Kirkpatrick v. Rushton Mining Co.
| Decision Date | 27 January 2021 |
| Docket Number | BRB 20-0046 BLA |
| Court | Court of Appeals of Black Lung Complaints |
| Parties | THERESA C. KIRKPATRICK (Widow of WILLIAM G. KIRKPATRICK) Claimant-Petitioner v. RUSHTON MINING COMPANY and PENNSYLVANIA POWER & LIGHT Employer/Carrier-Respondents DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
Appeal of the Decision and Order Denying Benefits on Remand of Drew A. Swank, Administrative Law Judge, United States Department of Labor.
Heath M. Long (Pawlowski, Bilonick & Long), Ebensburg Pennsylvania, for Claimant.
Ralph J. Trofino, Johnstown, Pennsylvania, for Employer/Carrier.
Before: BUZZARD, ROLFE and JONES, Administrative Appeals Judges.
DECISION AND ORDER
Claimant[1] appeals Administrative Law Judge Drew A. Swank's Decision and Order Denying Benefits on Remand (2016-BLA-05670) rendered on a claim filed pursuant to the Black Lung Benefits Act, 30 U.S.C. §§901-944 (2018) (Act). This case involves a survivor's claim filed on May 12, 2015 and is before the Benefits Review Board for the second time.
In his August 28, 2017 Decision and Order, the administrative law judge found Claimant did not establish the Miner had complicated pneumoconiosis and thus could not invoke the irrebuttable presumption that his death was due to pneumoconiosis at Section 411(c)(3) of the Act, 30 U.S.C §921(c)(3). He further found Claimant established the Miner had at least fifteen years of qualifying coal mine employment and a totally disabling respiratory impairment. Therefore, he found Claimant invoked the rebuttable presumption that the Miner's death was due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C §921(c)(4) (2012). The administrative law judge also found Employer did not rebut the presumption and awarded benefits.
In response to Employer's appeal, the Board affirmed the administrative law judge's finding the Miner had at least fifteen years of qualifying coal mine employment. Kirkpatrick v. Rushton Mining Co., BRB No. 18-0010 BLA, slip op. at 2 n.5 (Nov. 15, 2018) (unpub.). It vacated, however, his finding that Claimant established the Miner was totally disabled at 20 C.F.R. §718.204(b)(2) and thus invoked the Section 411(c)(4) presumption. Id., slip op. at 4-5. The Board also vacated his findings that Claimant failed to establish the Miner had complicated pneumoconiosis at 20 C.F.R. §718.304 and therefore could not invoke the irrebuttable presumption at Section 411(c)(3). Id., slip op. at 5-6. Thus, the Board remanded the case to the administrative law judge to consider whether Claimant invoked the Section 411(c)(3) or Section 411(c)(4) presumption or is entitled to benefits under 20 C.F.R. Part 718. Id., slip op. at 6.
On remand, the administrative law judge found Claimant did not establish the Miner had complicated pneumoconiosis and therefore could not invoke the Section 411(c)(3) presumption. Decision and Order on Remand at 13. He further found Claimant did not establish the Miner was totally disabled and thus could not invoke the Section 411(c)(4) presumption. Id. at 19. Considering whether Claimant could establish entitlement to benefits without the presumptions, the administrative law judge found she established the Miner had simple clinical and legal pneumoconiosis arising out of his coal mine employment at 20 C.F.R. §§718.202(a), 718.203(b), but did not establish the Miner's death was due to pneumoconiosis at 20 C.F.R. §718.205 and denied benefits. Id. at 23-24, 28-29, 32-33.
On appeal, Claimant argues the administrative law judge erred in finding she did not establish the Miner had complicated pneumoconiosis or a totally disabling respiratory impairment at the time of his death. Employer filed a response in support of the denial of benefits. The Director, Office of Workers' Compensation Programs, did not file a response brief.[2]
The Board's scope of review is defined by statute. We must affirm the administrative law judge's Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.[3] 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).
Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3), and its implementing regulation, 20 C.F.R. §718.304, establish an irrebuttable presumption that a miner's death was due to pneumoconiosis if he suffered from a chronic dust disease of the lung which: (a) when diagnosed by chest x-ray, yields one or more large opacities greater than one centimeter in diameter that would be classified as Category A, B, or C; (b) when diagnosed by biopsy or autopsy, yields massive lesions in the lung; or (c) when diagnosed by other means, would be a condition that could reasonably be expected to yield a result equivalent to (a) or (b). 30 U.S.C. §921(c)(3); see 20 C.F.R. §718.304. The administrative law judge must weigh together the evidence at subsections (a) (b), and (c) to determine if a claimant has invoked the irrebuttable presumption. See Truitt v. North Am. Coal Corp., 2 BLR 1-199 (1979), aff'd sub nom. Director, OWCP v. North Am. Coal Corp., 626 F.2d 1137 (3d Cir. 1980); Gollie v. Elkay Mining Corp., 22 BLR 1-306, 1-311 (2003); Melnick v. Consolidation Coal Co., 16 BLR 1-31, 1-33-34 (1991) (en banc). Autopsy evidence can support a finding of complicated pneumoconiosis where a physician diagnoses massive lesions or where an evidentiary basis exists for the administrative law judge to make an equivalency determination between the autopsy findings and x-ray findings. See 20 C.F.R. §718.304(b); Clites v. J & L Steel Corp., 663 F.2d 14, 16 (3d Cir. 1981).
The administrative law judge found the chest x-rays do not establish complicated pneumoconiosis at 20 C.F.R. §718.304(a), the autopsy and biopsy evidence does not establish complicated pneumoconiosis at 20 C.F.R. §718.304(b), and the computed tomography (CT) scans, treatment records, and medical opinions do not establish complicated pneumoconiosis at 20 C.F.R. §718.304(c). Therefore, he found Claimant failed to invoke the irrebuttable presumption at Section 411(c)(3).
Claimant contends the administrative law judge erred in weighing the biopsy and autopsy evidence at 20 C.F.R. §718.304(b). Claimant's Brief at 6-9. We agree.
The administrative law judge addressed the pathology opinions of Drs. Heggere, Qian, Oesterling, Swedarsky, and Perper. Dr. Heggere diagnosed simple coal workers' pneumoconiosis based on slides from a biopsy of the left upper lobe of the Miner's lung taken on January 19, 2010. Director's Exhibit 4. Dr. Qian conducted the Miner's autopsy on October 11, 2014 and, based on slides of lung tissue, observed "anthrasilicotic pigment laden macrophages" which formed "macules measuring up to 1.0 cm and micronodules measuring up to 5.0 mm." Director's Exhibit 5. He diagnosed "severe simple coal workers' pneumoconiosis with moderate to severe chronic interstitial pneumonitis with pulmonary fibrosis." Id. Drs. Oesterling, Swedarsky, and Perper also reviewed autopsy slides of lung tissue. Dr. Oesterling diagnosed moderate micronodular predominately pleural-based simple coal workers' pneumoconiosis, minimal centrilobular pulmonary emphysema, extensive alveolar damage, and interstitial fibrosis not due to coal dust. Employer's Exhibits 2, 4 at 46, 47, 56. Dr. Swedarsky diagnosed simple coal workers' pneumoconiosis, mild to moderate emphysema, diffuse alveolar damage, and mild to moderate patchy interstitial pulmonary fibrosis. Employer's Exhibits 1, 3 at 31, 32. He found no evidence of complicated coal workers' pneumoconiosis. Id. In contrast, Dr. Perper diagnosed complicated pneumoconiosis based on finding "2 silicotic nodules merged by a wide fibro-anthracotic bridge into a pneumoconiotic nodular areas (sic) exceeding 1.0 cm in maximal dimension." Director's Exhibit 4.
The administrative law judge credited the opinions of Drs. Heggere, Qian, Oesterling, and Swedarsky because he found they are well-documented and reasoned. Decision and Order on Remand at 12. Weighing the conflicting evidence, he found the preponderance of the pathology evidence does not establish complicated pneumoconiosis. Id.
Citing Gruller v. Bethenergy Mines, Inc., 16 BLR 1-3 (1991), Claimant asserts the administrative law judge erred in finding Dr. Qian's opinion does not support a finding of complicated pneumoconiosis. Claimant's Brief at 6-8. Although Dr. Qian described his findings as "severe simple coal workers' pneumoconiosis," Claimant argues his observation of pneumoconiosis nodules measuring up to one centimeter satisfies the statutory criteria for complicated pneumoconiosis. Claimant's Brief at 6-8.
Claimant's assertion has merit. In Gruller, the Board affirmed an administrative law judge's finding that the evidence established complicated pneumoconiosis at 20 C.F.R §718.304(b) based on an autopsy prosector's diagnosis of complicated pneumoconiosis and identification of lesions measuring "up to 1.0 cm in diameter." Gruller, 16 BLR at 1-5. In this case, Dr. Qian similarly found the Miner had macules measuring "up to 1.0 centimeter." Director's Exhibit 4. A doctor's opinion does not need to specifically identify either complicated pneumoconiosis or massive lesions; it is sufficient if the doctor identifies lesions of pneumoconiosis that meet the standards set forth in 20 C.F.R. §718.304. See Clites, 663 F.2d at 16; see also The Pittsburg & Midway Coal Mining Co. v. Director, OWCP, 508 F.3d 975, 987 (11th Cir. 2007) (); see also Perry v....
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