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Media Alerts - West Virginia CWP Fund v. Bender -- Fourth Circuit
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April 30, 2015
  West Virginia CWP Fund v. Bender -- Fourth Circuit
Headline: Don't Presume the Worst - Fourth Circuit Upholds Standard Benefitting Coal Miners with Black Lung

Areas of Law: Administrative Law, Health Care

Issue Presented: Whether a "rule-out" standard for determining a connection between a coal miner's pneumoconiosis and his disability, as promulgated by the Department of Labor, is valid.

Brief Summary: Page Bender worked as an underground coal miner for twenty-one years. He also had a heavy smoking habit for over forty years. In 2007, he was diagnosed with lung cancer, and he has since undergone extensive related treatment. In 2009, he applied for benefits made available pursuant to the Black Lung Benefits Act. All of the medical experts involved agreed that he suffers from a totally disabling respiratory condition.

The administrative law judge (ALJ) reviewing the claim applied a statutory presumption that Bender's disability was due to black lung (pneumoconiosis). This presumption is available when the claimant worked as an underground coal miner for more than fifteen years, suffers a totally disabling respiratory or pulmonary impairment, and the presence of pneumoconiosis cannot be disproved. This operates as a "rule-out" standard, whereby a claimant entitled to the presumption can only be denied benefits if pneumoconiosis can be entirely ruled out. Upon review of the testimony of the involved experts, the ALJ determined that the coal mine operator had not presented evidence sufficient to rebut the presumption, and awarded benefits to Bender. The operator petitioned for review, and argued that the ALJ erred in applying the "rule-out" standard.

In its analysis, the United States Court of Appeals for the Fourth Circuit traced the history of the presumption. It was created by Congress in 1972, but the Supreme Court in 1976 in Usery v. Turner Elkhorn Mining Co. held it does not apply to coal mine operators opposing a miner's claim for benefits. The Department of Labor clarified the statute by regulation in 1980; but in 1981, Congress eliminated the presumption for all claims filed after 1981. With that, the presumption remained entombed until the Patient Protection and Affordable Care Act revived it in 2010, when Congress used language identical to that from the original in the new statutory presumption.

In analyzing the validity of the "rule-out" standard, the Fourth Circuit first determined that Congress has not directly spoken on the issue, in spite of the coal mine operator's argument that the Usery decision precludes any application of the rule out standard to operators. The Fourth Circuit concluded that the Usery decision applied only to the specific statutory rebuttal standard applied in that case, and not to regulations promulgated under the statute.

With that question answered, the Fourth Circuit asked only whether application of the standard is "a reasonable choice within the gap left open by Congress." Here, the court noted that the same regulation was promulgated in 1980, and that Congress must have been aware of that when it reenacted the presumption in 2010, but did not make any changes.

The court noted that the presumption with a "rule-out" standard places a high burden on coal mine operators, but it decreases the burden of claimants seeking benefits, which was Congress' goal in creating the presumption. In upholding the standard, the Fourth Circuit mirrored a recent decision by the Sixth Circuit. The Fourth Circuit denied the petition for review and affirmed the decision of the ALJ.

To read the full text of this opinion, please click here.

Panel: Judges Keenan, Floyd, and Harris

Argument Date: 12/29/2015

Date of Issued Opinion: 04/02/15

Docket Number: No. 13-2034

Decided: Petition for review denied by published Opinion.

Case Alert Author: David Arnold, Univ. of Maryland Carey School of Law

Counsel: ARGUED: William Steele Mattingly, JACKSON KELLY PLLC, Morgantown, West Virginia, for Petitioner. Sean Gregory Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Roger Daniel Forman, LAW OFFICE OF ROGER D. FORMAN, Buckeye, West Virginia, for Respondents. ON BRIEF: M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor, Maia S. Fisher, Deputy Associate Solicitor, Gary K. Stearman, Counsel for Appellate Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent Director, Office of Workers' Compensation Programs, United States Department of Labor.

Author of Opinion:
Judge Keenan

Case Alert Circuit Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/30/2015 11:39 AM     4th Circuit  

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