Marfork Coal Company v. Weis , 251 F. App'x 229 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1913
MARFORK COAL COMPANY,
Petitioner,
versus
ROGER L. WEIS; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(05-0822-BLA)
Argued: May 22, 2007 Decided: October 18, 2007
Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge, and Benson
Everett LEGG, Chief United States District Judge for the District
of Maryland, sitting by designation.
Affirmed by unpublished opinion. Judge Legg wrote the majority
opinion, in which Judge Gregory concurred. Chief Judge Williams
wrote a dissenting opinion.
ARGUED: Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C., Charleston,
West Virginia, for Petitioner. S. F. Raymond Smith, RUNDLE &
RUNDLE, L.C., Pineville, West Virginia; Richard Anthony Seid,
UNITED STATES DEPARTMENT OF LABOR, Office of the Solicitor,
Washington, D.C., for Respondents. ON BRIEF: Kathy Lynn Snyder,
JACKSON & KELLY, P.L.L.C., Morgantown, West Virginia, for
Petitioner. Howard M. Radzely, Solicitor of Labor, Patricia M.
Nece, Counsel for Appellate Litigation, UNITED STATES DEPARTMENT OF
LABOR, Office of the Solicitor, Washington, D.C., for Respondent,
Director, Office of Workers’ Compensation Programs.
Unpublished opinions are not binding precedent in this circuit.
2
LEGG, Chief District Judge:
In this case we address whether medical evidence offered for
the sole purpose of disproving liability constitutes “documentary
evidence” under § 725.456(b)(1) of the regulations implementing
the Black Lung Benefits Act. Relying on the plain language and
history of that regulation, we conclude that it does. Accordingly,
we affirm the order of the Benefits Review Board naming petitioner
Marfork Coal Co. as the responsible operator liable for the payment
of benefits to respondent Roger L. Weis. We also affirm the
Board’s conclusion that Weis’s benefits are payable as of April 1,
1996.
I.
A.
Coal miners are prone to develop pneumoconiosis, commonly
known as black lung disease. The Black Lung Benefits Act (“the
Act”), 30 U.S.C. § 901 et. seq., provides benefits to coal miners
who have been totally disabled by pneumoconiosis, and to the
surviving dependents of miners who die of the disease.
The Act places liability for the payment of benefits upon the
“responsible” coal operator.1 Under the regulations implementing
the Act, the “responsible operator” is usually the coal company
1
Daniels Co., Inc. v. Mitchell, 479 F.3d 321, 329 (4th Cir.
2007) (quoting Armco, Inc. v. Martin, 277 F.3d 468, 473 (4th Cir.
2002).
3
2
that most recently employed the miner for at least one year.
There are a number of grounds, however, upon which the most recent
employer can avoid liability. For example, the operator may prove
that it did not cause, contribute to, or aggravate the miner’s
pneumoconiosis.3 The operator may establish that it lacks the
means to pay, in which case the Black Lung Disability Trust Fund
will pay.4 The operator may also prove that the miner was already
totally disabled by pneumoconiosis before he was hired.5
The Department of Labor (“DOL”) is responsible for the
administrative adjudication of black lung cases. Generally
speaking, the litigation involves three stages. A miner or his
survivor first files a claim with a “district director” from the
DOL’s Office of Workers’ Compensation Programs. After
investigating the claim, the district director determines whether
the claimant is eligible for benefits, and, if so, which operator
is presumptively responsible.6 Any party may appeal the district
director’s decision to the Office of Administrative Law Judges
(“OALJ”).7 Thereafter, appeals are to the DOL’s Benefits Review
2
20 C.F.R. § 725.495(a)(1) (2007).
3
Id. § 725.494(a).
4
Id. § 725.495(c)(1).
5
See, e.g., Truitt v. North American Coal Co., 2 BLR 1-199
(1979), aff’d sub nom. Director, OWCP v. North American Coal Co.,
626 F.2d 1137 (3d Cir. 1980).
6
See National Mining Ass’n v. Dept. of Labor, 292 F.3d 849,
854 (D.C. Cir. 2002) (citing 20 C.F.R. §§ 725.301-725.423).
7
Id. (citing 20 C.F.R. §§ 725.450-725.480).
4
Board (“the Board”), and then to the Court of Appeals for the
circuit in which the miner’s “injury” occurred.8
In 2000, the DOL revamped its rules to streamline the handling
of black lung cases. One thrust of the new rules is to make
conclusive a district director’s determination of the “responsible
operator” liable for payments. If the district director’s
determination is overturned on appeal, the case is not remanded to
correct the error. Instead, benefits are paid by the Black Lung
Disability Trust Fund (“the Fund”). This is the case even if the
actual responsible operator can be identified.9
To protect the Fund from unwarranted liability, the rules
require the parties to present to the district director all
documentary evidence concerning which operator is liable.10 Absent
exceptional circumstances, new documentary evidence pertaining to
liability may not be thereafter introduced into the record.11 With
this background in mind, we turn to the facts.
B.
Roger L. Weis worked in the coal mines of West Virginia for
approximately thirty-six years. Most recently, Weis worked for
8
Id. (citing 20 C.F.R. § 725.481; § 725.482) (citation
omitted).
9
20 C.F.R. §§ 725.407(d); 725.418(d); 65 Fed. Reg. 79990;
79999-80000 (Dec. 20, 2000) (all citations will be to the Dec. 20,
2000 Federal Register).
10
Id.
11
20 C.F.R. § 725.456(b)(1).
5
Marfork Coal Co. (“Marfork”), which employed him from November 1,
1994 to August 1, 2006.12
On July 9, 2002, Weis filed a claim for black lung benefits
with a DOL district director located in Charleston, West Virginia.
On August 23, 2002, the district director notified Marfork of
Weis’s claim and identified Marfork as a potentially liable coal
operator.13 20 C.F.R. § 725.407. The regulations required Marfork
to file a response in which it either accepted or contested that
identification. Id. § 725.408(a)(1). On September 4, 2002,
Marfork contested liability.14
The district director ordered a complete pulmonary evaluation
of Weis. Id. §§ 725.405(b); 725.406(b). On September 24, 2002,
Dr. Manu Patel diagnosed Weis with complicated pneumoconiosis, a
rare and serious form of black lung disease.15
12
Weis retired on August 1, 2006.
13
See 20 C.F.R. §§ 725.408; 725.494.
14
In support of its position, Marfork had ninety days in which
to submit evidence concerning its employment of Weis and its status
as a potentially liable operator. Id. § 725.408(a)(2). Marfork
did not submit any evidence.
15
Coal worker’s pneumoconiosis is customarily classified as
either “simple” or “complicated.” Simple pneumoconiosis seldom
results in significant respiratory impairment. Complicated
pneumoconiosis, which is far more serious, involves progressive
massive fibrosis as a reaction to inhaled coal dust. Complicated
pneumoconiosis usually causes significant lung impairment and
breathing difficulties. It may induce death or contribute to death
by other causes. See Usery v. Turner Elkhorn Mining Co., 428 U.S.
1, 7 (1976) (footnotes omitted); N. Leroy Lapp, A Lawyer’s Medical
Guide to Black Lung Litigation, 83 W. Va. L. Rev. 721, 729-781
6
On January 28, 2003, the district director issued a “Schedule
for the Submission of Additional Evidence” (“the Schedule”). Id.
§ 725.410(a). The Schedule laid out the district director’s
preliminary conclusion that Weis was entitled to benefits because
of his disease.16 It gave Marfork thirty days to accept or contest
that finding. J.A. 51. It also gave the parties sixty days to
submit additional medical evidence concerning Weis’s entitlement.
Under the regulations, the parties could submit entitlement
evidence either to the district director or thereafter to an ALJ if
a formal hearing was requested. J.A. 52.
In the Schedule, the district director also preliminarily
designated Marfork as the responsible operator. J.A. 51. It gave
Marfork thirty days to accept or contest this finding.17 J.A. 52.
It also gave Marfork sixty days in which to submit any “documentary
evidence relevant to liability.” Id. Such evidence was to include
any evidence “relevant to whether another potentially liable
operator should have been designated the responsible operator.”
J.A. 53. The Schedule cautioned that “[a]bsent a showing of
extraordinary circumstances, no documentary evidence relevant to
(1981).
16
A miner with complicated pneumoconiosis is conclusively
presumed to be totally disabled. 20 C.F.R. §§ 718.203(b); 718.304.
17
An operator that fails to respond to the Schedule is deemed
to have accepted its designation and to have waived its right to
contest liability in any future proceedings. J.A. 52.
7
liability, or testimony of a witness not identified at this stage
of the proceedings, may be admitted into the record once a case is
referred to the [OALJ].” Id.
On February 11, 2003, Marfork submitted a DOL Operator
Response form to the district director in which it accepted its
designation as the responsible operator. J.A. 65. It contested,
however, that Weis was entitled to benefits. Id. Marfork did not
submit evidence of any kind to the district director.
Weis, however, did submit additional entitlement evidence to
the district director. He proffered two x-ray interpretations by
Dr. John Parker, who compared x-rays of Weis’s lungs from 1971,
1974, 1980, 1996, 1999, 2000, and 2003. Parker diagnosed Weis with
“progressive massive fibrosis,” another name for complicated
pneumoconiosis.18 Parker noted that the disease had “progressed”
between 1996 and 2003. J.A. 14.
On July 7, 2003, the district director issued a proposed order
awarding Weis benefits and holding Marfork liable. Marfork timely
requested a formal hearing before an ALJ. On September 18, 2003
the case was referred to the OALJ.19
18
See Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358, 1359-60
(4th Cir. 1996) (en banc).
19
The district director prepared a list of contested issues for
the hearing. J.A. 111-113. The issues focused on entitlement.
“Responsible operator” is not marked as a contested issue.
8
In preparation for a hearing before the ALJ, Marfork had Weis
examined by Dr. Robert Crisalli. The examination suggested that
Weis was indeed suffering from complicated pneumoconiosis. J.A.
J.A. 354; 364. This revelation prompted Marfork to start “scouring
hospital admissions, [as well as] State claims, to find out if
there were any earlier x-rays, which is standard procedure in our
[Marfork’s attorneys’] office.” Id. As part of this search,
Marfork, in August 2004, discovered a 1992 x-ray of Weis’s lungs
indicating that Weis was then suffering from the disease, a full
two years before Marfork hired him. This medical evidence was
significant. If Weis had developed complicated pneumoconiosis
before Marfork hired him, another operator would be solely liable
for Weis’s benefits.20
On October 19, 2004, the ALJ held a hearing. In addition to
Weis and Marfork, the Director of the Office of Workers’
Compensation Programs (the “OWCP Director”) was a party.21 The OWCP
Director, who acts as trustee for the Black Lung Benefits Fund, is
responsible for conserving its assets.22 Marfork offered into
20
See, e.g., Truitt v. North American Coal Co., 2 BLR 1-199
(1979), aff’d sub. nom. Director, OWCP v. North American Coal Co.,
626 F.2d 1137 (3d Cir. 1980).
21
Weis and the OWCP Director are the two respondents in this
proceeding. The OWCP Director, who administers the Black Lung
Benefits Program, 20 C.F.R. § 701.202(f) (2007), entered the case
when Marfork notified him that it contested liability. J.A. 159.
22
See, e.g., Truitt, 2 BLR 1-202.
9
evidence reports from three doctors who opined, based on the x-ray,
that Weis was disabled before he came to work for Marfork.23 The
reports were admitted without objection.
In light of the new evidence, the ALJ called for post-hearing
briefs. In his brief, the OWCP Director contended that the medical
reports should be excluded. Under 20 C.F.R. § 725.456(b)(1), he
argued, Marfork was required to have presented all evidence bearing
on liability to the district director. Accordingly, Marfork could
introduce the evidence now only by showing extraordinary
circumstances. Because the x-ray was waiting to be found, no such
circumstances existed.
The ALJ agreed. In a written opinion dated June 27, 2005, he
excluded Marfork’s evidence, awarded benefits to Weis,24 and held
Marfork liable. He further concluded that Marfork had failed to
develop its exculpatory evidence in a timely fashion.25
23
Drs. Wiot, Meyer, and Hippensteel all read the x-ray for the
company. All three concluded that the x-ray was positive for
complicated pneumoconiosis.
24
The ALJ determined that Weis’s benefits are payable as of
April 1996, the date that admissible x-ray evidence showed that
Weis first suffered from complicated pneumoconiosis. Id. §
725.503(b).
25
The ALJ made two additional findings that we must briefly
address. The ALJ found that Marfork could not contest its status
as a potentially liable operator because it had failed to submit
evidence within ninety days of receiving notice of Weis’s claim.
J.A. 230; see 20 C.F.R. § 725.408(b)(1). The ALJ also found that
Marfork had waived its right to contest its liability under 20
C.F.R. § 725.412(a)(2) because it had accepted its designation as
responsible operator before the district director. J.A. 230. The
10
On August 19, 2005, Marfork appealed to the Board. On June
30, 2006, the Board affirmed in a split decision. The majority
held that medical records are included in the term “documentary
evidence” referenced in § 725.456(b)(1). J.A. 395. The Board also
affirmed the ALJ’s finding that Marfork had failed to prove
“extraordinary circumstances.” J.A. 397.
Marfork timely filed the instant petition for review. We have
jurisdiction under 33 U.S.C. § 921(c). For the reasons stated
below, we deny Marfork’s petition and affirm the decision of the
Board.
II.
On a petition for review of an order of the Board, we
independently review the record. Daniels Co., Inc., v. Mitchell,
479 F.3d 321, 329 (4th Cir. 2007) (citations omitted). We review
the Board’s conclusions of law de novo. Id. We determine whether
substantial evidence exists to support the ALJ’s findings of fact.
Consolidation Coal Co. v. Williams, 453 F.3d 609, 614 (4th Cir.
2006).26
Board did not rely on either ground as support for its decision,
however. Accordingly, neither finding is presently before us. See
Grigg v. Director, OWCP, 28 F.3d 416, 418 (4th Cir. 1994) (“We
confine our review to the grounds upon which the Board based its
decision.”).
26
Substantial evidence is “‘more than a mere scintilla.’”
Consolidation Coal Co. v. Williams, 453 F.3d 609, 614 (4th Cir.
2006) (citations omitted). Specifically, it is “such relevant
11
III.
This case involves the interpretation of § 725.456(b)(1),
which governs the admissibility of “documentary evidence pertaining
to the liability of a potentially liable operator and/or the
identification of a responsible operator.” Unless submitted to the
district director, such documentary evidence “shall not be
admitted...in the absence of extraordinary circumstances.” Id.
The full text of the section is as follows:
Documentary evidence pertaining to the liability of a
potentially liable operator and/or the identification of
a responsible operator which was not submitted to the
district director shall not be admitted into the hearing
record in the absence of extraordinary circumstances.
Id.27
Medical evidence concerning entitlement to benefits is treated
differently. Id. § 725.456(b)(2). Entitlement evidence may be
offered at either the district director or the ALJ stage. Id. The
controversy in the instant case arose because the medical opinions
concerning the 1992 x-ray are pertinent both to Weis’s entitlement
to benefits and to Marfork’s liability.
Marfork would read into § 725.456(b)(1) an implied exception
for medical evidence that pertains to liability. According to
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Id. at 615 (internal quotation marks and citations
omitted).
27
Neither the regulations nor the regulatory history found in
the Federal Register define the term “documentary evidence.”
12
Marfork, the regulation would now read, “documentary evidence
pertaining to...liability, except for medical evidence.” The OWCP
Director disagrees, maintaining that the regulation is not only
clear, but that the DOL intended it to apply to all evidence,
medical or otherwise, that bears upon liability.
We agree with the Director. His interpretation conforms to
the plain meaning of the regulation, which is unqualified.28 His
interpretation is also supported by the regulatory history.
The DOL revised the Act’s regulations in 2000. One of the
Department’s objectives was to simplify and streamline the
processing of claims at the district director level. 65 Fed. Reg.
79990.
An initial draft of the regulations would have required both
liability and entitlement evidence to be presented to the district
director.29 Id. at 79989. The Department observed that this
28
Because the black lung regulations are administered by the
OWCP Director, his interpretation is entitled to “substantial
deference ‘unless it is plainly erroneous or inconsistent with the
regulation.’” Mullins Coal Co. v. Director, OWCP, 484 U.S. 135,
159 (1987) (citing Bowles v. Seminole Rock & Sand Co., 325 U.S.
410, 414 (1945)); see Doss v. Director, OWCP, 53 F.3d 654, 658 (4th
Cir. 1995) (citing and applying Mullins). This rule of deference
applies to an interpretation contained in a brief, including the
brief that the OWCP Director filed in the instant case. See, e.g.,
Auer v. Robbins, 519 U.S. 452, 461-62 (1997). As our discussion
above makes clear, we find the OWCP Director’s interpretation to be
neither plainly erroneous nor inconsistent with the regulation.
29
The draft regulation would have defined documentary evidence
as “evidence relevant to operator liability as well as all medical
evidence relevant to a claimant’s eligibility[.]”
13
proposal would end the then-current practice of delaying the
development of evidence on both issues until the OALJ stage. Id.
Eventually, the DOL decided not to require all medical
eligibility evidence to be submitted to the district director. Id.
at 79990. The DOL did, however, implement its proposal with
respect to liability evidence. This decision is clearly stated in
the Federal Register: “Any such evidence that was not submitted to
the district director could be submitted to the ALJ only upon a
showing of extraordinary circumstances.” Id.
As the Federal Register explains, serious disputes about the
identity of the responsible operator arise in fewer than ten
percent of all claims. Id. at 79989; 79991; 79999-80000. When
such disputes do arise, however, the DOL expressly intended to
resolve them at the district director stage. Id. The district
director is required to select one and only one responsible
operator, and he is “permitted to refer a case to the [OALJ] with
only one designated responsible operator as a party to the claim.”
Id. at 79990.
It is important that the district director make the right
decision. In the event that the operator he designates is later
adjudicated not liable, the Fund will pay any benefit award. Id.
There is no remand. Id.
The Federal Register devotes considerable space to explaining
that under the 2000 changes the district director’s initial
14
determination is unassailable even if wrong. Id. “The Department
intends that once a claim is referred to the [OALJ], the Department
shall not be able to impose liability for that claim on any
operator other than the one formally designated by the district
director, whether through remand by the [ALJ] or through a
modification of a finally awarded claim.” Id.
For these reasons, the DOL obliged operators to develop
liability evidence at the district director stage, the earliest
stage of claims processing. Id. at 79999-80000. Operators must
“submit evidence regarding their [own] potential liability for the
claim.” Id. at 79999. Moreover, they must develop and submit “any
evidence relevant to the liability of another party.” Id.
(emphasis added). This arms the district director with sufficient
information to determine accurately which operator is liable,
before the case is referred to the OALJ and before all other
operators are dismissed from the case. Id. at 80000.
Given this regulatory history, it is implausible to suppose
that the DOL crafted a system that deprives district directors of
critical documentary evidence on the issue of liability. Disputes
over the identification of the responsible operator may be
infrequent. Nonetheless, as the facts of this case demonstrate,
such disputes do arise and medical evidence can be dispositive.
Under Marfork’s interpretation, an operator would not be required
to investigate the medical issues pertinent to liability until
15
after the liability Rubicon had been crossed. The DOL clearly did
not intend such a result.
Marfork contends that the Director’s interpretation would
impose an unreasonable burden on mine owners. Because liability
and entitlement evidence can be intertwined, Marfork argues, mine
operators would be required to develop and present both types of
evidence to the district director in every case. Under the
Schedule, the operator is allowed only sixty days to present
liability evidence to the district director. Marfork contends that
this time period is insufficient because black lung cases can often
be medically complex.
This argument is unpersuasive. In the DOL’s experience, the
identity of the responsible operator is infrequently in dispute.
Thus, the operator would be required to present medical evidence to
the district director in only in a small number of cases.
As to the time pressure, the sixty day time limit can be
extended for good cause shown. 20 C.F.R. § 725.423. Nothing in
the record suggests that district directors would deny mine
operators ample time to develop relevant medical evidence
pertaining to liability.
IV.
16
Marfork next argues that the ALJ committed error by finding
that Marfork had not shown extraordinary circumstances. We
disagree.
The ALJ carefully analyzed this issue. As he determined,
Marfork was on notice that Weis may have developed complicated
pneumoconiosis before 1994, when he was hired. Complicated
pneumoconiosis is a progressive disease that develops over time.
When Marfork hired Weis in 1994, he had been working in coal mines
for other operators for decades. When Weis applied for black lung
benefits, his application, which was sent to Marfork, stated that
he had previously received state workers’ compensation benefits for
black lung disease on three occasions.30
At the district director stage, Weis produced evidence that he
had been diagnosed with complicated pneumoconiosis.31 Based on
these and other facts, the ALJ found that Marfork had failed to
30
On his application, Weis disclosed that West Virginia had
awarded him state benefits in 1992, 2000, and 2002. J.A. 2.
31
The Schedule contained Dr. Patel’s diagnosis of complicated
pneumoconiosis. Pursuant to the Schedule, Weis submitted the x-ray
readings by Drs. Parker and Proto. Dr. Parker’s report explicitly
stated that his examination of the x-rays dated 1971, 1974, 1980,
1996, 1999, 2000, and 2003 revealed “advanced dust related disease
- progressive massive fibrosis,” which was seen in 1996, 1999,
2000, 2003, and which “has progressed [from] 1996 [to] 2003.” J.A.
14.
17
develop evidence clearly suggesting that another operator might be
liable. On appeal, the Board agreed.32
We find nothing in the record to disturb the ALJ’s conclusion.
Marfork did not begin investigating the case until the ALJ stage.
When Dr. Crisalli all but confirmed the diagnosis of complicated
pneumoconiosis, Marfork belatedly sprang into action, scouring
hospitals for medical records and ultimately tracking down the
crucial 1992 x-ray. J.A. 354; 364. Extraordinary circumstances
might exist if the x-ray were hidden or could not have been located
at the district director stage. Such is not the case here. The x-
ray was waiting to the found. Accordingly, we affirm the ALJ’s
finding that Marfork failed to show extraordinary circumstances.
V.
Marfork makes two additional arguments, each of which we need
address only briefly.
32
In affirming the ALJ’s decision, the Board correctly noted
that Marfork never provided any explanation to the ALJ why it had
failed to develop its evidence at the district director stage.
J.A. 397.
18
A.
In the Act, Congress stated its intent to impose liability
only on the responsible operator.33 Based on the 1992 x-ray, it now
appears that Weis contracted complicated pneumoconiosis while
employed by another mine operator.34 In light of this discovery,
Marfork contends that holding it liable would violate the intent of
Congress.
This argument fails because it relies on evidence that was
properly excluded from the record. The department has the
authority to write regulations governing the orderly litigation of
black lung cases. Those regulations presume that the operator who
last employed the miner for more than a year is responsible.35
Operators are provided a fair chance, however, to introduce
exculpatory evidence into the record. Marfork missed its chance.
Because the medical evaluations of the 1992 x-ray were not
presented to the district director, the evidence Marfork relies
upon is outside the record. For purposes of this litigation it
does not exist. Based on the properly admitted administrative
33
Marfork cites § 932 of the Act, which provides that coal mine
operators are responsible for paying benefits to miners whose death
or total disability due to black lung disease arose out of
employment in the operator’s mine.
34
Marfork avers that Weis’s employer in 1992, Maben Energy
Corporation, went bankrupt, and that this is a case where the Fund
should be liable for benefits. See 20 C.F.R. § 725.495(a)(4).
35
20 C.F.R. § 725.495.
19
record, Marfork is the responsible operator and the intent of the
Act has not been violated.
B.
Marfork next faults the ALJ for failing to admit the 1992
medical evidence for the purpose of establishing the date of onset
of Weis’s complicated pneumoconiosis. In order to properly
compensate Weis for his injuries, Marfork contends, a remand is
necessary to consider the newly discovered evidence. Because the
ALJ would necessarily consider the 1992 evidence to establish date
of onset, Marfork asserts that it would be irrational to ignore the
same evidence for the purpose of imposing liability.
Weis’s entitlement to benefits, however, is an issue for Weis
- not Marfork - to raise. Indeed, Weis has attempted to challenge
the ALJ’s date of onset determination before this Court.36 He is
precluded from doing so, however, by the doctrine of administrative
waiver. Although named as a respondent when Marfork appealed the
ALJ’s liability determination to the Board, Weis failed to
challenge the ALJ’s subsidiary conclusion establishing month of
onset. Weis filed no brief and declined to appear at oral argument
before the Board. J.A. 335; 386. Accordingly, he has waived his
36
See Resp’t’s Br. at 2. (“The [Board] erred only in confirming
the ALJ’s determination that the onset of permanent disability in
this case was April 1, 1996.”)
20
entitlement argument for consideration by this Court.37 See Beth
Energy Mines v. Cunningham, 104 F. Appx. 881 (4th Cir. 2004)
(Employer waived statute of limitations objection by failing to
present it to Board); Armco, Inc. v. Martin, 277 F.3d 468, 476
(Declining, on grounds of administrative waiver, to address
arguments not presented to Board).
VI.
We conclude that the Board correctly determined that medical
evidence offered only to disprove liability constitutes
“documentary evidence” within the meaning of § 725.456(b)(1). We
also conclude that the Board properly affirmed the exclusion of
Marfork’s medical evidence from the administrative record.
Accordingly, we affirm the Board’s decision and deny Marfork’s
petition for review.
AFFIRMED
37
In addition, Weis’s attempt to appeal to this Court is barred
by the regulations governing proceedings before the Board. Once
Marfork appealed the ALJ’s liability determination, Weis, as a
prevailing party, was required to file a cross-appeal in order to
alter or amend the result of the proceedings before the ALJ. See 20
C.F.R. § 802.201(a)(2); King v. Tennessee Consolidated Coal Co., 6
BLR 1-87 (Ben.Rev.Bd. 1983)(Cross-appeal required where “prevailing
party” seeks to alter judgment below); accord Malcomb v. Island
Creek Coal Co., 15 F.3d 364, 369 (Argument made without cross-
appeal must support ALJ’s decision, but not necessarily his
reasoning). Although Weis’s entitlement argument would have
precisely this effect, he declined file a cross-appeal to the
Board. Having failed to comply with the Board’s regulations, Weis
is therefore precluded from objecting to the ALJ’s conclusion
establishing date of onset.
21
WILLIAMS, Chief Judge, dissenting:
The regulations governing applications for benefits under the
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C.A. §§
901-945 (West 2007) (“the Black Lung Benefits Act” or “the Act”),
set forth detailed requirements governing the development of
evidence at each stage of the administrative process through which
such claims are adjudicated. Among these provisions is 20 C.F.R.
§ 725.456(b)(1), which provides as follows:
Documentary evidence pertaining to the liability of a
potentially liable operator and/or the identification of
a responsible operator which was not submitted to the
district director shall not be admitted into the hearing
record in the absence of extraordinary circumstances.
Medical evidence in excess of the limitations contained
in § 725.414 shall not be admitted into the hearing
record in the absence of good cause.
20 C.F.R. § 725.456(b)(1) (2007). The majority arrives at its
interpretation of § 725.456(b)(1) by taking the phrase
“[d]ocumentary evidence pertaining to [] liability” out of context
and concluding that, when viewed in isolation, the regulation’s
reference to “[d]ocumentary evidence pertaining to [] liability” is
“unqualified,” ante at 12, and therefore must encompass all
evidence submitted for the purpose of proving or disproving an
operator’s liability that is documentary in form. I disagree.
For the reasons that follow, I agree with Marfork Coal Co.
(“Marfork”) that the language and structure of § 725.456(b) (as
well as the “regulatory history” on which the majority relies)
reveal that the regulation delineates two distinct categories of
22
documentary evidence -- “medical evidence” and “evidence pertaining
to the liability of a potentially liable operator and/or the
identification of a responsible operator,” which the Department of
Labor (“DOL”) did not anticipate would overlap. Moreover, cross
references between the regulations make clear that the category of
evidence pertaining to liability in § 725.456(b) encompasses only
that evidence which 20 C.F.R. §§ 725.408(b) and 725.414(b) (2007)
authorize parties to submit to the district director. I would
therefore conclude that, because the phrase “[d]ocumentary evidence
pertaining to [] liability” in § 725.456(b) references a narrow and
specific category of evidence identified elsewhere in the
regulations, the Benefits Review Board (“BRB”) erred in construing
the phrase as broadly encompassing any and all documentary evidence
used to disprove liability.1 Accordingly, I respectfully dissent.
1
The majority states that an operator may avoid liability by,
among other things, “prov[ing] that it did not cause, contribute
to, or aggravate the miner’s pneumoconiosis” or “prov[ing] that the
miner was already totally disabled by pneumoconiosis before he was
hired.” Ante at 3. These alternatives, however, are one and the
same. Demonstrating that a miner was totally disabled from
pneumoconiosis prior to his employment with the operator is simply
one way of proving that the operator did not cause or contribute to
the miner’s total disability. See, e.g., Truitt v. N. Am. Coal
Co., 2 Black Lung Rep. 1-199, 1-204/05 (1979) (reasoning that
because a miner with complicated pneumoconiosis is irrebutably
presumed to be totally disabled due to pneumoconiosis, coal mine
employment subsequent to the development of the complicated
pneumoconiosis could not contribute to the disability).
23
I.
We review the BRB’s decision for errors of law and to ensure
that the BRB adhered to its statutory standard of review. Dehue
Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995). “To that
end, we undertake an independent review of the record, as in the
place of the BRB, to determine whether the ALJ’s factual findings
were based upon substantial evidence in the record.” Id. We
review the BRB’s legal conclusions de novo. Id.
Because the Director of the Office of Workers’ Compensation
(“the Director”) administers the regulations implementing the Black
Lung Benefits Act, we accord his interpretation of an ambiguous
regulatory provision “substantial deference unless it is plainly
erroneous or inconsistent with the regulation.” Mullins Coal Co.
v. Director, O.W.C.P., 484 U.S. 135, 159 (1987) (internal quotation
marks omitted). In this case, however, the majority relies on the
“plain language and history of the regulation,” ante at 2, in
embracing the Director’s view, not deference to its proponent. In
addition, the Director himself has asserted that because “the
regulatory language is clear and unambiguous,” no deference is due.
(J.A. at 355.) Although I read the regulations differently than
the Director, I agree that their meaning is plain. Accordingly, I
too would accord no deference to the Director’s interpretation.
24
A.
As with the interpretation of statutes, our interpretation of
federal regulations begins with their language. See Robinson v.
Shell Oil Co., 519 U.S. 337, 340 (1997) (“Our first step in
interpreting a statute is to determine whether the language at
issue has a plain and unambiguous meaning with regard to the
particular dispute in the case.”). Questions concerning the
plainness or the ambiguity of the statutory language are resolved
“by reference to the language itself, the specific context in which
that language is used, and the broader context of the statute as a
whole.” Id. at 341; see also Ayes v. U.S. Dept. of Veterans
Affairs, 473 F.3d 104, 108 (4th Cir. 2006) (“Of course, in looking
to the plain meaning, we must consider the context in which the
statutory words are used because we do not construe statutory
phrases in isolation; we read statutes as a whole.” (internal
quotation marks omitted)).
The language and structure of § 725.456(b) make clear that §
725.456(b)(1)’s reference to “[d]ocumentary evidence pertaining to
[] liability” does not encompass medical evidence. Section
725.456(b)(1) provides that:
Documentary evidence pertaining to the liability of a
potentially liable operator and/or the identification of
a responsible operator which was not submitted to the
district director shall not be admitted into the hearing
record in the absence of extraordinary circumstances.
Medical evidence in excess of the limitations contained
in § 725.414 shall not be admitted into the hearing
record in the absence of good cause.
25
20 C.F.R. § 725.456(b)(1). Thus, § 725.456(b)(1) sets forth
separate requirements for “[d]ocumentary evidence pertaining to
the liability of a potentially liable operator and/or the
identification of a responsible operator” and “[m]edical evidence.”
Id. Section 725.456(b)(2), in contrast, provides that
[s]ubject to the limitations in paragraph (b)(1) of this
section, any other documentary material, including
medical reports, which was not submitted to the district
director, may be received in evidence subject to the
objection of any party, if such evidence is sent to all
other parties at least 20 days before a hearing is held
in connection with the claim.
Id. § 725.456(b)(2) (emphasis added). In § 725.456(b)(2), the DOL
did not leave it to the reader to assume that “any other
documentary material” could include medical reports. Instead, that
subsection explicitly states that the reference to documentary
material included medical reports. Applying the rule of statutory
construction expressio unius est exclusio alterius (“the expression
of one thing implies the exclusion of another”), the omission of a
reference to medical evidence in § 725.456(b)(1)’s pronouncement
regarding “[d]ocumentary evidence pertaining to liability” is
properly understood as an exclusion of that evidence. See Ayes,
473 F.3d at 110-11 (“The time-honored maxim expressio unius est
exclusio alterius . . . applies with great force here.”); 2A Norman
J. Singer, Sutherland on Statutory Construction § 47.23 (6th ed.
2000). Thus, given the language of § 725.456(b)(2), it is clear
26
that the phrase “[d]ocumentary evidence pertaining to [] liability”
in § 725.456(b)(1) does not encompass medical evidence.
B.
Moreover, even absent the explicit language in §
725.456(b)(2), the interplay among the regulations governing the
adjudication of claims for benefits under the Black Lung Benefits
Act further demonstrates that the reference to “[d]ocumentary
evidence pertaining to [] liability” in § 725.456(b)(1) is not an
unqualified phrase encompassing all evidence having any bearing on
an operator’s liability. As explained below, that phrase merely
references specific evidence identified elsewhere in the regulatory
scheme.
The DOL’s regulations detail the mechanism through which an
operator’s liability and a claimant’s entitlement to benefits are
established. With regard to liability, the district director first
uses the information provided in an applicant’s claim form to
identify one or more potentially liable operators and sends those
operators a notice of claim. 20 C.F.R. § 725.407 (2007). An
operator receiving such a notice has thirty days within which to
file a response “indicating its intent to accept or contest its
identification as a potentially liable operator.” 20 C.F.R. §
725.408(a)(1) (2007). If the operator contests its identification,
it must, “on a form supplied by the district director, state the
precise nature of its disagreement by admitting or denying each of
27
[the five] assertions” listed in 20 C.F.R. § 725.408(a)(2). 20
C.F.R. § 725.408(a)(2). The five assertions in § 725.408(a)(2)
relate only to the operator’s employment of the claimant and
ability to make payments.2 The operator “may submit documentary
evidence in support of its position” within 90 days of the date on
which it received the notice of claim. 20 C.F.R. § 725.408(b)(1).
An operator that does not submit documentary evidence relevant to
the five assertions in § 725.408(a)(2) within the 90-day period is
precluded from introducing the evidence at a later date. 20 C.F.R.
§ 725.408(b)(2) (“No documentary evidence relevant to the grounds
set forth in [§ 725.408(a)(2)] may be admitted in any further
proceedings unless it is submitted within the time limits set forth
in this section.”).
After receiving the responses and evidence submitted pursuant
to § 725.408, the district director designates a “responsible
operator” liable for the payment of benefits and issues a schedule
2
Specifically, the five assertions that the operator must
admit or deny are:
(I) That the named operator was an operator for any
period after June 30, 1973;
(ii) That the operator employed the miner as a miner for
a cumulative period of not less than one year;
(iii) That the miner was exposed to coal mine dust while
working for the operator;
(iv) That the miner’s employment with the operator
included at least one working day after December 31,
1969; and
(v) That the operator is capable of assuming liability
for the payment of benefits.
20 C.F.R. § 725.408(a)(2) (2007).
28
for the submission of additional evidence. 20 C.F.R. § 725.410
(2007). The schedule must allow the parties “not less than sixty
days within which to submit additional evidence, including evidence
. . . relevant to the liability of the designated responsible
operator.” 20 C.F.R. § 725.410(b). This additional evidence must,
however, “meet the requirements set forth in § 725.414 in order to
be admitted into the record.” 20 C.F.R. § 725.410(b).
Section 725.414, in turn, contains separate subsections
entitled “medical evidence” and “evidence pertaining to liability.”
See 20 C.F.R. § 725.414(a),(b).3 The subsection addressing
evidence pertaining to liability, § 725.414(b), provides that
“[e]xcept as provided by § 725.408(b)(2), the designated
responsible operator may submit evidence to demonstrate that it is
not the potentially liable operator that most recently employed the
claimant.” 20 C.F.R. § 725.414(b)(1). Thus, the only “evidence
pertaining to liability” that § 725.414 permits a designated
responsible operator to submit to the district director is evidence
that (1) demonstrates that it is not the potentially responsible
operator that most recently employed the claimant, and (2) does not
go to the five assertions in § 725.408(a)(2). See 20 C.F.R. §§
725.408(b)(2), 725.414(b)(1). Section 725.414 does not authorize
3
Section 725.414 distinguishes between documentary evidence
and testimony. Section 725.414(a) & (b) apply only to documentary
evidence. Section 725.414(c) addresses testimony. See 20 C.F.R.
§ 725.414 (2007).
29
the designated responsible operator to submit any other type of
evidence pertaining to liability.
Pursuant to § 725.414(d), parties must submit the “evidence
pertaining to liability” detailed in § 725.414(b) within the time
period allotted in the schedule set by the district director; it
cannot be introduced into the record at a later stage of the
proceedings. See 20 C.F.R. § 725.414(d). Section 725.414(d) does
not apply to medical evidence submitted in accordance with §
725.414(a). In addition, § 725.414(d)’s limitation on the
submission of evidence pertaining to liability is not absolute --
it excepts evidence admissible under §§ 725.456 and 725.310(b). 20
C.F.R. § 725.414(d) (“Except to the extent permitted by § 725.456
and § 725.310(b), the limitations set forth in this section shall
apply to all proceedings conducted with respect to a claim, and no
documentary evidence pertaining to liability shall be admitted in
any further proceeding conducted with respect to a claim unless it
is submitted to the district director in accordance with this
section.”).4
Accordingly, evidence pertaining to liability that is
admissible under § 725.414(b) may be submitted after a case has
4
Section 725.310(b) addresses the submission of additional
medical evidence in modification proceedings (proceedings in which
the district director may reconsider the terms of an award or the
denial of benefits), and has no applicability to the introduction
of liability evidence while a claim is before the ALJ. See 20
C.F.R. § 725.310(b) (2007).
30
been transferred from the district director to the Office of
Administrative Law Judges (ALJs) only if it falls within an
exception contained in § 725.456. One such exception is §
725.456(b)(1), the provision discussed in Part A, which allows the
admission into the hearing record of “[d]ocumentary evidence
pertaining to liability” that was not submitted to the district
director in “extraordinary circumstances.” 20 C.F.R. §
725.456(b)(1) (stating that “[d]ocumentary evidence pertaining to
the liability of a potentially liable operator which was not
submitted to the district director shall not be admitted into the
hearing record in the absence of extraordinary circumstances”).
Thus, contrary to the majority’s view, § 725.456(b)(1) does
not represent an independent requirement governing a category of
“evidence pertaining to [] liability” broader than or otherwise
different from the “evidence pertaining to liability” described in
§§ 725.408(b) and 725.414(b). It simply places a qualified
limitation on the parties’ ability to introduce to the ALJ evidence
that they could have submitted to the district director pursuant to
§§ 725.408(b) and 725.414(b).
C.
Contrary to the majority’s assertion, the comments to the
regulations governing the adjudication of claims for Black Lung
benefits do not countenance an expansive interpretation of §
725.456(b)(1). To the contrary, an examination of these comments
31
further demonstrates that the DOL intended to allow potentially
liable operators to defer the development of medical evidence until
after a case was referred to the Office of ALJs.
The majority correctly notes that when the DOL revised the
regulations in 2000, it sought to streamline the processing of
claims. Regulations Implementing the Federal Coal Mine Health and
Safety Act of 1969, as Amended, 65 Fed. Reg. 79920, 79990 (Dec. 20,
2000). To this end, the revised regulations prohibit remand to the
district director for the designation of a new responsible operator
in the event that the ALJ determines the district director erred in
its original selection. Id. at 79986. This restriction reduces
delay in the adjudication of claims but also “places the risk that
the district director has not named the proper operator on the
Black Lung Disability Trust Fund [(the “Fund”)].” Id.
The Director argues that the DOL proved willing to place this
risk on the Fund because the DOL believed that the regulations
governing evidence pertaining to liability would provide the
district director with the information necessary to designate the
correct responsible operator and avoid subjecting the Fund to
unwarranted liability. The majority accepts this contention, and
reads the Federal Register commentary as evincing the DOL’s belief
that, in revising the regulations, it had provided for the
submission of all evidence relevant to liability to the district
director. That the DOL sought to provide the district director
32
with all of the information necessary to correctly identify
responsible operators, however, does not mean that the regulations
the DOL enacted in fact accomplished this goal.
In support of its view, the majority seizes on fragments of
the commentary stating that operators must “submit evidence
regarding their potential liability for the claim” and that the
regulations require the “submission of any evidence relevant to the
liability of another party during the district director's claims
processing.” Id. at 79999. To be sure, the comments do indicate
that “the evidentiary limitations of §§ 725.408 and 725.414 are
designed to provide the district director with all of the
documentary evidence relevant to the determination of the
responsible operator liable for the payment of benefits.” Id. at
79976.5 The DOL’s belief that it had identified all of the
documentary evidence relevant to an operator’s liability and
provided for its submission to the district director pursuant to §§
5
The comments, like the regulations, recognize two types of
evidence relevant to liability “(1) [d]ocumentary evidence relevant
to an operator’s identification as a potentially liable operator,
governed by § 725.408; and (2) documentary evidence relevant to the
identity of the responsible operator, governed by § 725.414 and
725.456(b)(1).” Regulations Implementing the Federal Coal Mine
Health and Safety Act of 1969, as Amended, 65 Fed. Reg. 79920,
79976 (Dec. 20, 2000). The comments also describe the two types of
evidence. With regard to the documentary evidence relevant to the
identity of the responsible operator, they state that, “[u]nder §
725.414, an operator may submit documentary evidence to prove that
a company that more recently employed the miner should be the
responsible operator.” Id. They do not, however, reference any
other evidence as potentially relevant to liability.
33
725.408 and 725.414, however, has no bearing on whether § 725.456
properly can be construed as creating an independent requirement
that operators submit medical evidence bearing on liability to the
district director.6
Moreover, the commentary explicitly states that the revised
regulations “permit parties to maintain their current practice of
deferring the development of medical evidence until after a case
had been referred to the Office of Administrative Law Judges.” Id.
at 79984. The DOL addressed the anticipated costs of compliance
with the revised regulations in some detail, explaining that “while
potentially liable operators [would] be required to develop
evidence relevant to their liability while claims [were] pending
before district directors, they [would] no longer need to expend
money on the development of medical evidence in those cases . . .
that do not proceed beyond the district director level.” Id.
Accordingly, “in the small number of cases in which the Department
[did] not name the miner’s most recent employer as the responsible
6
The DOL may have overlooked this possibility because cases in
which medical evidence is relevant to the identification of the
responsible operator are rare. Medical evidence is irrelevant in
cases involving simple pneumoconiosis, and these cases account for
the majority of claims under the Act. And, as the Director has
acknowledged, complicated pneumoconiosis cases in which liability
is disputed are rare. Rarer still are cases in which a miner is
presumed totally disabled from complicated pneumoconiosis but works
for several more years before filing for benefits. Moreover, even
in these unusual circumstances, the claimant would ordinarily seek
out evidence relevant to the onset date of his complicated
pneumoconiosis in order to obtain the full amount of benefits
available under the Act.
34
operator,” the earlier employer might “incur additional costs in
attempting to establish that a more recent employer should be held
liable for the payment of benefits.” Id. The DOL believed,
however, that “[i]n comparison to the costs of developing medical
evidence . . . the additional costs imposed by the regulations
[would] not be significant.” Id. Thus, the comments reveal that
the DOL intended the revised regulations to allow operators to
defer the development of medical evidence until the case reached
the ALJ.
D.
In sum, the language and structure of 20 C.F.R. § 725.456(b)
itself, the interplay among the regulations governing the
development of evidence at each stage of the administrative
process, and the Federal Register comments to the regulations make
clear that § 725.456(b) differentiates between “medical evidence”
and “evidence pertaining to liability.” These sources also reveal
that whether a particular piece of documentary evidence constitutes
medical evidence or evidence pertaining to liability depends on
what the evidence is, not the purpose for which it is offered.
Only evidence relevant to the five assertions in § 725.408(a)(2)
and evidence demonstrating that an operator was not the potentially
liable operator that most recently employed the claimant
constitutes “evidence pertaining to liability” within the meaning
of §§ 725.414(b)&(d) and 725.456(b)(1). The evidence that Marfork
35
sought to introduce to the ALJ -- interpretations of a 1992 x-ray
demonstrating that Weis suffered from complicated pneumoconiosis
prior to his employment with Marfork -- was neither. Accordingly,
the BRB erred in concluding that § 725.456(b)(1) precluded the
introduction into the record of the 1992 x-ray interpretations.7
II.
In sum, I believe that the BRB erred in concluding that
medical evidence may constitute “evidence pertaining to []
liability” within the meaning of § 725.456(b)(1). I would
7
I also wish to note that, even were I to agree with my
colleagues’ interpretation of § 725.456(b), I would be inclined to
find that submission of the 1992 x-ray before the Administrative
Law Judge (“ALJ”) was proper because § 725.456(b)(1) permits
submission of documentary evidence to the ALJ in extraordinary
circumstances. Given that the comments to the regulations indicate
that the regulations “permit parties to maintain their current
practice of deferring the development of medical evidence until
after a case had been referred to the Office of Administrative Law
Judges,” 65 Fed. Reg. at 79984, and promise that the regulations
will not be a trap for the unwary litigant, see Fed. Reg. at 79986
(rejecting such criticism because “the nature of the evidence
required . . . and the time limits for submitting that evidence,
are clearly set forth in the regulations, and will be communicated
to potentially liable operators who are notified of a claim by the
district director”), it seems unduly harsh to presume Marfork had
notice that it needed to present the 1992 x-ray to the district
director.
Moreover, in this case, permitting Marfork to introduce the
1992 x-ray would not have worked prejudice upon the Fund. The
record instead reveals that Weis’s employer in 1992, Maben Energy
Co., went bankrupt while self-insured and that its liability
transferred to the Fund. See C.F.R. § 725.495(a)(4)(2007). Thus,
the Fund would have been liable in any event and, if anything, is
now receiving a windfall in that a demonstrably innocent operator
is left to provide Weis’s benefits.
36
therefore reverse the BRB’s determination that the ALJ properly
ignored the 1992 x-ray interpretations in adjudicating Marfork’s
liability for Weis’s Black Lung benefits and remand for further
proceedings. Accordingly, I respectfully dissent.
37