Perry v. Coals

• Decision Date: 20 November 2006
• Docket Number: No. 05-1651.,05-1651.
• Citation: 469 F.3d 360
• Parties: Martha Jane PERRY, survivor of George Perry, Petitioner, v. MYNU COALS, INCORPORATED/Hobet Mining Company; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 360

469 F.3d 360

Martha Jane PERRY, survivor of George Perry, Petitioner, v. MYNU COALS, INCORPORATED/Hobet Mining Company; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 05-1651.

United States Court of Appeals, Fourth Circuit.

Argued: January 31, 2006.

Decided: November 20, 2006.

ARGUED: Leonard Joseph Stayton, Inez, Kentucky, for Petitioner. Jeffrey Steven Goldberg, United States Department of Labor, Office of the Solicitor, Washington, D.C., for Respondent Director, Office of Workers' Compensation Programs. Christopher Michael Hunter, Jackson & Kelly, P.L.L.C., Charleston, West Virginia, for Respondent MYNU Coals, Incorporated/Hobet Mining Company. ON BRIEF: Howard M. Radzely, Solicitor of Labor, Christian P. Barber, for Appellate Litigation, United States Department Of Labor, Washington, D.C., for Respondent Director, Office of Workers' Compensation Programs. Douglas A. Smoot, Jackson & Kelly, P.L.L.C., Charleston, West Virginia, for Respondent MYNU Coals, Incorporated/Hobet Mining Company.

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

Petition for review granted; order vacated and remanded with instructions by published opinion. Judge WIDENER wrote the majority opinion, in which Judge MOTZ concurred. Judge WILLIAMS wrote a dissenting opinion.

OPINION

WIDENER, Circuit Judge.

The issue in this case is whether George Perry, petitioner Martha Jane Perry's husband died due to pneumoconiosis (Black Lung disease). The Administrative Law Judge, rejecting Mrs. Perry's evidence, held that Mr. Perry's pneumoconiosis was not proven complicated and, therefore, a statute and regulation creating an irrebuttable presumption of causation did not apply. The Benefits Review Board affirmed. Mrs. Perry questions the ALJ's reasons for rejecting the opinions of the doctors who testified that Mr. Perry had complicated pneumoconiosis that caused his death. The federal respondent, the Director of the Office of Workers' Compensation Programs, joins Mrs. Perry, at least so far as vacation and remand go, arguing specifically that the doctors' testimony was sufficient to trigger the irrebuttable presumption of causation codified in 20 C.F.R. § 718.304 and 30 U.S.C. § 921(c)(3). We grant the petition and remand for an award of benefits.

I.

A.

Our summary of the medical evidence and the ALJ's holding will benefit from a general understanding of the difference between simple and complicated pneumoconiosis.

In the explanation adopted by the ALJ, Dr. David Rosenberg, one of Mynu Coals' witnesses, summarized the difference as follows:

[S]imple coal workers' pneumoconiosis ... is where you have micronodules that are discrete and that have not come together into a conglomerate mass. The micronodules, as a B reader, you categorize the various micronodules into different categories of "p," "q" and "r," and "r" would be up to 10 millimeters in diameter. In simple CWP ... one can see that these micronodules are discrete and have not come together in a conglomerate mass.

With complicated CWP, what happens is that these individual micronodules fuse together and the body forms an immunologic reaction where tissue is destroyed within these conglomerate masses. One gets necrosis or destruction, liquefaction of tissue. One loses all structure, and it becomes a completely destroyed homogeneous mass of tissue within. And this is quite common in complicated CWP. And one sees anthracotic pigment that's dispersed throughout this necrotic mass of tissue.

[B]asically the difference between simple and complicated disease is the absence of discrete micronodules in the complicated disease as the micronodules come together.

Another of Mynu Coals' experts, Dr. Richard Naeye, was of a slightly different view. He testified that complicated pneumoconiosis is not a fusion of simple nodules, but a different etiology.

In either case, it is agreed that the size of the mass and the extent of tissue destruction are considerations. This leads us to the Supreme Court's description of the two types of pneumoconiosis, which, of course, we follow: "[s]1 pneumoconiosis ... is generally regarded by physicians as seldom productive of significant respiratory impairment" whereas "[c]omplicated pneumoconiosis, generally far more serious, involves progressive massive fibrosis [and] usually produces significant pulmonary impairment and marked respiratory disability, [which] 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) (citing Surgeon General's report). Some doctors in this case—Drs. Naeye and Rosenberg—contradicted slightly this generalization for example by testifying that simple pneumoconiosis can impair lung function, but they concurred that complicated pneumoconiosis has "increased morbidity."

With this background, we turn to the facts.

B.

George Perry worked primarily as a bulldozer operator at a strip mine, and in a few other mining positions, for 42 years. He was forced to retire in 1975 due to having failed a physical, which Mr. Perry attributed to his pneumoconiosis. In addition to his mining work, Mr. Perry smoked 1.5 to 2 packs of cigarettes per day for 35 or 40 years, though he stopped smoking at about the time he retired 30-some years ago. In 1992, Mr. Perry had a successful heart-bypass operation. At least one physician seeing Mr. Perry for a surgical follow-up in August 1992 noted a "history of coal workers pneumoconiosis," though the basis for this notation is unstated.

In late 2000, in the months before he died, Mr. Perry was taken to the hospital several times after experiencing trouble breathing. Mrs. Perry testified before the ALJ that her husband was constantly on oxygen. On January 10, 2001, Mr. Perry was again taken by ambulance to the hospital for such breathing problems. There he received oxygen for his breathing problems, but he died a few days later, on January 13. The death certificate identifies acute cardiopulmonary renal failure as the immediate cause of his death; and it lists coronary artery disease, chronic obstructive pulmonary disease (COPD), and chronic renal failure as contributing causes.

C.

Mrs. Perry filed a timely claim for survivor's benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., and its implementing regulations, 20 C.F.R. Parts 410, 718, and 727. Following a proposed decision and award of benefits by the Director, Mynu Coals objected and requested a hearing, which was granted. The record principally consists of the reports and deposition testimony of various doctors, described below.

After Mr. Perry's death, an autopsy was performed by Dr. Paul F. Mellen. Dr. Mellen is board certified in the anatomic, clinical, and forensic branches of pathology; he was at the time employed by the Charleston Area Medical Center and also served as a clinical professor of pathology at the University of West Virginia. Dr. Mellen testified that he had performed "a hundred or so" autopsies to evaluate for pneumoconiosis. Dr. Mellen's description of how he diagnosed complicated pneumoconiosis was consistent with its defining characteristics: he looked for "aggressive massive fibrosis or coal nodules," relying on whether a gross exam revealed anthracosis (blackening), scarring, and "on dissection, black nodules measuring at least . . . two centimeter[s]" in diameter. Dr. Mellen acknowledged that anthracosis does not necessarily mean fibrosis, nor are pigmentation and size sufficient; rather, "the usual gross appearance" and "significant lung fibrosis" are necessary.

Dr. Mellen's autopsy report concluded that Mr. Perry suffered from complicated pneumoconiosis in both lungs, mild COPD, and cancer in the right lung. The diagnosis of complicated pneumoconiosis rested on "marked anthracosis with advanced associated scarring of both upper lobes." This was confirmed by a gross viewing as well as microscopic. The nodules were not X-rayed. Consistent with his report, Dr. Mellen's testimony suggested, though not in so many words, that Mr. Perry's death was caused by complicated pneumoconiosis. More specifically as to the diagnosis, Dr. Mellen determined that a 4-centimeter nodule in the right lung was a mixture of pneumoconiosis and cancer, and a 6-centimeter nodule in the left lung was complicated pneumoconiosis, or as he otherwise characterized it, "coal dust with fibrosis." Dr. Mellen's conclusions were based on his gross viewing of the lungs and confirmed by microscopic slides. This was the testimony in support of Mrs. Perry.¹

Several doctors testified or issued reports contrary to Dr. Mellen's to the effect that pneumoconiosis did not cause Mr. Perry's death. Since the claim of error in this case concerns the ALJ's reasons for rejecting Dr. Mellen's conclusions, which did not rest on these doctors' views, we briefly summarize this evidence. Dr. Everett Oesterling, Jr., and Dr. Richard Naeye opined that pneumoconiosis did not contribute to the decedent's death, but that death was attributable respectively to arteriosclerosis and cancer. Dr. Oesterling found moderately severe pneumoconiosis but determined that it did not impair Mr. Perry's pulmonary function. Dr. Naeye opined that the silica crystals in Mr. Perry's lungs—at least as reflected on the slides he reviewed—were not toxic and that there was insufficient black pigmentation and necrosis for a diagnosis of complicated pneumoconiosis. Dr. David Rosenberg and Dr. W.K.C. Morgan, both board-certified specialists and B-readers, also attributed death to a cause other than pneumoconiosis, variously pulmonary edema with coronary artery disease, renal failure, and cancer. Dr. Morgan thought it significant that Mr. Perry had worked most of his career above-ground, meaning that the dust he was exposed to would not have been coal dust.²

The ALJ summarized this evidence and found Mynu...