Buck Creek Coal Company v. Gay Sexton

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0012p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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BUCK CREEK COAL COMPANY; OLD

Petitioners, --

REPUBLIC INSURANCE COMPANY,

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No. 11-4304

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v.

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GAY NELL SEXTON, widow of and on behalf

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of FRABLE SEXTON; DIRECTOR, OFFICE OF

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WORKERS’ COMPENSATION PROGRAMS,

Respondents. -

UNITED STATES DEPARTMENT OF LABOR,

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Appeal from the Benefits Review Board.

Nos. 10-0192 BLA; 10-0191 BLA.

Decided and Filed: January 10, 2013

Before: BATCHELDER, Chief Judge; MERRITT and KETHLEDGE, Circuit

Judges.

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COUNSEL

ON BRIEF: Laura Metcoff Klaus, Mark E. Solomons, GREENBERG TRAURIG,LLP,

Washington, D.C., for Petitioners. Miller Kent Carter, CARTER & LUCAS,

ATTORNEYS, Pikeville, Kentucky, William L. Roberts, WILLIAM LAWRENCE

ROBERTS, P.S.C., Pikeville, Kentucky, for Sexton Respondent. Michelle S. Gerdano,

Gary K. Stearman, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,

for Government Respondent.

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OPINION

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MERRITT, Circuit Judge. Frable Sexton, a long-time smoker and career coal

miner, filed a series of petitions for benefits under the Black Lung Benefits Act. This

case arises from his final petition and award of benefits. After filing for benefits in

2001, Mr. Sexton passed away. However, an administrative law judge, hearing both Mr.

Sexton’s claim and his widow’s survivor claim, found that the medical evidence

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No. 11-4304 Buck Creek Coal, et al. v. Sexton, et al. Page 2

established a change in Mr. Sexton’s condition and that he suffered a total disability

from clinical and legal pneumoconiosis. The ALJ awarded benefits and the Benefits

Review Board affirmed. Buck Creek Coal Company appeals this determination, arguing

that its application of 20 C.F.R. § 725.309 is invalid and that it violates due process

because it contravenes the principles of finality and res judicata by permitting the re-

adjudication of the cause of black lung disease. We affirm the judgment of the Benefits

Review Board and hold that 20 C.F.R. § 725.309 is valid and was correctly applied in

this case and that the Board’s decision does not violate the long-standing principles of

finality or res judicata.

I. Facts

Frable Sexton spent 25 years working in coal mines. His struggle to receive

black lung benefits lasted even longer in the courts—starting in 1973 and continuing

today. Sexton first applied for benefits in 1973. The application was unsuccessful as

were two other claims. On April 12, 2001, two years after the denial became final, Mr.

Sexton filed a subsequent claim. This time the district director recommended an award

of benefits. Buck Creek Coal Company requested a formal hearing. While his claim

was still pending before the Office of Administrative Law Judges, Mr. Sexton died. His

widow filed her own claim for benefits and the district director issued a proposed

decision and order awarding benefits in the survivor claim. Buck Creek requested a

hearing. Both claims were consolidated and heard on October 28, 2008. The

administrative law judge considered four medical opinions, and based on that new

evidence, determined that Mr. Sexton suffered a total disability from clinical and legal

pneumoconiosis. The judge found that Sexton established a change in an applicable

condition of entitlement pursuant to 20 C.F.R. § 725.309 and accordingly awarded

benefits.

Buck Creek appealed to the Benefits Review Board challenging the merits of the

decision, the ALJ’s application of 20 C.F.R. § 725.309, and the awarding of benefits in

a subsequent claim, which it contends violates the principles of res judicata. The Board

affirmed the award of benefits as to Mr. Sexton’s claim and affirmed in part and vacated

No. 11-4304 Buck Creek Coal, et al. v. Sexton, et al. Page 3

in part with respect to Sexton’s widow’s survivor claim. Buck Creek appeals the

decision in regard to Mr. Sexton’s claim only.

II. Black Lung Benefits Act

The Black Lung Benefits Act provides benefits to coal miners who become

disabled due to pneumoconiosis. 30 U.S.C. § 901. Pneumoconiosis, commonly known

as black lung disease, is a “latent and progressive” disease caused by the “long-term

inhalation of coal dust.” Gray v. SLC Coal Co., 176 F.3d 382, 386 (6th Cir. 1999); 20

C.F.R. § 718.201(c).

In order to establish entitlement to benefits under the Black Lung Benefits Act,

a miner must prove that (1) he suffered from pneumoconiosis, (2) the pneumoconiosis

arose out of coal mine employment, (3) the miner was totally disabled, and (4) his

disability was due to pneumoconiosis. 20 C.F.R. § 725.202(d)(2).

Because pneumoconiosis is considered a “latent and progressive” disease, a

miner may file a subsequent claim even after a final order denying benefits. 20 C.F.R.

§ 725.309. For a successful subsequent claim, a miner must prove that one of the

applicable conditions of entitlement “has changed since the date upon which the order

denying the prior claim became final.” 20 C.F.R. § 725.309(d).

Buck Creek argues that the ALJ in this case misapplied 20 C.F.R. § 725.309(d).

First, it argues that the ALJ should have found a “material” change in a condition of

entitlement, rather than just a “changed” condition of entitlement. Buck Creek ignores

the current regulatory language. The previous version of 20 C.F.R. § 725.309(d)

required that a subsequent claim be denied unless “there has been a material change in

conditions.” 20 C.F.R. § 725.309(d) (1999) (emphasis added). However, the current

version of 20 C.F.R. § 725.309(d) became effective on January 1, 2001, and uses the

language “change[d] . . . conditions” of entitlement. The ALJ looked to the current

version of § 725.309(d) and after considering new evidence in the form of medical

opinions from four physicians, determined that there was in fact a change in a condition

of entitlement.

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Next, Buck Creek argues that the ALJ erred in not comparing the old evidence

from previous claims with new evidence. Indeed, this practice, a version of the “one-

element test,” was once the approach endorsed by this Court. It required the ALJ to

compare “the sum of the new evidence with the sum of the earlier evidence on which the

denial of the claim had been premised.” Tenn. Consol. Coal Co. v. Kirk, 264 F.3d 602,

609 (6th Cir. 2001); Sharondale Corp. v. Ross, 42 F.3d 993, 998 (6th Cir. 1994).

Several of our sister circuits rejected our formulation of the “one-element test.” See,

e.g., U.S. Steel Mining Co., v. Director, OWCP, 386 F.3d 977, 988 n.12 (11th Cir. 2004);

Lovilia Coal Co. v. Harvey, 109 F.3d 445, 454 n.7 (8th Cir. 1997); Lisa Lee Mines v.

Director, OWCP, 86 F.3d 1358, 1363 n.11 (4th Cir. 1996).

After the removal of the word “material” from the language of § 725.309(d), the

Department of Labor explained that the section created “a threshold test which allowed

the miner to litigate his entitlement to benefits without regard to any previous findings

by producing new evidence that established any of the elements of entitlement

previously resolved against him.” 65 Fed. Reg. 79920, 79968 (Dec. 20, 2000). The

Department also explicitly stated that the regulation was intended to codify the Fourth

Circuit’s test as articulated in Lisa Lee Mines. Id.

Recently this Court adopted the regulatory interpretation urged by the Director

of the Office of Workers’ Compensation in Cumberland River Coal Company v. Billie

Banks and Director, OWCP, 690 F.3d 477 (6th Cir. 2012). As this Court explained in

Cumberland,

[W]e construe the term “change” to mean “disproof of the continuing

validity” of the original denial, rather than the “actual difference between

the bodies of evidence presented at different times.” Under this

definition, the ALJ need not compare the old and new evidence to

determine a change in condition; rather, he will consider only the new

evidence to determine whether the element of entitlement previously

found lacking is now present.

Id. at 486 (internal citations omitted).

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The ALJ in considering Mr. Sexton’s claim did just that. He looked to the new

evidence, medical opinions from four physicians, and determined that an element of

entitlement previously found lacking in the earlier claims was now present in this latest

and final claim. Thus, the ALJ appropriately applied the test put forth by the Department

and this Court in Cumberland.

Buck Creek also argues that the ALJ’s consideration of this subsequent claim is

invalid and violates due process because it contravenes the well-established principles

of finality and res judicata. It does not challenge the ALJ’s factual determination of a

changed condition, but rather just the legal question of whether the finding violates res

judicata. Buck Creek looks as far back as the Theodosian Code, the Justinian Code,

Babylonian law, ancient Jewish law, and the trial of the Duchess of Kingston in 1776 to

argue that the ALJ recklessly dispensed with thousands of years of law by awarding Mr.

Sexton benefits. Buck Creek needed to look only so far as this circuit’s and other

circuit’s modern jurisprudence to find that res judicata is not violated by the filing of a

subsequent claim under the Black Lung Benefits Act. Sharondale Corp., 42 F.3d at 998

(“[T]he doctrine of res judicata is not implicated by the claimant’s physical condition or

the extent of his disability at two different times.”); see also U.S. Steel Mining Co.,

386 F.3d at 990; Midland Coal Co. v. Director, OWCP, 358 F.3d 486, 490 (7th Cir.

2004); Lovilia Coal Co., 109 F.3d at 450; Wyoming Fuel Co. v. Director, OWCP,

90 F.3d 1502, 1510 (10th Cir. 1996); Lisa Lee Mines, 86 F.3d at 1362; Labelle

Processing Co. v. Swarrow, 72 F.3d 308, 313-16 (3d Cir. 1995).

A claimant is required to submit newly developed evidence to ensure that he is

not merely relitigating the prior claim. The latent and progressive nature of black lung

disease ensures that a claimant’s physical condition may be different at entirely different

times, and thus, the claims are not the same. The § 725.309(d) standard “gives full credit

to the finality of the original denial, but plainly recognizes that pneumoconiosis is a

latent and progressive disease, and that a miner’s condition can change over time.” U.S.

Steel Mining Co., 386 F.3d at 990. As the Third Circuit explained in Labelle Processing,

“The denial of [a prior] claim . . . established only that [the miner] was not then totally

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disabled due to pneumoconiosis.” 72 F.3d at 314. A subsequent claim, on the other

hand, is an “asserti[on] that [the miner] is now . . . totally disabled due to . . .

pneumoconiosis and that his disability occurred subsequent to the prior adjudication.”

Id.

In the prior unsuccessful claim, the ALJ did not find that the pneumoconiosis

substantially contributed to Mr. Sexton’s disability at the time the claim was filed;

however, new evidence developed subsequent to the denial established a change in

condition, specifically that the pneumoconiosis substantially contributed to his total

disability in 2001, when the last claim was filed. As this Court recognized in

Sharondale, a miner’s physical condition changes over time, and thus the presence of

the disease at one point in time in no way precludes future proof that the disease has

become present or has become so severe as to become totally disabling. 42 F.3d at 998.

The ALJ did not err in adjudicating Mr. Sexton’s subsequent claim, as it did not violate

the principle of res judicata.

III. Conclusion

The ALJ in this case appropriately applied 20 C.F.R. § 725.309 and found that

Frable Sexton, after 25 years of working in the coal mines, developed disabling

pneumoconiosis. In doing so, the ALJ did not contravene any long-standing legal

principles. For the foregoing reasons, we affirm the awarding of benefits.