Bonacci v. Price River Coal Co., BRB 98-1652 BLA
| Decision Date | 28 April 2000 |
| Docket Number | BRB 98-1652 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | SUSAN L. BONACCI Widow of DOMINIC BONACCI Claimant-Respondent v. PRICE RIVER COAL COMPANY and AEP SERVICE CORPORATION Employer/Carrier-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order on Remand Granting Benefits of Samuel J. Smith, Administrative Law Judge, United States Department of Labor.
Suzanne Marelius (Littlefield & Peterson), Salt Lake City, Utah, for, claimant.
William J. Evans (Parsons, Behle & Latimer), Salt Lake City, Utah, for, employer.
Before: SMITH, BROWN, and McGRANERY, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order on Remand Granting Benefits (92-BLA-1178) of Administrative Law Judge Samuel J. Smith on a survivor's claim filed pursuant to the provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the Act). This case is before the Board for the second time. In the initial Decision and Order, the administrative law judge adjudicated this claim pursuant to 20 C.F.R. Part 718 and credited the miner with sixteen years of qualifying coal mine employment. Next, the administrative law judge found that claimant[1] established the existence of pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a) and 718.203(b) and that pneumoconiosis was a substantially contributing cause of the miner's death pursuant to 20 C.F.R. §718.205(c)(2). Accordingly, the administrative law judge awarded benefits. Consequently, employer appealed the award.
The Board affirmed only the administrative law judge's application of the "hastening death" standard inasmuch as, subsequent to the administrative law judge's decision, the United States Court of Appeals for the Tenth Circuit adopted this standard in Northern Coal Co. v Director, OWCP [Pickup], 100 F.3d 871, 20 BLR 2-335 (10th Cir. 1996). The Board vacated the administrative law judge's findings on the merits with respect to 20 C.F.R. §§718.202(a)(2), (a)(4), 718.203(b), and 718.205(c)(2) inasmuch as these findings were erroneous and not supported by substantial evidence. Accordingly, the case was remanded to the administrative law judge for further consideration. Bonacci v. Price River Coal Co., BRB No. 95-1484 BLA (Jun. 26, 1997) (unpub.).
On remand, the administrative law judge found that claimant established pneumoconiosis arising out of coal mine employment pursuant to Sections 718.202(a)(2), (a)(4), and 718.203(b) and that pneumoconiosis was a substantially contributing cause of the miner's death pursuant to Section 718.205(c)(2). Accordingly, the administrative law judge awarded benefits.
On appeal, employer argues that the administrative law judge erroneously found that claimant established the existence of pneumoconiosis under Sections 718.202(a)(2) and (a)(4) and that the miner's death was due to pneumoconiosis pursuant to Section 718.205(c). Claimant has not filed a brief responding to employer's arguments. The Director, Office of Workers' Compensation Programs (the Director), as party-in-interest, has filed a letter indicating that he will not participate in this appeal.[2]
The Board's scope of review is defined by statute. If the administrative law judge's findings of fact and conclusions of law are supported by substantial evidence, are rational, and are consistent with the applicable law, they are binding upon this Board and may not be disturbed. 33 U.S.C. §921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965).
To establish entitlement to benefits on a survivor's claim filed on or after January 1, 1982, a claimant must establish that the miner had pneumoconiosis, that the miner's pneumoconiosis arose out of coal mine employment, and that the miner's death was due to pneumoconiosis. 20 C.F.R. §§718.202(a), 718.203(a), 718.205(a). Death will be considered due to pneumoconiosis if the evidence establishes that the miner's death was due to pneumoconiosis or that pneumoconiosis was a substantially contributing cause or factor leading to the miner's death. 20 C.F.R. §718.205(c)(1), (2), (4). The United States Court of Appeals for the Tenth Circuit, within whose jurisdiction this case arises, has held that pneumoconiosis is a substantially contributing cause of death if it actually hastens the miner's death. Pickup, supra.
In challenging the administrative law judge's Decision and Order, employer raises a plethora of arguments in its voluminous brief. We choose not to restate each and every argument seriatim, however, we have considered all of employer's arguments challenging the administrative law judge's analysis of the relevant evidence pursuant to Sections 718.202(a)(2), (a)(4), and 718.205(c)(2). Based on the discussion infra, we hold that the administrative law judge's Decision and Order on Remand is rational, in accordance with law, and supported by substantial evidence.
With respect to Section 718.202(a)(2), employer argues that the administrative law judge mechanically accorded greater weight to the opinion of Dr. Critchfield because he was the autopsy prosector and that his opinion is significantly outweighed by those of Drs. Naeye and Flinner. We disagree. Although the administrative law judge found Dr. Critchfield's opinion entitled to substantial weight based on his status as the autopsy prosector, the administrative law judge did not rely on this factor as the sole reason for crediting Dr. Critchfield's opinion. Within a proper exercise of his discretion, the administrative law judge found Dr. Critchfield's opinion, that the autopsy demonstrated simple coal workers' pneumoconiosis, more persuasive because Dr. Critchfield applied the correct definition of pneumoconiosis, testified at his deposition about the published standards he relied upon, and stated that when performing the autopsy he viewed characteristic lesions of coal workers' pneumoconiosis. See Pickup, 100 F.3d at 874, 20 BLR at 2-341; Peabody Coal Co. v. Shonk, 906 F.2d 264, 269 (7th Cir. 1990); Urgolites v. Bethenergy Mines, Inc., 17 BLR 1-20, 1-23 (1992); Decision and Order on Remand at 17-21; Director's Exhibit 10; Employer's Exhibit 8. Furthermore, the administrative law judge properly exercised his discretion in finding Dr. Critchfield's pneumoconiosis diagnosis consistent with the opinions of Drs. Hill and Etzel, the miner's treating physicians. See Pickup, 100 F.3d at 876, 20 BLR at 2-344; Decision and Order on Remand at 21. Inasmuch as the administrative law judge rationally analyzed and weighed Dr. Critchfield's opinion together with the reviewing pathologists' contrary opinions and provided an adequate rationale for his conclusion that the opinions of Drs. Naeye and Flinner were entitled to less weight, we reject employer's arguments. See Lane v. Union Carbide Corp., 105 F.3d 166, 21 BLR 2-34 (4th Cir. 1997); Director, OWCP v. Rowe, 710 F.2d 251, 5 BLR 2-99 (6th Cir. 1983).
Employer avers that the administrative law judge erroneously rejected Dr. Naeye's autopsy opinion that the miner did not have coal workers' pneumoconiosis. Employer's argument lacks merit. The administrative law judge permissibly determined that Dr. Naeye had a predisposition to attribute the miner's emphysema to cigarette smoking because his opinion that the miner's emphysema did not arise out of coal mine employment was based on general medical studies indicating that coal mine employment does not cause emphysema.[3] Furthermore, the administrative law judge rationally found Dr. Naeye's opinion entitled to less weight because Dr. Naeye believed that simple pneumoconiosis does not progress in miners after cessation in coal mine employment. See Mullins Coal Co. of Va. v. Director, OWCP, 484 U.S. 135, 11 BLR 2-1 (1987), reh'g denied, 484 U.S. 1047 (1988); Usery v. Turner-Elkhorn Mining Co., 428 U.S. 1, 3 BLR 2-36 (1976); Labelle Processing Co. v. Swarrow, 72 F.3d 308, 20 BLR 2-76 (3d Cir. 1995); Orange v. Island Creek Coal Co., 786 F.2d 724, 8 BLR 2-192 (6th Cir. 1986); Consolidation Coal Co. v. Chubb, 741 F.2d 968 (7th Cir. 1984). In addition, the administrative law judge found Dr. Naeye's testimony during his deposition, that Dr. Critchfield was unfamiliar with the published standards and criteria for diagnosing the existence of pneumoconiosis, directly refuted by Dr. Critchfield's testimony regarding his familiarity with and reliance upon pathological publications and standards. Decision and Order on Remand at 21; Employer's Exhibits 7, 8. Inasmuch as it is the role of the administrative law judge, as trier-of-fact, to determine both the credibility of the evidence and the inferences to be drawn from it and such determinations must be upheld unless they are unreasonable or unsupported by the record, we reject employer's arguments. See Lafferty v. Cannelton Industries, Inc., 12 BLR 1-190 (1989); Fagg v. Amax Coal Co., 12 BLR 1-77 (1988); Calfee v. Director, OWCP, 8 BLR 1-7, 1-10 (1985).
Employer additionally asserts that the administrative law judge erroneously discounted Dr. Flinner's autopsy review which revealed no evidence of coal workers' pneumoconiosis. Contrary to employer's contentions, the administrative law judge properly found Dr. Flinner's autopsy opinion worthy of little weight because Dr. Flinner failed to consider that a diagnosis of emphysema may constitute the presence of legal pneumoconiosis, see McClendon v. Drummond Coal Co., 861 F.2d 1512, 12 BLR 2-108 (11th Cir. 1988); the doctor rendered an equivocal opinion, see Justice v. Island Creek Coal Co., 11 BLR 1-91, 1-94 (1988)...
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