Energy West Mining Company v. Schilpp

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 5, 2025
• Docket: 24-9548
• Status: Published

Opinion

Appellate Case: 24-9548 Document: 32-1 Date Filed: 08/05/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 5, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________________________________

ENERGY WEST MINING COMPANY,

Petitioner,

v. No. 24-9548

SANDRA SCHILPP, o/b/o Joann H. Lyle, deceased widow, o/b/o Estate of James E. Lyle; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

Respondents.

___________________________________________

PETITION FOR REVIEW FROM AN ORDER OF THE DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR ___________________________________________

William S. Mattingly, Jackson Kelly PLLC, Lexington, Kentucky, for Petitioner.

Brad A. Austin, Wolfe Williams & Austin, Norton, Virginia, for Respondents. ___________________________________________

Before TYMKOVICH, BACHARACH, and PHILLIPS, Circuit Judges. ___________________________________________

BACHARACH, Circuit Judge. _____________________________________________________ Appellate Case: 24-9548 Document: 32-1 Date Filed: 08/05/2025 Page: 2

This appeal involves coal mining. Such mining has long been tied to

respiratory and pulmonary diseases called pneumoconiosis. E.g., U.S. Dep’t

of Lab. v. Triplett, 494 U.S. 715, 717 (1990). These diseases led Congress

to create a statutory remedy for coal miners who develop pneumoconiosis

from exposure to coal dust. 30 U.S.C. § 901(a).

Sometimes, however, coal miners encounter difficulty in pinpointing

the cause of respiratory and pulmonary diseases. So the Department of

Labor has recognized two forms of pneumoconiosis: clinical and legal. 20

C.F.R. § 718.201(a); see Consolidation Coal Co. v. Dir., Off. of Workers’

Comp. Programs, 864 F.3d 1142, 1147 (10th Cir. 2017). In its clinical

form, pneumoconiosis bears a specific medical diagnosis. 20 C.F.R.

§ 718.201(a)(1); see Andersen v. Dir., Off. of Workers’ Comp. Programs,

455 F.3d 1102, 1106 (10th Cir. 2006). In its legal form, however,

pneumoconiosis includes any chronic lung disease or impairment arising

out of work in a coal mine. 20 C.F.R. § 718.201(a)(2); see Antelope Coal

Co./Rio Tinto Energy Am. v. Goodin, 743 F.3d 1331, 1335 (10th Cir. 2014).

Given the occasional difficulty in pinpointing the cause of

respiratory and pulmonary diseases, we presume pneumoconiosis from a

disability to a coal miner who has worked in an underground coal mine for

at least fifteen years. 20 C.F.R. § 718.305(b)–(c); see Antelope Coal Co.,

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743 F.3d at 1335. But the presumption is subject to rebuttal. 20 C.F.R.

§ 718.305(d); see Antelope Coal Co., 743 F.3d at 1336.

The form of that rebuttal underlies this appeal. Sometimes an

employer might rebut the presumption by tying the disease to something

unrelated to coal dust. But what if the employer tries to rebut legal

pneumoconiosis based on a medical opinion involving the clinical form of

the disease? Can the agency reject that opinion based on a blurring of

distinctions between clinical and legal pneumoconiosis? We answer yes.

1. The agency twice awards benefits.

This is the second appeal of administrative decisions granting

statutory benefits for pneumoconiosis.

In the first decision, the administrative law judge awarded benefits

based on the rebuttable presumption and a report by Dr. Shane Gagon; and

the Benefits Review Board affirmed. Energy West petitioned for judicial

review, arguing in part that the administrative law judge had failed to

consider a contrary opinion by Dr. Joseph Tomashefski, Jr. We agreed with

Energy West, pointing out that Dr. Tomashefski had explained in his

deposition that exposure to coal dust did not cause abnormalities in the

lung tissue. Energy W. Mining Co. v. Lyle, 929 F.3d 1202, 1213–14 (10th

Cir. 2019). So we remanded for the agency to consider the explanation that

Dr. Tomashefski had given in his deposition. Id.

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An administrative law judge reconsidered Dr. Tomashefski’s

explanation and again granted benefits, and the Board affirmed. Energy

West again petitioned for judicial review, arguing that the Board had failed

• to follow our instructions on remand,

• to adequately explain why it rejected Dr. Tomashefski’s explanation, and

• to base the award on substantial evidence.

2. The agency rejects a medical opinion on legal pneumoconiosis.

To obtain benefits under the Black Lung Benefits Act, 1 a miner must

establish four elements:

1. Disease: The miner must suffer from pneumoconiosis.

2. Disease causation: The pneumoconiosis must arise out of employment in a coal mine.

3. Disability: The miner must have a total disability because of a respiratory or pulmonary impairment.

4. Disability causation: The pneumoconiosis must bear a substantial contribution toward the miner ’s total disability.

Energy W. Mining Co. v. Est. of Blackburn, 857 F.3d 817, 821 (10th Cir.

2017).

For the first element, the pertinent regulations recognize two forms

of pneumoconiosis: clinical and legal. See p. 2, above. “‘Clinical

1 The miner and his wife have died. The respondent, Ms. Sandra Schilpp, pursues the claim on behalf of the miner ’s estate and his wife.

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pneumoconiosis’ consists of those diseases recognized by the medical

community as pneumoconiosis, i.e., the conditions characterized by

permanent deposition of substantial amounts of particulate matter in the

lungs and the fibrotic reaction of the lung tissue to that deposition caused

by dust exposure in coal mine employment.” 20 C.F.R. § 718.201(a)(1).

Legal pneumoconiosis describes a “much broader” category of diseases,

Island Creek Coal Co. v. Compton, 211 F.3d 203, 210 (4th Cir. 2000),

encompassing “any chronic lung disease or its impairment and its sequelae

arising out of coal mine employment,” 20 C.F.R. § 718.201(a)(2). So legal

pneumoconiosis may exist even without a diagnosis of clinical

pneumoconiosis. See Antelope Coal Co./Rio Tinto Energy Am. v. Goodin,

743 F.3d 1331, 1349 (10th Cir. 2014).

For miners who have worked in coal mines for at least fifteen years

and incurred total disabilities from respiratory or pulmonary impairments,

we presume satisfaction of the elements of disease, disease causation, and

disability causation. See Energy W. Mining Co. v. Lyle, 929 F.3d 1202,

1207 (10th Cir. 2019). The burden then shifts to the employers to rebut

these elements. 20 C.F.R. § 718.305; see Energy W. Mining Co. v. Est. of

Blackburn, 857 F.3d 817, 822 (10th Cir. 2017).

Here the administrative law judge found that the miner had worked in

a coal mine for 28 years and had suffered from a totally disabling

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respiratory or pulmonary impairment. With these findings, the judge

presumed disease, disease causation, and disability causation.

On remand, the administrative law judge applied these presumptions

and found them unrebutted. For this finding, the judge noted that

Dr. Tomashefski had testified in his deposition that the miner didn’t have

legal pneumoconiosis. But the judge rejected this testimony for three

reasons:

1. Dr. Tomashefski had not cited medical literature.

2. He hadn’t persuasively explained why he completely eliminated coal dust as a cause of the impairment.

3. Dr. Tomashefski had conflated the legal and clinical forms of pneumoconiosis.

With these rationales, the judge concluded that the miner ’s family was

entitled to benefits. The Board upheld this decision, relying on the third

reason and skirting the first two reasons.

“Once the Board makes a merits determination, the [Black Lung

Benefits Act] allows for only ‘limited’ judicial review to determine

‘whether substantial evidence supports the factual findings of the

[administrative law judge] and whether the legal conclusions of the

[Board] and the [administrative law judge] are rational and consistent with

applicable law.’” Spring Creek Coal Co. v. McLean, 881 F.3d 1211, 1217

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(10th Cir 2018) (quoting Westmoreland Coal Co. v. Stallard, 876 F.3d 663,

668 (4th Cir. 2017)). 2

3. The Board has complied with our remand order.

In this appeal, Energy West argues that

• the Board didn’t follow our instructions on remand when declining to give any weight to Dr. Tomashefski’s opinion and

• the prior remand suggests that the Court regarded Dr. Tomashefski’s opinion as consistent with the regulations.

We reject these arguments. In the prior opinion, we explained that

“the Board ha[d] discretion to remand to an administrative law judge to

consider Dr. Tomashefski’s opinion.” Energy W. Mining Co. v. Lyle, 929

F.3d 1202, 1214 n.17 (10th Cir. 2019). In that explanation, we said nothing

to suggest a view about the impact of the regulations on Dr. Tomashefski’s

conclusion. The remand thus allowed the administrative law judge to

2 The parties didn’t brief whether we consider the Board’s rationale for rejecting Dr. Tomashefski’s testimony or the administrative law judge’s. Both the Board and the administrative law judge relied on Dr. Tomashefski’s conflation of clinical and legal pneumoconiosis. See p. 6, above. But the administrative law judge also gave two more reasons to reject Dr. Tomashefski’s opinion. See id., above. In oral argument, Energy West said that we should consider the Board’s rationale “and/or” the administrative law judge’s; the claimant’s attorney urged us to consider both rationales.

As discussed below, we conclude that the Board didn’t err in upholding the administrative law judge’s third rationale. See Part 4, below. So we need not consider the administrative law judge’s two other reasons for questioning Dr. Tomashefski’s opinion.

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reassess Dr. Tomashefski’s explanation. See Energy W. Mining Co. v. Lyle,

929 F.3d 1202, 1214 n.17 (10th Cir. 2019).

4. The agency has adequately explained and supported its rejection of Dr. Tomashefski’s testimony.

Energy West also argues that the agency didn’t adequately explain

why it was rejecting Dr. Tomashefski’s testimony. This argument involves

a legal issue that we review de novo. See Gunderson v. U.S. Dep’t of Lab.,

601 F.3d 1013, 1021 (10th Cir. 2010). For this review, we must determine

whether the agency supported its reason for rejecting Dr. Tomashefski’s

opinion. See Energy W. Mining Co. v. Est. of Blackburn, 857 F.3d 817, 823

(10th Cir. 2017) (stating that when the medical evidence conflicts, an

administrative law judge must articulate a reason and provide support to

favor one opinion over another). We base this determination on the

deposition testimony from Dr. Tomashefski and the regulations defining

clinical and legal pneumoconiosis.

a. Deposition testimony

In Dr. Tomashefski’s deposition, Energy West’s counsel referred to

the regulatory definition of legal pneumoconiosis and asked whether the

miner had this disease; and Dr. Tomashefski answered no based on what he

had not seen in the lung tissue:

Q. The Department of Labor has also recognized pneumoconiosis may be any chronic lung disease that’s substantially related to or significantly aggravated by

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exposure to coal mine dust during coal mine employment. Are you aware of that definition?

A. Yes, I am.

Q. Is there anything that you saw in this lung tissue that would meet the definition of legal pneumoconiosis?

A. No, I did not.

Joint App’x at 147–48, Energy W. Mining Co. v. Lyle, No. 18-9537 (10th

Cir. filed Oct. 26, 2018) (emphasis added). Dr. Tomashefski explained that

the lung tissue had “no evidence of dust deposition in the airways” or

significant deposition of pigment and mineral particles. Id. at 151.

This explanation accounts for Dr. Tomashefski’s inability to diagnose

clinical pneumoconiosis based in part on the absence of particulates in the

lung tissue. See 20 C.F.R. § 718.201(a)(1) (defining clinical

pneumoconiosis as “the conditions characterized by permanent deposition

of substantial amounts of particulate matter in the lungs and the fibrotic

reaction of the lung tissue to that deposition caused by dust exposure in

coal mine employment” (emphasis added)).

But legal pneumoconiosis is much broader. See p. 5, above. A miner ’s

“chronic lung disease or impairment” might constitute legal

pneumoconiosis even without “permanent deposition of substantial

amounts of particulate matter in the lungs.” 20 C.F.R. § 718.201(a); see

p. 5, above. So an administrative law judge may find

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• legal pneumoconiosis even when there are no particulates in the lung tissue, see Extra Energy, Inc. v. Lawson, 140 F.4th 138, 144 (4th Cir. 2025), and

• confusion between the clinical and legal forms of pneumoconiosis when a physician rejects legal pneumoconiosis based on the absence of particulates in the lung tissue, see Westmoreland Coal Co. v. Cochran, 718 F.3d 319, 324 (4th Cir. 2013) (concluding that an administrative law judge provided a sufficient rationale to find legal pneumoconiosis because the experts had “primarily concentrated on explaining why they believed the miner did not suffer from clinical pneumoconiosis”); Cent. Ohio Coal Co. v. Dir., Off. of Workers’ Comp. Programs, 762 F.3d 483, 492 (6th Cir. 2014) (concluding that the administrative law judge didn’t err by rejecting a physician’s opinion on the ground that it had conflated clinical and legal pneumoconiosis).

From the deposition testimony and the regulations, we thus conclude

that the Board adequately explained why it rejected the explanation that

Dr. Tomashefski had given in his deposition. 3

b. Report

In a prior report, Dr. Tomashefski expanded his analysis beyond an

evaluation of lung tissue. For example, the report discussed the miner ’s

self-description, pulmonary function test results, arterial blood gas studies,

use of supplemental oxygen, and “significant co-morbid conditions of

obesity, coronary artery disease, arthritis and [gastroesophageal reflux

3 The Third Circuit also upheld an administrative law judge’s assignment of limited probative weight to a virtually identical opinion by Dr. Tomashefski, where he had relied on the absence of pigmentation, macules, and micronodules. Consolidation Coal Co. v. Dir. Off. of Workers Comp. Programs, 741 F. App’x 69, 78–79 (3d Cir. 2018) (unpublished).

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disease].” Joint App’x at 100, Energy W. Mining Co. v. Lyle, No. 18-9537

(10th Cir. filed Oct. 26, 2018). Based on that discussion, Dr. Tomashefski

opined that the miner ’s disability had resulted from multiple conditions

unrelated to “coal mine employment, coal dust exposure or coalworkers’

pneumoconiosis.” Id.

This opinion could be viewed as addressing legal pneumoconiosis.

But the first administrative law judge found that this opinion had “minimal

probative value” because it was not well-reasoned or well-documented and

was based on inaccurate reports. Id. at 292–93.

In the prior panel decision, we remanded for the Board to consider

Dr. Tomashefski’s deposition testimony about the cause of legal

pneumoconiosis. Energy W. Mining Co. v. Lyle, 929 F.3d 1202, 1214 (10th

Cir. 2019). In remanding, we didn’t question the first administrative law

judge’s analysis of Dr. Tomashefski’s report; to the contrary, we focused

on his deposition testimony. Id. So the remand contemplated

reconsideration of Dr. Tomashefski’s deposition testimony rather than his

report.

5. The award of benefits is supported by substantial evidence.

Energy West also contends that the agency lacked substantial

evidence to support an award of benefits. We reject this contention.

Evidence is substantial if a reasonable person might view it “as

adequate to support a conclusion.” See Energy W. Mining Co. v. Lyle, 929

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F.3d 1202, 1207 (10th Cir. 2019) (quoting Consol. Edison Co. of N.Y. v.

N.L.R.B., 305 U.S. 197, 229 (1938)). When applying this test, we do not

reweigh the evidence. Id.

As noted above, we presume that the miner ’s diseases arose out of

his employment in a coal mine. See pp. 4–5, above. In addition, Dr. Gagon

opined that the miner ’s “coal dust exposure” had contributed to his chronic

bronchitis, questionable nodule, 4 and coronary artery disease. Joint App’x

at 12, Energy W. Mining Co. v. Lyle, No. 18-9537 (10th Cir. filed Oct. 26,

2018). An administrative law judge found this opinion “well-reasoned” and

“well-documented.” Id. at 301.

In an earlier appeal, we upheld the administrative law judge’s

reliance on Dr. Gagon’s opinion. Energy W. Mining Co. v. Lyle, 929 F.3d

1202, 1208–10 (10th Cir. 2019). And in our appeal, Energy West doesn’t

challenge the administrative law judge’s reliance on Dr. Gagon’s opinion.

Given the combination of Dr. Gagon’s opinion and the presumptions

of disease causation and disability causation, we conclude that the

administrative law judge had substantial evidence to find satisfaction of

the elements for an award of benefits.

4 Dr. Gagon’s report noted a “? nodule [left] lung.” Joint App’x at 12, Energy W. Mining Co. v. Lyle, No. 18-9537 (10th Cir. filed Oct. 26, 2018). 12 Appellate Case: 24-9548 Document: 32-1 Date Filed: 08/05/2025 Page: 13

6. Conclusion

The Benefits Review Board adequately explained and supported its

reason to reject Dr. Tomashefski’s opinion on legal pneumoconiosis. He

relied on the absence of coal particulates in the lung tissue, and the Board

could reasonably view this explanation as a conflation of clinical and legal

pneumoconiosis.

Granted, the absence of coal particulates might prevent a diagnosis

of clinical pneumoconiosis. But the Board could reasonably view the

absence of particulates as irrelevant to the issue of legal pneumoconiosis.

So the Board didn’t err in explaining why it upheld the rejection of

Dr. Tomashefski’s opinion. And the evidence is sufficient for an award

based on Dr. Gagon’s opinion and the presumptions of disease causation

and disability causation.

Petition denied.