for Review from and Order of the Benefits Review Board
(Benefits No. 15-0228 BLA)
L. Intravaia, Feirich/Mager/Green/Ryan, Carbondale, Illinois,
G. Bajkowski, Counsel for Appellate Litigation, U.S.
Department of Labor, Office of the Solicitor, Washington,
D.C. (M. Patricia Smith, Solicitor of Labor, Maia S. Fisher,
Acting Associate Solicitor, and Emily Goldberg-Kraft,
Attorney, United States Department of Labor, Office of the
Solicitor, Washington, D.C., with him on the brief), for
Director, Office of Workers' Compensation Programs,
L. Bramwell, Kelly & Bramwell, P.C., Draper, Utah, for
Kirk Hanna, Respondent.
TYMKOVICH, Chief Judge, LUCERO and MORITZ, Circuit Judges.
LUCERO, Circuit Judge.
Coal ("Consolidation") seeks review of a decision
by the Department of Labor ("DOL") awarding
survivor's benefits to Judy Noyes under the Black Lung
Benefits Act ("BLBA"), 30 U.S.C. §§
901-944. The administrative law judge ("ALJ")
assigned to the case determined that Mrs. Noyes was entitled
to a statutory presumption that the death of her husband,
James Noyes, resulted from his exposure to coal dust in
underground coal mines. The ALJ further concluded that
Consolidation failed to rebut that presumption by showing
either that Mr. Noyes did not suffer from pneumoconiosis or
that pneumoconiosis did not cause his death. In its petition
for review, Consolidation argues that the ALJ erred in
retroactively applying the rebuttal standard from DOL's
revised regulations to Mrs. Noyes' claim for benefits.
Further, the company contends that the ALJ's
determination that Consolidation failed to meet its burden of
rebuttal is not supported by substantial evidence.
that the ALJ permissibly applied the rebuttal standard from
the revised regulations to Mrs. Noyes' claim. The
statutory presumption under 30 U.S.C. § 921(c)(4)
encompasses both clinical and legal pneumoconiosis. And the
rebuttal standard set forth in 20 C.F.R. §
718.305(d)(2)(ii), which requires an employer to effectively
"rule out" any causal connection between
pneumoconiosis and the miner's death, is consistent with
the requirements of the Administrative Procedure Act
("APA") and the purposes underlying the BLBA. That
standard may further be applied retrospectively to claims,
like Mrs. Noyes', that were filed prior to the effective
date of the revised regulations.
we agree with Consolidation that the ALJ incorrectly stated
the revised rebuttal standard in analyzing Mrs. Noyes'
claim. Exercising jurisdiction under 33 U.S.C. § 921(c)
and 30 U.S.C. § 932(a), we grant Consolidation's
petition for review and remand for further proceedings.
BLBA provides benefits to coal miners and their surviving
dependents for death or disability due to certain respiratory
diseases known as "pneumoconiosis" arising out of
coal-mine employment. 33 U.S.C. § 901. There are two
types of pneumoconiosis under the BLBA: "clinical"
and "legal." 20 C.F.R. § 718.201(a). Clinical
pneumoconiosis refers to a group of diseases that are
"recognized by the medical community as
pneumoconiosis" and "characterized by permanent
deposition of substantial amounts of particulate matter in
the lungs and the fibrotic reaction of the lung tissue to
that deposition caused by dust exposure in coal mine
employment." § 718.201(a)(1). Legal pneumoconiosis,
in contrast, "encompasses a broader class of lung
diseases that" do not all constitute
"pneumoconiosis as the term is used by the medical
community." Andersen v. Dir., OWCP, 455 F.3d
1102, 1104 (10th Cir. 2006). Legal pneumoconiosis is defined
as "any chronic lung disease or impairment and its
sequelae arising out of coal mine employment, "
including "any chronic restrictive or obstructive
pulmonary disease" arising out of such employment.
§ 718.201(a)(2). A disease "aris[es] out of coal
mine employment" if it is "significantly related
to, or substantially aggravated by, dust exposure in coal
mine employment." § 718.201(b).
individual claiming survivor's benefits under the BLBA
must generally show that: (1) the miner had pneumoconiosis;
(2) the miner's pneumoconiosis arose out of coal-mine
employment; and (3) the miner's death was due to
pneumoconiosis. § 718.205(a). Congress has enacted
various presumptions intended to ease a claimant's burden
of establishing entitlement to benefits. See
generally 30 U.S.C. § 921(c). Under §
921(c)(4), a survivor is entitled to a "rebuttable
presumption that . . . [a miner's] death was due to
pneumoconiosis" if the "miner was employed for
fifteen years or more in one or more underground coal
mines" and "evidence demonstrates the existence of
a totally disabling respiratory or pulmonary
fifteen-year presumption was created in 1972. See
Black Lung Benefits Act of 1972, Pub. L. No. 92-303, §
4(c), 86 Stat. 150, 154. It was repealed in 1981.
See Black Lung Benefits Revenue Act of 1981, Pub. L.
No. 97-119, § 202(b)(1), 95 Stat. 1635, 1643. In 2010,
however, Congress revived the presumption as to all claims
filed after January 1, 2005, and pending on or after March
23, 2010. See Patient Protection and Affordable Care
Act, Pub. L. No. 111-148, § 1556(a), (c), 124 Stat. 119,
260 (2010). DOL subsequently issued a regulation providing
that a party opposing a survivor's claim may rebut the
presumption by establishing that the miner did not have
either legal pneumoconiosis or clinical pneumoconiosis
arising out of coal-mine employment, or by demonstrating that
"no part of the miner's death was caused by
pneumoconiosis." § 718.305(d)(2). Although this new
regulation went into effect on October 25, 2013, see
Regulations Implementing the Byrd Amendments to the Black
Lung Benefits Act, 78 Fed. Reg. 59, 102, 59, 102 (Sept. 25,
2013), it applies to all claims covered by the statutory
amendment. § 718.305(a).
1976 and 2004, Mr. Noyes worked as a foreman supervisor, mine
manager, and mine superintendent for three different coal
mining operations in Utah, totaling twenty-two years of
coal-mine employment. Mr. Noyes was also a long-time smoker.
He died on February 11, 2008, after a prolonged battle with
various respiratory conditions, including emphysema/chronic
obstructive pulmonary disease ("COPD"), pneumonia,
and lung cancer.
2008, Mrs. Noyes filed an application for survivor's
benefits under the BLBA.Her claim was initially denied on
September 3, 2009. While her administrative appeal was
pending before DOL's Office of Administrative Law Judges,
Congress restored the fifteen-year presumption found in
§ 921(c)(4). See § 1556(a), (c), 124 Stat.
at 260. The ALJ, Richard Malamphy, denied Consolidation's
request to remand the case to the District Director for the
development of additional evidence in response to the
restored presumption. ALJ Malamphy concluded that a remand
was unnecessary because his review was de novo and the
parties would have the opportunity to submit new evidence
regarding the statutory change.
a formal hearing, ALJ Malamphy denied Mrs. Noyes'
application for benefits, concluding she had failed to
establish that pneumoconiosis was a substantially
contributing cause or factor in her husband's death.
DOL's Benefits Review Board ("BRB") vacated the
decision and remanded for consideration of whether Mrs. Noyes
was entitled to invoke the fifteen-year presumption under
§ 921(c)(4). In a new order, ALJ Malamphy determined
that the presumption applied and had not been rebutted. He
consequently awarded benefits to Mrs. Noyes. Consolidation
appealed, and the BRB vacated the ALJ's decision in part
for failure to give Consolidation an opportunity to disprove
the existence of legal pneumoconiosis before discrediting the
employer's rebuttal evidence. The case was remanded to a
new ALJ, Paul Johnson, who awarded benefits. Applying the
fifteen-year presumption and the rebuttal standard under
§ 718.305(d), ALJ Johnson determined that Consolidation
had failed to rebut the presumption of death due to
pneumoconiosis. The BRB affirmed. Consolidation filed a
timely petition for review with this court.
raises several legal challenges to the BRB's decision. We
review the BRB's resolution of legal questions de novo.
Antelope Coal Co./Rio Tinto Energy Am. v. Goodin,
743 F.3d 1331, 1342 (10th Cir. 2014). In conducting this
review, "[w]e give no deference to the [BRB's]
interpretation" but accord "considerable weight to
[DOL's] construction of the statute it is entrusted to
administer and substantial deference to the agency's
reasonable interpretation of its own regulations, unless such