Gulf & Western Industries; Old Republic Insurance Company,petitioners, v. George Ling, Jr.; Director, Office of Workers' Compensationprograms, United States Department of Labor, Respondents, 176 F.3d 226 (4th Cir. 1999)

Gulf & Western Industries and its workers' compensation liability insurer, Old Republic Insurance Co., petition for review of the final Decision and Order of the Benefits Review Board (BRB) directing the payment of medical benefits to the respondent, George Ling, Jr., a former coal miner, for the treatment of certain maladies said to be related to his coal workers' pneumoconiosis.¹  The BRB subsequently issued an order denying the petitioners' motion for reconsideration, from which review is also sought.

We conclude that the BRB applied our precedent in a manner inconsistent with prevailing Supreme Court authority. We therefore grant the petition for review and remand the claim for further consideration.

On September 25, 1973, Mr. Ling, then 46, filed a claim with the Department of Labor (DOL) for federal black lung disability benefits. Inasmuch as Mr. Ling had last been employed by a subsidiary of Gulf & Western, the latter was determined to be the operator responsible for any benefit award.² 

The claim was heard before an Administrative Law Judge, who, on April 19, 1983, issued a Decision and Order awarding Mr. Ling disability benefits. In accordance with the eligibility requirements of the Black Lung Benefits Act (BLBA or "Act"), 30 U.S.C. §§ 901 to 945,and the applicable regulations, the ALJ found that: (1) Mr. Ling suffered from pneumoconiosis; (2) the affliction arose from his coal mine employment; (3) he was no longer able to perform his previous work; and (4) his disability was due, at least in part, to the pneumoconiosis.³ 

Gulf & Western and Old Republic filed an appeal of the ALJ's decision with the BRB, but they ultimately opted to forgo administrative review. On December 5, 1983, the BRB granted the petitioners' motion to dismiss their appeal with prejudice. Old Republic began disbursing disability benefits to Mr. Ling, who continues to receive them today.B.

In July 1989, Mr. Ling was admitted to the hospital for three days, suffering from shortness of breath, coughing, and wheezing. He was treated with steroids, antibiotics, and bronchodilators by Dr. John J. White, who noted that Mr. Ling's condition was likely caused by an "acute exacerbation" of chronic obstructive pulmonary disease (COPD), and by pneumoconiosis. The hospital submitted the bill for Mr. Ling's treatment to Old Republic for payment.⁴  Old Republic denied coverage, maintaining that Ling's pneumoconiosis, standing alone, was not of sufficient severity to have engendered a medical condition requiring such extensive treatment.⁵ 

About five months later, in December 1989, Mr. Ling was hospitalized for a second time. He exhibited many of the same symptoms for which he had been admitted in July, but to a somewhat more pronounced extent. Dr. White again treated Mr. Ling, diagnosing an "acute exacerbation of coalminer's pneumoconiosis." The hospital submitted the bill for Mr. Ling's five-day stay to Old Republic, which again denied coverage.

Mr. Ling asked the DOL to intervene. A claims examiner referred the matter to an independent medical consultant, Dr. Leon Cander, who opined that the petitioners were liable for the hospital bills. The DOL thus directed Old Republic to provide payment. Gulf & Western and Old Republic contested their liability and requested a hearing; they submitted reports from three experts in support of their position.

Dr. Kirk E. Hippensteel examined Mr. Ling and concluded that his poor pulmonary condition was the result of an "obstructive" impairment, i.e., COPD, indicating causation by cigarette smoking, rather than clinical pneumoconiosis, which, Hippensteel asserted, produces a "restrictive" impairment.⁶  Dr. Gregory J. Fino and Dr. Benjamin V. Branscomb reviewed Mr. Ling's records, and they concurred with Hippensteel. Each stated his belief that Mr. Ling's condition would have been the same had he never worked in the mines.

Dr. White disagreed. In a letter to the ALJ, he expressed his opinion that the documented level of Mr. Ling's obstructive impairment could not solely account for the severity of his shortness of breath.

A hearing was conducted before an ALJ, who issued a Decision and Order on January 11, 1995, directing Gulf & Western and Old Republic to pay the outstanding hospital bills and provide future payment for "any and all medical treatment related to [Mr. Ling's] breathing difficulties." In so ruling, the ALJ concluded that the regulations were broad enough to encompass COPD as an "ancillary" condition to pneumoconiosis.⁷  The ALJ found the opinions submitted by the petitioners' experts to be unpersuasive to the extent that they failed to acknowledge that pneumoconiosis and COPD manifest themselves in the same outward symptoms.⁸ 

Gulf & Western and Old Republic filed an administrative appeal of the Decision and Order. On February 21, 1997, the BRB affirmed the ALJ's ruling on the strength of our opinion in Doris Coal Co. v. Director, OWCP, 938 F.2d 492 (4th Cir. 1991). A subsequent motion for reconsideration was denied by the BRB on June 25, 1997. Gulf & Western and Old Republic now petition us for review of the BRB's dispositive orders.

In accordance with the established principles governing judicial oversight of actions undertaken by federal administrative agencies, our review of this matter is confined to the grounds actually invoked by the DOL in support of its decision. SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S. Ct. 454, 87 L. Ed. 626 (1943) ("an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained"). To ascertain the bases underlying the DOL's exercise of its power, we look exclusively to the grounds relied upon by the BRB, the highest administrative tribunal. See 33 U.S.C. § 921(c) (jurisdiction of the courts of appeals limited to reviewing final orders of the BRB).⁹ 

We must therefore examine whether the BRB, in affirming the ALJ's award of medical benefits to Mr. Ling, properly applied our precedent in Doris Coal to the facts at hand. In so doing, we must address the petitioners' contention that the intervening decision of the Supreme Court in Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 114 S. Ct. 2251, 129 L. Ed. 2d 221 (1994), implicitly overruled Doris Coal.

In Doris Coal, the claimant, Noah Stiltner, had been adjudged disabled due to pneumoconiosis contracted from his coal mine work and, as a result, was receiving compensation from the Social Security Administration pursuant to Part B of the BLBA. In 1979, Stiltner filed a claim for Part C health benefits. The responsible parties--Doris Coal Co. and its insurer, Old Republic--agreed to pay, for as long as Stiltner lived, all of the health care expenses associated with treating his pneumoconiosis. 938 F.2d at 494.

Several years later, Old Republic balked at paying a number of treatment and pharmacy bills submitted on Stiltner's behalf, asserting that they were unrelated to his black lung disease. The matter was set for hearing before an ALJ. At the hearing, Old Republic presented expert medical testimony that Stiltner's pulmonary disorders were attributable to his cigarette smoking, and not to pneumoconiosis. The limited progression of Stiltner's "simple" pneumoconiosis, Old Republic argued, could not justify the extensive treatments rendered.¹⁰  Id. at 495-96.

The ALJ and BRB rejected Old Republic's argument, but freed the insurer of any obligation to pay for pharmaceuticals prescribed for maladies other than those associated with Stiltner's pulmonary condition. We agreed, and we affirmed the BRB's determination that Doris Coal and Old Republic were liable for those portions of the medical bills related to treating Stiltner's pulmonary disorders. Id. at 496-97.¹¹ 

We premised our decision in Doris Coal upon the broad statutory definition of 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). The regulations detail the breadth of what is frequently called "legal" pneumoconiosis: "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." 20 C.F.R. § 718.201 (1998) (emphases supplied).

Clearly, the condition known as "pneumoconiosis" that Congress has determined to be compensable is considerably more wide-ranging than mere clinical pneumoconiosis, cf. note 10, supra. The latter is certainly an affliction intended to be within the ambit of the BLBA and the corresponding regulations, but it by no means defines the boundaries thereof.¹² 

Mindful of Congress's expressed intent that entitlement to black lung benefits not be unduly circumscribed, we held that

a miner meets his burden of showing that his medical expenses were necessary to treat pneumoconiosis if his treatment relates to any pulmonary condition resulting from or substantially aggravated by the miner's pneumoconiosis. Since most pulmonary disorders are going to be related or at least aggravated by the presence of pneumoconiosis, when a miner receives treatment for a pulmonary disorder, a presumption arises that the disorder was caused or at least aggravated by the miner's pneumoconiosis, making the employer liable for the medical costs.

Doris Coal, 938 F.2d at 496-97 (emphases supplied). Thus was born the so-called "Doris Coal presumption."

Stiltner produced medical bills demonstrating that he had been treated for breathing difficulties and other respiratory ailments symptomatic of pulmonary disorders with which he had been diagnosed. Id. at 494-95, 497. We therefore held that he was entitled to the presumption that his symptoms were related to--or at least made worse by--his underlying pneumoconiosis. In either case, Old Republic was required to pay the bills unless it could rebut the presumption with sufficient evidence that the services rendered were not related to Stiltner's pneumoconiosis, or were unnecessary for the treatment thereof. Id. at 497.

Old Republic failed to rebut the presumption. Its argument that Stiltner's pulmonary disorders resulted from his cigarette smoking was unavailing in the face of the prior adjudication of disability due to legal pneumoconiosis. No evidence came to light, for example, that Stiltner was seeking benefits to treat a pulmonary condition that had not manifested itself, to some degree, at the onset of his disability. Nor was there any contention that Stiltner was being treated for a pre-existing pulmonary condition adjudged not to have contributed to his disability.

Instead, Old Republic's best argument was that Stiltner's cigarette smoking contributed to the severity of his symptoms, perhaps more than any other factor. It could not be said, however, that the combination of diseases and/or impairments comprising Stiltner's pneumoconiosis failed to at least aggravate his symptoms. The time for that argument had passed with the prior adjudication of disability, which necessarily entailed a finding that these same diseases and/or impairments aggravated Stiltner's symptoms to the extent that he was rendered unable to work.¹³  In the absence of sufficient evidence to the contrary, we concluded that Stiltner had adequately proved his entitlement to the benefits sought.

Gulf & Western and Old Republic maintain that, in light of the intervening 1994 decision of the Supreme Court in Greenwich Collieries, a remand is necessary for the ALJ to reweigh all of the evidence and determine anew, without regard to the prior finding of disability, whether Mr. Ling's medical bills are related to, or at least aggravated by, his pneumoconiosis. Although we agree that the claim must be remanded, we disagree with the petitioners' contention that the prior adjudication is without relevance.

In Greenwich Collieries, the Supreme Court invalidated the DOL's "true doubt" rule, which had operated to award disability benefits under the BLBA and LHWCA to claimants where the evidence was determined to be "equally probative." The rule was judged to be inconsistent with § 7(c) of the Administrative Procedure Act (APA), which provides that " [e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of proof." 5 U.S.C. § 556(d). Upon concluding that the DOL's rules and policies are required to comport with the APA, 512 U.S. at 270-71, 114 S. Ct. 2251, the Court held that the "true doubt" rule impermissibly shifted from the claimant to the employer the burden of persuading the fact finder that its position should prevail. Id. at 281, 114 S. Ct. 2251.

According to the petitioners, the Doris Coal presumption acts in a fashion similar to the "true doubt" rule, effectively shifting the burden to employers and their insurers to persuade the factfinder that the claimant's pulmonary impairments are not related to, or at least aggravated by, his pneumoconiosis. This argument misconstrues the nature of the presumption.

In each case where a miner seeks an award of medical benefits, there will be a prior adjudication of disability as the result of legal pneumoconiosis, comprising one or more pulmonary disorders. In every such case, the specific symptoms associated with these disorders will be a matter of record, for it is these symptoms--shortness of breath, coughing, loss of stamina, etc.--that render the miner disabled to begin with. Finally, in every case, there will be bills detailing the pulmonary disorders and associated symptoms for which the miner has received medical treatment.

It by no means distorts the truth to postulate that, in the great majority of cases, the disorders and symptoms associated with the miner's disability will closely correspond to those for which he later receives treatment. Even where there is a less than perfect identity, however, the threshold creating the entitlement to benefits--that the pulmonary condition treated be merely aggravated by the miner's pneumoconiosis--is low enough to permit a rational conclusion that a particular respiratory infirmity will likely be covered.

Hence, rather than compel the miner to exhaustively document his claim for medical benefits, i.e., requiring him to again laboriously obtain all the evidence that he can that his shortness of breath, wheezing, and coughing are still the result of his pneumoconiosis, we have fashioned the Doris Coal presumption as a shorthand method of proving the same thing. The proof needed is a medical bill for the treatment of a pulmonary or respiratory disorder and/or associated symptoms.

Though the miner's burden of proving his claim is not onerous, it does not follow that it is non-existent or that it has somehow been shifted to the employer or its insurer. If the party opposing the claim produces credible evidence that the treatment rendered is for a pulmonary disorder apart from those previously associated with the miner's disability, or is beyond that necessary to effectively treat a covered disorder, or is not for a pulmonary disorder at all, the mere existence of a medical bill, without more, shall not carry the day. The burden of persuading the factfinder of the validity of the claim remains at all times with the miner.

With regard to this last proposition, at least, we find ourselves in agreement with the Sixth Circuit, the only other court of appeals that has considered the issue. See Glen Coal Co. v. Seals, 147 F.3d 502, 512 (6th Cir. 1998):

We hold that the Doris Coal presumption merely reallocates the burden of production, and does not affect the burden of proof. The effect of the Doris Coal presumption is to find that where there is a stage one determination that the claimant is totally disabled due to pneumoconiosis, then in stage two the claimant does not have to come forward with any additional evidence to prove that his medical bills are related to his pneumoconiosis [.]

The Seals court explained further that

the only thing that changes is that the claimant's initial burden of coming forward with evidence supporting his stage two claim is eased by virtue of the determination in the first stage that he has pneumoconiosis.... The presumption does not change the fact that the claimant still bears the burden of proof to show by a preponderance of the evidence that his bills are related to his pneumoconiosis ... [,] but the claimant is relieved of the requirement of producing additional evidence of this relationship. He may rely on the first stage determination to show the relatedness of the condition and the medical treatment at issue.

Id.¹⁴  We believe that the above passages accurately state the scope and effect of the Doris Coal presumption. In as much as the presumption does not shift the burden of proof in medical benefit cases from the claimant to the party opposing the claim, it is not contrary to the Supreme Court's decision in Greenwich Collieries.

Mr. Ling, like Stiltner before him, submitted medical bills evidencing treatment for respiratory ailments; he had arrived at the hospital complaining of coughing, wheezing, and shortness of breath. Mr. Ling's breathing difficulties were attributed by his physician to specific pulmonary disorders, i.e., COPD and clinical pneumoconiosis. This diagnosis, as the BRB correctly recognized, was sufficient to invoke the Doris Coal presumption that Mr. Ling's pulmonary condition--the diseases with which he was afflicted, manifested in symptoms of respiratory distress--was related to, or at least aggravated by, his legal pneumoconiosis.¹⁵ 

The BRB, however, construed the Doris Coal presumption as shifting the burden of proof to the employer, which, under Greenwich Collieries, it may not do. See BRB's Decision and Order of February 21, 1997, at 3 ("We disagree with employer's argument that the administrative law judge erred in shifting the burden of proof to employer").

Although the BRB may have reached the same result had it correctly applied the Doris Coal presumption, we think it prudent to remand the claim to the BRB for reconsideration. In so doing, we express our hope that Mr. Ling's claim, now pending for nearly ten years, will receive the expeditious treatment that it deserves.

We conclude that the Doris Coal presumption remains a valid, rational evidentiary device that serves the important public purpose of facilitating the administrative processing of medical benefit claims by coal miners previously adjudged entitled to disability payments under the BLBA. Nevertheless, the presumption must be applied in a manner that does not impermissibly shift the burden of proving the miner's claim to the employer.

The petition for review is granted, and the claim is remanded to the Benefits Review Board for further proceedings consistent with this opinion.

PETITION FOR REVIEW GRANTED, AND CLAIM REMANDED.