Smoker’s Widow Entitled to Black Lung Benefits Act Survivor’s Award

Takeaway: Recovery statutes like the federal Black Lung Benefits Act often permit the award of benefits even when the scientific evidence of causation is debatable. A 2001 regulation expanded the legal definition of black lung, or pneumoconiosis, to cover both restrictive lung diseases (preventing full inhalation) and obstructive lung diseases (preventing full exhalation) based on studies showing that coal mining may cause both types of conditions.

An appeals court decision recently upheld an award of survivor’s benefits under the Black Lung Benefits Act to the widow of a coal mine worker who had been a smoker.

The claimant developed an obstructive lung disease after smoking and working in coal mines. He was born in 1960, lived in Eastern Kentucky, and married his wife in 1981. He started smoking when he was 18 and averaged around a pack a day for most of his life. Having quit school after the eighth grade, the claimant worked on and off in coal mines between 1979 and 1995. After his retirement, the claimant struggled to breathe.

The claimant spent most of his coal mining career underground using a cutting machine to extract coal at the face of the mines. This job regularly required him to work in the dustiest areas. He filed his first application for federal black lung benefits in 1998. An administrator denied this claim because he failed to prove that he had pneumoconiosis. The claimant did not appeal.

In 2001, U.S. Department of Labor (DOL) expanded its definition of pneumoconiosis to include obstructive lung diseases such as emphysema if the disease arises from coal mine work. The DOL addressed criticisms of this broad definition in a regulatory preamble to its final regulation. The preamble interpreted the then-existing scientific studies to establish that coal mine work can cause obstructive diseases, either alone or in combination with smoking.

In 2008, the claimant filed the application at issue against Wilgar Co. and its insurer, Old Republic Insurance (collectively referred to as “Wilgar”). For the next decade, his claim bounced around administrators, administrative law judges and the benefits review board on various grounds.

The claimant passed away in 2013. His treating physician identified his causes of death as cardiopulmonary arrest, emphysema, coal worker’s pneumoconiosis, throat cancer and aspiration pneumonia. After his death, his widow took over his benefits claim and filed a separate claim for survivor’s benefits.

In 2019, a new administrative judge took over the case. In his notice of assignment, the judge stated that he could look to the preamble to the revised regulations in weighing conflicting medical opinions and determining their credibility.

In response, Wilgar requested discovery from the DOL regarding who drafted the preamble, the meaning of various statements within it and the scientific studies that supported its conclusions. The judge prevented this discovery on relevancy grounds.

Wilgar and the claimant’s widow did not dispute that the claimant had a chronic lung disease. But their dueling experts debated whether his obstructive impairment arose solely from his lengthy smoking habit or at least partly due to dust exposure in the coal mines.

Wilgar relied on three experts who opined that the claimant’s smoking exclusively caused obstructive lung disease. The claimant’s widow relied on his treating physician, whose report found smoking as the main cause of his obstructive disease but added that coal mine work had substantially aggravated it.

After a hearing, the judge awarded benefits to the claimant’s widow. The judge gave the treating physician’s opinion controlling weight and gave little weight to Wilgar’s expert opinions. The judge believed that they conflicted with the discussion in the preamble to the 2001 regulation.

The benefits review board affirmed the award of benefits. The board upheld the judge’s weighing of the expert opinions and found that the judge properly looked to the preamble to discredit Wilgar experts. Wilgar appealed to the 6th U.S. Circuit Court of Appeals.

On appeal, Wilgar argued that the administrative law judge erred under the Administrative Procedure Act by treating the preamble to the regulation as binding. The 6th Circuit reasoned that the judge could use a preamble for more than just interpreting the regulation, including relying on its statements of scientific fact when resolving evidentiary disputes in particular cases.

The 6th Circuit noted that the preamble itself was not entitled to substantive deference and that some of the judge’s reasoning in evaluating the evidence was open to debate. Nevertheless, it found that Wilgar did not challenge the decision based on lack of substantial evidence and did not preserve its objection to the scientific statements in the preamble. Because the judge did not wholly rely on the preamble, the court rejected Wilgar’s appeal and upheld the award.

Wilgar Land Co. v. OWCP, 6th Cir., No. 22-3709 (Oct. 31, 2023).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.