John Stiltner v. Island Creek Coal Company Director, Office of Workers' Compensation Programs, United States Department of Labor

WILLIAMS, Senior District Judge,

dissenting:

I respectfully dissent from the majority’s decision affirming the finding by the Benefits Review Board that John Stiltner is not entitled to benefits under the Black Lung Benefits Act (the “Act”), 30 U.S.C. §§ 901-945 . While I do not believe in any event that substantial evidence supports the finding of the Benefits Review Board that Island Creek Coal Company rebutted under 20 C.F.R. § 727.203 (b)(3) the presumption under 20 C.F.R. § 727.203 (a)(2) that Stiltner is entitled to benefits, 1 I write to address a more serious flaw in the majority’s opinion: it so narrowly construes Warth v. Southern Ohio Coal Co., 60 F.3d 173 (4th Cir.1995), as to in effect overrule it.

In Warth , the examining physician “based his opinion that Warth does not suffer from pneumoconiosis on the assumption that obstructive disorders cannot be caused by coalmine employment.” Id. at 174 . This Court held that such an assumption was erroneous under the Act. The Act defines pneumoconiosis as “a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.” 30 U.S.C. § 902 (b); accord 20 C.F.R. § 718.201 (“For purposes of the Act, pneumoconiosis means a chronic dust disease of the lung and its sequelae ... arising out of coal mine employment____ For purposes of this definition, a disease ‘arising out of coal mine employment’ includes any chronic pulmonary disease resulting in respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment.” (Italics in original)). “Chronic obstructive lung disease thus is encompassed within the definition of pneumoconiosis for purposes of entitlement to Black Lung benefits.” Warth, 60 F.3d at 175 . Consequently, any opinion to the effect that chronic obstructive lung disease cannot be caused by breathing coal mine dust “must be considered bizarre in view of a[sic] Congress’ explicit finding to the contrary.” Eagle v. Armco, Inc., 943 F.2d 509 , 511 n. 2 (4th Cir.1991). 2

In the instant case, Stiltner argues that Island Creek’s physicians have operated under this “bizarre” assumption. The majority *345 insists that “the medical opinions challenged here made no such claim.” Majority op. at 341. Yet the majority opinion itself shows otherwise. In discussing the medical opinions in the record, the majority writes that Island Creek’s doctors “opined that Stiltner likely would have exhibited a restrictive impairment in addition to [chronic obstructive pulmonary disease], if coal dust exposure were a factor.” Majority op. at 341. In other words, these opinions assume that unless some restrictive impairment is present, the miner’s lung disease is not related to his coal mine employment.

Worth precludes exactly this assumption. The majority reads Worth as merely stating that the presence of an obstructive pulmonary impairment does not foreclose coal mine employment as a causal factor in the miner’s lung disease. Under the majority’s interpretation of Worth, the only opinions that may not be considered are those which assume that “pneumoconiosis causes a purely restrictive form of impairment.” Majority op. at 341. This reading of Worth is overly narrow, and at odds with its clear import. As noted above, the statutory language and the accompanying regulations both define pneumoconiosis to include all pulmonary impairments, restrictive or otherwise. Requiring a restrictive impairment to be present in order to find the existence of pneumoconiosis runs counter to the broad definition of pneumoconiosis enacted by Congress. Allowing consideration of opinions which assume that a restrictive impairment is always present in pneumoconiosis makes the inclusion of obstructive pulmonary impairments within the scope of the statutory definition mere surplusage, in violation of the canon of statutory construction that “ ‘all words and provisions of statutes are intended to have meaning and are to be given effect.’ ” West Virginia Div. of the Izaak Walton League of America v. Butz, 522 F.2d 945, 948 (4th Cir.1975) (quoting Wilderness Soc’y v. Morton, 479 F.2d 842, 846 (D.C.Cir.1973), cert. denied, 411 U.S. 917 , 93 S.Ct. 1550 , 36 L.Ed.2d 309 (1973)); accord Virginia v. Browner, 80 F.3d 869, 876 (4th Cir.1996), (“A court should not — and we will not — construe a statute in a manner that reduces some of its terms to mere surplus-age.”); George Hyman Constr. Co. v. Occupational Safety and Health Review Commn., 582 F.2d 834, 841 (4th Cir.1978) (“traditional axiom that courts should not interpret statutes in a manner that renders terms of the statute superfluous”).

The only interpretation of the statute which gives full effect to the broad scope of its definition of pneumoconiosis, and the interpretation adopted by this Court in Worth, is that medical opinions which require some additional pulmonary impairment to be present in addition to chronic obstructive pulmonary disease in order for the COPD to be related to coal mine employment must be disregarded as contrary to statutory intent. Congress has found that obstructive pulmonary disease can be caused by coal mine employment and written the statute accordingly. See Eagle at 511 n. 2. Our job is to interpret and enforce that statute, not to determine whether it comports with the latest medical knowledge. Put another way, as a Court we are obliged to follow the legal, not the medical, definition of pneumoconiosis.

This dissent does not require a physician to view the presence of chronic obstructive pulmonary disease as an absolute indicator that coal mine employment caused the miners disability. Following Worth, all this dissent says is that the mere fact that the coal miners pulmonary impairment is obstructive in nature is not a sufficient basis for a physician to conclude that it is unrelated to his coal mine employment. Under this interpretation of Worth, the employer may still rebut the presumption of entitlement to benefits by showing that the miner’s lung disease is from a source other than his work in a coal mine, i.e., from cigarette smoking. All the employer may not do is use the obstructive nature of the pulmonary impairment to so rebut. And that is because Congress, in defining pneumoconiosis, included obstructive pulmonary impairments.

This case squarely puts the question. Does Worth merely stand for the proposition that the presence of an obstructive pulmonary impairment does not rule out pneumoconiosis? Or does Worth stand for the proposition that the presence of an obstructive pulmonary impairment by itself, without the concurrent presence of another type of *346 pulmonary impairment, does not rule out pneumoconiosis? The majority adopts the former interpretation, ignoring the broad statutory definition of pneumoconiosis and so limiting Worth as to in effect overrule it. Cf. Norfolk & Western Ry. v. Director, OWCP, 5 F.3d 777, 779 (4th Cir.1993) (one three-judge panel may not overrule a prior published opinion of another three-judge panel). I find that the latter interpretation gives full effect to the express statutory language, follows the intent of Congress, and represents the clear import of Worth.

For the foregoing reasons, I would, following Worth, disregard the opinions of Island Creek’s physicians, find that the decision of the Benefits Review Board that Island Creek has rebutted under 20 C.F.R. § 727.203 (b)(3) the presumption of entitlement to benefits is not supported by substantial evidence, and remand the case to the Benefits Review Board for consideration of the Administrative Law Judge’s finding of rebuttal under 20 C.F.R. § 727.203 (b)(4).

I dissent. 3

. In particular, the majority opinion virtually ignores Stiltner's forty years of continuous work in the coal mines, preferring to focus on his sporadic light use of tobacco.

. The majority opinion attacks this dissent's reliance upon footnote 2 of Eagle on the grounds that the footnote constitutes dicta. See Majority op. at 342 n. 9. Dicta are “[ejxpressions in court's opinion which go beyond the facts before court and therefore are individual views of author of opinion and not binding in subsequent cases as legal precedent.” Black’s Law Dictionary 454 (6th ed. 1990). Footnote 2 of Eagle does not go beyond the facts of the case; on the contrary, it quotes the medical opinion of the employer's expert and explains why its underlying assumption is mistaken. Given that Eagle reversed the Benefits Review Boards finding of a denial of benefits, one cannot definitively say that footnote 2 comprises an "[o]pinion[] of a judge which do[es] not embody the resolution or determination of the specific case before the court.” Id. Consequently, footnote 2 of Eagle does not embody dicta.

Even if footnote 2 of Eagle were dicta at the time it was written, it now underpins the holding of the Court in Warth. Eagle was the only case cited by the Court in Warth in holding that the assumption that coal mine employment cannot cause chronic obstructive pulmonary disease underlying the physicians' opinions in that case was “erroneous.” Warth, 60 F.3d at 175 . And as that holding constitutes the central (and only) proposition for which Warth stands, footnote 2 of Eagle is now unquestionably the law of this circuit and has full precedential value.

Finally, the majority opinion asserts that footnote 2 of Eagle “does not bear on our holding today.” Majority op. at 342 n. 9. If one follows the reasoning of the majority that Warth has no meaning at all, that statement is true. If, on the other hand, as this dissent argues, Warth stands for the proposition that the absence of an accompanying restrictive impairment with chronic obstructive pulmonary disease does not rebut the presumption that the miner has pneumoconiosis, then footnote 2 of Eagle does not merely bear on the holding today: it is dispositive.

. I am also dismayed at the delay in the final adjudication of this case. Congress set up an administrative system to evaluate black lung claims so that they would be handled in an expeditious and inexpensive manner. See Humphreville v. Mathews, 560 F.2d 347, 348 (8th Cir.1977). Yet in this case, the original claim was filed on November 8, 1979, and only reaches final resolution (perhaps) with this opinion over sixteen years later. Those entitled to benefits under a statutory scheme enacted by Congress deserve better.