[00:00:07] Speaker 01:
We'll next take up Sunnyside coal versus OWCP number 23-9517.

[00:01:14] Speaker 02:
Good morning, may it please the court.

[00:01:16] Speaker 02:
Michael Pusatieri on behalf of the petitioners.

[00:01:20] Speaker 02:
This is a straightforward case of construction where the plain language of the statute and the regulation at issue dictates the result.

[00:01:28] Speaker 02:
This plain language analysis defeats both the pilot program and the ALJ's finding that FOSSET was exempted from Section 921C's cooperability shown.

[00:01:37] Speaker 01:
Let me discuss with you the pilot program perhaps disposed of.

[00:01:43] Speaker 01:
Did the agency rely on the pilot program in reaching its decision?

[00:01:48] Speaker 01:
Did we really have to address that issue?

[00:01:51] Speaker 01:
Yes, Judge, thank you for that.

[00:01:53] Speaker 02:
In fact, it is necessary to this decision because what we have here is a situation where the agency has subverted its own regulations to ensure that Dr. Gaggen had the final word before the district director.

[00:02:09] Speaker 01:
What happened was... And did the agency rely

[00:02:13] Speaker 01:
on what he said in the final word.

[00:02:15] Speaker 01:
Maybe it was wrong to allow him to do it, but it's not unusual for a judge to be particularly liberal in allowing things to be considered, but then doesn't consider them in reaching the decision.

[00:02:27] Speaker 02:
Yes.

[00:02:28] Speaker 02:
In fact, they did rely upon it because when Dr. Gaggin issued three reports, basically had three sayings in the matter, he had his initial report, he was deposed.

[00:02:39] Speaker 02:
When he was deposed, his deposition testimony, I assume it was devastating.

[00:02:43] Speaker 02:
He conceded that it could well be that the entirety of this gentleman's impairment was due to non-occupational factors.

[00:02:53] Speaker 02:
Dr. Gagan happened to think they were tobacco related.

[00:02:56] Speaker 02:
Our doctors did not.

[00:02:58] Speaker 02:
But his testimony during his deposition conceded that everything that he said was tantamount to a guess, and that, again, it may well be that the entirety of this gentleman's arterial blood gas problems were due to, again, non-occupational

[00:03:13] Speaker 04:
This isn't answering the question.

[00:03:16] Speaker 04:
The question is the third report that was under the pilot program.

[00:03:22] Speaker 02:
Yes, so the third report followed that deposition testimony and that third report basically rehabilitated and took back concessions that he made during his deposition.

[00:03:33] Speaker 04:
And I believe the question was, is there anything in the ALJ's opinion that suggests that it relied on

[00:03:42] Speaker 04:
the report that was submitted as part of the pilot program?

[00:03:46] Speaker 02:
Yes.

[00:03:47] Speaker 02:
The ALJ credited Dr. Dagen and he did so by basically adopting the rationale stated at DX21, which was the pilot program report, and at DX20, which was the initial report, basically

[00:04:02] Speaker 02:
over the features of the deposition testimony that frankly contradicted them.

[00:04:09] Speaker 02:
So yes, there was a prejudice here.

[00:04:11] Speaker 02:
But again, I submit as well that the prejudice that we're primarily concerned with is the fact that our folks were disenfranchised from having any say because the APA formalities which changed the regulations, the pilot program explicitly contravenes and contradicts the regulations definitions.

[00:04:31] Speaker 02:
And it does so in a way without notice and comment rulemaking.

[00:04:35] Speaker 02:
And that was prejudicial.

[00:04:37] Speaker 02:
The sugar cane growers case makes that very clear.

[00:04:41] Speaker 02:
That when you dispense with APA formalities, it is essentially the case that that is prejudicial.

[00:04:47] Speaker 04:
And in fact, here... Well, you don't make any...

[00:04:52] Speaker 04:
arguments that would be necessary to strike down the entire pilot program.

[00:04:58] Speaker 04:
I mean, there's a series of things we have to look at.

[00:05:01] Speaker 04:
None of those are addressed in the brief.

[00:05:03] Speaker 04:
So I think what Judge Hartz is focusing on is if your argument is limited to this case, you've got to show prejudice.

[00:05:13] Speaker 02:
Absolutely.

[00:05:14] Speaker 04:
And not just prejudice because there's an APA violation in terms of rulemaking.

[00:05:20] Speaker 02:
Well, I think the prejudice is

[00:05:23] Speaker 02:
First of all, related to the APA disenfranchisement, but also as it relates to this particular case.

[00:05:28] Speaker 02:
Again, what happened was Dr. Gagan got a third bite of the apple.

[00:05:33] Speaker 02:
And he was able to rehabilitate his devastating deposition testimony because the agency submitted that.

[00:05:41] Speaker 02:
Did the board's opinion ever refer to this report?

[00:05:44] Speaker 02:
The board's opinion effectively just says substantial evidence is good enough for us as it relates to the medical merits.

[00:05:51] Speaker 02:
And actually, that's a problem as well.

[00:05:53] Speaker 00:
Well, I guess, how do you conclude, though, that he was able to rehabilitate if neither the ALJ or the board made that finding?

[00:06:01] Speaker 02:
Well, they didn't say the word rehabilitate, but they did accept as gospel the findings, the statements that he made about the origins of this gentleman's arterial blood gas problems, which were implicit, which were explicitly stated in his pilot program report and his original report, but which effectively contravened his deposition testimony.

[00:06:21] Speaker 02:
So that's where we get the prejudice.

[00:06:24] Speaker 04:
The ALJ relied on his original report.

[00:06:28] Speaker 04:
That's what it's looking at in quoting.

[00:06:30] Speaker 04:
You can't point to anything in that opinion where he says, I'm looking at the subsequent report that was

[00:06:37] Speaker 04:
submitted with the pilot program.

[00:06:39] Speaker 02:
You know, I think that's a fair point, but I also think that this ALJ's decision in particular was all over the place.

[00:06:45] Speaker 02:
At some points they say that we rebutted the presence of clinical pneumoconiosis, elsewhere they said the precise opposite.

[00:06:52] Speaker 02:
The ALJ never made an affirmative finding that Dr. Gaggen ruled out a total disability due to pneumoconiosis finding, and that's why if you folks

[00:07:04] Speaker 02:
that the 15-year presumption was improperly applied here.

[00:07:07] Speaker 02:
You necessarily have to remand for further fact finding because there are features that are essential to a claim under 204 that he left on set.

[00:07:17] Speaker 02:
And that's only because he assumed that the comparability finding was unnecessary here.

[00:07:22] Speaker 02:
And in fact, that's a real problem because there is not even a delegation to the Secretary of Labor to do anything with Section 921C.

[00:07:31] Speaker 04:
Well, there is a delegation to promulgate rules as necessary to implement the statute, right?

[00:07:38] Speaker 02:
Yes, 936C says that.

[00:07:39] Speaker 02:
Excuse me, 936A says that.

[00:07:41] Speaker 02:
But again, this is on all fours with Marlowe.

[00:07:43] Speaker 02:
In Marlowe, we have the Fair Labor Standards Act.

[00:07:46] Speaker 02:
There were tons of instances where the Secretary of Labor was empowered to promulgate rules that for instance dealt with child labor

[00:07:56] Speaker 02:
minimum wage, things like that.

[00:07:59] Speaker 02:
And in fact, in 203M, there's something even more explicit where they're talking about defining wages.

[00:08:06] Speaker 02:
And there they say the secretary shall decide, for instance, whether room and board count as wages.

[00:08:11] Speaker 02:
But what they did not do in Marlowe is they did not say, you can define tipped wages.

[00:08:17] Speaker 02:
And I submit that this case is an even stronger example of nondelegation than Marlowe, because at least in Marlowe, that concept, tipped wages,

[00:08:26] Speaker 02:
You can envision a gap.

[00:08:27] Speaker 02:
There's some technical expertise that perhaps the secretary would understand what a tipped wage is, where a layman and whatnot.

[00:08:34] Speaker 02:
Here, what we're talking about is common prepositions in and underground.

[00:08:39] Speaker 02:
And in fact, when we go to 921C- Let me interrupt you again.

[00:08:43] Speaker 04:
I have two questions.

[00:08:44] Speaker 04:
One is, should we abate this case until the Supreme Court rules on Loper?

[00:08:50] Speaker 04:
We don't know what's going to happen with Chevron deference at this point.

[00:08:55] Speaker 04:
And I don't know right now how much I'm supposed to rely on regulations.

[00:09:02] Speaker 04:
What's your opinion on that?

[00:09:03] Speaker 02:
Judge, that's a very fair question.

[00:09:05] Speaker 02:
And I think the answer is a bait in this case would only be appropriate if the secretary bats 1,000 on the first two questions, which is Chevron steps zero.

[00:09:15] Speaker 02:
Was there delegation in the first instance?

[00:09:17] Speaker 02:
If there's not, and I contend there's not, then you don't have to wait for Chevron.

[00:09:21] Speaker 02:
And then secondly, you have to set fines

[00:09:23] Speaker 02:
that the statute is unambiguous.

[00:09:25] Speaker 02:
They say it's unambiguous.

[00:09:27] Speaker 02:
They are not claiming ambiguity.

[00:09:28] Speaker 02:
And they say it's unambiguous and that unambiguously means around, and that underground unambiguously means on the surface.

[00:09:36] Speaker 02:
And so if you find, number one, that there is delegation and I lose that, and you find, number two, that there is ambiguity and I lose that, and by the way, no one is arguing for ambiguity, then theoretically, I think the best course is to hold this in abeyance

[00:09:51] Speaker 02:
any resolution of LOPR and the levels.

[00:09:54] Speaker 01:
How do you deal with the history of the statute?

[00:09:57] Speaker 01:
Before the statute covered above surface mining, there was a regulation that specifically included within underground mining the facilities above ground associated with it.

[00:10:12] Speaker 01:
After that, Congress amends the statute.

[00:10:17] Speaker 01:
Now there's plenty of authority, I think, maybe you can distinguish it,

[00:10:21] Speaker 01:
that Congress is presumed to know how a statute's being interpreted when it reenacts it.

[00:10:28] Speaker 01:
How do you deal with that problem?

[00:10:29] Speaker 02:
That's precisely right, Judge.

[00:10:30] Speaker 02:
And actually, the legislative history setting, again, setting the plain language aside actually very much supports us.

[00:10:37] Speaker 02:
In one instance where the secretary makes a point about the 1971 definition of an underground mine, she referred to things where facilities above the surface

[00:10:48] Speaker 02:
where coal is processed.

[00:10:50] Speaker 02:
Well, that's a processing plant.

[00:10:52] Speaker 02:
Mr. Fawcett was not covered under that 1971 understanding because he did not work in a place where coal was processed.

[00:10:59] Speaker 02:
The 1972 regulations, the regulatory history made very clear that section 92-743 of the 1972 legislative history

[00:11:14] Speaker 02:
Congress stated existing law limits the program to underground miners, and that's why it struck the word underground in 1972 to recognize... Right, but that's not the point.

[00:11:26] Speaker 01:
The point is what did they mean by an underground coal mine?

[00:11:30] Speaker 01:
Sure.

[00:11:31] Speaker 01:
And I didn't recall... You say that the regulation

[00:11:36] Speaker 01:
that talks about the mine including surface facilities was limited to processing facilities?

[00:11:45] Speaker 02:
No, 1971, there was no regulation in 1971.

[00:11:47] Speaker 02:
The Congress understood that coal mines, again, 1971, an undergrad coal mine was the word.

[00:11:55] Speaker 02:
They didn't strike that word until 1972, and they did that to ensure that exceptional, excuse me, to ensure that all surface miners could

[00:12:05] Speaker 02:
be eligible for black loan benefits.

[00:12:06] Speaker 02:
We agree with that.

[00:12:08] Speaker 02:
And they also agree that an exceptional subset of surface miners could show through the 15-year presumptions additional acts, 921C's additional acts for comparability could show that they were entitled to the 15-year presumption, but only if they could show comparability, which is exceptional.

[00:12:26] Speaker 02:
And in fact, Congress understood that the vast majority of surface miners

[00:12:30] Speaker 02:
would not be able to get benefits at all.

[00:12:33] Speaker 02:
They looked at industrial hygiene and cohort studies and so on to make that conclusion we cited in our brief.

[00:12:39] Speaker 02:
But what they said was, we have to leave open at least the possibility that some exceptionally dusty surface conditions might qualify for the 15-year presumption.

[00:12:50] Speaker 02:
And that's why they did what they did.

[00:12:51] Speaker 00:
Council, your argument about how we read 921

[00:12:55] Speaker 00:
C4 has been made before.

[00:12:58] Speaker 00:
Are you aware of any courts that have sided with you or favored your argument here?

[00:13:02] Speaker 00:
No.

[00:13:02] Speaker 02:
And so you're basically asking about a circuit split.

[00:13:04] Speaker 02:
There's exactly one published decision.

[00:13:06] Speaker 02:
I see my time is winding down, and I'd like to reserve some time for rebuttal, but I'd like to address Ramanj first of all.

[00:13:11] Speaker 02:
That is the only published case that talks about this.

[00:13:14] Speaker 02:
And in Ramanj, effectively what they did is they looked at 802H, and they said, well, that seems, that general definition of a garden-variety coalmine

[00:13:23] Speaker 02:
seems pretty similar to what the secretary's doing.

[00:13:26] Speaker 02:
When they were reinterpreting that to say, garden-variety coal mines and undergrad coal mines have exactly the same definition.

[00:13:33] Speaker 02:
And so they just sort of quoted, they cited to Keane, which just reflexively cited to Alexander.

[00:13:40] Speaker 02:
They said, well, 802 and this new regulatory definition at 101

[00:13:45] Speaker 02:
A30, they look pretty similar, they must be rational.

[00:13:48] Speaker 02:
And in fact, they're not rational at all.

[00:13:50] Speaker 02:
Because if you graphed 101A30's definition of an underground coal mine into section 921C, that completely eviscerates the statute.

[00:14:01] Speaker 02:
It makes it nonsense.

[00:14:03] Speaker 02:
Because under that provision, under that reading, that all garden variety surface miners are entitled to the 15-year presumption

[00:14:11] Speaker 02:
So long as they can show that the conditions they work in are substantially similar to the conditions on or around an underground mine, on the surface of an underground mine, that eviscerates Section 920C's additional ask, it renders that entire definition's surplusage, it makes no sense, and it basically obviates the entire comparability standard for everybody.

[00:14:33] Speaker 02:
Because every garden variety surface miner can say,

[00:14:36] Speaker 02:
My conditions are exactly the same as the outdoor conditions adjacent to an underground line.

[00:14:41] Speaker 02:
Because it's exactly the same thing, again, I'd like to reserve the rest of my time for a bubble.

[00:14:45] Speaker 02:
Thank you.

[00:15:04] Speaker 05:
Good morning.

[00:15:05] Speaker 05:
May it please the court?

[00:15:06] Speaker 05:
My name is Amanda Torres.

[00:15:08] Speaker 05:
I represent the Federal Respondent, the Director of the Office of the Workers' Compensation Programs.

[00:15:14] Speaker 05:
The director requests that this court deny employers' petition for review.

[00:15:18] Speaker 05:
I will be addressing two issues today.

[00:15:20] Speaker 05:
First, whether a minor's work above ground and an underground poll mine qualifies for the rebuttable presumption without a comparability analysis, and second, whether this court should address employers' challenge to the supplemental report program

[00:15:32] Speaker 05:
And if so, whether the program is authorized by the Act and implementing regulations.

[00:15:37] Speaker 05:
Because employer addressed the supplemental report program first, I'll go ahead and address that first also.

[00:15:43] Speaker 05:
This court need not address employer's challenge to the program under a harmless error analysis.

[00:15:49] Speaker 05:
The board at footnote 13 specifically stated that it was not going to reach the issue because there was substantial evidence in the record, specifically employer's own opinion, Dr. Farney, to establish total disability through physician opinion.

[00:16:04] Speaker 05:
Not to mention the fact that the board elsewhere stated that it was affirming the finding of total disability on the arterial blood gas evidence as unchallenged on appeal.

[00:16:15] Speaker 05:
This court has stated that it must uphold an administrative decision absent the petitioner showing a substantial right to a prejudice.

[00:16:24] Speaker 05:
It cannot make that showing here because without Dr. Gagon's supplemental report, there is still substantial evidence in the record to establish total disability, especially in the eyes of the fact that a claimant only needs to establish total disability through one method, not multiple.

[00:16:41] Speaker 05:
For those reasons, we would ask that this court not address the

[00:16:45] Speaker 05:
employer's challenge to this supplemental report program.

[00:16:48] Speaker 05:
Turning back to that first issue, whether a minors work above ground at an underground coal mine counts towards the 15-year requirement for the rebuttable presumption.

[00:16:57] Speaker 05:
The plain meaning of the statutory language at both 802-H2 and 921-C4 make it clear that a minors work above ground in an underground coal mine counts as minors work in an underground coal mine for purposes of the 921-C4 presumption.

[00:17:15] Speaker 05:
At 802H2, a Congress defines a coal mine to include property under, upon, or above the surface of such land.

[00:17:22] Speaker 05:
And at 921C4, the court delineates between two types of mines, not types of miners.

[00:17:30] Speaker 05:
It distinguishes between what I'll refer to as category one mines, underground coal mines, and category two mines, a coal mine other than an underground mine.

[00:17:39] Speaker 05:
And only those individuals, only an individual's work in those types of mines has to show

[00:17:44] Speaker 05:
substantially similar conditions to that in an underground mine.

[00:17:48] Speaker 01:
What the council seemed to be suggesting though is if we encompass all these other facilities above ground as part of the underground mine, then an above ground miner will always be able to show comparability.

[00:18:01] Speaker 01:
And that would essentially eliminate that requirement and such.

[00:18:05] Speaker 01:
Maybe I misunderstood him, but I thought that was the point he was making.

[00:18:09] Speaker 05:
Employers challenge request this employer request that this court treat

[00:18:14] Speaker 05:
Mr. Fawcett and miners like him who are above ground at an underground coal mine site as miners in that second category.

[00:18:21] Speaker 05:
But we know from the record in this case that Mr. Fawcett was always at the same.

[00:18:26] Speaker 05:
In fact, the entire 24 years was at the same exact underground coal mine site at different.

[00:18:33] Speaker 01:
Yes, sir.

[00:18:33] Speaker 01:
I'm not talking about the facts of this specific case.

[00:18:37] Speaker 01:
The point is if we interpret an underground coal mine the way you're suggesting.

[00:18:44] Speaker 01:
then the comparability requirement will always be met, and that doesn't make sense.

[00:18:53] Speaker 01:
If your definition leads to essentially eviscerating the comparability requirement, then we might wonder about the validity of your definition.

[00:19:04] Speaker 01:
How do you respond to that?

[00:19:05] Speaker 05:
The regulatory definition of an underground coal mine at 725-101-830

[00:19:12] Speaker 05:
defines an underground coal mine to include the property or pertinent there too.

[00:19:17] Speaker 05:
There's no evisceration of the 921C4 distinction because there will still be that second category of mines, the typically strip mines where... There'll be the category of mines, but for the purposes of this type of relief,

[00:19:34] Speaker 01:
the worker just needs to show that he has spent this much time in conditions comparable to those in an underground mine.

[00:19:44] Speaker 01:
And that would always be satisfied if we include in an underground mine some business office on the surface.

[00:19:52] Speaker 01:
So that would be a result that would be irrational.

[00:19:59] Speaker 01:
So how can your definition

[00:20:02] Speaker 01:
be satisfied?

[00:20:04] Speaker 01:
How can your definition not lead to eviscerating any comparability requirement?

[00:20:13] Speaker 05:
It doesn't eviscerate it because the comparability requirement is four years worked in a coal mine other than an underground coal mine.

[00:20:22] Speaker 01:
Right.

[00:20:22] Speaker 01:
Yeah.

[00:20:22] Speaker 01:
But it's got to be comparable to the conditions in an underground mine.

[00:20:29] Speaker 01:
And if conditions in an underground mine

[00:20:32] Speaker 01:
could be conditions in an office above an underground mine, then every worker in a non-underground mine would satisfy the comparability requirement.

[00:20:47] Speaker 05:
Not necessarily.

[00:20:48] Speaker 05:
That's why there's the regulation at 17305B2, which states that substantially similar conditions are those where there's regular coal dust exposure.

[00:20:56] Speaker 05:
So there would still be a showing that's necessary for that

[00:21:00] Speaker 05:
the minor in this Category 2 mine?

[00:21:02] Speaker 04:
I think Judge Harts is talking about the minor in the Category 1 mine.

[00:21:10] Speaker 04:
Yes.

[00:21:10] Speaker 04:
The minor in an underground mine who's working above ground in an office.

[00:21:17] Speaker 04:
The concern is that that minor will be treated, will be presumed, if they work there 15 years, that their disability is caused by coal dust

[00:21:31] Speaker 04:
Whereas you have a person working for 15 years in an office at an above ground coal mine that has to make a different showing that this person is exempted from.

[00:21:43] Speaker 04:
Am I explaining it?

[00:21:45] Speaker 04:
I think so.

[00:21:46] Speaker 04:
And so the question is, why the difference?

[00:21:50] Speaker 05:
The difference is not only because the plain meaning of the statutory language and the fact that the word

[00:21:56] Speaker 05:
as the Oxford English Dictionary defines it as, within the bounds of, is that the legislative history of the Act, Mr. Fawcett was always included as a minor in an underground coal mine.

[00:22:07] Speaker 05:
When the Act was created in 1969, and it defined a minor as one that is in an underground mine, and the later regulatory definitions included a minor at an underground mine, whether above or below, and then, under Miles V. Apex, where Apex

[00:22:23] Speaker 05:
were safe to assume that Congress is aware of the existing law at the time that it, the state of the law at the time that they create new legislation.

[00:22:34] Speaker 05:
Which was in 72, is that right?

[00:22:36] Speaker 05:
The 1972 amendments, yes.

[00:22:38] Speaker 05:
In Senate Report 92-743, Congress acknowledged the fact that, and I hope that this addresses

[00:22:46] Speaker 05:
the concern about above ground and underground coalmine.

[00:22:49] Speaker 05:
But Congress acknowledged in that Senate report that miners that were above ground and underground mines were eligible for benefits under the existing state of the law.

[00:22:59] Speaker 01:
Which was an existing state of the law included regulations that were very specific about that.

[00:23:06] Speaker 01:
Yes.

[00:23:09] Speaker 04:
So I'll ask the same question.

[00:23:11] Speaker 04:
We don't know how much weight to give those regulations.

[00:23:14] Speaker 04:
Should we abate and find out what the Supreme Court has to say in Loper?

[00:23:20] Speaker 05:
No, this court should not abate.

[00:23:22] Speaker 05:
The reason why is first, the language is unambiguous, Congress's intent is unambiguous, and therefore there's no need to give any Chevron deference.

[00:23:31] Speaker 05:
And even so, Chevron deference is still the law of the land.

[00:23:36] Speaker 01:
We're not going to rely on that too much right now.

[00:23:39] Speaker 01:
But I thought your point was different.

[00:23:40] Speaker 01:
I thought it wasn't.

[00:23:42] Speaker 01:
that we defer to the pre-1972 regs under some Chevron theory, I thought it was when Congress enacted the 72 amendment, it's presumed to know how the regulations interpreted the same language in the earlier statute.

[00:24:00] Speaker 01:
So it's not a Chevron issue, as I understand it.

[00:24:02] Speaker 05:
This is not a Chevron issue.

[00:24:05] Speaker 05:
We are saying that the plain meaning of the statutory language, the authority that Congress gave to us, the broad authority under 936A to promulgate regulations, and the legislative history altogether support the fact that in an underground coal mine, encompasses work above and below the surface of that mine site.

[00:24:33] Speaker 05:
The court noted earlier the published decision in Raymage.

[00:24:39] Speaker 05:
And we would just note that both Raymage and the Sixth Circuit and Coon and unpublished decision, but also dealing with the understanding of in and underground coalmine support, the same holding that we're requesting in the present case.

[00:24:57] Speaker 04:
Not much analysis in those cases.

[00:24:59] Speaker 05:
That is true, Your Honor.

[00:25:00] Speaker 05:
There's not much analysis regarding

[00:25:03] Speaker 05:
both of those courts gave Chevron deference.

[00:25:06] Speaker 05:
They didn't need to.

[00:25:08] Speaker 05:
They didn't give a fulsome evaluation of the statutory language and the legislative history.

[00:25:16] Speaker 05:
But we're requesting that this court does engage in that history to come to the understanding that in an underground mine encompasses miners' work, like Mr. Fawcett.

[00:25:24] Speaker 05:
At this time, I'm going to cede my time to claimant's counsel, Mr. Austin.

[00:25:30] Speaker 01:
Oh, I'm sorry.

[00:25:32] Speaker 01:
Apologies.

[00:25:33] Speaker 01:
Dividing time is always... It is always difficult, 15 o'clock.

[00:25:38] Speaker 01:
Sometimes impossible.

[00:25:40] Speaker 03:
We'll go ahead.

[00:25:41] Speaker 03:
Good morning, Your Honors.

[00:25:42] Speaker 03:
May it please the court.

[00:25:43] Speaker 03:
I'm Brad Austin.

[00:25:43] Speaker 03:
I represented Mr. Ronald Fawcett, who has unfortunately now passed away, and I now represent his widow, Ms.

[00:25:50] Speaker 03:
Irene Fawcett.

[00:25:52] Speaker 03:
I don't have a lot of time.

[00:25:53] Speaker 03:
I wanted to really focus on the medical merits of this claim, but I'm happy to answer any questions that you may have of me regarding regulation.

[00:26:01] Speaker 01:
Well, on the medical merits.

[00:26:03] Speaker 01:
Even if the ALJ and the board didn't rely on the supplemental report, it may well have affected how they viewed the original report, since it rehabilitated that.

[00:26:16] Speaker 01:
If they just had the original report and the deposition, they may not have given much credence to the original report.

[00:26:25] Speaker 01:
I gather that one response made by the board was that

[00:26:30] Speaker 01:
You don't need this particular expert's reports at all because of the oxygenation evidence.

[00:26:41] Speaker 01:
But how would you deal with the problem that I just raised?

[00:26:45] Speaker 03:
I think there's three ways to get to the same answer.

[00:26:48] Speaker 03:
I'll give you all three.

[00:26:49] Speaker 03:
First of all, like you said, the tables are the tables when it comes to analyzing arterial blood gas testing.

[00:26:54] Speaker 03:
The arterial blood gas testing from Dr. Gagan was very low and it clearly made the disability tables.

[00:27:01] Speaker 03:
That establishes disability.

[00:27:02] Speaker 03:
AVGs is one means by which a party can establish disability.

[00:27:07] Speaker 03:
Number two, the doctor's original medical opinion with regard to disability is completely separate than the opinion with regard to causation, so I don't want to conflate those two issues.

[00:27:18] Speaker 03:
But number three, with regard to the pilot program testimony, and I don't know how much importance this has in this case, but I want to point out that at the formal hearing, I specifically said, you should not agree with this pilot program argument, but even if you were to somehow agree with it, I would adopt.

[00:27:36] Speaker 03:
the supplemental report and I have room to do so under the evidentiary limitations at 725-414.

[00:27:43] Speaker 01:
So I just I say I say all three because there's three different ways for even if the pilot program was Unlawful you say you could have gotten in that supplemental you could have submitted that supplemental report anyway

[00:27:58] Speaker 01:
And I specifically said that at the hearing.

[00:28:01] Speaker 01:
But I want to make it... Well, I'm not interested in what you said.

[00:28:03] Speaker 01:
I'm interested in what the law is behind that.

[00:28:05] Speaker 01:
Absolutely.

[00:28:06] Speaker 01:
Why did you say you could offer it anyway?

[00:28:09] Speaker 03:
So the reason I said that, Judge, is because 20 CFR 725-414 allows each party to submit two medical reports in support of their case.

[00:28:18] Speaker 03:
And so at that point in time, I have not submitted my full allotment of those two medical reports.

[00:28:23] Speaker 01:
You could submit reports in addition to what the administrative record

[00:28:27] Speaker 01:
had shown before that, is that what you're saying?

[00:28:29] Speaker 01:
Absolutely, it sure.

[00:28:31] Speaker 04:
But the argument about the violation of the APA and the pilot program is that it essentially put the ALJ in an advocacy position to point out the deficiencies in the prior report and to specifically request responses.

[00:28:49] Speaker 04:
So even if you adopted that report, you adopted it with the problem

[00:28:56] Speaker 04:
that counsel has objected to?

[00:29:00] Speaker 03:
Your Honor, I didn't mean to make that point to necessarily say that's the best argument.

[00:29:05] Speaker 03:
That's more of an in the alternative argument.

[00:29:07] Speaker 03:
We fully believe that the Department of Labor has the right to perform the actions that it does in the pilot program by getting these supplemental reports.

[00:29:16] Speaker 03:
In fact, the employers councils regularly argue that physicians are undocumented and unreasoned because they haven't looked at additional evidence that occurs subsequent to the original evaluation.

[00:29:26] Speaker 03:
If we really want to get to the true facts of the case in these federal lifelong cases, let's let the physicians work at all of the medical evidence and make a reason and documented opinion.

[00:29:36] Speaker 03:
That's the standard.

[00:29:37] Speaker 03:
I want to say one more thing, and I know I'm almost out of time.

[00:29:42] Speaker 03:
Oftentimes, these pilot program responses don't always go in favor of the claimants.

[00:29:47] Speaker 03:
And I think sometimes we forget that.

[00:29:49] Speaker 03:
And I'm down in the trenches handling these cases every day.

[00:29:55] Speaker 03:
subsequent report comes in, and I know I'm almost out of time, I want to finish this thought, but when a subsequent report comes in and it's negative to my client, sometimes those DLL physicians change their reports and say, look, you know, I now am opined that he's not totally disabled due to pneumoconiosis.

[00:30:12] Speaker 03:
So the point of the pilot program is to try to get it right, and the Department of Labor has the right to implement the pilot program.

[00:30:21] Speaker 03:
Thank you.

[00:30:21] Speaker 03:
If there's no other questions about the merits of the claim, that's what I was here to discuss.

[00:30:25] Speaker 03:
I will say thank you and pleasure to be here this morning.

[00:30:29] Speaker 03:
Thank you.

[00:30:43] Speaker ?:
Thank you.

[00:30:43] Speaker ?:
I have three quick points.

[00:30:44] Speaker 02:
First, concerning the 1972 definition, it is absolutely the case, and we say so on

[00:30:50] Speaker 02:
replied briefly, pages 6 to 7, that Mr. Fawcett in 1971 did not count as a miner, at least for the time that he worked on the surface.

[00:30:58] Speaker 02:
The pre-1972 definition of miner, 20 CFR 410-1110J, applied only to those working, quote, under the surface performing functions and extracting coal and working, quote, above the surface at the mine preparing the coal so extracted.

[00:31:15] Speaker 02:
He did not do that.

[00:31:16] Speaker 02:
He was a mechanic.

[00:31:17] Speaker 02:
He was working on equipment that

[00:31:20] Speaker 02:
might have facilitated mining in general, but he did not prepare the coal so extracted in 1971.

[00:31:27] Speaker 02:
Those were not even qualifying years of mine employment.

[00:31:30] Speaker 02:
Number two, there were mosh.

[00:31:32] Speaker 04:
He worked at the tipper?

[00:31:34] Speaker 02:
He worked at the tipple for two years.

[00:31:36] Speaker 04:
And that's where they're loading it into cars?

[00:31:39] Speaker 02:
So that might have been so extracted.

[00:31:41] Speaker 04:
Is that part of preparing the coal?

[00:31:43] Speaker 02:
Perhaps.

[00:31:44] Speaker 02:
But repairing equipment, which is really the central feature here,

[00:31:49] Speaker 02:
absolutely has nothing to do with preparing the coal so extracted.

[00:31:53] Speaker 02:
Second, the ramage split.

[00:31:56] Speaker 02:
This court has made clear it is not afraid to get the law right.

[00:32:00] Speaker 02:
And Marlowe, it's a part of the Ninth Circuit's decision in the Oregon case.

[00:32:05] Speaker 01:
You don't need to spend your time on that.

[00:32:06] Speaker 01:
We're quite aware of that.

[00:32:07] Speaker 02:
The third feature, Judge, is that the agency talking about the pilot program

[00:32:13] Speaker 02:
They don't defend this.

[00:32:15] Speaker 02:
This is not legal.

[00:32:16] Speaker 02:
It completely subverts the regulation.

[00:32:18] Speaker 02:
And they're trying to say, well, there's a harmless darter, so you don't have to get to the merits of this.

[00:32:22] Speaker 02:
That's a real problem.

[00:32:23] Speaker 02:
We have challenged this program on page 36, the program as a whole, as violating the NPA.

[00:32:30] Speaker 02:
And it did prejudices here, both because we were disenfranchised and because we do not know what the judge would have said if not for that third rehabilitative report where Dr. Gayden completely

[00:32:43] Speaker 02:
contradicted his own sworn deposition testimony.

[00:32:47] Speaker 02:
So for those reasons we ask you to reverse.

[00:32:49] Speaker 02:
Thank you.

[00:32:59] Speaker 01:
Thank you counsel.

[00:33:00] Speaker 01:
Case is submitted.

[00:33:01] Speaker 01:
Counselor excused.