L.V. v. Eastern Coal Corp., BRB 08-0503 BLA
| Decision Date | 20 March 2009 |
| Docket Number | BRB 08-0503 BLA |
| Parties | L.V. Widow of W.V. Claimant-Respondent v. EASTERN COAL CORPORATION and THE PITTSTON COMPANY c/o ACORDIA EMPLOYERS SERVICE Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest |
| Court | Court of Appeals of Black Lung Complaints |
UNPUBLISHED OPINION
Appeal of the Decision and Order on Remand of Janice K. Bullard Administrative Law Judge, United States Department of Labor.
Joseph E. Wolfe (Wolfe Williams Rutherford & Reynolds), Norton Virginia, for claimant.
Lois A. Kitts and James M. Kennedy (Baird and Baird, P.S.C.) Pikeville, Kentucky, for employer.
Barry H. Joyner (Carol A. DeDeo, Deputy Solicitor; Rae Ellen Frank James, Associate Solicitor; Michael J. Rutledge, Counsel for Administrative Litigation and Legal Advice), Washington D.C., for the Director, Office of Workers’ Compensation Programs, United States Department of Labor.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL, Administrative Appeals Judges.
DECISION and ORDER
Employer appeals the Decision and Order on Remand (04-BLA-5576) of Administrative Law Judge Janice K. Bullard rendered 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). The miner died on July 8, 2002, and claimant filed her claim for survivor’s benefits on August 30, 2002. Director’s Exhibits 3, 11. This case is before the Board for the second time.
In the prior appeal, the Board initially considered the administrative law judge’s post-hearing admission of Dr Perper’s deposition testimony. The Board noted that the administrative law judge had given claimant the opportunity to depose Dr. Perper specifically for the purpose of allowing him to “rehabilitate” his opinion by responding to the opinions of Drs. Fino and Rosenberg, submitted by employer close to the twenty day deadline for the submission of evidence pursuant to 20 C.F.R. §725.456. The Board held, however, that the administrative law judge did not make a specific finding as to whether Dr. Perper’s post-hearing deposition constituted appropriate rehabilitative evidence pursuant to 20 C.F.R. §725.414(a)(2)(ii). Consequently, the Board vacated the administrative law judge’s admission of Dr. Perper’s post-hearing deposition testimony and instructed the administrative law judge to re-address its admissibility on remand. [ L.V. ] v. Eastern Coal Corp., BRB No. 06-0583 BLA (Apr. 27, 2007)(unpub.), slip op at 5.
Regarding the merits of entitlement, the Board affirmed, as unchallenged on appeal, the administrative law judge’s findings that employer is the responsible operator, and that claimant established forty-three years of coal mine employment [1]and the existence of simple, but not complicated, pneumoconiosis, arising out of coal mine employment pursuant to 20 C.F.R. §§718.202, 718.203, 718.304. See Coen v. Director, OWCP, 7 BLR 1-30, 1-33 (1984); Skrack v. Island Creek Coal Co ., 6 BLR 1-710, 1-711 (1983). However, in light of the need for clarification of the medical record, the Board also vacated the administrative law judge’s finding of entitlement pursuant to 20 C.F.R. §718.205(c), and instructed the administrative law judge to reconsider whether claimant established that the miner’s death was due to pneumoconiosis “in light of all the relevant and properly admitted evidence of record.” [ L.V. ], slip op. at 5.
On remand, the administrative law judge found that Dr. Perper’s medical report and deposition testimony constituted admissible evidence, within the evidentiary limitations set forth at 20 C.F.R. §725.414. Considering the merits of entitlement, the administrative law judge credited the opinions of Drs. Dennis, Musgrave, and Perper, over those of Drs. Fino and Rosenberg, to find that claimant established that the miner’s death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c).
On appeal, employer challenges the administrative law judge’s admission of the written report and deposition testimony of Dr. Perper, pursuant to 20 C.F.R. §725.414. Employer also challenges the administrative law judge’s weighing of the medical opinions pursuant to 20 C.F.R. §718.205(c). Claimant responds, urging affirmance of the administrative law judge’s admission of Dr. Perper’s report and testimony as within the limitations on evidence, and further urges affirmance of her finding that claimant established that the miner’s death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c). The Director, Office of Workers’ Compensation Programs (the Director), has filed a limited response asserting that Dr. Perper’s report and deposition testimony are properly admissible within the limitations on evidence. Employer filed a reply brief reiterating its contentions on appeal.
The Board’s scope of review is defined by statute. The administrative law judge’s Decision and Order must be affirmed if it is rational, supported by substantial evidence, and in accordance with applicable law. 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).
Turning first to the merits of entitlement, we address employer’s contention that the administrative law judge erred in her evaluation of the medical evidence in finding that claimant established that the miner’s death was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c).
To establish entitlement to survivor’s benefits, claimant must demonstrate by a preponderance of the evidence that the miner had pneumoconiosis arising out of coal mine employment and that his death was due to pneumoconiosis. [2] See 30 U.S.C. §901; 20 C.F.R. §§718.3, 718.202, 718.203, 718.205, 718.304; Trumbo v. Reading Anthracite Co., 17 BLR 1-85, 1-89 (1993).
For survivors’ claims filed on or after January 1, 1982, death will be considered due to pneumoconiosis if the evidence establishes that pneumoconiosis caused the miner’s death, or was a substantially contributing cause or factor leading to the miner’s death, or that death was caused by complications of pneumoconiosis. 20 C.F.R. §718.205(c)(1)-(4). Pneumoconiosis is a substantially contributing cause of a miner’s death if it hastens the miner’s death. 20 C.F.R. §718.205(c)(5); Griffith v. Director, OWCP, 49 F.3d 184, 186, 19 BLR 2-111, 2-116 (6th Cir. 1995); Brown v. Rock Creek Mining Co ., 996 F.2d 812, 817, 17 BLR 2-135, 2-140 (6th Cir. 1993). Failure to establish any one of these elements precludes entitlement. See 20 C.F.R. §718.205(a)(1)-(3); Trumbo, 17 BLR at 1-87.
Employer contends that the administrative law judge erred in crediting the opinions of Drs. Musgrave, Dennis, and Perper, over those of Drs. Fino and Rosenberg, to conclude that the miner’s death was due to pneumoconiosis. Employer’s Brief at 12-18. Employer specifically contends that the opinions of Drs. Musgrave, Dennis, and Perper do not constitute substantial evidence sufficient to support claimant’s burden of proof, and that the administrative law judge erred in discrediting the opinions of Drs. Fino and Rosenberg. Some of employer’s contentions have merit.
The evidence relevant to the cause of the miner’s death includes the death certificate prepared by Dr. Musgrave, the miner’s treating oncologist, Dr. Musgrave’s treatment records, the autopsy report by Dr. Dennis, the autopsy report by Dr. Caffrey, and the medical opinions of Drs. Perper, [3]Rosenberg, and Fino. On the death certificate, Dr. Musgrave listed the immediate cause of death as chronic lung disease, and listed aspiration pneumonia and colon cancer as conditions leading to the immediate cause. Director’s Exhibit 11. An autopsy was performed by Dr. Dennis, whose final diagnoses included moderate anthracosilicosis, panlobular and panacinar emphysema, cor pulmonale “and/or” pulmonary hypertension, and a pulmonary embolus. Director’s Exhibit 12 at 3. Dr. Dennis concluded:
This patient died as a result of cardiovascular disease and coexist[e]nt black lung disease. The pulmonary component of the disease was moderate to severe. Pulmonary hypertension was demonstrated satisfactorily by sections. Anthracosilicosis with macule formation greater than 1 to 1.5 cms and macular changes were demonstrated as well. The pulmonary embolus certainly hastened his problems and was probably secondary to the sedentary changes coexist[e]nt with his disease.
Director’s Exhibit 12 at 3. The record also contains the autopsy report of Dr. Caffrey, who reviewed Dr. Dennis’ autopsy report, the autopsy slides, and additional record evidence, and concluded that the miner’s simple pneumoconiosis did not cause or hasten his death. [4] Employer’s Exhibit 6 at 5. Dr. Perper rendered a report dated February 26, 2005, wherein he reviewed the autopsy report and slides, Dr. Caffrey’s opinion, the death certificate, and hospital and treatment records from Dr. Musgrave, together with other medical evidence developed during the miner’s lifetime. Claimant’s Exhibit 1. Dr. Perper concluded that coal workers’ pneumoconiosis was a contributing cause and a hastening factor of the miner’s death. Claimant’s Exhibit 1 at 20, 21. Dr. Perper reiterated and explained his conclusions in a deposition on July 11, 2005. Claimant’s Exhibit 2. Dr. Fino rendered a report dated April 18, 2005, and was subsequently deposed on May 2, 2005, and he opined that the miner died due to unresectable colon cancer and severe coronary artery disease, unrelated to coal mine employment. Employer’s Exhibits 4 at 9-10, 5 at 9. Finally, the record contains Dr Rosenberg’s April 6, 2005 report, and April 20, 2005 deposition testimony, in which the physician opined that the miner died due...
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