brb transcript

(202) 234-4433 Washington DC www.nealrgross.comNeal R. Gross and Co., Inc.

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BEFORE THE UNITED STATES DEPARTMENT OF LABOR BENEFITS REVIEW BOARD

-----------------------------IN THE MATTER OF: Case No.: BRB-13-0544JAMES A. MINICH, Case No.: Claimant-Respondent 12-BLA-5373vs.

KEYSTONE COAL MINING CORPORATION

And

ROCHESTER & PITTSBURGH COAL COMPANY

Employer/Carrier - Petitioners

DIRECTOR, OFFICE OF WORKERS'COMPENSATION PROGRAMS, UNITEDSTATES DEPARTMENT OF LABOR,

Party-in-Interest----------------------------- U.S. District Courthouse Western District of Pennsylvania 700 Grant Street Room 3A Pittsburgh PA 15219

Tuesday, December 9, 2014

9:00 a.m.

BEFORE:

BETTY JEAN HALL, Acting Chief, AdministrativeAppeals judgeREGINA MCGRANERY, Administrative Appeals JudgeJUDITH S. BOGGS, Administrative Appeals Judge


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APPEARANCES

On Behalf of the Claimant-Respondent:

PAUL M. WILEY TIMOTHY C. MACDONNELL, ESQ. Director, Black Lung Legal Clinic Associate Clinical Professor of Law Washington and Lee University Sydney Lewis Hall Lexington, Virginia 24450-2116

On Behalf of the Employer-Petitioner:

MARGARET M. SCULLY, ESQ. Thompson, Calkins & Sutter, LLC Suite 300 The William Penn Snyder House 850 Ridge Avenue Pittsburgh, PA 15212

On Behalf of the Director, Office ofWorkers' Compensation:

REBECCA J. FIEBIG, ESQ. JONATHAN P. ROLFE, ESQ. U.S. Department of Labor 200 Constitution Avenue, N.W. Frances Perkins Building Suite N-2119 Washington, D.C. 20210


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TABLE OF CONTENTS

ORAL ARGUMENT:

Petitioner . . . . . . . . . . . . . . . . . . . . 5

Claimant-Respondent. . . . . . . . . . . . . . . .13

Director, Workers' Compensation. . . . . . . . . .27

REBUTTAL ARGUMENT:

Petitioner . . . . . . . . . . . . . . . . . . . .42

Claimant-Respondent. . . . . . . . . . . . . . . .46

Director, Workers' Compensation. . . . . . . . . .50


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1 P-R-O-C-E-E-D-I-N-G-S

2 (8:57 a.m.)

3 JUDGE HALL: Please be seated. Good

4 morning. We are here today in the case of Minich

5 versus Keystone and Rochester Pittsburgh Coal,

6 Director, BRB case number 13-0544. And I would

7 ask at this point that the parties introduce

8 themselves, starting with the Petitioner, please.

9 MS. SCULLY: Your Honor, my name is

10 Margaret Scully, I'm with the law firm Thompson,

11 Calkins and Sutter, and I'm here on behalf of

12 Petitioner, Keystone Coal Mining Corporation.

13 JUDGE HALL: Thank you.

14 MR. MACDONNELL: Your Honor, my name is

15 Tim MacDonnell, I'm the Director of the

16 Washington and Lee Black Lung Clinic. I'm here

17 on behalf of Respondent, Mr. James Minich. If I

18 could at this time, I'd like to introduce Mr.

19 Paul Wiley. He is a third year student at

20 Washington and Lee University School of Law,

21 working in our Black Lung Clinic. And with the

22 Court's permission, he will be conducting oral


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1 argument today.

2 JUDGE HALL: Good morning, and welcome.

3 MR. MACDONNELL: Good morning.

4 JUDGE HALL: And for the Director?

5 MS. FIEBIG: Good morning, Your Honor,

6 Rebecca Fiebig for the Director of the Office of

7 Workers' Compensation at the U.S. Department of

8 Labor. And I'll be arguing the case of James

9 Minich.

10 JUDGE HALL: And I understand that the

11 Petitioner wants to reserve some undetermined

12 amount of time for rebuttal; is that correct?

13 MS. SCULLY: I would like to do that,

14 yes.

15 JUDGE HALL: Okay. Would you like to

16 start, Ms. Scully?

17 MS. SCULLY: Would you like me to give

18 my argument at the podium here?

19 JUDGE HALL: That would be good.

20 ORAL ARGUMENT

21 MS. SCULLY: Good morning. Employer's

22 position generally is that the 411(c)(4) statute


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1 shifts the burden to the Employer to disprove the

2 presumed elements of entitlement, but it does not

3 essentially change the elements of entitlement.

4 The Department recognizes this in the

5 preamble to the final rule in stating, quote, the

6 party opposing entitlement must be given an

7 opportunity to show by a preponderance of the

8 evidence that the three presumed elements,

9 disease, disease causation and disability

10 causation, are not in fact present.

11 The Director's brief indicates, citing

12 the Supreme Court case of Usery versus Turner

13 Elkhorn Mining, that 411(c)(4) only speaks to the

14 Secretary's burden on rebuttal. Accordingly, if

15 that is the case, Usery stands for the

16 proposition that no limitations are placed on the

17 Employer's rebuttal of the 411(c)(4) presumption.

18 And I believe that does support the

19 Employer's position that 411(c)(4) merely shifts

20 the burden but does not change the elements of

21 entitlement.

22 However, even assuming that the


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1 provision of 411(c)(4), which indicates that the

2 Secretary may rebut by establishing that the

3 miner's respiratory or pulmonary impairment did

4 not arise out of or in connection with the

5 employment in a coal mine, does apply to the

6 Employer's.

7 The "arising out of" language clearly

8 conveys a significant causal relationship between

9 the miner's pneumoconiosis and his respiratory or

10 pulmonary impairment. Disability does not arise

11 out of an insignificant or de minimis factor.

12 I agree with the Director's counsel

13 that the original 718.305 regulation and the new

14 regulation have to be interpreted consistently

15 with the 411(c)(4) statute. The original

16 regulation at 718.305 indicated that rebuttal

17 could be established by proving the absence of

18 pneumoconiosis or that the miner's disability did

19 not arise in whole or in part out of dust

20 exposure in the miner's coal mine employment.

21 In the preamble to the final rule, the

22 Department lists several cases which the


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1 Department indicates concurred with the "in whole

2 or in part" language. Now, interestingly, the

3 Department had previously indicated in the

4 preamble to the proposed rule that the same cases

5 supported the rule-out standard.

6 But as I argued in my brief, a careful

7 reading of these cases does not really support a

8 consistent use of the rule-out language, and the

9 term adds more confusion than clarity to the

10 rebuttal standard.

11 Significantly, the Department did not

12 use the rule-out language in either the proposed

13 or the final rule. The fact is, there are very

14 few cases that have interpreted the 411(c)(4)

15 provision before it was repealed and became

16 dormant for 25 years. Therefore, there was no

17 uniform standard for rebuttal established.

18 The Department also attempts to rely

19 on cases they cited under the original interim

20 regulations, which under 727.203(b)(3) allow for

21 rebuttal of the interim presumption on the basis

22 of disability causation by quoting evidence


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1 establishing that the total disability or death

2 of the miner did not arise in whole or in part

3 out of coal mine employment.

4 The Department and the Director's

5 counsel both cite the Third Circuit case of

6 Carozza versus U.S. Steel, for the proposition

7 that the 727.203(b)(3) causation rebuttal

8 provision is consistent with the 411(c)(4)

9 provision.

10 In Carozza, decided in 1984, the Third

11 Circuit upheld the validity of the 727.203(b)(3)

12 regulation and the "in whole or in part"

13 language, finding that the "in part" language

14 referred to causation and not to the extent of

15 disability. The Third Circuit in Carozza does

16 not use the rule-out language, and there is

17 little, if any, discussion as to what constitutes

18 rebuttal.

19 It does state that the correct

20 interpretation of the 727.203(b)(3) regulation is

21 that it does not permit the award of benefits for

22 partial disability, but only for total disability


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1 of which pneumoconiosis is a contributing cause.

2 Since the current case arises in the

3 Third Circuit, it is important to consider the

4 Carozza case, as well as the Third Circuit case

5 of Bonessa versus U.S. Steel, which was decided

6 five years after Carozza in 1989.

7 Bonessa established the disability

8 causation standard in the Third Circuit as the

9 substantial contributor standard. In Bonessa, the

10 Third Circuit court indicated that, quoting, one

11 may not prove total disability due to

12 pneumoconiosis simply by demonstrating the

13 presence of any respiratory or pulmonary ailment.

14 Rather, a miner must show that

15 pneumoconiosis is a substantial contributor to

16 the disability. In discussing disability

17 causation, the Third Circuit court in Bonessa

18 refers to its previous holding in Carozza, which

19 was decided under 727.203(b)(3) and states,

20 quote, it must be shown as in Carozza that a

21 substantial nexus exists between the disease and

22 the miner's impairment.


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1 So the Third Circuit's own view of its

2 holding in Carozza is that even under

3 727.203(b)(3) rebuttal, which the Department

4 finds similar to 411(c)(4), disability causation

5 required a substantial nexus or a substantial

6 causal connection between pneumoconiosis and

7 disability.

8 Now, we would submit that rebuttal of

9 411(c)(4) requires Employer to disprove a

10 substantial causal relationship between the

11 miner's pneumoconiosis and his impairment,

12 consistent with both of these Third Circuit

13 cases.

14 And although the Director may not

15 agree with a substantial causal relationship, I

16 think we are in agreement with the Director that

17 if not substantial, the causal relationship

18 between pneumoconiosis and disability needs to be

19 at least significant.

20 The final wording of the 718.304

21 regulation, which provides that rebuttal is

22 proven when it is established that no part of the


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1 miner's respiratory or pulmonary total disability

2 was caused by pneumoconiosis, confirms the need

3 for the causal relationship between the miner's

4 pneumoconiosis and his total respiratory

5 disability.

6 We are in agreement with the Director

7 that an insignificant contribution to disability

8 from pneumoconiosis or coal dust exposure does

9 not establish the necessary causal relationship

10 between pneumoconiosis and total disability.

11 And really, it is our position that

12 there is no valid case law, statute or regulatory

13 interpretation which would support an

14 insignificant or de minimis contribution from

15 coal dust exposure, that that would establish

16 disability causation under the Act or the

17 regulations.

18 And therefore, we are also in

19 agreement with the Director's counsel that in

20 this case, under the factual situation as

21 outlined in the Board's order, an incorrect

22 rebuttal standard was applied by the


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1 Administrative Law Judge, which requires remand

2 for reconsideration of the evidence under the

3 correct rebuttal standard, which as we have

4 argued, should require a substantial causal

5 relationship between the miner's disability and

6 his pneumoconiosis, but at the very least, a

7 significant one. And I would request to reserve

8 my remaining time for rebuttal.

9 JUDGE HALL: Thank you, Ms. Scully.

10 Mr. Wiley?

11 MR. WILEY: Yes, Your Honor. Good

12 morning, Your Honors, may it please the Court.

13 ALJ Swank applied the correct standard for

14 rebutting the 15 year presumption. He applied

15 the standard that is based on a logical and

16 consistent reading of the language of the Black

17 Lung Benefits Act, and a standard that has been

18 supported by multiple Courts of Appeals over the

19 last 30 years.

20 Because ALJ Swank applied the correct

21 standard, his award of benefits to Mr. Minich

22 should be affirmed. This Court asked whether the


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1 language of the regulations creates a standard

2 for rebuttal that is any different than the

3 language of the statute. Our answer is no, they

4 do not.

5 And we would suggest the way to arrive

6 at the correct answer is to look both at the

7 purpose behind the reinstatement of the 15 year

8 presumption, as well as how Congress expressed

9 that purpose in the language of the statute

10 itself.

11 Looking first to Congressional

12 purpose. The 15 year presumption was enacted in

13 order to make the claims process more favorable

14 to miners and to claimants. Senator Byrd,

15 testifying in front of a senate subcommittee when

16 the enactment was first considered, said that the

17 amendments would make the claims process stop

18 quibbling with dying men.

19 Leading up to the 1972 enactment, less

20 than 50 percent of claims were being granted on

21 behalf of miners. In 2009, the Government

22 Accountability Office found that only 13 percent


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1 of claims were being granted at the District

2 Director level.

3 And as claims were appealed to the ALJ

4 and to this Board, those numbers decreased even

5 farther. That state of affairs is what led

6 Congress to re-institute the 15 year presumption.

7 For more than 30 years, courts have

8 interpreted the rebuttal standard to require

9 employers to prove that no part of a miner's

10 disability was caused or contributed to by his

11 coal mine employment. The Third Circuit has not

12 spoken directly to the 718.305 regulations, but

13 they did correctly identify in Carozza that the

14 727.203 standard is identical to the rebuttal

15 standard.

16 That's consistent with this Board's

17 opinion in DeFore against Alabama Byproducts.

18 Applying the identical standard, Carozza said

19 that rebuttal of the presumption required proof

20 that no part of the miner's disability was caused

21 by coal mine employment.

22 That Third Circuit approach of


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1 applying the 727 standard to the 305 standard,

2 has been joined by the Fourth Circuit, the Sixth,

3 Ninth, Tenth and Eleventh. The list of cases is

4 in Rosebud Coal Sales against Weigand. Since the

5 new regulations issued in September of 2013, only

6 three circuits have spoken directly to the

7 rebuttal standard.

8 All of them have said that it requires

9 ruling no part. The Fourth Circuit said so in

10 West Virginia CWP Fund against Gump. The Sixth

11 Circuit said so in Big Branch Resources against

12 Ogle. And the Tenth Circuit said so in Antelope

13 Rio Tinto against Goodin.

14 Most importantly, Your Honor, the coal

15 companies have made this exact argument and lost.

16 After the proposed rule, the regulations were

17 opened for notice and comment. The coal

18 companies submitted this argument on legal

19 grounds and policy grounds to the Department of

20 Labor.

21 And the Department of Labor gave a

22 considered, rational, detailed explanation of why


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1 they were rejecting that interpretation in the

2 preamble to the final rule. Reanimating this

3 argument is engaging in the same quibbling that

4 the 15 year presumption was designed to stop.

5 Turning to Congress's language in the

6 statute, we argue that the best way to understand

7 it is to apply the phrase, "arising out of"

8 consistently across the Black Lung Benefits Act.

9 That phrase appears in two places that

10 are relevant to this argument, the rebuttal

11 language of 921(c)(4), and the definition of

12 pneumoconiosis in 30 USC 902(b).

13 The 902(b) language is defined and

14 interpreted in the regulations at CFR 718.201 and

15 203. 718.203 is explicit, "arising out of" means

16 arising at least in part out of coal mine

17 employment. 718.201 is no different in saying

18 that "arising out of" means significantly related

19 to or substantially aggravated by.

20 Now, of course, the disease that is

21 caused by coal mine employment will be

22 significantly related to it. But the language


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1 does not require causation in order to meet the

2 significant relation standard. It's best to

3 think of diseases that are caused by coal mine

4 employment as a smaller subset of the diseases

5 that are significantly related to it or

6 substantially aggravated by it.

7 The circuit courts, especially the

8 Sixth Circuit, have endorsed this reading of the

9 "arising out of" language. They say that the

10 correct way to understand it is to read 203

11 together with 201.

12 That line of cases began with Southard

13 in 1984, and is continued, adopted by the

14 Seventh, Tenth and Eleventh Circuits, has been

15 affirmed by the Sixth Circuit as recently as Arch

16 on the Green, only six months ago.

17 But whether read together or

18 independently, 718.201 and 203 tell us that the

19 proper reading in the Black Lung Benefits Act is

20 that the phrase "arising out of coal mine

21 employment" means that coal mine employment

22 played at least a part.


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1 Under the principle of consistent

2 usage, the same language in the same statute

3 should be applied whenever possible to have the

4 same meaning.

5 Applying the same reading from 902 to

6 921, means that the statute's language that the

7 Employer must prove that disability did not arise

8 out of coal mine employment, means that the

9 statute requires coal mine employment to not have

10 played a part, or in the language of the

11 regulations, that it played no part.

12 But the statute contains more language

13 than just "arising out of." The rebuttal

14 standard in 921(c)(4) is both "arising out of"

15 or, "in connection with." Requiring only a

16 connection means that the statute requires the

17 coal companies to prove something more than just

18 that coal mine employment was not a cause of the

19 miner's total disability. The analogous

20 construction here is similar to the 201, 203

21 joint construction.

22 718.203 is the causation standard,


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1 expressed in the language, "arising out of." But

2 718.201 is best thought of as a connection

3 standard, something that aggravates or is related

4 to coal mine employment is connected to it. Even

5 if coal mine employment did not cause the miner's

6 total disability, "in connection with" in the

7 statute means that the Employer cannot rebut the

8 presumption without proving that coal mine

9 employment did not contribute to the miner's

10 total disability.

11 The statute does not say, a

12 significant connection. The statute does not

13 say, substantial connection, or more than a de

14 minimis connection. If Congress had intended the

15 statute to mean that, it would have included that

16 language. Instead, it simply says, in connection

17 with.

18 Under either an "arising out of"

19 standard, or an "arising in connection" standard,

20 the statute requires that Employers prove that no

21 part of the miner's total disability can stem

22 from coal mine employment.


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1 This Board posed two additional

2 questions, and we'd like to answer each of them

3 in turn. First was the hypothetical medical

4 opinion, in which the doctor's opinion is that

5 the miner has neither clinical nor legal

6 pneumoconiosis, but that coal dust played what

7 the doctor characterizes as a clinically

8 insignificant factor in reducing the miner's

9 lung function.

10 The Court asked whether that opinion

11 would be facially sufficient to establish

12 rebuttal. Our argument is, no, it would not be,

13 because the doctor's opinion is internally

14 inconsistent.

15 The doctor has accepted that some of

16 the miner's impairment was caused by coal dust.

17 Whether it's a little or a lot, a dust-induced

18 disease is pneumoconiosis.

19 The question of how much the dust

20 contributed would be a question for inquiry under

21 a different element, if the miner had to prove an

22 affirmative case, if he did not have the benefit


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1 of the presumption. But for the inquiry as to

2 just the existence of the disease, all that

3 matters is whether the dust caused it, not how

4 much it caused it.

5 To read the regulations as operating

6 any other way would do exactly what the Sixth and

7 its sister circuits prohibited in the Southard

8 line of cases, creating a higher causation

9 standard in 718.201 than in 203, and negating

10 203's effect in its entirety.

11 In this case, Dr. Fino's opinion was

12 that the FEV1 impairment was caused by emphysema,

13 which he conceded was caused in part by coal dust

14 exposure. Dr. Fino incorrectly concluded that

15 Mr. Minich did not have legal pneumoconiosis

16 because he fundamentally misunderstood the legal

17 standard.

18 He said the issue is not the existence

19 of emphysema, but whether it was a significant

20 factor in the disability. Now, we disagree with

21 the Department of Labor on this point. We would

22 argue that the Department of Labor's litigation


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1 position is not entitled to deference, and that

2 the position is incorrect, based on an illogical

3 reading of the statute.

4 It reads 718.201's language about

5 relation and aggravation, and uses those words

6 synonymously with causation. The DOL's position

7 is that the regulations would require significant

8 or substantial causation.

9 But that's not how 718.201 reads, or

10 how it operates. If coal mine employment

11 aggravates or is related to the disease or the

12 impairment, then it is pneumoconiosis. Even a

13 small amount of cause is still cause, and thus,

14 significant relation.

15 It's also important to note that the

16 Employer's rebuttal evidence goes nowhere near as

17 far as the hypothetical opinion in the Board's

18 question. Both Dr. Fino and Dr. Basheda said

19 that coal mine employment was a less significant

20 factor than smoking. And as I stated, Dr. Fino's

21 conclusion about disability and disease was based

22 on a flawed understanding of the legal standards.


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1

2 He concedes that there may be a causal

3 link between Mr. Minich's emphysema and his coal

4 mine employment. That means ALJ Swank properly

5 found that Dr. Fino's opinion neither proved the

6 fact necessary to rebut the presumption that coal

7 mine employment played no part, nor could he

8 prove that fact by a preponderance of the

9 evidence.

10 The Board also asked whether the two

11 pronged approach of the rebuttal standard would

12 be superfluous in a case such as this one. And

13 our argument is that no, they are not superfluous

14 because they're connected by the word "or."

15 The two prongs can operate

16 independently and allow the coal companies to

17 rebut whichever elements are presumed. Mr.

18 Minich's case is a bit unusual. He was able to

19 prove disease and disease causation independently

20 of the presumption. The only element that was up

21 for rebuttal was disability causation.

22 In a case where the miner depends on


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1 the presumption for all three of the presumed

2 elements, the coal company needs to be able to

3 attack all three. But in this case, it would not

4 have been superfluous to rebut disease and

5 disease causation under the presumption.

6 It would have been improper since

7 those elements were never presumed. The Employer

8 claims in his brief that the "in no part"

9 standard would create an irrebutable presumption

10 instead of a rebutable one. We would argue that

11 simply isn't true.

12 Take, for example, a miner who worked

13 16 years underground and has a totally disabling

14 respiratory condition. Under the presumption, he

15 is presumed to be totally disabled due to

16 pneumoconiosis.

17 But if the Employers are able to

18 submit a well-documented, well-reasoned opinion

19 that is accepted by the Judge, then in fact the

20 miner has lung cancer, and the pathology shows no

21 dust retention in his lungs, then they would have

22 been able to rebut the standard under both


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1 disease, disease causation and disability

2 causation.

3 It is a fact-intensive inquiry, for

4 whether the existence of the disease or the

5 causal links have been ruled out. But compare

6 that fact-intensive inquiry with an actually

7 rebutable presumption, the 718.304 presumption.

8 If the irrebutable presumption that a

9 miner with complicated pneumoconiosis is totally

10 disabled or died due to pneumoconiosis, if a

11 miner with complicated pneumoconiosis has good

12 enough lung function that he can run marathons,

13 he is still irrebutably presumed to be totally

14 disabled.

15 If that same miner were to die in a

16 plane crash, it is irrebutably presumed that he

17 died due to pneumoconiosis. That is an

18 irrebutable presumption. That is not how 305

19 operates. The bottom line is that yes, on

20 aggregate, more coal companies will likely end up

21 paying benefits to miners under the 15 year

22 presumption.


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1 And that was precisely the point. It

2 was to create a system more favorable to

3 claimants and to miners. The "in no part"

4 standard, we argue, is the only logical reading

5 of the statute when read to be consistent with

6 the rest of the Black Lung Benefits Act.

7 It is the standard that effectuates

8 Congress's purpose in enacting the 15 year

9 presumption. We argue that ALJ Swank applied the

10 correct standard, that it was supported by

11 substantial evidence, and his award of benefits

12 should be affirmed. I look forward to your

13 questions.

14 JUDGE HALL: Thank you, Mr. Wiley. Ms.

15 Fiebig?

16 MS. FIEBIG: Good morning, and may it

17 please the Board. My name is Rebecca Fiebig and

18 I represent the Director of the Office of

19 Workers' Compensation Programs at the U.S.

20 Department of Labor. This case involves rebuttal

21 of the 15 year presumption found in section

22 411(c)(4) of the statute, under the regulations


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1 that were promulgated by the Department in

2 October of last year.

3 The regulation, 20 CFR 718.305 is best

4 understood in context, so I'm going to take you

5 through the pertinent parts of the Black Lung Act

6 and the regulations.

7 And in doing so, I will answer the

8 three questions that the Board asked the parties

9 to address, which are, by using regulatory

10 language that differs from the language in the

11 statute, did the Department create a new rebuttal

12 standard; would an opinion finding no clinical or

13 legal pneumoconiosis be sufficient to rebut the

14 15 year presumption under the disability

15 causation prong; and does the Director's

16 interpretation of disability causation rebuttal

17 render disease and disease causation rebuttal

18 superfluous.

19 The answer to the Board's first

20 question is, no. The Department's regulations do

21 not create new rebuttal standards. Under the

22 Black Lung Benefits Act, every miner has to prove


29

1 four things in order to obtain benefits.

2 First, the miner has to show that he

3 has pneumoconiosis, the compensable disease, in

4 either its clinical or its legal form. Clinical

5 pneumoconiosis, as the Board knows, is a specific

6 medical diagnosis characterized by deposits of

7 dust in the lungs and the resulting fibrotic

8 reaction or scar tissue.

9 Legal pneumoconiosis is much broader,

10 and it encompasses any chronic lung disease that

11 is significantly related to -- sorry,

12 substantially related to or significantly

13 aggravated by coal dust exposure.

14 The second element that a miner has to

15 prove in order to obtain benefits is disease

16 causation, which is that his pneumoconiosis arose

17 out of his coal mine employment, or he got

18 pneumoconiosis from working as a coal miner.

19 In cases where the miner has proven

20 legal pneumoconiosis, by definition, the miner

21 has established both the disease and the disease

22 causation elements. The third element that a


30

1 miner has to prove is total respiratory

2 disability.

3 And finally, the fourth element is the

4 miner has to prove that the total disability was

5 caused by his pneumoconiosis. The rebutable

6 statutory presumption at issue in this case

7 applies to miners who have worked in underground

8 coal mines for at least 15 years, or in

9 conditions that are substantially similar to

10 underground coal mining. When the presumption is

11 invoked, the miner then has to prove element

12 three, total disability.

13 But once that's achieved, the

14 remaining three elements of entitlement are

15 presumed to be true. So in a case where the

16 presumption is applicable, it is presumed that

17 the miner has pneumoconiosis, that he got it from

18 coal mining, and that it caused his total

19 disability.

20 Section 411(c)(4) addresses rebuttal

21 of the 15 year presumption. But by its terms,

22 it's expressly limited to cases where the


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1 Secretary is the party opposing entitlement. The

2 party opposing entitlement in this case, and

3 frankly in most cases, is a coal mine operator.

4 So the rebuttal provisions in the

5 statute are actually not applicable to this case.

6 Thus the statute left a very large void in the

7 program, which the Department filled by

8 promulgating regulations. It has always been

9 true that any party can rebut the 15 year

10 presumption by disproving one of the three

11 presumed facts, which are the elements of

12 entitlement.

13 But the statute in the prior version

14 of 20 CFR 718.305, used ambiguous phraseology to

15 describe rebuttal on disability causation

16 grounds. When the presumption applies, it is

17 presumed that the miner's disability is caused by

18 pneumoconiosis, not by employment in a coal mine

19 or dust exposure in the miner's coal mine

20 employment.

21 The proper way to rebut the

22 presumption is to disprove the presumed fact, not


32

1 to disprove something else. So to address those

2 concerns, the Department drafted the current

3 regulations to closely mirror the elements of

4 entitlement, because those are the facts that are

5 presumed when the presumption applies.

6 The Department's regulations interpret

7 and clarify the statute, but they're not intended

8 to create any new burdens. Under both the

9 regulations and the statute, rebuttal can be

10 accomplished in two ways.

11 First, by proving that the miner does

12 not have pneumoconiosis, thereby disproving the

13 presumed facts of disease and disease causation,

14 or second, by proving that the miner's disability

15 was not caused by his pneumoconiosis, and thereby

16 disproving the presumed fact of disability

17 causation.

18 By focusing on the elements of

19 entitlement and not on more ambiguous terms such

20 as coal mine employment or dust exposure in a

21 coal mine, the regulations better effectuate the

22 purposes of the Act, which is to compensate


33

1 miners who are disabled by pneumoconiosis.

2 The intent behind the vague terms that

3 have been used previously could be misinterpreted

4 and result in a miner receiving benefits for an

5 otherwise non-compensable condition.

6 So in this case, for example, the

7 Employer's experts found that Mr. Minich's

8 totally disabling lung condition was not legal

9 pneumoconiosis, although they agreed that there

10 could be some insignificant contribution from

11 dust exposure. Notwithstanding that, the ALJ

12 found that even if that opinion is credible, the

13 opinion that there is no pneumoconiosis, that

14 opinion would be incapable of rebutting the

15 presumption, because it doesn't entirely rule out

16 some contribution from dust exposure.

17 By aligning the rebuttal standards

18 with the elements of entitlement, the Department

19 is intending to preclude such an anomalous

20 result.

21 Next I'm going to talk about how

22 rebuttal occurs under the disability causation


34

1 prong. But before I do, I want to briefly

2 address one of the arguments that the Claimant

3 has raised in this case. The Board has

4 previously ruled that the rule-out standard

5 applies to the disability causation prong in

6 Owens.

7 And the Director's position is that

8 the fact that has to be ruled out is any

9 contribution, however small, from pneumoconiosis.

10 Mr. Minich generally agrees with that

11 proposition, but asks the Board to go further and

12 apply the rule-out standard essentially to

13 disproving the element of disease causation as

14 well.

15 And the basis for that argument is the

16 Claimant's citation to Arch on the Green v.

17 Groves, the 2014 Sixth Circuit case, and a few

18 others that he argues define legal pneumoconiosis

19 as any disease arising in part out of coal mine

20 employment.

21 And the Director's position is that

22 Arch on the Green, to the extent that it in fact


35

1 holds that legal pneumoconiosis is any disease

2 arising in part out of coal dust exposure, is

3 simply wrongly decided because it completely

4 ignores the regulatory definition of legal

5 pneumoconiosis in section 718.201, which is, any

6 disease which is significantly related to or

7 substantially aggravated by coal dust exposure.

8 In addition, the Arch on the Green

9 court was not considering rebuttal of the section

10 718.305 presumption, and never actually ruled on

11 whether a clinically insignificant contribution

12 from coal dust exposure would satisfy this "in

13 part" standard that it ostensibly adopted.

14 The Department has never required

15 operators to rule out coal dust exposure in order

16 to disprove the existence of disease causation.

17 And doing so at this juncture would represent a

18 pretty significant change in the law.

19 And we submit that it would be

20 inappropriate to do that, based on a line of

21 cases that weren't even addressing this specific

22 issue. In the second and third questions that


36

1 the Board posed, you asked whether an opinion

2 finding no clinical or legal pneumoconiosis would

3 be sufficient to rebut the 15 year presumption

4 under the disability causation prong, and if so,

5 doesn't that render the first prong of rebuttal

6 superfluous.

7 The answer to the Board's second

8 question is, yes, because if there's no

9 pneumoconiosis, then clearly pneumoconiosis

10 couldn't have played any part in causing the

11 miner's disability. But the answer to the third

12 question is, no.

13 Although there are cases where the

14 only way to prove disability -- to disprove

15 disability causation is to demonstrate that there

16 is no legal pneumoconiosis, that's not true in

17 every case.

18 And operators in many cases can still

19 accomplish rebuttal in cases where a miner does

20 have pneumoconiosis. Given that the first

21 rebuttal prong focuses on the disease and disease

22 causation elements of rebuttal, it may seem


37

1 counter-intuitive that an ALJ would have to

2 consider disease causation in connection with his

3 analysis under the second rebuttal prong,

4 disability causation.

5 But the explanation is actually

6 relatively simple. Because there are two types

7 of pneumoconiosis, and both need to be ruled out

8 in order to rebut under the first prong, it is

9 actually possible for an ALJ to find no rebuttal

10 under the first prong without determining whether

11 the miner has both forms of pneumoconiosis.

12 In practice, ALJ's often do what Judge

13 Swank did here, which is determine that the miner

14 has clinical pneumoconiosis and therefore is

15 precluded from rebutting the presumption under

16 the first prong, and therefore move on to

17 consider whether rebuttal can be accomplished

18 under the second prong, without actually

19 considering legal pneumoconiosis first.

20 In cases where it's alleged that the

21 miner's disability is caused entirely by

22 something, by a disease that's clearly not legal


38

1 pneumoconiosis, such as heart disease, for

2 example, or a congenital defect, the ALJ may be

3 able to rule on disability causation without

4 actually determining if the miner has legal

5 pneumoconiosis.

6 But in many cases, there is no dispute

7 that the miner suffers from a totally disabling

8 lung disease. The only real dispute is what is

9 the etiology of that totally disabling lung

10 disease. In those cases, disease causation is a

11 predicate fact. And the only way for the

12 operator to rule out pneumoconiosis as the cause

13 of the miner's disability is to prove that the

14 miner's totally disabling lung disease is not

15 legal pneumoconiosis.

16 Now, if the ALJ makes findings

17 regarding the presence of legal pneumoconiosis in

18 connection with his analysis under the first

19 prong, the first rebuttal prong, there would be

20 no need to revisit that analysis in connection

21 with the second prong.

22 But in the absence of such findings,


39

1 it does not follow that just because the miner

2 has clinical pneumoconiosis and can't rebut under

3 the first prong, that any lung disease that he

4 suffers from is automatically legal

5 pneumoconiosis.

6 Employers are entitled to attempt to

7 disprove disease causation and prove that the

8 lung disease is not pneumoconiosis. When the ALJ

9 is grappling with the existence of legal

10 pneumoconiosis in connection with his disability

11 causation analysis, there are a few things that

12 it's important to keep in mind.

13 First, whether it's considered in

14 connection with the ALJ's analysis under the

15 first or the second prong, the operator is not

16 subject to the rule-out standard in determining

17 disease causation, whether a miner's disease is

18 legal pneumoconiosis. The operator has to show

19 that the coal dust exposure did not significantly

20 contribute to or aggravate the miner's lung

21 disease.

22 So a medical opinion like Dr. Fino's


40

1 or Dr. Basheda's in the Minich case, finding no

2 legal pneumoconiosis because coal dust exposure

3 was at most a clinically insignificant

4 contributor to the disease and consequent

5 disability is facially sufficient to rebut the

6 presumption on disability causation grounds.

7 Second, we've explained by regulation

8 that we intend the first rebuttal prong to cover

9 disease and disease causation, the disease and

10 disease causation elements. And we intend the

11 second rebuttal prong to cover the disability

12 causation elements.

13 But no matter which prong the ALJ is

14 ostensibly considering, the facts in these cases

15 are almost always intertwined. And it's

16 important for the ALJ to make findings on every

17 rebuttable element that is in dispute in any

18 given case.

19 No rebuttable element is ever

20 superfluous in one of these cases. Even in cases

21 where the importance of a disputed element is not

22 as obvious as it might be in the Minich case,


41

1 findings are still going to be important because

2 they may bear, for example, on the credibility of

3 the doctor's opinions, and whether they're worthy

4 of belief on another aspect of the case.

5 And the Act specifically requires

6 ALJ's to consider all relevant evidence that's

7 presented. Third, the fact that an opinion is

8 facially sufficient to rebut the presumption does

9 not mean that it is -- that it's credible, and it

10 doesn't end the inquiry. To determine whether an

11 opinion is facially sufficient, the ALJ should

12 ask, if I assume that everything in this opinion

13 is true, would this be enough to meet the legal

14 standard.

15 And if the answer to that question is

16 no, then obviously the case is over. But if the

17 question is yes, there is a next step. And that

18 is that the ALJ has to analyze the opinion and

19 determine whether it is worthy of belief.

20 A facially sufficient opinion can be

21 wholly disregarded if the ALJ finds that it's not

22 credible, because it's not well-reasoned and it's


42

1 not well-documented. In this case, ALJ Swank

2 awarded benefits because he concluded that the

3 physician's opinions were not facially sufficient

4 to rebut the presumption.

5 And because he made that conclusion,

6 he never actually considered whether they were

7 credible. We believe that the ALJ's decision on

8 the facial sufficiency point is erroneous. And

9 although we believe there are substantial reasons

10 to question the credibility of Dr. Fino's and Dr.

11 Basheda's opinions in this case, that is a

12 determination that ultimately has to be made in

13 the first instance by an Administrative Law

14 Judge, and it wasn't done here.

15 So we feel that this case should be

16 remanded for further findings on the credibility

17 of those doctors' opinions. So thank you very

18 much, and I look forward to your questions.

19 JUDGE HALL: Thank you. Ms. Scully?

20 MS. SCULLY: Just briefly.

21 REBUTTAL

22 MS. SCULLY: I think I would -- I would


43

1 agree with the Director's counsel that you cannot

2 apply the Arch on the Green case in regard to its

3 definition of legal pneumoconiosis as requiring

4 only part of the disease be related to coal dust

5 exposure, or only -- or using the rule-out

6 standard in that regard. I think you do have to

7 look at the regulation at 718.201, I believe,

8 which defines legal pneumoconiosis as requiring a

9 significant relationship or substantial

10 aggravation. I also think in the Claimant's

11 argument there is some confusion between disease

12 causation and disability causation, and these are

13 two separate elements of entitlement.

14 And we cannot blur what's required for

15 disease causation and what one particular case

16 requires for disease causation, and apply that to

17 disability causation. And I would also point out

18 that I agree with the Director's position that it

19 is important in formulating the rebuttal standard

20 to closely mirror the elements of entitlement.

21 And in that regard, we do believe it

22 is important to look at what the regulations


44

1 require for the Claimant to prove disability

2 causation. And that is also what's addressed in

3 the Bonessa case in the Third Circuit, when they

4 found that a substantial contributor was needed

5 to prove disability causation. And of course the

6 2000 amendments to the Act both clarified and

7 codified the Department's position on disability

8 causation.

9 And the regulation at 718.204(c)(1),

10 which was amended in 2000, indicates a miner

11 shall be considered totally disabled due to

12 pneumoconiosis if pneumoconiosis as defined in

13 718.201 is a substantially contributing cause of

14 the miner's totally disabling respiratory or

15 pulmonary impairment.

16 And that had not been clear prior to

17 that amendment, because the different circuits

18 had taken different positions on what exactly

19 disability causation constituted and what was

20 necessary. Of course, as indicated in Bonessa in

21 the Third Circuit, substantial contributor was

22 the standard.


45

1 I think that's also an important

2 consideration when we are going back and looking

3 at cases decided under the original interim

4 regulations, because at that point in the

5 evolution of the statute and the interpretation

6 of the statute, there had not been a specific

7 ruling generally by the circuits nor by the Board

8 on exactly what total disability due to

9 pneumoconiosis meant.

10 That was the only thing that we had at

11 that point to interpret disability causation.

12 And it wasn't until the circuits began taking a

13 position on disability causation, and ultimately

14 the Board clarifying and codifying that in the

15 2000 amendments, that we realized substantial

16 contributor was the -- or substantial

17 contributing cause, as far as the regulation

18 goes, was the disability causation standard.

19 Again, I would point to the Bonessa

20 case, since this is a Third Circuit case, which

21 interpreted its own ruling in Carozza as

22 requiring a substantial nexus. So I believe,


46

1 especially in regard to the Claimant's argument

2 that an insignificant relationship is sufficient

3 to meet that disability standard, I really don't

4 believe there's any support, and definitely not

5 in the Third Circuit, for that position. Thank

6 you.

7 JUDGE HALL: Thank you. Judge

8 McGranery, any questions?

9 JUDGE MCGRANERY: Thank you. Ms.

10 Scully, as you pointed out, the Director may

11 appear to be a little inconsistent in citing

12 Carozza for support of its "in part" language.

13 And in Carozza, the Court said, the

14 interpretation -- talking about 727.203(b)(3),

15 the interpretation in and of itself is not

16 embodied in 203(b)(3).

17 However, that section recognizes that

18 pneumoconiosis may contribute to total disability

19 by aggravating such conditions as heart disease

20 or lung cancer. Accordingly, the interpretation

21 is consistent with the remedial purposes of

22 Congress, and well within the rule making


47

1 authority conferred on the Secretary.

2 So doesn't that sound like the person

3 is totally disabled, really, from heart disease

4 or lung cancer, but the miner is entitled to

5 benefits because pneumoconiosis has aggravated

6 the totally disabling condition?

7 MS. SCULLY: Well, Your Honor, we would

8 argue that Carozza is still requiring

9 contributing cause. And I believe stated in the

10 opinion, and I think it is important, as you're

11 pointing out, that in Carozza the real issue that

12 was at issue in that case was the "in whole, in

13 part" language in regard to whether "in part"

14 modified causation as opposed to total

15 disability.

16 Because the question was, would we be,

17 in allowing that regulation, allowing benefits

18 for partial disability. And that was really what

19 Carozza was clarifying, that was not the case.

20 But I believe they state in there that

21 the award of benefits -- it does not permit the

22 award of benefits for partial disability, but


48

1 only for total disability, of which

2 pneumoconiosis is a contributing cause.

3 So I do believe that in finding an

4 aggravation of heart disease, they are still

5 finding that aggravation of the heart disease to

6 be a contributing cause of the total disability.

7 And I think again, in Bonessa, which

8 goes back and interprets the Third Circuit's

9 decision in Carozza, when they indicate that they

10 are still requiring a substantial nexus, they are

11 not looking at that as an insignificant

12 aggravation of heart disease, but one that is

13 still substantial and one that is still requiring

14 a contributing cause.

15 JUDGE MCGRANERY: How does that jibe

16 with the interpretation of the regulation that it

17 has to be arising -- that it has to be a

18 significant contribution to the disability? Now,

19 the Court doesn't say here that this coal dust

20 exposure aggravated to a great extent, makes

21 clear that the total disability is really due to

22 the lung disease or heart disease or lung cancer.


49

1 It's not qualified, and they say, this is

2 consistent with the remedial purposes. It

3 doesn't specify the contribution.

4 MS. SCULLY: Well, I think they're

5 saying that it's consistent with the remedial

6 purposes to not require the pneumoconiosis or the

7 aggravation to cause total disability entirely

8 due to the pneumoconiosis. And that was really

9 the question in the discussion with the Board

10 that had reached their decision prior to Carozza.

11 And they had taken three different

12 positions on that. And they were finding if

13 that's looking at requiring just a partial

14 disability, that that is not consistent with the

15 Act. And again, I do believe that they're

16 pointing out that pneumoconiosis is still a

17 contributing cause to the total disability.

18 JUDGE MCGRANERY: Now, as you point

19 out, they're talking about the "in part" language

20 has to do with causation, not the extent of

21 disability. And isn't that aligned with Mr.

22 Wiley's argument that the pneumoconiosis has to


50

1 be just "in part" a connection. It's not

2 significant -- they're not talking about

3 significantly caused by, they say, "in part."

4 MS. SCULLY: Yes, I believe they are

5 still requiring it to be a contributing cause

6 though. And I think Mr. Wiley takes the language

7 a step further, and is saying that any part, even

8 if it's insignificant, even if it wouldn't be a

9 contributing cause, almost to the extent that

10 even if it's just a co-existing condition, that

11 that would be sufficient.

12 And I don't believe that was the

13 Court's position in Carozza. And I think that is

14 confirmed in Bonessa's looking back at their

15 opinion in Carozza and saying that they required

16 a substantial nexus in Carozza.

17 JUDGE MCGRANERY: Mr. Wiley, do you

18 have a comment?

19 MR. WILEY: Yes, Your Honor. I would

20 like to respond specifically to the coal

21 company's reliance on Bonessa. We would say that

22 that reliance is misplaced for a few reasons.


51

1 First, Bonessa was interpreting 718.204 in the

2 case in which the burden is on the miner.

3 And in that case the miner has the

4 burden to prove disability causation, independent

5 of the presumption. 718.204 in its language sets

6 out 718.305 as an explicit exception for how one

7 proves disability causation.

8 When we are operating under the

9 presumption of 305, 18.204 is in a sense off the

10 table. Additionally, it doesn't account --

11 Bonessa doesn't account for the reading that was

12 given -- and I believe this was in Big Branch

13 Resources, that contributing cause and the "in no

14 part" standard are two sides of the same coin.

15 That's either in Big Branch or in

16 Antelope Rio Tinto. If the miner during his

17 affirmative case need only prove that coal mine

18 employment was a contributing cause of his

19 disability when the burden is on him, when the

20 burden flips to the coal company, they must prove

21 it was not even a contributing cause.

22 So that's why we would say the


52

1 reliance on Bonessa is misplaced, because it puts

2 the entire discussion in the language of 718.204,

3 which only applies when the miner has the burden

4 to prove an affirmative case.

5 JUDGE MCGRANERY: Thank you, Mr. Wiley.

6 MR. WILEY: Yes, Your Honor.

7 JUDGE MCGRANERY: Ms. Fiebig, do you

8 have a comment?

9 MS. FIEBIG: What I would say with

10 regard to the rule-out standard and whether it

11 applies, I think it's important to remember that,

12 as I stated in my presentation, section 411(c)(4)

13 doesn't actually apply to operators.

14 And therefore whether the rule-out

15 standard is a permissible interpretation of the

16 statute, is not a particularly relevant

17 consideration because the statute is not

18 applicable, and there is a tremendous void here.

19 So the real question is, in the state

20 of the law as it was handed down by Congress,

21 which leaves really no standards for operator

22 rebuttal, is the Department's regulation and


53

1 permissible interpretation of the statute. And

2 we feel that it is, particularly as -- when it is

3 appropriately limited, as I suggest it should be,

4 in our presentation, only to questions of true


6 We're not suggesting that the Board

7 should extend the rule-out standard to questions

8 of disease causation, which would essentially

9 mean that in order to rebut the presumption, and

10 employer is going to have to prove that coal dust

11 exposure had no impact whatsoever on this miner's

12 condition.

13 We're limiting it only to cases where

14 it is known that you're dealing with a coal miner

15 who has at least 15 years of continuous dust

16 exposure, a totally disabling respiratory

17 impairment, and some form of pneumoconiosis.

18 And in those circumstances, you think

19 it is -- it's appropriate to require the Employer

20 to meet a particularly high burden and show that

21 there is no relationship. And we think that the

22 Carozza opinion, in allowing for the possibility


54

1 that a miner might obtain benefits for heart

2 disease that is aggravated by the miner's

3 pneumoconiosis. We think that would be an

4 appropriate result.

5 JUDGE MCGRANERY: But you say that the

6 miner involved, that the coal company could say,

7 it did contribute but it did not significantly

8 contribute. That's what you're saying, right?

9 MS. FIEBIG: I'm saying that -- well,

10 it depends on what you mean by "it." If you

11 mean, pneumoconiosis, when you say "it", then the

12 answer is, if there was any contribution at all

13 by pneumoconiosis, then the Employer has not

14 successfully rebutted the presumption on the

15 disability causation ground.

16 But if we are using sort of -- if

17 you're looking at the contribution for the

18 purpose of determining whether the lung disease

19 is actually pneumoconiosis, if what we're really

20 looking at is disease causation, not disability

21 causation, then they don't have to show no

22 contribution from coal dust exposure to prove


55

1 that the disease is not legal pneumoconiosis.

2 JUDGE MCGRANERY: I think it would be

3 Mr. Wiley's argument that you seem to be reading

4 out of the Act 718.203. That he says, "arising

5 out of" means, played no part -- played a part.

6 And you concentrate on 718.201. How do you

7 reconcile 201 and 203?

8 MS. FIEBIG: Well, I would point out in

9 718.305, when the statute refers to the

10 definition of legal pneumoconiosis, it does

11 specifically direct the reader to the definition

12 in 718.201, when we're talking about the

13 definition of legal pneumoconiosis.

14 And when it talks about how to

15 determine whether clinical pneumoconiosis is

16 caused by coal dust exposure, that's where we

17 refer to 718.203 in 718.305. But I think that to

18 take Mr. Wiley's position would be to go

19 completely in the other direction and read out

20 718.201 from the definition.

21 I would agree that they need to be

22 read in conjunction, but we can't ignore the fact


56

1 that "arising out of" is explicitly defined in

2 the regulations to be substantially related to or

3 aggravated by.

4 JUDGE MCGRANERY: Now, if you had -- if

5 there's a medical opinion that says, the miner

6 has restrictive impairment due entirely to his

7 coal dust exposure. That would be legal

8 pneumoconiosis, wouldn't it?

9 MS. FIEBIG: Right.

10 JUDGE MCGRANERY: All right. Now, if

11 that medical opinion also said, he is totally

12 disabled by his respiratory impairment, which has

13 two components, a restrictive component and an

14 obstructive component. And the restrictive

15 component contributes one percent, or half a

16 percent, to his total disability.

17 The obstructive component contributes

18 the rest, 99 or 99 and a half. So would that

19 medical opinion that says it is insignificant,

20 the contribution of pneumoconiosis to his

21 disability, would that be sufficient to show that

22 it is in no part due to pneumoconiosis?


57

1 MS. FIEBIG: No, that would not be

2 sufficient. Because in your hypothetical, that

3 restrictive -- that restrictive impairment that

4 contributes one percent to the disability is

5 legal pneumoconiosis. So what they have failed

6 to do is show that no part of the miner's

7 disability was caused by pneumoconiosis.

8 JUDGE MCGRANERY: Now, getting back to

9 the Third Circuit in Carozza, which said, yes, if

10 the miner should be -- is entitled to benefits,

11 if his coal dust exposure aggravated his cancer

12 or his heart disease to the point of -- and he is

13 disabled, how would you reconcile that? Do you

14 have to have a name for the component that is

15 pneumoconiosis that contributes? Isn't it

16 pneumoconiosis if it aggravates the disease?

17 MS. FIEBIG: Well, that highlights the

18 importance of making findings on whether or not

19 that aggravation actually is pneumoconiosis.

20 Because what we want to ensure is happening here

21 is that miner's are being compensated for the

22 compensable disease.


58

1 So if you have a case where there have

2 been no findings regarding whether that

3 aggravation is significant enough to qualify as

4 legal pneumoconiosis, then you run the risk of

5 potentially awarding benefits for something that

6 doesn't rise to the level of being legal

7 pneumoconiosis, and that wouldn't be appropriate

8 under the Act.

9 JUDGE MCGRANERY: So you're saying you

10 would have to name it, even though it is

11 pneumoconiosis if it aggravates.

12 MS. FIEBIG: I do think you have to

13 name it. I think you have to make the conclusion

14 that the aggravation is significant enough to

15 qualify as pneumoconiosis.

16 JUDGE MCGRANERY: Doesn't seem to be

17 what the Court was saying in Carozza, is it? It

18 says, if his -- if that pneumoconiosis may

19 contribute to total disability by aggravating

20 such condition, that should be compensable.

21 MS. FIEBIG: Well, in that situation

22 you've already determined that the disease is


59

1 pneumoconiosis and that there is some

2 relationship there. So I think that's

3 consistent, because we've determined that that

4 pneumoconiosis is the entity that is aggravating

5 the disability.

6 JUDGE MCGRANERY: Yes, and that goes

7 back to their saying that it's in part due to

8 coal mine employment, without specifying

9 significantly related to or aggravated by.

10 MS. FIEBIG: Right. And I think that's

11 -- this is all sort of the type of confusion that

12 we're trying to avoid by revising the regulations

13 to closely mirror the elements of entitlement,

14 because as I noted in the past, we were working

15 with some terms that were susceptible to

16 interpretation.

17 And so we're trying to make it as

18 clear as possible by saying we really need to

19 make sure that we're looking at the compensable

20 disease here, before we require anyone to rule

21 out any contribution from that disease.

22 But once we've determined that the


60

1 entity that is contributing to the disability is

2 actually the compensable disease, whether it's

3 clinical or legal, then we think it's appropriate

4 for them to have to meet a pretty high burden to

5 show that there is no contribution there.

6 JUDGE MCGRANERY: So if there is a

7 finding of medical -- of clinical pneumo, and the

8 doctor says, that contributed a clinically

9 insignificant part to his total disability, is

10 that in part, or is it not in part?

11 MS. FIEBIG: That would be in part. If

12 the miner has clinical pneumoconiosis and it

13 contributed an insignificant amount to the

14 disability, that would not be sufficient to rebut

15 the presumption under disability causation

16 grounds. That would be -- the disability would

17 be caused in part by the coal mine employment.

18 JUDGE MCGRANERY: If a medical opinion

19 of coal dust exposure is -- that the coal dust

20 exposure makes an insignificant contribution to

21 the total disabling COPD, and it's conceded that

22 the claimant has -- I'm sorry, I got this


61

1 backwards. I was puzzled that you said in your

2 brief that -- this is on page 17 --

3 MS. FIEBIG: Can I just grab mine?

4 JUDGE MCGRANERY: Sure, page 17. You

5 write, "Although the doctors concluded that the

6 miner's disabling idiopathic pulmonary fibrosis

7 was unrelated to coal mine dust exposure, a

8 conclusion legally sufficient to support

9 rebuttal."

10 Now, I'd like to know when the

11 doctor's conclusion is not legally sufficient to

12 support rebuttal under the 718.305(d) at the end

13 where it says, "In no case shall the presumption

14 be considered rebutted on the basis of evidence

15 demonstrating the existence of a totally

16 disabling obstruction, respiratory or pulmonary

17 disease of unknown origin."

18 MR. ROLFE: Your Honor, that's actually

19 a question from the Sweeney case, which is the

20 next case that's up. And the distinction there

21 is idiopathic pulmonary fibrosis is actually a

22 restrictive disease. It's not an obstructive.


62

1 JUDGE MCGRANERY: I see, okay, thank

2 you. All right, thank you. Mr. Wiley, would you

3 have any comments?

4 MR. WILEY: Yes, Your Honor, a few.

5 Everyone in this case has agreed that the burden

6 shifts to the Employer to rebut the elements of

7 entitlement. Cases such as Arch on the Green and

8 the cases that align with it define the elements

9 of entitlement.

10 The elements of entitlement of disease

11 and disease causation are both interpreted in the

12 regulations. But then in both the statute and

13 regulatory language have been interpreted by the

14 courts to give the meaning to it that Arch on the

15 Green and those type of cases do.

16 You are exactly correct, that to read

17 any sort of significant causal requirement into

18 "arising out of" would entirely get rid of

19 718.203. Being able to prove that a miner for

20 whom has this much disease, and this much of it

21 is caused by coal dust exposure, that is legal

22 pneumoconiosis.


63

1 The question of how much that

2 contributes to his disability would be a proper

3 question under 204 in an affirmative case. But

4 the burden for rebutting that shifts to the

5 Employer under a rebuttal presumption case.

6 That would be our response to the

7 issue of the elements of entitlement and how

8 disease and disease causation are properly

9 defined and understood.

10 JUDGE MCGRANERY: All right, thank you.

11 Ms. Scully?

12 MS. SCULLY: Yes. Your Honor, I think

13 that the problem is -- and also just in looking

14 at Carozza, although the factual situation in

15 there discussed an aggravation of heart disease,

16 the case does not stand for the proposition that

17 any mere insignificant aggravation is enough to

18 qualify as disability causation.

19 And quoting directly from the case,

20 and this would be on page 78, the Court says,

21 "Judge Miller's reading of the regulation is

22 clearly correct. It does not permit the award of


64

1 benefits for partial disability, but only for

2 disability of which pneumoconiosis is a

3 contributing cause."

4 And I think even the new 718.305

5 regulation actually uses the word "cause" in

6 finding no part of disability is caused by

7 pneumoconiosis. We cannot take causation

8 completely out of the disability causation

9 element of entitlement.

10 And when we're finding that an

11 insignificant part or an insignificant

12 contribution could be significant, there is no

13 insignificant contribution that is going to

14 qualify as a contributing cause.

15 And that's where I see the breakdown

16 occurring. We have to view disability causation

17 as requiring an element of causation. An

18 insignificant factor requires no element of

19 causation whatsoever. And then just briefly in

20 regard to the Arch on the Green case, and of

21 course that is a Sixth Circuit case, it would not

22 be binding precedent in the Third Circuit.


65

1 But in addition to that case

2 addressing legal pneumoconiosis and their

3 interpretation of what was required of legal

4 pneumoconiosis, the real holding in that case was

5 to affirm that the disability causation standard

6 per the 718.204 regulation is the substantial

7 contributing cause, disability causation

8 standard.

9 And in fact, in that case they

10 overturned their previous holding in the Peabody

11 case, which had only required more than an

12 insignificant contribution to satisfy disability

13 causation.

14 And this Arch on the Green case is

15 really stating that since the Department

16 clarified and codified the regulation on

17 disability causation in the 2000 amendment as

18 substantial contributing cause, that that is the

19 only standard that should be used for disability

20 causation. And that was really the holding of

21 the Arch on the Green case.

22 JUDGE MCGRANERY: Thank you. Mr.


66

1 Wiley, what would you say to someone who had just

2 read the Supreme Court's decision in Pauley,

3 which holds that the four rebuttal provisions

4 that the Department of Labor came up with, were

5 no more restrictive than the two rebuttal

6 provisions of HEW, and Justice Scalia dissented,

7 and you see I think that makes it easier to

8 rebut, that is more restrictive.

9 But the majority seemed to say that

10 the Department of Labor, the Director, gets to

11 interpret the Act, gets to write his own

12 regulations, and then gets to tell us what they

13 mean. And ultimately held though, it was more

14 restrictive.

15 MR. WILEY: If I understand Your

16 Honor's question, it's getting to the heart of

17 how much weight or deference must be given to the

18 Department of Labor in arguing about the meaning

19 of their own regulations. The Department of

20 Labor does get deference when it is interpreting

21 its regulations in a meaningful, considered and

22 substantive way.


67

1 A litigation position, a post hoc

2 rationalization or interpretation is not entitled

3 to deference. And I would direct Your Honors to

4 Bowen against Georgetown University Hospital,

5 which says that the litigation position of an

6 agency, the positions and answers of appellate

7 counsel arise in the factual scenario of a given

8 case, and are not supposed to be given the same

9 weight or deference as the considered, reasoned

10 policy decision of the agency as a whole.

11 JUDGE MCGRANERY: So you're saying that

12 the interpretation advanced today of their

13 regulations is inconsistent with their

14 regulations, and it is because it is an

15 interpretation which comes from a litigation

16 position, it's not entitled to deference.

17 MR. WILEY: That is correct, Your

18 Honor. That the interpretation is inconsistent

19 with the regulations. We argue in addition,

20 inconsistent with the statute, the position

21 that's been argued today.

22 And because it was given specifically


68

1 in response to this Court's questions, it does

2 not have the same deferential weight. And we

3 believe that argument is very strongly backed up

4 by Bowen against Georgetown.

5 JUDGE MCGRANERY: Thank you.

6 MR. WILEY: Yes, Your Honor.

7 JUDGE MCGRANERY: I have no further

8 questions. Judge Boggs?

9 JUDGE BOGGS: Mr. Wiley, how do you

10 justify your position that was just discussed

11 with respect to Pauley, given that that case does

12 I think discuss Georgetown, and that the

13 regulations are explicit in discussing the point

14 that's at issue today in terms of the definition

15 of pneumoconiosis, and that Carozza in its

16 footnote, when it talks about aggravation, so to

17 the extent that there's something on point in the

18 Third Circuit, specifically talks about the

19 Senate report which accompanied the original

20 legislation, and says it is also intended that

21 traditional Workman's Compensation principles

22 such as those, for example, would permit a


69

1 finding of eligibility where the totally

2 disabling condition was significantly related to

3 or aggravated by the occupational exposure be

4 included in the regulations?

5 MR. WILEY: Responding first to the

6 Workman's Compensation point, we would argue that

7 the correct reading of 718.201, when the language

8 substantially was added to the standard to

9 substantially aggravate counsel's(sic)

10 pneumoconiosis, the implementing rule indicated

11 that that was meant to bring the standard in line

12 with Workman's Compensation standards, which

13 specifically contemplate giving compensation to

14 things that make worse a pre-existing condition,

15 a condition that is not caused by the employment,

16 but only made worse by it.

17 So to read those pieces together, we

18 see that causation is not the necessary element

19 of 201. Causation is the 203 standard. 201

20 expands causation to include relation or

21 aggravation. If I could have just one moment to

22 consult on the Pauley issue.


70

1 (Mr. Wiley steps to counsel table.)

2 MR. WILEY: The position that was at

3 issue in Pauley as we understand it, as we read

4 it, was the Department's interpretation, that

5 what you are hearing today from the Department of

6 Labor is not an interpretation, but rather a

7 position advanced in litigation.

8 Additionally, under 201, any chronic

9 lung disease caused by coal mine employment is

10 pneumoconiosis. And that is, we feel needs to be

11 clarified as it's a bit in conflict with the

12 position the Department of Labor has advanced.

13 And that's part of why we believe the Department

14 of Labor's position as argued today and as argued

15 in its brief, is inconsistent with the

16 regulations and the statute, especially the

17 proper understanding of the "arising out of"

18 standard.

19 JUDGE BOGGS: Ms. Fiebig, do you have

20 a comment?

21 MS. FIEBIG: In reference to the

22 discussion of the level of deference that we're


71

1 entitled to in the interpretation of the

2 regulation, I would have to respectfully disagree

3 with Mr. Wiley, that this is a litigation

4 position that we're advancing before the Board

5 today.

6 I think that this position is clearly

7 stated in the regulations, and in the preamble to

8 the regulations, and there is no conflict here.

9 The regulation explicitly refers -- I'm sorry,

10 718.305(d) explicitly refers back to the

11 definition of legal pneumoconiosis as promulgated

12 in 201, and references 203 in connection with the

13 analysis having to do with clinical

14 pneumoconiosis.

15 JUDGE BOGGS: Do you have a comment

16 with respect to the language in Carozza?

17 MS. FIEBIG: I don't.

18 JUDGE BOGGS: Ms. Scully?

19 MS. SCULLY: In regard to the footnote

20 that you mentioned in Carozza, I do believe it is

21 indicating that the aggravation of the pre-

22 existing non-work related condition to the point


72

1 of compensable disability, which is indicating

2 that it is contributing something to that

3 condition, which would make it a compensable

4 disability.

5 And again, it is indicating that there

6 is a causation factor involved there. And again,

7 I believe in regard to the Director's position, I

8 do believe there is nothing in the preamble to

9 the final rule which would support an

10 insignificant contribution qualifying it as


12 And I don't believe there's anything

13 that we can go back to and look at that would

14 support that interpretation of disability

15 causation. And then I think just briefly, if I

16 could. Again, I agree with the Director's

17 position that we should be aligning with the

18 actual elements of entitlement.

19 And we are not arguing -- or nobody's

20 arguing that the Employer should have a different

21 standard in disproving the existence of

22 pneumoconiosis, or that we should do something


73

1 other than what's in the regulations in regard to

2 proving that, or disproving that element of

3 entitlement.

4 So it really doesn't make logical

5 sense that the Employer should be disproving

6 something other than what the disability

7 causation element consists of, when it is

8 something that the claimants need to prove.

9 And I think that the benefit to

10 claimants in general of a presumption is that

11 that burden shifts to the Employer. So the

12 Employer does have to come forth with a

13 preponderance of the evidence to disprove the

14 element. It's not that we just create a whole

15 different element of entitlement when the burden

16 shifts to the Employer. Thank you.

17 JUDGE BOGGS: Ms. Fiebig, when you were

18 talking about the extent of contribution that has

19 to occur in the instance where, for example,

20 clinical pneumoconiosis has been found, there was

21 some confusion in my mind as to what the magic

22 words might have to be, in a sense, or are there


74

1 magic words.

2 You were talking about whether it's

3 clinically insignificant versus perhaps

4 insignificant. We have language in a number of

5 the rule-out cases which talks about aggravating

6 a pre-existing condition to the point of

7 compensable disability.

8 Some of those cases that use rule-out

9 use both the concept of aggravation to the point

10 of -- aggravation to the point of disability.

11 What is it that has to be the extent of

12 contribution? Because if I understand your brief

13 correctly, you're saying that a de minimis

14 contribution or totally insignificant

15 contribution, is insufficient. So it's something

16 plus, de minimis plus. So where is the line?

17 MS. FIEBIG: Right. When

18 pneumoconiosis has been found, any contribution

19 at all, clinically insignificant, insignificant,

20 de minimis, any contribution at all would be

21 insufficient to rebut the presumption on

22 disability causation grounds.


75

1 Where the confusion arises, I think,

2 is there is such significant overlap in many

3 cases between legal -- between disease causation

4 and disability causation. So I think what's

5 important is that we step back and ask, are we

6 really looking at disability causation here? And

7 if so, we're at the rule-out place.

8 But if we're actually considering

9 disease causation here and trying to determine

10 whether what we're looking at is legal

11 pneumoconiosis, then a clinically insignificant

12 contribution from dust exposure would not be

13 enough to rise to the level of legal

14 pneumoconiosis.

15 But in the case of considering whether

16 clinical pneumoconiosis contributed to the

17 disability, we're not in -- we're not concerned

18 about the definition of legal there, and we would

19 be looking back to the straight rule-out

20 standard, which is no part of the disability is

21 related at all to dust exposure.

22 JUDGE BOGGS: So you're interpreting no


76

1 part as none. So if the doctor says, no

2 contribution, that's rebuttal. If the doctor

3 says, de minimis contribution, that's not

4 rebuttal. Is that my understanding?

5 MS. FIEBIG: That's correct.

6 JUDGE BOGGS: Do you think that that's

7 consistent with the purpose of the Act, which is

8 to provide benefits to people who have

9 pneumoconiosis and are totally disabled by that

10 disease?

11 MS. FIEBIG: I do.

12 JUDGE BOGGS: Because?

13 MS. FIEBIG: I do. Because I

14 understand it is a difficult standard, and the

15 Department has never suggested otherwise. But

16 it's being applied in the limited circumstances

17 where you're dealing with an individual who has

18 had very significant dust exposure for a long

19 period of time, and has a compensable disease,

20 and has a totally disabling impairment.

21 And it is exceptionally difficult in

22 those circumstances, it's extremely likely in


77

1 those circumstances that the miner -- that the

2 disability is in fact caused by pneumoconiosis.

3 And I think when we're considering

4 whether there is a contribution from clinical

5 pneumoconiosis, you're looking at someone who has

6 over 15 years of experience and has a disease

7 that's medically characterized by dust -- by dust

8 in the lungs and resulting scar tissue. I think

9 it's appropriate to require a level of high

10 certainty to say that that disease had no impact

11 on the pulmonary disability.

12 JUDGE BOGGS: Do you find anything in

13 the background of the enactment of this provision

14 that suggested that it was more than designed to

15 simply change the burden from the Claimant to the

16 Employer using the same terms?

17 MS. FIEBIG: Well, the Act was -- the

18 ACA re-enacted the presumption as it existed

19 prior to 1982. So I think that in adopting the

20 statute in the same language that it had

21 previously, that was used previously, that

22 Congress could be said to also adopt the case law


78

1 that had interpreted the statute previously,

2 which included the Department's use of the rule-

3 out standard for disability causation purposes.

4 But otherwise, no, I don't think there

5 was any indication that specifically that the Act

6 is intended to do necessarily more than shift the

7 rebuttal burdens, although it's silent as to what

8 is required of an Employer, and the Department

9 has substantial discretion to administer the Act.

10 And I think this is an appropriate use of that

11 discretion.

12 JUDGE BOGGS: Ms. Scully?

13 MS. SCULLY: I almost feel there is

14 some inconsistency in the way the Director's

15 position was presented today, as to what was in

16 the brief. But again, we would take the position

17 that disability causation is an element that the

18 Employer is allowed to rebut.

19 It is not just the Employer's ability

20 to rebut the existence of both legal and clinical

21 pneumoconiosis. And again, even if we are

22 dealing with a situation of clinical


79

1 pneumoconiosis, it still clearly needs to be, at

2 the very least, a significant contribution from

3 the pneumoconiosis to the disability to satisfy

4 the disability causation standard.

5 And even by the Director's regulation

6 that no part of the disability is caused by

7 pneumoconiosis, we do not believe there is any

8 support that an insignificant factor or

9 insignificant contribution can actually cause the

10 disability.

11 And I don't believe that there's

12 really anything in the preamble to the final rule

13 which would indicate that that was the

14 Department's position. Thank you.

15 JUDGE BOGGS: Mr. Wiley?

16 MR. WILEY: Yes, Judge Boggs. We would

17 answer quite simply, one doesn't need to look to

18 the background of the statute to see whether

19 Congress intended to make Employers prove

20 anything different than miners. Congress

21 intended that and expressed it in the language of

22 the statute.


80

1 Everywhere else that they're talking

2 about causation they say, "arising out of." In

3 this instance, when saying what the Employer has

4 to disprove, they say they both have to disprove

5 "arising out of", or "arising in connection

6 with."

7 That is saying something explicitly in

8 the statute that is different than the

9 traditional causation standards that "arising out

10 of" means. So applying "arising out of"

11 consistently gets to the same -- we would argue,

12 gets to the same point, that any part, any causal

13 factor, includes "arising out of", but "arising

14 in connection with", is the something more.

15 That's how we get to the language that

16 they have to rule out any factor, not just an

17 insignificant factor, not just a de minimis

18 factor.

19 JUDGE BOGGS: Are you looking at the

20 language of the Secretary's rebuttal, or what

21 language are you looking at when you say, the

22 statute?


81

1 MR. WILEY: Yes, the language of the

2 Secretary's rebuttal, which to enact a regulation

3 consistent with the language and purpose of the

4 statute, that is Congress's first expression of

5 how a rebuttal standard should operate.

6 The Department of Labor following that

7 guide in implementing its own regulations to fill

8 the gap, it makes it consistent with the statute.

9 JUDGE BOGGS: But the Department has

10 said the Secretarial rebuttal doesn't apply, and

11 what the gap has been filling is how you apply

12 the general rebuttal provisions.

13 MR. WILEY: Even accepting the

14 Department of Labor's argument about simply

15 rebutting the other elements of entitlement as

16 they exist, shows that the coal companies must

17 show that no part of the disability was due to

18 coal mine employment, because of the contributing

19 cause versus no part, two sides of the same coin,

20 as the Circuits have said.

21 JUDGE BOGGS: You're looking at the

22 Sixth Circuit Ogle case in terms of the two sides


82

1 of the same coin?

2 MR. WILEY: Yes, Your Honor, exactly.

3 Which while we recognize is not binding

4 authority, we would argue that its recency and

5 its application to this specific regulatory

6 language does make it very persuasive authority.

7 JUDGE BOGGS: Thank you.

8 MR. WILEY: Thank you.

9 JUDGE HALL: I've just got a couple of

10 questions. First, to Ms. Fiebig. The Director

11 has stated in its, I belief brief for this

12 argument, that it is essential for the ALJ to

13 make findings on whether a miner has clinical or

14 legal pneumo in every case.

15 In this case, the ALJ found clinical

16 pneumo, but did not make findings regarding legal

17 pneumo. The Director argues, as I understand it,

18 that the ALJ erred by not making credibility

19 findings regarding the medical opinions that did

20 not diagnose legal pneumo. Is it the Director's

21 position that findings of clinical and legal

22 pneumo must be made in every case?


83

1 MS. FIEBIG: Yes. Certainly in this

2 case, as I mentioned --

3 JUDGE HALL: But in every case, is my

4 question.

5 MS. FIEBIG: I think in every case

6 where it's in dispute as to whether or not the

7 miner has clinical or legal pneumoconiosis, which

8 essentially is going to be every case, yes, the

9 ALJ should make findings, for many reasons.

10 The statute specifically requires that

11 the ALJ consider all relevant evidence. In

12 almost every case those findings are going to be

13 essential to properly applying the rebuttal

14 provisions.

15 And even in those cases where it may

16 not be entirely essential, say for example,

17 because the disability is -- the Employer's

18 argument might be that the disability is caused

19 by something that is completely non-pulmonary in

20 nature, such as a heart disease.

21 It may be important to make a finding

22 on legal pneumoconiosis because when we talk


84

1 about credibility, if the ALJ say finds that the

2 expert's opinion regarding legal pneumoconiosis

3 are not credible, that may very well call into

4 question the believability of the expert's

5 conclusions on other relevant provisions, such as


7 So for example, if you had a case

8 where an expert said, this miner doesn't have

9 clinical pneumoconiosis, doesn't have legal

10 pneumoconiosis, and the disability is caused

11 entirely by heart disease, the ALJ really should

12 determine whether that conclusion about legal

13 pneumoconiosis is correct or not, so that they

14 can then evaluate the credibility of the

15 disability causation opinion.

16 JUDGE HALL: Thank you. Ms. Scully, do

17 you have any response to the Director's position?

18 MS. SCULLY: Your Honor, I don't

19 believe I have any response that I haven't

20 already made.

21 JUDGE HALL: Okay. Mr. Wiley?

22 MR. WILEY: Yes, Your Honor. We would


85

1 argue that in saying that in every case the ALJ

2 must make findings under the presumption for both

3 clinical and legal does not comport with how the

4 regulation is written.

5 The burden is on the coal company to

6 disprove both clinical and legal. In a case

7 where the presumption is used to satisfy all

8 three presumed elements, if the ALJ is able to

9 find either clinical or legal was not rebutted,

10 then there's no reason to go to these sort of

11 sub-prong of that first rebuttal prong.

12 This case is a perfect example of why

13 a failure to consider legal pneumoconiosis

14 doesn't matter, because ALJ Swank properly found

15 the existence of clinical pneumoconiosis,

16 independent of the presumption, and the coal

17 company had an ability to work against that

18 evidence when the burden was on the miner.

19 But because the element was not

20 presumed, it would have been improper to consider

21 anything under the rebuttal standard for the

22 disease and disease causation elements.


86

1 JUDGE HALL: Thank you, sir.

2 MR. WILEY: Thank you.

3 MS. SCULLY: If I could just respond.

4 JUDGE HALL: Sure.

5 MS. SCULLY: I do believe that -- we do

6 believe that it is important for the ALJ to

7 address each of these issues clearly to

8 understand clearly what the ALJ's position is.

9 And I believe that's part of the ALJ's duty of

10 explanation, that's part of the Administrative

11 Procedure Act.

12 However, I do believe there has been

13 a shift somewhat in the Director's position,

14 because I think initially the Director had argued

15 that in a case where there has been a finding of

16 legal pneumoconiosis, there has already been a

17 finding that it's -- that there's a significant

18 causal relationship between the disease and the

19 impairment.

20 Whereas in clinical pneumoconiosis,

21 that has not been addressed yet. And I believe

22 what the Director had argued in the initial brief


87

1 in this case was that since there had only been a

2 finding on clinical pneumoconiosis, he needed to

3 discuss the disability causation, and it did need

4 to be a significant causal relationship between

5 the disease and the impairment. And since he had

6 not addressed that under the discussion of legal

7 pneumoconiosis, then that would require remand.

8 JUDGE HALL: Ms. Fiebig, do you want to

9 respond to that?

10 MS. FIEBIG: Sure. I apologize if

11 there's been some confusion as to whether the

12 position is consistent. The position is that in

13 this case the lack of findings regarding legal

14 pneumoconiosis under the first prong prevented

15 the ALJ from conducting an appropriate analysis

16 under the second prong, because since it is

17 essentially undisputed that Mr. Minich's lung

18 disease caused his disability, we need to find

19 out what that disability or what that lung

20 disease is in order to determine whether there's

21 been any causal contribution from pneumoconiosis.

22 JUDGE HALL: Thank you. Mr. Wiley, do


88

1 you want to respond?

2 MR. WILEY: Only to reiterate, Your

3 Honor, that disease and disease causation were

4 proved independently of the rebutable

5 presumption. The only proper element to consider

6 the Employer's rebuttal was on disability

7 causation. So the issue of considering legal or

8 clinical pneumoconiosis under the presumption,

9 under the rebuttal standard, is not at play in

10 this case.

11 JUDGE HALL: Thank you, sir. I've only

12 got one last question. If Employer's experts had

13 diagnosed clinical pneumo, and stated that that

14 pneumo contributed to a clinically insignificant

15 extent to the miner's disability -- I know we've

16 probably gone through this before, but one last

17 time, would the opinions be sufficient to

18 establish rebuttal, that is, does clinically

19 insignificant equate to no part of disability?

20 Ms. Fiebig?

21 MS. FIEBIG: And my answer is no.

22 Clinically insignificant, if you're talking about


89

1 a contribution from pneumoconiosis, either

2 clinical or legal, is not sufficient to rebut

3 under the disability causation prong.

4 JUDGE HALL: Thank you. Ms. Scully, do

5 you want to respond?

6 MS. SCULLY: Well, of course it would

7 be our position that it does have to be

8 significant, if not substantial. But I would

9 point out that this is a flip-flop from the

10 Director's position in the initial brief.

11 Because the factual situation in this

12 case was that clinical pneumoconiosis was

13 established by the x-ray evidence. But since it

14 was only an insignificant contribution to

15 disability, this would not prove disability

16 causation. And that was the Director's position

17 initially in their brief.

18 JUDGE HALL: Mr. Wiley?

19 MR. WILEY: Quite frankly, Your Honor,

20 we agree with the Department of Labor on this

21 position. A clinically insignificant part is

22 still a part, and would not rebut under the


90

1 regulation or the statute.

2 JUDGE HALL: Thank you, sir.

3 JUDGE MCGRANERY: Just one question.

4 Was it clear in this case that the evidence that

5 there was an insignificant contribution attribute

6 that contribution as coming from the clinical

7 pneumo?

8 MS. SCULLY: If I could, I guess I

9 could just read from my brief in regard to what

10 Dr. Fino had indicated. In this case, Dr. Fino

11 had testified, and this is quoting, I believe,

12 from his deposition. "It is my opinion within a

13 reasonable degree of medical certainty that coal

14 mine dust inhalation through any dust that may be

15 found in the coal mines, neither caused,

16 contributed or participated in any clinically

17 significant way to this man's disabling

18 emphysema, and that he would be as disabled as I

19 find him now had he never, ever stepped foot in

20 the mining industry."

21 And of course it is our position, I

22 believe this was the -- that the main issue in


91

1 these oral arguments was whether that is facially

2 sufficient to establish rebuttal under the

3 disability causation element. And of course we

4 believe that it clearly is. And I believe it was

5 the position the Director had taken in their

6 initial brief as well.

7 JUDGE MCGRANERY: Do you want to

8 respond?

9 MS. FIEBIG: Yes. My understanding is

10 that there was no suggestion that Mr. Minich's

11 clinical pneumoconiosis -- there's no suggestion

12 by the Employer's expert that Mr. Minich's

13 clinical pneumoconiosis contributed in any

14 fashion to his disability.

15 In fact, if I recall correctly, both

16 experts concluded that he did not have clinical

17 pneumoconiosis. And so therefore obviously they

18 weren't contending that there was any significant

19 or insignificant contribution. But the issue

20 that was really in dispute in the excerpt that

21 Ms. Scully just read is whether Mr. Minich's

22 emphysema or COPD, because I think one expert


92

1 calls it emphysema and the other calls it COPD,

2 whether that was caused in any degree by coal

3 dust exposure.

4 And the reason that we feel that those

5 opinions are facially sufficient to rebut the

6 presumption is because by assigning a clinically

7 insignificant contribution to coal dust exposure

8 to the emphysema or COPD, the experts are, if

9 believed, demonstrating that Mr. Minich does not

10 have legal pneumoconiosis.

11 And therefore that legal

12 pneumoconiosis did not contribute in any way to

13 the disability. And considering that those

14 experts also concluded that he had no clinical

15 pneumoconiosis, we read those experts' opinions

16 as finding no contribution whatsoever,

17 significant, insignificant, to the miner's

18 disability from pneumoconiosis.

19 MR. WILEY: Your Honor, I must request

20 the opportunity to respond to that. Dr. Fino's

21 diagnosis of Mr. Minich was that he had

22 emphysema. Dr. Fino concedes in his report, I


93

1 believe it's at page 13, that some of Mr.

2 Minich's emphysema was caused by coal dust

3 exposure.

4 Under disease causation, under 203,

5 that means that his disease was caused by coal

6 dust exposure. The man has legal pneumoconiosis,

7 despite Dr. Fino's report, despite his opinion.

8 Dr. Fino's understanding of the legal causation

9 standard is incorrect. He expresses it

10 incorrectly.

11 So in addition to his findings about

12 clinical pneumoconiosis being contrary to the

13 weight of the evidence, ALJ Swank finding

14 clinical pneumoconiosis, even if Dr. Fino's

15 report could be accepted as well documented and

16 well reasoned, he concedes the existence of coal

17 dust induced emphysema, and thus legal

18 pneumoconiosis.

19 If that pneumoconiosis contributed

20 even a part to his totally disabling pulmonary

21 condition, Mr. Minich is entitled to benefits.

22 Thanks.


94

1 MS. SCULLY: I need to respond to that.

2 And of course it would be our position that Dr.

3 Fino did not diagnose legal pneumoconiosis. He

4 attributed the emphysema entirely to the miner's

5 history of cigarette smoking.

6 And in even using the term that there

7 was no clinically significant contribution, this

8 is a medical term. Doctors only formulate their

9 opinions in terms of things that are clinically

10 significant. So he was finding that there was no

11 contribution to the emphysema.

12 And of course we can go back to our

13 disagreement on what constitutes legal

14 pneumoconiosis. And based on the reading of the

15 regulation, it would have to be significantly

16 related to or aggravated by coal dust exposure in

17 order to constitute a definition of legal

18 pneumoconiosis. But under really no reading did

19 Dr. Fino diagnose legal or clinical

20 pneumoconiosis.

21 MR. WILEY: One very quick final, I

22 swear, Your Honor. Under Scott v. Toler, even


95

1 the doctor's failure to consider clinical

2 pneumoconiosis means his finding on disability

3 causation cannot be credited. That would be our

4 final response to the issue of how we should

5 treat Dr. Fino's opinion.

6 JUDGE HALL: Thank you. And thank you

7 all for your excellent presentations. I think

8 it's helped us very much. I'd like to

9 particularly compliment Mr. Wiley on one of his

10 first forays into this world.

11 MR. WILEY: Thank you, Your Honor.

12 JUDGE HALL: Thank you all.

13 (Whereupon, at 10:47 a.m., the oral

14 argument was adjourned.)

15

16

17

18

19

20

21

22



96

Aa.m 1:18 4:2 95:13ability 78:19 85:17able 24:18 25:2,17,22

38:3 62:19 85:8absence 7:17 38:22ACA 77:18accepted 21:15 25:19

93:15accepting 81:13accompanied 68:19accomplish 36:19accomplished 32:10

37:17account 51:10,11Accountability 14:22achieved 30:13Act 12:16 13:17 17:8

18:19 27:6 28:5,2232:22 41:5 44:6 49:1555:4 58:8 66:11 76:777:17 78:5,9 86:11

Acting 1:20actual 72:18added 69:8addition 35:8 65:1

67:19 93:11additional 21:1Additionally 51:10 70:8address 28:9 32:1 34:2

86:7addressed 44:2 86:21

87:6addresses 30:20addressing 35:21 65:2adds 8:9adjourned 95:14administer 78:9Administrative 1:20,21

1:22 13:1 42:13 86:10adopt 77:22adopted 18:13 35:13adopting 77:19advanced 67:12 70:7

70:12advancing 71:4affairs 15:5affirm 65:5affirmative 21:22 51:17

52:4 63:3affirmed 13:22 18:15

27:12agency 67:6,10aggravate 39:20 69:9aggravated 17:19 18:6

29:13 35:7 47:5 48:2054:2 56:3 57:11 59:969:3 94:16

aggravates 20:3 23:1157:16 58:11

aggravating 46:1958:19 59:4 74:5

aggravation 23:5 43:1048:4,5,12 49:7 57:1958:3,14 63:15,1768:16 69:21 71:2174:9,10

aggregate 26:20ago 18:16agree 7:12 11:15 43:1

43:18 55:21 72:1689:20

agreed 33:9 62:5agreement 11:16 12:6

12:19agrees 34:10ailment 10:13Alabama 15:17align 62:8aligned 49:21aligning 33:17 72:17ALJ 13:13,20 15:3 24:4

27:9 33:11 37:1,938:2,16 39:8 40:13,1641:11,18,21 42:182:12,15,18 83:9,1184:1,11 85:1,8,1486:6 87:15 93:13

ALJ's 37:12 39:14 41:642:7 86:8,9

alleged 37:20allow 8:20 24:16allowed 78:18allowing 47:17,17

53:22ambiguous 31:14 32:19amended 44:10amendment 44:17

65:17amendments 14:17

44:6 45:15amount 5:12 23:13

60:13analogous 19:19analysis 37:3 38:18,20

39:11,14 71:13 87:15analyze 41:18anomalous 33:19answer 14:3,6 21:2

28:7,19 36:7,11 41:1554:12 79:17 88:21

answers 67:6Antelope 16:12 51:16apologize 87:10appealed 15:3Appeals 1:21,21,22

13:18

appear 46:11APPEARANCES2:1appears 17:9appellate 67:6applicable 30:16 31:5

52:18application 82:5applied 12:22 13:13,14

13:20 19:3 27:9 76:16applies 30:7 31:16 32:5

34:5 52:3,11apply 7:5 17:7 34:12

43:2,16 52:13 81:1081:11

applying 15:18 16:119:5 80:10 83:13

approach 15:22 24:11appropriate 53:19 54:4

58:7 60:3 77:9 78:1087:15

appropriately 53:3Arch 18:15 34:16,22

35:8 43:2 62:7,1464:20 65:14,21

argue 17:6 22:22 25:1027:4,9 47:8 67:1969:6 80:11 82:4 85:1

argued 8:6 13:4 67:2170:14,14 86:14,22

argues 34:18 82:17arguing 5:8 66:18 72:19

72:20argument 3:6,16 5:1,18

5:20 16:15,18 17:3,1021:12 24:13 34:1543:11 46:1 49:22 55:368:3 81:14 82:1283:18 95:14

arguments 34:2 91:1arises 10:2 75:1arising 7:7 17:7,15,16

17:18 18:9,20 19:1319:14 20:1,18,1934:19 35:2 48:17 55:456:1 62:18 70:17 80:280:5,5,9,10,13,13

arose 29:16arrive 14:5asked 13:22 21:10

24:10 28:8 36:1asks 34:11aspect 41:4assigning 92:6Associate 2:5assume 41:12assuming 6:22attack 25:3attempt 39:6attempts 8:18

attribute 90:5attributed 94:4authority 47:1 82:4,6automatically 39:4Avenue 2:10,15avoid 59:12award 9:21 13:21 27:11

47:21,22 63:22awarded 42:2awarding 58:5

Bback 45:2 48:8 50:14

57:8 59:7 71:10 72:1375:5,19 94:12

backed 68:3background 77:13

79:18backwards 61:1based 13:15 23:2,21

35:20 94:14Basheda 23:18Basheda's 40:1 42:11basis 8:21 34:15 61:14bear 41:2began 18:12 45:12behalf 2:2,7,12 4:11,17

14:21belief 41:4,19 82:11believability 84:4believe 6:18 42:7,9 43:7

43:21 45:22 46:4 47:947:20 48:3 49:15 50:450:12 51:12 68:370:13 71:20 72:7,8,1279:7,11 84:19 86:5,686:9,12,21 90:11,2291:4,4 93:1

believed 92:9benefit 21:22 73:9benefits 1:2 9:21 13:17

13:21 17:8 18:1926:21 27:6,11 28:2229:1,15 33:4 42:247:5,17,21,22 54:157:10 58:5 64:1 76:893:21

best 17:6 18:2 20:228:3

better 32:21BETTY 1:20Big 16:11 51:12,15binding 64:22 82:3bit 24:18 70:11Black 2:4 4:16,21 13:16

17:8 18:19 27:6 28:528:22

blur 43:14


97

Board 1:2 15:4 21:124:10 27:17 28:8 29:534:3,11 36:1 45:7,1449:9 53:6 71:4

Board's 12:21 15:1623:17 28:19 36:7

Boggs 1:22 68:8,970:19 71:15,18 73:1775:22 76:6,12 77:1278:12 79:15,16 80:1981:9,21 82:7

Bonessa 10:5,7,9,1744:3,20 45:19 48:750:21 51:1,11 52:1

Bonessa's 50:14bottom 26:19Bowen 67:4 68:4Branch 16:11 51:12,15BRB 4:6BRB-13-0544 1:4breakdown 64:15brief 6:11 8:6 25:8 61:2

70:15 74:12 78:1682:11 86:22 89:10,1790:9 91:6

briefly 34:1 42:20 64:1972:15

bring 69:11broader 29:9Building 2:15burden 6:1,14,20 51:2,4

51:19,20 52:3 53:2060:4 62:5 63:4 73:1173:15 77:15 85:5,18

burdens 32:8 78:7Byproducts 15:17Byrd 14:14

CC 2:4Calkins 2:9 4:11call 84:3calls 92:1,1cancer 25:20 46:20

47:4 48:22 57:11careful 8:6Carozza 9:6,10,15 10:4

10:6,18,20 11:2 15:1315:18 45:21 46:12,1347:8,11,19 48:9 49:1050:13,15,16 53:2257:9 58:17 63:1468:15 71:16,20

case 1:3,5 4:4,6 5:86:12,15 9:5 10:2,4,412:12,20 21:22 22:1124:12,18,22 25:327:20 30:6,15 31:2,533:6 34:3,17 36:17

40:1,18,22 41:4,1642:1,11,15 43:2,1544:3 45:20,20 47:1247:19 51:2,3,17 52:458:1 61:13,19,20 62:563:3,5,16,19 64:20,2165:1,4,9,11,14,2167:8 68:11 75:1577:22 81:22 82:14,1582:22 83:2,3,5,8,1284:7 85:1,6,12 86:1587:1,13 88:10 89:1290:4,10

cases 7:22 8:4,7,14,1911:13 16:3 18:12 22:829:19 30:22 31:335:21 36:13,18,1937:20 38:6,10 40:1440:20,20 45:3 53:1362:7,8,15 74:5,8 75:383:15

causal 7:8 11:6,10,1511:17 12:3,9 13:424:2 26:5 62:17 80:1286:18 87:4,21

causation 6:9,10 8:229:7,14 10:8,17 11:412:16 18:1 19:22 22:823:6,8 24:19,21 25:526:1,2 28:15,16,1729:16,22 31:15 32:1332:17 33:22 34:5,1335:16 36:4,15,22 37:237:4 38:3,10 39:7,1139:17 40:6,9,10,1243:12,12,15,16,1744:2,5,8,19 45:11,1345:18 47:14 49:2051:4,7 53:5,8 54:1554:20,21 60:15 62:1163:8,18 64:7,8,16,1764:19 65:5,7,13,17,2069:18,19,20 72:6,1172:15 73:7 74:22 75:375:4,6,9 78:3,17 79:480:2,9 84:6,15 85:2287:3 88:3,7 89:3,1691:3 93:4,8 95:3

cause 10:1 19:18 20:523:13,13 38:12 44:1345:17 47:9 48:2,6,1449:7,17 50:5,9 51:1351:18,21 64:3,5,1465:7,18 79:9 81:19

caused 12:2 15:10,2017:21 18:3 21:16 22:322:4,12,13 30:5,1831:17 32:15 37:2150:3 55:16 57:7 60:17

62:21 64:6 69:15 70:977:2 79:6 83:18 84:1087:18 90:15 92:2 93:293:5

causing 36:10Certainly 83:1certainty 77:10 90:13CFR 17:14 28:3 31:14change 6:3,20 35:18

77:15characterized 29:6 77:7characterizes 21:7Chief 1:20chronic 29:10 70:8cigarette 94:5circuit 9:5,11,15 10:3,4

10:8,10,17 11:1215:11,22 16:2,9,11,1218:7,8,15 34:17 44:344:21 45:20 46:5 57:964:21,22 68:18 81:22

Circuit's 11:1 48:8circuits 16:6 18:14 22:7

44:17 45:7,12 81:20circumstances 53:18

76:16,22 77:1citation 34:16cite 9:5cited 8:19citing 6:11 46:11claimant 34:2 44:1

60:22 77:15Claimant's 34:16 43:10

46:1Claimant-Respondent

1:5 2:2 3:11,20claimants 14:14 27:3

73:8,10claims 14:13,17,20 15:1

15:3 25:8clarified 44:6 65:16

70:11clarify 32:7clarifying 45:14 47:19clarity 8:9clear 44:16 48:21 59:18

90:4clearly 7:7 36:9 37:22

63:22 71:6 79:1 86:786:8 91:4

Clinic 2:4 4:16,21clinical 2:5 21:5 28:12

29:4,4 36:2 37:1439:2 55:15 60:3,7,1271:13 73:20 75:1677:4 78:20,22 82:1382:15,21 83:7 84:985:3,6,9,15 86:2087:2 88:8,13 89:2,12

90:6 91:11,13,1692:14 93:12,14 94:1995:1

clinically 21:7 35:1140:3 60:8 74:3,1975:11 88:14,18,2289:21 90:16 92:6 94:794:9

closely 32:3 43:2059:13

co-existing 50:10coal 1:7,9 4:5,12 7:5,20

9:3 12:8,15 15:11,2116:4,14,17 17:16,2118:3,20,21 19:8,9,1719:18 20:4,5,8,2221:6,16 22:13 23:1023:19 24:3,6,16 25:226:20 29:13,17,1830:8,10,18 31:3,18,1932:20,21 34:19 35:2,735:12,15 39:19 40:243:4 48:19 50:2051:17,20 53:10,1454:6,22 55:16 56:757:11 59:8 60:17,1960:19 61:7 62:21 70:981:16,18 85:5,1690:13,15 92:2,7 93:293:5,16 94:16

codified 44:7 65:16codifying 45:14coin 51:14 81:19 82:1come 73:12comes 67:15coming 90:6comment 16:17 50:18

52:8 70:20 71:15comments 62:3companies 16:15,18

19:17 24:16 26:2081:16

company 1:9 25:251:20 54:6 85:5,17

company's 50:21compare 26:5compensable 29:3

57:22 58:20 59:1960:2 72:1,3 74:776:19

compensate 32:22compensated 57:21compensation 1:12

2:12 3:13,22 5:727:19 68:21 69:6,1269:13

completely 35:3 55:1964:8 83:19

complicated 26:9,11


98

compliment 95:9component 56:13,14

56:15,17 57:14components 56:13comport 85:3conceded 22:13 60:21concedes 24:2 92:22

93:16concentrate 55:6concept 74:9concerned 75:17concerns 32:2concluded 22:14 42:2

61:5 91:16 92:14conclusion 23:21 42:5

58:13 61:8,11 84:12conclusions 84:5concurred 8:1condition 25:14 33:5,8

47:6 50:10 53:1258:20 69:2,14,1571:22 72:3 74:6 93:21

conditions 30:9 46:19conducting 4:22 87:15conferred 47:1confirmed 50:14confirms 12:2conflict 70:11 71:8confusion 8:9 43:11

59:11 73:21 75:187:11

congenital 38:2Congress 14:8 15:6

20:14 46:22 52:2077:22 79:19,20

Congress's 17:5 27:881:4

Congressional 14:11conjunction 55:22connected 20:4 24:14connection 7:4 11:6

19:15,16 20:2,6,12,1320:14,16,19 37:238:18,20 39:10,1450:1 71:12 80:5,14

consequent 40:4consider 10:3 37:2,17

41:6 83:11 85:13,2088:5 95:1

consideration 45:252:17

considered 14:16 16:2239:13 42:6 44:1161:14 66:21 67:9

considering 35:9 37:1940:14 75:8,15 77:388:7 92:13

consistent 8:8 9:811:12 13:16 15:16

19:1 27:5 46:21 49:249:5,14 59:3 76:781:3,8 87:12

consistently 7:14 17:880:11

consists 73:7constitute 94:17constituted 44:19constitutes 9:17 94:13Constitution 2:15construction 19:20,21consult 69:22contains 19:12contemplate 69:13contending 91:18CONTENTS 3:4context 28:4continued 18:13continuous 53:15contrary 93:12contribute 20:9 39:20

46:18 54:7,8 58:1992:12

contributed 15:1021:20 60:8,13 75:1688:14 90:16 91:1393:19

contributes 56:15,1757:4,15 63:2

contributing 10:1 44:1345:17 47:9 48:2,6,1449:17 50:5,9 51:13,1851:21 60:1 64:3,1465:7,18 72:2 81:18

contribution 12:7,1433:10,16 34:9 35:1148:18 49:3 54:12,1754:22 56:20 59:2160:5,20 64:12,1365:12 72:10 73:1874:12,14,15,18,2075:12 76:2,3 77:479:2,9 87:21 89:1,1490:5,6 91:19 92:7,1694:7,11

contributor 10:9,1540:4 44:4,21 45:16

conveys 7:8COPD 60:21 91:22 92:1

92:8Corporation 1:7 4:12correct 5:12 9:19 13:3

13:13,20 14:6 18:1027:10 62:16 63:2267:17 69:7 76:5 84:13

correctly 15:13 74:1391:15

counsel 7:12 9:5 12:1943:1 67:7 70:1

counsel's(sic) 69:9counter-intuitive 37:1couple 82:9course 17:20 44:5,20

64:21 89:6 90:21 91:394:2,12

court 6:12 10:10,1713:12,22 21:10 35:946:13 48:19 58:1763:20

Court's 4:22 50:13 66:268:1

Courthouse 1:14courts 13:18 15:7 18:7

62:14cover 40:8,11crash 26:16create 25:9 27:2 28:11

28:21 32:8 73:14creates 14:1creating 22:8credibility 41:2 42:10

42:16 82:18 84:1,14credible 33:12 41:9,22

42:7 84:3credited 95:3current 10:2 32:2CWP 16:10

DD.C 2:16de 7:11 12:14 20:13

74:13,16,20 76:380:17

dealing 53:14 76:1778:22

death 9:1December 1:17decided 9:10 10:5,19

35:3 45:3decision 42:7 48:9

49:10 66:2 67:10decreased 15:4defect 38:2deference 23:1 66:17

66:20 67:3,9,16 70:22deferential 68:2define 34:18 62:8defined 17:13 44:12

56:1 63:9defines 43:8definitely 46:4definition 17:11 29:20

35:4 43:3 55:10,11,1355:20 68:14 71:1175:18 94:17

DeFore 15:17degree 90:13 92:2

demonstrate 36:15demonstrating 10:12

61:15 92:9Department 1:1,12 2:14

5:7 6:4 7:22 8:1,3,118:18 9:4 11:3 16:1916:21 22:21,22 27:2028:1,11 31:7 32:233:18 35:14 65:1566:4,10,18,19 70:5,1270:13 76:15 78:8 81:681:9,14 89:20

Department's 28:2032:6 44:7 52:22 70:478:2 79:14

depends 24:22 54:10deposition 90:12deposits 29:6describe 31:15designed 17:4 77:14despite 93:7,7detailed 16:22determination 42:12determine 37:13 41:10

41:19 55:15 75:984:12 87:20

determined 58:22 59:359:22

determining 37:10 38:439:16 54:18

diagnose 82:20 94:3,19diagnosed 88:13diagnosis 29:6 92:21die 26:15died 26:10,17different 14:2 17:17

21:21 44:17,18 49:1172:20 73:15 79:2080:8

differs 28:10difficult 76:14,21direct 55:11 67:3direction 55:19directly 15:12 16:6

63:19Director 1:11 2:4,12

3:13,22 4:6,15 5:4,611:14,16 12:6 15:227:18 46:10 66:1082:10,17 86:14,2291:5

Director's 6:11 7:12 9:412:19 28:15 34:7,2143:1,18 72:7,16 78:1479:5 82:20 84:1786:13 89:10,16

disability 6:9 7:10,188:22 9:1,15,22,2210:7,11,16,16 11:4,7


99

11:18 12:1,5,7,10,1613:5 15:10,20 19:7,1920:6,10,21 22:2023:21 24:21 26:128:14,16 30:2,4,12,1931:15,17 32:14,1633:22 34:5 36:4,11,1436:15 37:4,21 38:3,1339:10 40:5,6,11 43:1243:17 44:1,5,7,1945:8,11,13,18 46:3,1847:15,18,22 48:1,6,1848:21 49:7,14,17,2151:4,7,19 53:5 54:1554:20 56:16,21 57:4,758:19 59:5 60:1,9,1460:15,16 63:2,18 64:164:2,6,8,16 65:5,7,1265:17,19 72:1,4,11,1473:6 74:7,10,22 75:475:6,17,20 77:2,1178:3,17 79:3,4,6,1081:17 83:17,18 84:684:10,15 87:3,18,1988:6,15,19 89:3,15,1591:3,14 92:13,18 95:2

disabled 25:15 26:1026:14 33:1 44:11 47:356:12 57:13 76:990:18

disabling 25:13 33:838:7,9,14 44:14 47:653:16 60:21 61:6,1669:2 76:20 90:1793:20

disagree 22:20 71:2disagreement 94:13discretion 78:9,11discuss 68:12 87:3discussed 63:15 68:10discussing 10:16 68:13discussion 9:17 49:9

52:2 70:22 87:6disease 6:9,9 10:21

17:20 21:18 22:223:11,21 24:19,1925:4,5 26:1,1,4 28:1728:17 29:3,10,15,2129:21 32:13,13 34:1334:19 35:1,6,16 36:2136:21 37:2,22 38:1,838:10,10,14 39:3,7,839:17,17,21 40:4,9,940:9,10 43:4,11,15,1646:19 47:3 48:4,5,1248:22,22 53:8 54:2,1854:20 55:1 57:12,1657:22 58:22 59:20,2160:2 61:17,22 62:10

62:11,20 63:8,8,1570:9 75:3,9 76:10,1977:6,10 83:20 84:1185:22,22 86:18 87:587:18,20 88:3,3 93:493:5

diseases 18:3,4disprove 6:1 11:9 31:22

32:1 35:16 36:14 39:773:13 80:4,4 85:6

disproving 31:10 32:1232:16 34:13 72:2173:2,5

dispute 38:6,8 40:1783:6 91:20

disputed 40:21disregarded 41:21dissented 66:6distinction 61:20District 1:14,15 15:1doctor 21:7,15 60:8

76:1,2doctor's 21:4,13 41:3

61:11 95:1doctors 42:17 61:5 94:8documented 93:15doing 28:7 35:17DOL's 23:6dormant 8:16Dr 22:11,14 23:18,18,20

24:5 39:22 40:1 42:1042:10 90:10,10 92:2092:22 93:7,8,14 94:294:19 95:5

drafted 32:2due 10:11 25:15 26:10

26:17 44:11 45:848:21 49:8 56:6,2259:7 81:17

dust 7:19 12:8,15 21:621:16,19 22:3,1325:21 29:7,13 31:1932:20 33:11,16 35:2,735:12,15 39:19 40:243:4 48:19 53:10,1554:22 55:16 56:757:11 60:19,19 61:762:21 75:12,21 76:1877:7,7 90:14,14 92:392:7 93:2,6,17 94:16

dust-induced 21:17duty 86:9dying 14:18

Eeasier 66:7effect 22:10effectuate 32:21

effectuates 27:7either 8:12 20:18 29:4

51:15 85:9 89:1element 21:21 24:20

29:14,22 30:3,1134:13 40:17,19,2164:9,17,18 69:18 73:273:7,14,15 78:1785:19 88:5 91:3

elements 6:2,3,8,2024:17 25:2,7 29:2230:14 31:11 32:3,1833:18 36:22 40:10,1243:13,20 59:13 62:6,862:10 63:7 72:1881:15 85:8,22

Eleventh 16:3 18:14eligibility 69:1Elkhorn 6:13embodied 46:16emphysema 22:12,19

24:3 90:18 91:22 92:192:8,22 93:2,17 94:494:11

employer 6:1 11:9 19:720:7 25:7 53:10,1954:13 62:6 63:5 72:2073:5,11,12,16 77:1678:8,18 80:3

Employer's 5:21 6:176:19 7:6 23:16 33:778:19 83:17 88:6,1291:12

Employer-Petitioner2:7

Employer/Carrier 1:10employers 15:9 20:20

25:17 39:6 79:19employment 7:5,20 9:3

15:11,21 17:17,2118:4,21,21 19:8,9,1820:4,5,9,22 23:10,1924:4,7 29:17 31:18,2032:20 34:20 51:1859:8 60:17 69:15 70:981:18

enact 81:2enacted 14:12enacting 27:8enactment 14:16,19

77:13encompasses 29:10endorsed 18:8engaging 17:3ensure 57:20entire 52:2entirely 33:15 37:21

49:7 56:6 62:18 83:1684:11 94:4

entirety 22:10entitled 23:1 39:6 47:4

57:10 67:2,16 71:193:21

entitlement 6:2,3,6,2130:14 31:1,2,12 32:432:19 33:18 43:13,2059:13 62:7,9,10 63:764:9 72:18 73:3,1581:15

entity 59:4 60:1equate 88:19erred 82:18erroneous 42:8especially 18:7 46:1

70:16ESQ 2:4,8,13,14essential 82:12 83:13

83:16essentially 6:3 34:12

53:8 83:8 87:17establish 12:9,15 21:11

88:18 91:2established 7:17 8:17

10:7 11:22 29:2189:13

establishing 7:2 9:1etiology 38:9evaluate 84:14evidence 6:8 8:22 13:2

23:16 24:9 27:11 41:661:14 73:13 83:1185:18 89:13 90:493:13

evolution 45:5exact 16:15exactly 22:6 44:18 45:8

62:16 82:2example 25:12 33:6

38:2 41:2 68:22 73:1983:16 84:7 85:12

excellent 95:7exception 51:6exceptionally 76:21excerpt 91:20exist 81:16existed 77:18existence 22:2,18 26:4

35:16 39:9 61:1572:21 78:20 85:1593:16

existing 71:22exists 10:21expands 69:20experience 77:6expert 84:8 91:12,22expert's 84:2,4experts 33:7 88:12

91:16 92:8,14,15


100

explained 40:7explanation 16:22 37:5

86:10explicit 17:15 51:6

68:13explicitly 56:1 71:9,10

80:7exposure 7:20 12:8,15

22:14 29:13 31:1932:20 33:11,16 35:2,735:12,15 39:19 40:243:5 48:20 53:11,1654:22 55:16 56:757:11 60:19,20 61:762:21 69:3 75:12,2176:18 92:3,7 93:3,694:16

expressed 14:8 20:179:21

expresses 93:9expression 81:4expressly 30:22extend 53:7extent 9:14 34:22 48:20

49:20 50:9 68:1773:18 74:11 88:15

extremely 76:22

Ffacial 42:8facially 21:11 40:5 41:8

41:11,20 42:3 91:192:5

fact 6:10 8:13 24:6,825:19 31:22 32:1634:8,22 38:11 41:755:22 65:9 77:2 91:15

fact-intensive 26:3,6factor 7:11 21:8 22:20

23:20 64:18 72:6 79:880:13,16,17,18

facts 31:11 32:4,1340:14

factual 12:20 63:1467:7 89:11

failed 57:5failure 85:13 95:1far 23:17 45:17farther 15:5fashion 91:14favorable 14:13 27:2feel 42:15 53:2 70:10

78:13 92:4FEV1 22:12fibrosis 61:6,21fibrotic 29:7Fiebig 2:13 5:5,6 27:15

27:16,17 52:7,9 54:955:8 56:9 57:1,17

58:12,21 59:10 60:1161:3 70:19,21 71:1773:17 74:17 76:5,1176:13 77:17 82:1083:1,5 87:8,10 88:2088:21 91:9

fill 81:7filled 31:7filling 81:11final 6:5 7:21 8:13

11:20 17:2 72:9 79:1294:21 95:4

finally 30:3find 37:9 77:12 85:9

87:18 90:19finding 9:13 28:12 36:2

40:1 48:3,5 49:1260:7 64:6,10 69:183:21 86:15,17 87:292:16 93:13 94:1095:2

findings 38:16,22 40:1641:1 42:16 57:18 58:282:13,16,19,21 83:983:12 85:2 87:1393:11

finds 11:4 41:21 84:1Fino 22:14 23:18 90:10

90:10 92:22 94:3,19Fino's 22:11 23:20 24:5

39:22 42:10 92:2093:7,8,14 95:5

firm 4:10first 14:11,16 21:3

28:19 29:2 32:11 36:536:20 37:8,10,16,1938:18,19 39:3,13,1540:8 42:13 51:1 69:581:4 82:10 85:1187:14 95:10

five 10:6flawed 23:22flip-flop 89:9flips 51:20focuses 36:21focusing 32:18follow 39:1following 81:6foot 90:19footnote 68:16 71:19forays 95:10form 29:4 53:17forms 37:11formulate 94:8formulating 43:19forth 73:12forward 27:12 42:18found 14:22 24:5 27:21

33:7,12 44:4 73:20

74:18 82:15 85:1490:15

four 29:1 66:3fourth 16:2,9 30:3Frances 2:15frankly 31:3 89:19front 14:15function 21:9 26:12Fund 16:10fundamentally 22:16further 34:11 42:16

50:7 68:7

Ggap 81:8,11general 73:10 81:12generally 5:22 34:10

45:7Georgetown 67:4 68:4

68:12getting 57:8 66:16give 5:17 62:14given 6:6 36:20 40:18

51:12 66:17 67:7,8,2268:11

giving 69:13go 34:11 55:18 72:13

85:10 94:12goes 23:16 45:18 48:8

59:6going 28:4 33:21 41:1

45:2 53:10 64:13 83:883:12

good 4:3 5:2,3,5,19,2113:11 26:11 27:16

Goodin 16:13Government 14:21grab 61:3Grant 1:15granted 14:20 15:1grappling 39:9great 48:20Green 18:16 34:16,22

35:8 43:2 62:7,1564:20 65:14,21

ground 54:15grounds 16:19,19

31:16 40:6 60:1674:22

Groves 34:17guess 90:8guide 81:7Gump 16:10

Hhalf 56:15,18Hall 1:20 2:6 4:3,13 5:2

5:4,10,15,19 13:9

27:14 42:19 46:7 82:983:3 84:16,21 86:1,487:8,22 88:11 89:4,1890:2 95:6,12

handed 52:20happening 57:20hearing 70:5heart 38:1 46:19 47:3

48:4,5,12,22 54:157:12 63:15 66:1683:20 84:11

held 66:13helped 95:8HEW 66:6high 53:20 60:4 77:9higher 22:8highlights 57:17history 94:5hoc 67:1holding 10:18 11:2 65:4

65:10,20holds 35:1 66:3Honor 4:9,14 5:5 13:11

16:14 47:7 50:19 52:661:18 62:4 63:1267:18 68:6 82:2 84:1884:22 88:3 89:1992:19 94:22 95:11

Honor's 66:16Honors 13:12 67:3Hospital 67:4House 2:10hypothetical 21:3 23:17

57:2

Iidentical 15:14,18identify 15:13idiopathic 61:6,21ignore 55:22ignores 35:4illogical 23:2impact 53:11 77:10impairment 7:3,10

10:22 11:11 21:1622:12 23:12 44:1553:17 56:6,12 57:376:20 86:19 87:5

implementing 69:1081:7

importance 40:2157:18

important 10:3 23:1539:12 40:16 41:143:19,22 45:1 47:1052:11 75:5 83:21 86:6

importantly 16:14improper 25:6 85:20


101

inappropriate 35:20incapable 33:14include 69:20included 20:15 69:4

78:2includes 80:13inconsistency 78:14inconsistent 21:14

46:11 67:13,18,2070:15

incorrect 12:21 23:293:9

incorrectly 22:14 93:10independent 51:4

85:16independently 18:18

24:16,19 88:4indicate 48:9 79:13indicated 7:16 8:3

10:10 44:20 69:1090:10

indicates 6:11 7:1 8:144:10

indicating 71:21 72:1,5indication 78:5individual 76:17induced 93:17industry 90:20inhalation 90:14initial 86:22 89:10 91:6initially 86:14 89:17inquiry 21:20 22:1 26:3

26:6 41:10insignificant 7:11 12:7

12:14 21:8 33:1035:11 40:3 46:2 48:1150:8 56:19 60:9,13,2063:17 64:11,11,13,1865:12 72:10 74:3,4,1474:19,19 75:11 79:8,980:17 88:14,19,2289:14,21 90:5 91:1992:7,17

instance 42:13 73:1980:3

insufficient 74:15,21intend 40:8,10intended 20:14 32:7

68:20 78:6 79:19,21intending 33:19intent 33:2interestingly 8:2interim 8:19,21 45:3internally 21:13interpret 32:6 45:11

66:11interpretation 9:20

12:13 17:1 28:16 45:546:14,15,20 48:16

52:15 53:1 59:16 65:367:2,12,15,18 70:4,671:1 72:14

interpreted 7:14 8:1415:8 17:14 45:2162:11,13 78:1

interpreting 51:1 66:2075:22

interprets 48:8intertwined 40:15introduce 4:7,18invoked 30:11involved 54:6 72:6involves 27:20irrebutable 25:9 26:8

26:18irrebutably 26:13,16issue 22:18 30:6 35:22

47:11,12 63:7 68:1469:22 70:3 88:7 90:2291:19 95:4

issued 16:5issues 86:7

JJ 2:13James 1:4 4:17 5:8JEAN 1:20jibe 48:15joined 16:2joint 19:21JONATHAN 2:14judge 1:21,21,22 4:3,13

5:2,4,10,15,19 13:1,925:19 27:14 37:1242:14,19 46:7,7,948:15 49:18 50:1752:5,7 54:5 55:2 56:456:10 57:8 58:9,1659:6 60:6,18 61:462:1 63:10,21 65:2267:11 68:5,7,8,970:19 71:15,18 73:1775:22 76:6,12 77:1278:12 79:15,16 80:1981:9,21 82:7,9 83:384:16,21 86:1,4 87:887:22 88:11 89:4,1890:2,3 91:7 95:6,12

JUDITH 1:22juncture 35:17Justice 66:6justify 68:10

Kkeep 39:12Keystone 1:7 4:5,12know 61:10 88:15

known 53:14knows 29:5

LLabor 1:1,12 2:14 5:8

16:20,21 22:21 27:2066:4,10,18,20 70:6,1281:6 89:20

Labor's 22:22 70:1481:14

lack 87:13language 7:7 8:2,8,12

9:13,13,16 13:16 14:114:3,9 17:5,11,13,2218:9 19:2,6,10,1220:1,16 23:4 28:10,1046:12 47:13 49:1950:6 51:5 52:2 62:1369:7 71:16 74:4 77:2079:21 80:15,20,2181:1,3 82:6

large 31:6law 2:5 4:10,20 12:12

13:1 35:18 42:1352:20 77:22

Leading 14:19leaves 52:21led 15:5Lee 2:5 4:16,20left 31:6legal 2:4 16:18 21:5

22:15,16 23:22 28:1329:4,9,20 33:8 34:1835:1,4 36:2,16 37:1937:22 38:4,15,17 39:439:9,18 40:2 41:1343:3,8 55:1,10,1356:7 57:5 58:4,6 60:362:21 65:2,3 71:1175:3,10,13,18 78:2082:14,16,20,21 83:783:22 84:2,9,12 85:385:6,9,13 86:16 87:687:13 88:7 89:2 92:1092:11 93:6,8,17 94:394:13,17,19

legally 61:8,11legislation 68:20level 15:2 58:6 70:22

75:13 77:9Lewis 2:6Lexington 2:6limitations 6:16limited 30:22 53:3

76:16limiting 53:13line 18:12 22:8 26:19

35:20 69:11 74:16

link 24:3links 26:5list 16:3lists 7:22litigation 22:22 67:1,5

67:15 70:7 71:3little 9:17 21:17 46:11LLC 2:9logical 13:15 27:4 73:4long 76:18look 14:6 27:12 42:18

43:7,22 72:13 79:17looking 14:11 45:2

48:11 49:13 50:1454:17,20 59:19 63:1375:6,10,19 77:5 80:1980:21 81:21

lost 16:15lot 21:17lung 2:4 4:16,21 13:17

17:8 18:19 21:9 25:2026:12 27:6 28:5,2229:10 33:8 38:8,9,1439:3,8,20 46:20 47:448:22,22 54:18 70:987:17,19

lungs 25:21 29:7 77:8

MM 2:3,8MacDonnell 2:4 4:14,15

5:3magic 73:21 74:1main 90:22majority 66:9making 46:22 57:18

82:18man 93:6man's 90:17marathons 26:12Margaret 2:8 4:10matter 1:3 40:13 85:14matters 22:3McGranery 1:21 46:8,9

48:15 49:18 50:1752:5,7 54:5 55:2 56:456:10 57:8 58:9,1659:6 60:6,18 61:462:1 63:10 65:2267:11 68:5,7 90:391:7

mean 20:15 41:9 53:954:10,11 66:13

meaning 19:4 62:1466:18

meaningful 66:21means 17:15,18 18:21

19:6,8,16 20:7 24:455:5 80:10 93:5 95:2


102

meant 45:9 69:11medical 21:3 29:6

39:22 56:5,11,19 60:760:18 82:19 90:1394:8

medically 77:7meet 18:1 41:13 46:3

53:20 60:4men 14:18mentioned 71:20 83:2mere 63:17merely 6:19Miller's 63:21mind 39:12 73:21mine 7:5,20 9:3 15:11

15:21 17:16,21 18:318:20,21 19:8,9,1820:4,5,8,22 23:10,1924:4,7 29:17 31:3,1831:19 32:20,21 34:1951:17 59:8 60:17 61:361:7 70:9 81:18 90:14

miner 9:2 10:14 21:5,2124:22 25:12,20 26:926:11,15 28:22 29:229:14,18,19,20 30:1,430:11,17 32:11 33:436:19 37:11,13 38:4,739:1 44:10 47:4 51:251:3,16 52:3 53:1454:1,6 56:5 57:1060:12 62:19 77:182:13 83:7 84:8 85:18

miner's 7:3,9,18,2010:22 11:11 12:1,313:5 15:9,20 19:1920:5,9,21 21:8,1631:17,19 32:14 36:1137:21 38:13,14 39:1739:20 44:14 53:1154:2 57:6,21 61:688:15 92:17 94:4

miners 14:14,21 26:2127:3 30:7 33:1 79:20

mines 30:8 90:15Minich 1:4 4:4,17 5:9

13:21 22:15 34:1040:1,22 92:9,21 93:21

Minich's 24:3,18 33:787:17 91:10,12,2193:2

minimis 7:11 12:1420:14 74:13,16,2076:3 80:17

mining 1:7 4:12 6:1330:10,18 90:20

mirror 32:3 43:20 59:13misinterpreted 33:3misplaced 50:22 52:1

misunderstood 22:16modified 47:14moment 69:21months 18:16morning 4:4 5:2,3,5,21

13:12 27:16move 37:16multiple 13:18

NN-2119 2:16N.W 2:15name 4:9,14 27:17

57:14 58:10,13nature 83:20near 23:16necessarily 78:6necessary 12:9 24:6

44:20 69:18need 12:2 37:7 38:20

51:17 55:21 59:1873:8 79:17 87:3,1894:1

needed 44:4 87:2needs 11:18 25:2 70:10

79:1negating 22:9neither 21:5 24:5 90:15never 25:7 35:10,14

42:6 76:15 90:19new 7:13 16:5 28:11,21

32:8 64:4nexus 10:21 11:5 45:22

48:10 50:16Ninth 16:3nobody's 72:19non-compensable 33:5non-pulmonary 83:19non-work 71:22note 23:15noted 59:14notice 16:17Notwithstanding 33:11number 4:6 74:4numbers 15:4

Oobstruction 61:16obstructive 56:14,17

61:22obtain 29:1,15 54:1obvious 40:22obviously 41:16 91:17occupational 69:3occur 73:19occurring 64:16occurs 33:22October 28:2

Office 1:11 2:12 5:614:22 27:18

Ogle 16:12 81:22okay 5:15 62:1 84:21once 30:13 59:22opened 16:17operate 24:15 81:5operates 23:10 26:19operating 22:5 51:8operator 31:3 38:12

39:15,18 52:21operators 35:15 36:18

52:13opinion 15:17 21:4,4,10

21:13 22:11 23:1724:5 25:18 28:1233:12,13,14 36:139:22 41:7,11,12,1841:20 47:10 50:1553:22 56:5,11,1960:18 84:2,15 90:1293:7 95:5

opinions 41:3 42:3,1142:17 82:19 88:1792:5,15 94:9

opportunity 6:7 92:20opposed 47:14opposing 6:6 31:1,2oral 3:6 4:22 5:20 91:1

95:13order 12:21 14:13 18:1

29:1,15 35:15 37:853:9 87:20 94:17

origin 61:17original 7:13,15 8:19

45:3 68:19ostensibly 35:13 40:14outlined 12:21overlap 75:2overturned 65:10Owens 34:6

PP 2:14P-R-O-C-E-E-D-I-N-G-S

4:1PA 1:16 2:11page 61:2,4 63:20 93:1part 7:19 8:2 9:2,12,13

11:22 15:9,20 16:917:16 18:22 19:10,1120:21 22:13 24:7 25:827:3 34:19 35:2,1336:10 43:4 46:1247:13,13 49:19 50:1,350:7 51:14 55:5,556:22 57:6 59:7 60:960:10,10,11,17 64:664:11 70:13 75:20

76:1 79:6 80:12 81:1781:19 86:9,10 88:1989:21,22 93:20

partial 9:22 47:18,2249:13 64:1

participated 90:16particular 43:15particularly 52:16 53:2

53:20 95:9parties 4:7 28:8parts 28:5party 6:6 31:1,2,9Party-in-Interest 1:13pathology 25:20Paul 2:3 4:19Pauley 66:2 68:11

69:22 70:3paying 26:21Peabody 65:10Penn 2:10Pennsylvania 1:15people 76:8percent 14:20,22 56:15

56:16 57:4perfect 85:12period 76:19Perkins 2:15permissible 52:15 53:1permission 4:22permit 9:21 47:21 63:22

68:22person 47:2persuasive 82:6pertinent 28:5Petitioner 3:9,18 4:8,12

5:11Petitioners 1:10phrase 17:7,9 18:20phraseology 31:14physician's 42:3pieces 69:17Pittsburgh 1:9,16 2:11

4:5place 75:7placed 6:16places 17:9plane 26:16play 88:9played 18:22 19:10,11

21:6 24:7 36:10 55:555:5

please 4:3,8 13:1227:17

plus 74:16,16pneumo 60:7 82:14,16

82:17,20,22 88:13,1490:7

pneumoconiosis 7:97:18 10:1,12,15 11:6


103

11:11,18 12:2,4,8,1013:6 17:12 21:6,1822:15 23:12 25:1626:9,10,11,17 28:1329:3,5,9,16,18,2030:5,17 31:18 32:1232:15 33:1,9,13 34:934:18 35:1,5 36:2,9,936:16,20 37:7,11,1437:19 38:1,5,12,15,1739:2,5,8,10,18 40:243:3,8 44:12,12 45:946:18 47:5 48:2 49:649:8,16,22 53:17 54:354:11,13,19 55:1,1055:13,15 56:8,20,2257:5,7,15,16,19 58:458:7,11,15,18 59:1,460:12 62:22 64:2,765:2,4 68:15 69:1070:10 71:11,14 72:2273:20 74:18 75:11,1475:16 76:9 77:2,578:21 79:1,3,7 83:783:22 84:2,9,10,1385:13,15 86:16,2087:2,7,14,21 88:889:1,12 91:11,13,1792:10,12,15,18 93:693:12,14,18,19 94:394:14,18,20 95:2

podium 5:18point 4:7 22:21 27:1

42:8 43:17 45:4,11,1949:18 55:8 57:1268:13,17 69:6 71:2274:6,9,10 80:12 89:9

pointed 46:10pointing 47:11 49:16policy 16:19 67:10posed 21:1 36:1position 5:22 6:19

12:11 23:1,2,6 34:734:21 43:18 44:745:13 46:5 50:1355:18 67:1,5,16,2068:10 70:2,7,12,1471:4,6 72:7,17 78:1578:16 79:14 82:2184:17 86:8,13 87:1287:12 89:7,10,16,2190:21 91:5 94:2

positions 44:18 49:1267:6

possibility 53:22possible 19:3 37:9

59:18post 67:1potentially 58:5

practice 37:12pre 71:21pre-existing 69:14 74:6preamble 6:5 7:21 8:4

17:2 71:7 72:8 79:12precedent 64:22precisely 27:1preclude 33:19precluded 37:15predicate 38:11preponderance 6:7

24:8 73:13presence 10:13 38:17present 6:10presentation 52:12

53:4presentations 95:7presented 41:7 78:15presumed 6:2,8 24:17

25:1,7,15 26:13,1630:15,16 31:11,17,2232:5,13,16 85:8,20

presumption 6:17 8:2113:14 14:8,12 15:6,1917:4 20:8 22:1 24:624:20 25:1,5,9,1426:7,7,8,18,22 27:927:21 28:14 30:6,1030:16,21 31:10,16,2232:5 33:15 35:10 36:337:15 40:6 41:8 42:451:5,9 53:9 54:1460:15 61:13 63:573:10 74:21 77:1885:2,7,16 88:5,8 92:6

pretty 35:18 60:4prevented 87:14previous 10:18 65:10previously 8:3 33:3

34:4 77:21,21 78:1principle 19:1principles 68:21prior 31:13 44:16 49:10

77:19probably 88:16problem 63:13Procedure 86:11process 14:13,17Professor 2:5program 31:7Programs 1:12 27:19prohibited 22:7promulgated 28:1

71:11promulgating 31:8prong 28:15 34:1,5 36:4

36:5,21 37:3,8,10,1637:18 38:19,19,2139:3,15 40:8,11,13

85:11 87:14,16 89:3pronged 24:11prongs 24:15proof 15:19proper 18:19 31:21

63:2 70:17 88:5properly 24:4 63:8

83:13 85:14proposed 8:4,12 16:16proposition 6:16 9:6

34:11 63:16prove 10:11 15:9 19:7

19:17 20:20 21:2124:8,19 28:22 29:1530:1,4,11 36:14 38:1339:7 44:1,5 51:4,1751:20 52:4 53:1054:22 62:19 73:879:19 89:15

proved 24:5 88:4proven 11:22 29:19proves 51:7provide 76:8provides 11:21proving 7:17 20:8 32:11

32:14 73:2provision 7:1 8:15 9:8,9

77:13provisions 31:4 66:3,6

81:12 83:14 84:5pulmonary 7:3,10

10:13 12:1 44:15 61:661:16,21 77:11 93:20

purpose 14:7,9,12 27:854:18 76:7 81:3

purposes 32:22 46:2149:2,6 78:3

puts 52:1puzzled 61:1

Qqualified 49:1qualify 58:3,15 63:18

64:14qualifying 72:10question 21:19,20

23:18 28:20 36:8,1241:15,17 42:10 47:1649:9 52:19 61:19 63:163:3 66:16 83:4 84:488:12 90:3

questions 21:2 27:1328:8 35:22 42:18 46:853:4,7 68:1,8 82:10

quibbling 14:18 17:3quick 94:21quite 79:17 89:19quote 6:5 10:20

quoting 8:22 10:1063:19 90:11

Rraised 34:3rational 16:22rationalization 67:2re-enacted 77:18re-institute 15:6reached 49:10reaction 29:8read 18:10,17 22:5 27:5

55:19,22 62:16 66:269:17 70:3 90:9 91:2192:15

reader 55:11reading 8:7 13:16 18:8

18:19 19:5 23:3 27:451:11 55:3 63:21 69:794:14,18

reads 23:4,9real 38:8 47:11 52:19

65:4realized 45:15really 8:7 12:11 46:3

47:3,18 48:21 49:852:21 54:19 59:1865:15,20 73:4 75:679:12 84:11 91:2094:18

Reanimating 17:2reason 85:10 92:4reasonable 90:13reasoned 67:9 93:16reasons 42:9 50:22

83:9Rebecca 2:13 5:6 27:17rebut 7:2 20:7 24:6,17

25:4,22 28:13 31:9,2136:3 37:8 39:2 40:541:8 42:4 53:9 60:1462:6 66:8 74:21 78:1878:20 89:2,22 92:5

rebutable 25:10 26:730:5 88:4

rebuttable 40:17,19rebuttal 3:16 5:12 6:14

6:17 7:16 8:10,17,219:7,18 11:3,8,2112:22 13:3,8 14:215:8,14,19 16:7 17:1019:13 21:12 23:1624:11,21 27:20 28:1128:16,17,21 30:2031:4,15 32:9 33:17,2235:9 36:5,19,21,2237:3,9,17 38:19 40:840:11 42:21 43:1952:22 61:9,12 63:5


104

66:3,5 76:2,4 78:780:20 81:2,5,10,1283:13 85:11,21 88:6,988:18 91:2

rebutted 54:14 61:1485:9

rebutting 13:14 33:1437:15 63:4 81:15

recall 91:15receiving 33:4recency 82:4recognize 82:3recognizes 6:4 46:17reconcile 55:7 57:13reconsideration 13:2reducing 21:8refer 55:17reference 70:21references 71:12referred 9:14refers 10:18 55:9 71:9

71:10regard 43:2,6,21 46:1

47:13 52:10 64:2071:19 72:7 73:1 90:9

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brb transcript

Documents

washington dc

judge hall

behalf of respondent

good morning

case of minich

pittsburgh pa

lee black lung clinic

workers compensation50