Eastover Mining Co. v. Williams

• Decision Date: 31 July 2003
• Docket Number: No. 01-4064.,01-4064.
• Citation: 338 F.3d 501
• Parties: EASTOVER MINING CO., Petitioner, v. Dorothy S. WILLIAMS and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

338 F.3d 501

EASTOVER MINING CO., Petitioner, v. Dorothy S. WILLIAMS and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 01-4064.

United States Court of Appeals, Sixth Circuit.

Submitted: July 16, 2003.

Decided and Filed: July 31, 2003. Pursuant to Sixth Circuit Rule 206

Mark E. Solomons (briefed), Laura Metcoff Klaus (briefed), Greenberg & Traurig, Washington, DC, for Petitioner.

Fred M. Busroe, Jr. (briefed), Carter & Busroe, Harlan, KY, Christian P. Barber, Barry H. Joyner, U.S. Dept. of Labor

Office of the Solicitor, Washington, DC, for Respondents.

Before KEITH, SUHRHEINRICH, and CLAY, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Petitioner Eastover Mining Co. appeals an order issued by the Benefits Review Board of the United States Department of Labor, finding Respondent Dorothy Sue Williams, widow of Decedent Gordon Williams, entitled to an award of benefits pursuant to the Black Lung Benefits Act, 30 U.S.C. §§ 901-45. For the reasons set forth below, we REVERSE the Benefits Review Board.

FACTS

Decedent was born on January 13, 1927 and died on July 13, 1993. According to his death certificate, Decedent died from a pulmonary embolism due to Chronic Obstructive Pulmonary Disease ("COPD"), itself caused by an acute gastrointestinal bleed. Decedent smoked between one pack and one-half pack of cigarettes daily for approximately four decades before quitting in 1986. Decedent worked as a surface miner for thirty-seven years, retiring in 1983 when the mine where he worked ceased operations. He applied for and ultimately received federal black lung benefits, although state officials denied his claim for occupational disability benefits.¹

Decedent's relevant medical history begins in April of 1982, when Dr. Jerry Woolum diagnosed Decedent with COPD and acute bronchitis.² Woolum has board certifications in general practice and surgery. Decedent saw many other physicians in connection with his claim for living worker benefits and these doctors ordered numerous x-rays. Sixteen different readers analyzed these images, and only one of the six B-readers board-certified in radiology felt any film showed pneumoconiosis.³

In March of 1983, Dr. A. Dahhan examined Decedent in connection with his living miner disability claim. Although Dahhan believed Decedent suffered from a pulmonary or respiratory impairment, Dahhan thought Decedent's continued smoking caused the problem because the pattern of impairment disclosed in pulmonary function studies, the absence of x-ray evidence of pneumoconiosis, and the presence of occasional crepitations on clinical examination are all indicia of disability induced by smoking, not coal dust.

On October 20, 1984, Dr. Robert Penman examined Decedent. Although Penman had neither B-reader certification nor board certification in radiology, Penman diagnosed Decedent with pneumoconiosis based on Decedent's x-rays. Penman concluded that Decedent's suffered pulmonary impairment partly from pneumoconiosis and partly from smoking. Penman could not separate the two risk factors.

Dr. William Anderson examined Decedent on November 28, 1984. Anderson found no evidence of pneumoconiosis in Decedent's x-rays. Anderson instead suspected COPD due to smoking. Anderson also diagnosed hypertensive cardiovascular disease, mixed psychoneurosis and osteoarthritis.

Dr. Clarke⁴ examined Decedent on December 17, 1984. He diagnosed pneumoconiosis by x-ray as well as severe restrictive and obstructive lung disease based on pulmonary function studies. Clarke declared that pneumoconiosis rendered Decedent totally disabled.

Dr. Ballard Wright examined Decedent on March 30, 1985. Wright read one of Decedent's x-rays as positive for pneumoconiosis and interpreted his pulmonary function studies as showing severe restrictive and obstructive impairment, but concluded that smoking caused Decedent's poor pulmonary function.

With respect to the Woolum, Decedent's "treating physician," pneumoconiosis is mentioned only briefly in the "previous history" section of his report.⁵ Pneumoconiosis appears in Woolum's medical record twice more — first, in December of 1986, when Decedent reported anxiety and depression related to his pursuit of black lung benefits, and second, in January of 1987, when Woolum again listed pneumoconiosis in the "previous history" portion of a medical report. These are the only references to pneumoconiosis Woolum recorded.

Over the next eleven years between Decedent's initial visit to Woolum and his eventual death, Woolum treated Decedent for a cyst, hypertension, a hernia, acute influenza, peripheral vascular disease, acute bronchitis, pneumonia, a transient ischemic attack, several episodes of respiratory distress, carotid artery disease, acute gastrointestinal bleeding, a urinary tract infection, and acute septicemia. In July of 1990, Woolum diagnosed end-stage COPD. During Decedent's final hospitalization, Woolum reported massive upper gastrointestinal bleeding, erosive gastritis, and active peptic ulcer disease. Decedent died despite surgical intervention intended to stop the bleeding.

The hospital discharge papers included these final diagnoses: (1) pulmonary embolism; (2) post-inflammatory pulmonary fibrosis; (3) emphysema; (4) acute upper GI bleed (ulcer); (5) acute anemia due to severe blood loss; (6) gastritis with hemorrhage; (7) cor pulmonale; and (8) peripheral vascular disease. During his treatment of Decedent, Woolum never conducted regular pulmonary function studies or blood gas tests, nor did Woolum diagnose pneumoconiosis.

PROCEDURAL HISTORY

Respondent filed for survivor's benefits on August 2, 1993, two weeks after Decedent's death. On January 24, 1994, after administrative processing by the Department of Labor ("DOL"), a claims examiner denied Respondent's claim because she failed to establish Decedent died from pneumoconiosis. On May 25, 1994, DOL reversed itself and found the evidence sufficient. At Petitioner's request, the claim proceeded to an Administrative Law Judge ("ALJ") for trial.

On May 8, 1995, the ALJ issued a decision and order denying Respondent's claim. ALJ Charles P. Rippey considered a February 24, 1994 report by Woolum that claimed:

[Decedent's] pulmonary disease progressed during the years I cared for him and the last several years of his life he was in respiratory failure ... most of the time. He was hospitalized several times requiring ventilatory support to keep him alive. The terminal event was likely a pulmonary embolus. Unfortunately, an autopsy was not granted by the family. I have no problem stating that this gentleman was disabled secondary to his lung disease of which pneumoconiosis, in my mind, was certainly a contributing factor.

(J.A. at 72.) Before trial, however, ALJ Rippey met with both sides and informed Respondent's counsel that this letter alone did not constitute sufficient proof.

At trial, Respondent introduced a new letter from Woolum dated March 10, 1995. This time, Woolum concluded, "within a reasonable degree of medical probability," that pneumoconiosis "hastened [Decedent's] death."⁶ (Id.) Although ALJ Rippey gave "extra weight to the opinion of Dr. Woolum because he was the treating physician," ALJ Rippey based his decision to deny benefits on several factors. First, the March 10, 1995 opinion conflicted with his February 24, 1994 letter. Second, the March 10, 1995 letter failed to specify "in what matter the pneumoconiosis hastened [Decedent's] death." (Id.) Judge Rippey asked, rhetorically, whether "it led to his development of an embolus earlier than it would otherwise have developed? Did the pneumoconiosis cause death earlier than would otherwise have occurred once the embolus developed?" (Id.) Third, ALJ Rippey noted that the March 10, 1995 letter stated only that Woolum could conclude with a reasonable degree of medical "probability" that the pneumoconiosis hastened the death, as opposed to the usual language, "with a reasonable degree of medical certainty." (Id.)

Finally, ALJ Rippey refused "to ignore the surrounding circumstances." (Id.) Judge Rippey "infer[red] that Dr. Woolum's March 10, 1995 opinion was given following a discussion with [Respondent's] counsel, and that Dr. Woolum wanted to say all that he could to strengthen [Respondent's] case." (J.A. at 73.)

Petitioner filed a timely appeal to the Benefits Review Board ("BRB"), which vacated ALJ Rippey's decision on April 24, 1996. The BRB rejected ALJ Rippey's characterization of Woolum's second opinion as a shift or departure from his initial conclusion; rather, the BRB termed Woolum's new opinion a "clarification" of his earlier conclusion. (J.A. at 67.) The Board also refused to find that the timing of Woolum's second letter made Woolum's statements less reliable. The BRB thus remanded the case to a new ALJ for further consideration.

The new ALJ, Clement J. Kichuk, gave little weight to Petitioner's experts. Instead, holding for Respondent, ALJ Kichuk argued that:

[i]t is apparent from the voluminous medical reports that Dr. Woolum had [Decedent] under close and constant treatment over a period of fourteen years which provided him with an outstanding opportunity to determine the exact nature and cause of his patient's pulmonary and respiratory impairment with reliance upon repeated tests, evaluations, and observations of response to proscribed medicines and therapy.

(J.A. at 61.) This time, Petitioner appealed to the BRB. Although the BRB initially affirmed ALJ Kichuk, the BRB remanded the case to ALJ Kichuk following Petitioner's motion for reconsideration. Specifically, the BRB found that ALJ Kichuk based his decision on the "true doubt" test that the Supreme Court found impermissible in Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 280-81, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994).⁷

On the second remand, Petitioner introduced evidence that radiologists who examined Decedent's...