Bridger Coal Co. v. Dir., Office of Workers' Compensation Programs

• Decision Date: 28 February 2012
• Docket Number: No. 11–9531.,11–9531.
• Citation: 669 F.3d 1183
• Parties: BRIDGER COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent,andDelores Ashmore (Widow of and on behalf of Merrill Lambright), Claimant.
• Court: U.S. Court of Appeals — Tenth Circuit

669 F.3d 1183

BRIDGER COAL COMPANY, Petitioner,

v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent,andDelores Ashmore (Widow of and on behalf of Merrill Lambright), Claimant.

No. 11–9531.

United States Court of Appeals, Tenth Circuit.

Feb. 28, 2012.

Ronald E. Gilbertson, Husch Blackwell LLP, Washington, DC, for Petitioner.

Barry H. Joyner, Attorney (M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor, and Patricia M. Nece, Counsel for Appellate Litigation, with him on the brief), Office of the Solicitor, U.S. Department of Labor, Washington, D.C., for Respondent.

Before KELLY, MURPHY, and O'BRIEN, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Under the Black Lung Benefits Act (“the Act”), a coal miner who is totally disabled due to pneumoconiosis ¹ from coal mine employment is entitled to lifetime benefits. 30 U.S.C. § 901(a). If the miner dies due to pneumoconiosis from coal mine employment, the miner's surviving spouse is entitled to benefits. Id. In 2005, pursuant to the Act's administrative provisions, an Administrative Law Judge (“ALJ”) awarded lifetime benefits to Merrill D. Lambright and survivor benefits to his widow, Delores Ashmore. Lambright's claims arose out of his employment with Bridger Coal Company. In 2006, a three-member panel of the U.S. Department of Labor Benefits Review Board (the “Board”) vacated the ALJ's decision and remanded to the ALJ for reconsideration. In 2008, the ALJ denied benefits on both the lifetime and survivor claims. In 2009, a three-member panel of the Board reversed this decision and reinstated the 2005 ALJ's award of benefits. On reconsideration en banc, the full five-member Board was unable to reach a disposition in which at least three permanent members concurred. As a result, the 2009 panel decision stood. See 20 C.F.R. § 802.407(d). Bridger appeals, challenging the scope of the 2009 panel's authority to review the 2008 ALJ decision, the standard used in determining whether to award benefits, and the onset-date determination. Exercising jurisdiction pursuant to 33 U.S.C. § 921(c) and 30 U.S.C. § 932(a), this court affirms the 2009 panel decision.

II. BACKGROUNDA. Statutory Framework

To be entitled to lifetime benefits under the Act, a miner must prove (1) he suffers from pneumoconiosis; (2) which arose out of coal mining employment; and (3) caused the miner to be totally disabled. 20 C.F.R. §§ 718.202–204; Energy W. Mining Co. v. Oliver, 555 F.3d 1211, 1214 (10th Cir.2009). To be entitled to survivor benefits, a miner's eligible survivor must prove: (1) the miner had pneumoconiosis; (2) which arose out of coal mine employment; and (3) caused the miner's death. 20 C.F.R. § 718.205. Pneumoconiosis can be “simple” or “complicated.”

Simple pneumoconiosis ... is generally regarded by physicians as seldom productive of significant respiratory impairment. Complicated pneumoconiosis, generally far more serious, involves progressive massive fibrosis as a complex reaction to dust and other factors (which may include tuberculosis or other infection), and usually produces significant pulmonary impairment.... This disability limits the victim's physical capabilities, may induce death by cardiac failure, and may contribute to other causes of death.

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 7, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) (footnote omitted). The Act does not use the term “complicated pneumoconiosis.” However, 30 U.S.C. § 921(c)(3) creates an irrebutable presumption of total disability due to pneumoconiosis or death due to pneumoconiosis when the diagnostic criteria for complicated pneumoconiosis are met. See Pittsburg & Midway Coal Mining Co. v. Dir., Office of Workers' Comp. Programs, 508 F.3d 975, 984 (11th Cir.2007) (discussing legislative history of the Act). Section 921(c)(3) provides:

If a miner is suffering or suffered from a chronic dust disease of the lung which (A) when diagnosed by chest roentgenogram, yields one or more large opacities (greater than one centimeter in diameter) and would be classified in category A, B, or C in the International Classification of Radiographs of the Pneumoconioses by the International Labor Organization, (B) when diagnosed by biopsy or autopsy, yields massive lesions in the lung, or (C) when diagnosis is made by other means, would be a condition which could reasonably be expected to yield results described in clause (A) or (B) if diagnosis had been made in the manner prescribed in clause (A) or (B), then there shall be an irrebuttable presumption that he is totally disabled due to pneumoconiosis or that his death was due to pneumoconiosis, or that at the time of his death he was totally disabled by pneumoconiosis....

30 U.S.C. § 921(c)(3); see also 20 C.F.R. § 718.304 ² (implementing regulation). Section 921(c)(3) thus provides three means by which a miner can prove complicated pneumoconiosis: x-ray, autopsy, or other equivalent evidence.

Regarding the second of these, the Act does not define the term “massive lesions” for purposes of applying clause (B) of the § 921(c)(3) presumption. Two other circuits have considered the showing necessary for a claimant to obtain the benefit of the presumption using autopsy evidence. The Fourth Circuit has held § 921(c)(3) implicitly requires an “equivalency determination,” i.e., a claimant seeking to prove complicated pneumoconiosis under the “massive lesions” clause of § 921(c)(3) must show that such lesions would show up as one-centimeter-or-greater opacities if detectable by chest x-ray. See, e.g., E. Associated Coal Corp. v. Dir., Office of Workers' Comp. Programs, 220 F.3d 250, 255–56 (4th Cir.2000), Double B Mining, Inc. v. Blankenship, 177 F.3d 240, 243 (4th Cir.1999). The Eleventh Circuit, by contrast, rejects the “equivalency determination” requirement. Pittsburg & Midway, 508 F.3d at 987 n. 7. Under the Eleventh Circuit approach, “[i]t is sufficient if the claimant can establish by a preponderance of the evidence that the miner's autopsy or biopsy results are consistent with a diagnosis of complicated pneumoconiosis under accepted medical standards.” Id. at 986.

B. Lambright's Claim

Lambright filed a claim for black lung benefits on March 19, 1998, while he was still employed as a coal mine welder by Bridger. His last day of work was June 26, 1998, and he died on January 31, 2002. Upon Lambright's death, Dr. Michael J. Dobersen, the medical examiner for Arapahoe County, Colorado, conducted an autopsy. Dr. Dobersen is board certified in anatomic, clinical, and forensic pathology. His macroscopic examination of Lambright's lungs revealed “extensive anthracosis with focal irregular areas of anthracotic scarring, some of which measure up to 2 1/2 inches in greatest dimension.” He attributed Lambright's death “to complications of complicated coal workers' pneumoconiosis (progressive massive fibrosis) also known as black lung disease. A component of silicosis was also apparent. Evidence of severe cor pulmonale was also apparent.”

Bridger retained two pathologists to review Dr. Dobersen's findings, Drs. Erika Crouch and Joseph Tomashefski. Dr. Crouch is board certified in anatomic pathology. She reviewed Dr. Dobersen's report, autopsy slides, and other of Lambright's medical records before issuing an opinion on December 3, 2002. Dr. Crouch concluded Lambright suffered from “simple coal workers' pneumoconiosis and simple siderosis arising from welding as well as centriacinar emphysema, acute bronchopneumonia, and changes consistent with severe pulmonary hypertension.” Reviewing the autopsy slides, she observed “no areas of ‘massive fibrosis or complicated silicosis’ ” and described the lesions she did observe as “relatively small in size and number.” Dr. Crouch ruled out Lambright's pneumoconiosis as a significant contributing factor to his death. Dr. Tomashefski is board certified in clinical and anatomical pathology. He concluded Lambright suffered from mild simple coal workers' pneumoconiosis and mild centracinar emphysema, and that the simple pneumoconiosis did not cause or contribute to Lambright's death. Dr. Tomashefski ruled out complicated pneumoconiosis because the largest coalescent, pneumoconiotic lesion he observed from the autopsy slides measured less than two centimeters in diameter, which was below the minimum size required for a diagnosis of complicated pneumoconiosis. See 20 C.F.R. § 718.304.

The 2005 ALJ decision credited the opinion of Dr. Dobersen over the contrary opinions of Drs. Crouch and Tomashefski for four reasons. First, Dr. Dobersen was the prosector, and therefore the only reviewing pathologist who made first-hand observations of Lambright's lungs.³ Second, Dr. Dobersen's report provided very specific measurements and detailed findings, including the 2.5 inch (6.35 cm) lesion. Third, the ALJ concluded Dr. Dobersen demonstrated understanding of the concepts of simple and complicated pneumoconiosis. Finally, the ALJ concluded Dr. Dobersen had superior qualifications because he was board certified in more sub-disciplines of pathology than Drs. Crouch or Tomashefski. The ALJ also reviewed the medical evidence, including chest x-rays, CT-scans, hospitalization and treatment records, and medical opinion evidence. The ALJ nonetheless concluded the autopsy evidence was the most compelling and accorded the most weight to Dr. Dobersen's opinion. Applying the irrebutable presumption of 20 C.F.R. § 718.304, the ALJ awarded benefits on both the lifetime and survivor claims. The ALJ concluded the lifetime benefit onset date was March, 1998, the month in which Lambright filed his claim. The survivor benefit onset date began January, 2002, the month of Lambright's death.

C. Subsequent Proceedings

Bridger appealed the 2005 ALJ decision to the Board. Pursuant to 33 U.S.C. § 921(5), Bridger's appeal was heard by a three-member panel. This court had not yet decided what...