Kirby v. Old Ben Coal Co., BRB 03-0520 BLA
| Decision Date | 19 May 2004 |
| Docket Number | BRB 03-0520 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | MILDRED M. KIRBY Widow of ROBERT A. KIRBY Claimant-Respondent v. OLD BEN COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
UNPUBLISHED OPINION
Appeal of the Decision and Order - Awarding Benefits of Rudolf L Jansen, Administrative Law Judge United States Department of Labor.
Thomas E. Johnson (Johnson, Jones, Snelling Gilbert & Davis) Chicago, Illinois, for claimant.
Dorothea J. Clark, Ashley M. Harman (Jackson Kelly PLLC) Morgantown, West Virginia, for employer.
BEFORE: SMITH, McGRANERY, and HALL, Administrative Appeals Judges.
DECISION AND ORDER
Employer appeals the Decision and Order - Awarding Benefits (2000-BLA-0309) of Administrative Law Judge Rudolf L. Jansen rendered on a 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). Based on the filing date of April 23, 1999, the administrative law judge adjudicated this survivor's claim pursuant to 20 C.F.R Part 718. Director's Exhibit 2. Based on the parties' stipulation, and his review of the record, the administrative law judge found that the miner had twenty years of coal mine employment. The administrative law judge also found that the existence of clinical pneumoconiosis had been established in the miner's case and had not been challenged by employer. [1] The administrative law judge further found the evidence of record in the survivor's claim established the existence of legal pneumoconiosis, that the miner's clinical and legal pneumoconiosis arose out of coal mine employment, and that the miner's death was hastened by his clinical and legal pneumoconiosis. Accordingly, benefits were awarded.
On appeal, employer contends that the administrative law judge erred in finding that the medical opinion evidence established that the miner's chronic obstructive pulmonary disease (copd) was due to both coal mine employment and smoking and therefore erred in finding that the miner's death was hastened by pneumoconiosis. Claimant responds, asserting that employer is merely requesting a reweighing of the evidence which the Board is not empowered to do and urges affirmance of the administrative law judge's decision awarding benefits. The Director, Office of Workers' Compensation Programs, has not filed a brief in this case.
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 applicable law, they are binding upon this Board and may not be disturbed. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
To establish entitlement in a survivor's claim, claimant must establish that the miner suffered from pneumoconiosis, that the pneumoconiosis arose out of coal mine employment, and that the miner's death was due to pneumoconiosis. 20 C.F.R. §§718.3, 718.202, 718.203, 718.205(a); see Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993); Haduck v. Director, OWCP, 14 BLR 1-29 (1990); Boyd v. Director, OWCP, 11 BLR 1-39 (1988). In a survivor's claim filed on or after January 1, 1982, death will be considered to be due to pneumoconiosis if pneumoconiosis was the cause of the miner's death, pneumoconiosis was a substantially contributing cause or factor leading to the miner's death, death was caused by complications of pneumoconiosis, or the presumption, relating to complicated pneumoconiosis, set forth at Section 718.304, is applicable. 20 C.F.R. §718.205(c)(1)-(4). Pneumoconiosis is a substantially contributing cause of the miner's death if it hastens the miner's death. 20 C.F.R. §718.205(c)(5); see Zeigler Coal Company v. Director, OWCP [Villain], 312 F.3d 332, 22 BLR 2-582 (7th Cir. 2002); Peabody Coal Co. v. Director, OWCP [Railey], 972 F.2d 178, 16 BLR 2-121 (7th Cir. 1992). [2]
At the outset, employer contends that the administrative law judge erred in discrediting the opinions of Drs. Oesterling and Naeye who explained that the autopsy evidence established that the miner's minimal amount of simple coal workers' pneumoconiosis was too mild to have had any effect, either in causing or hastening death. We need not entertain this argument, however, since the administrative law judge also found that legal pneumoconiosis caused the miner's death. Thus, whether or not simple coal worker's pneumoconiosis was too mild to have hastened death would not affect the administrative law judge's finding that the miner's death was hastened by legal pneumoconiosis, i.e., emphysema and chronic bronchitis which arose out of coal mine employment. See Underhill v. Peabody Coal Co., 687 F.2d 217, 223 n.10, 4 BLR 2-142, 2-150 n.10 (7th Cir. 1982); Larioni v. Director, OWCP, 6 BLR 1-1276, 1-1278 (1984).
Employer also contends that the administrative law judge erred in finding that the miner's obstructive lung disease (primarily emphysema) was related in part, to coal mine employment, rather than related solely to the miner's extensive history of cigarette smoking. Specifically, employer argues that the administrative law judge erred in "mechanically" discrediting the assessments of Drs. Oesterling, Naeye, Tuteur, Renn, Fino, Dahhan and Repsher, who opined that the miner's death was due to smoking, not coal mine employment, because their opinions regarding the presence of legal pneumoconiosis, i.e., emphysema arising out of coal mine employment, conflicted with the scientific evidence cited in the regulations promulgated by the Department of Labor (DOL). Instead, employer contends that these opinions' assessment of the cause of the miner's legal pneumoconiosis did not conflict with the regulations, but were well-reasoned and well documented explanations as to why the miner's death was solely attributable to his 100 pack year smoking history. Employer contends that the administrative law judge's analysis of the evidence created an unsupportable presumption that all chronic obstructive lung disease is due to coal mine employment, when it was claimant's burden to prove that his obstructive lung disease was due to coal mine employment. Employer also contends that the administrative law judge failed to consider the credentials of employer's physicians.
Section 718.202(a) defines pneumoconiosis as encompassing both clinical and legal pneumoconiosis. 20 C.F.R. §718.201(a)(1), (2). Legal pneumoconiosis is any chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment. 20 C.F.R. §718.201(a). Legal pneumoconiosis is further defined to include any chronic restrictive or obstructive pulmonary disease arising out of coal mine employment. 30 U.S.C. §902(b); 20 C.F.R. §718.202(a)(2); Underhill, 687 F.2d 217, 223 n.10, 4 BLR 2-142, 2-150 n.10. The comments to the regulations further define chronic obstructive pulmonary disease to include chronic bronchitis, emphysema and asthma; the comments also include a discussion of the literature and background material which support DOL's inclusion of emphysema, as well as bronchitis and asthma, within the definition of legal pneumoconiosis. 65 Fed. Reg. 79939-41, 79969-72, 79941-42 (Dec. 20, 2000).
In considering the medical opinions, the administrative law judge did not ignore the fact that physicians opined that emphysema was due solely to smoking. Instead, the administrative law judge addressed each physician's opinion and discussed why he found it credible or not credible. Decision and Order at 19-23. The administrative law judge also addressed the credentials of all the physicians of record. Decision and Order at 6-14. The administrative law judge ultimately accorded less weight to the opinions of Drs. Naeye, Tuteur, Renn, Fino, Dahhan and Oesterling because he found them inconsistent with the position of DOL, that a causal relationship may exist between coal mine dust exposure and emphysema. This was rational. 65 Fed. Reg. 79939-42-79969-72 (Dec. 20, 2000); see e.g., Midland Coal Co. v. Director, OWCP [Shores], 2004 WL 302390 (7th Cir., Feb. 18, 2004); Freeman United Coal Mining Co. v. Summers, 272 F.3d 473, 22 BLR 2-265 (7th Cir. 2001). He also accorded little weight to the opinions of Drs. Caffrey and Fino because he found them to be vague and equivocal, and he accorded little weight to the opinion of Dr. Guariglia because he found that it was not well-documented. This was rational. Justice v. Island Creek Coal Co., 11 BLR 1-91 (1988); Lucostic v. United States Steel Corp., 8 BLR 1-46 (1985). We address employer's specific argument concerning each doctor's opinion below.
Specifically, employer contends that the administrative law judge erred in discrediting Dr. Oesterling's opinion without any discussion of Dr. Oesterling's conclusions. Employer contends that the administrative law judge erred in discrediting Dr. Oesterling's opinion "as divergent from the studies accepted by the Department of Labor, " Decision and Order at 21; Employer's Brief at 15. Employer asserts that Dr. Oesterling discussed only panlobular emphysema and that he did not discuss centrilobular emphysema, the specific type of emphysema contemplated by the regulations. The record, however, belies this assertion. In his report, Dr. Oesterling stated:
The employment records indicate that this gentleman had retired from the mining industry in January 1992, the post mortem exam having been conducted in 1999. Obviously this is 7 years following his retirement from the mines, and any component of bronchitis due to occupational...
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