing other circuits that have upheld an ALJ’s reliance on the Preamble to discredit the opinion of an employer’s expert, the Court determined that the ALJ was not unreasonable in concluding that the views of Harman’s expert were at odds with the governing regulations and therefore, not credible.
Second, Harman contended that the Preamble violates the APA’s rulemaking requirements because it was not subjected to the notice-and-comment rulemaking. Again, the Court found no support for this contention, stating that the ALJ did not refer to the Preamble as controlling law but properly consulted it as a source of evidence concerning contemporaneous agency intent. The Court also rejected Harman’s notion that the ALJ’s invocation of the Preamble violated the APA because it was not placed in the administrative record, articulating to the contrary that the APA does not provide such a requirement.
Third, and finally, Harman argued that the ALJ’s weighing of the evidence violated the APA’s requirement that agency decisions must include a statement of “findings and conclusions, and the reasons for bases therefor, on all material issues of fact, law, or discretion presented on the record.” 5 U.S.C. § 557(c)(3)(A). The Court emphasized that an ALJ need not be verbose to explain the rationale for her findings, as Harman seemed to imply. For these reasons, the Court of Appeals for the Fourth Circuit held that “the record compels [the Court] to uphold the award of black lung benefits in this case.” In light of the substantiality of evidence to support the ALJ’s finding of fact and in accordance with the APA, the Court denied Harman’s Petition for Review.
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