Piney Mountain Coal Co. v. Mays

Decision Date05 May 1999
Docket NumberNo. 97-2560,97-2560
Citation176 F.3d 753
PartiesPINEY MOUNTAIN COAL COMPANY, Petitioner, v. Shirley MAYS, Widow of James R. Mays; Betty Jean Mays, Divorced spouse of James R. Mays, Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Ronald Eugene Gilbertson, Kilcullen, Wilson & Kilcullen, Chartered, Washington, D.C., for Petitioner. Martin Douglas Wegbreit, Client Centered Legal Services of Southwest Virginia, Inc., Castlewood, Virginia; Mark S. Flynn, Senior Appellate Attorney, Office of the Solicitor, United States Department of Labor, Washington, D.C., for Respondents. ON BRIEF: Bobby Belcher, Wolfe & Farmer, Norton, Virginia, for Respondent Shirley Mays. Marvin Krislov, Deputy Solicitor for National Operations, Allen H. Felman, Associate Solicitor for Special Appellate and Supreme Court Litigation, Nathaniel I. Spiller, Deputy Associate Solicitor, Office of the Solicitor, United States Department of Labor, Washington, D.C., for Respondent Director.

Before NIEMEYER and MICHAEL, Circuit Judges, and ANDERSON, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge MICHAEL wrote the opinion,in which Judge ANDERSON joined. Judge NIEMEYER wrote an opinion concurring in part and dissenting in part.

OPINION

MICHAEL, Circuit Judge:

Piney Mountain Coal Company petitions for review of an order of the Department of Labor's Benefits Review Board (BRB) affirming the decision of an administrative law judge (ALJ) to award survivor's black lung benefits to both the widow and a former spouse of James R. Mays. We affirm.

I.

James R. Mays worked in the coal mines for forty years. He died on March 17, 1991, at the age of 67; his attending physician, Dr. E. T. Tolosa, listed carcinoma of the pancreas with metastases as the cause of death. Mays's widow, Shirley Mays, and his ex-wife, Betty Jean Mays, both filed timely applications for survivor's benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. (the Act). The claims were initially denied, but the ALJ awarded benefits on August 9, 1993, after a hearing. The ALJ found that Mays had had simple pneumoconiosis arising from his four decades of coal mine employment and that pneumoconiosis had hastened his death. Pursuant to this decision the District Director issued notices directing respondent Piney Mountain Coal Company, the "responsible operator" as defined at 20 C.F.R. §§ 725.492 and 725.493, to pay full widow's benefits to both Shirley and Betty Mays. Piney Mountain then appealed the order awarding benefits, including the District Director's calculation of them, to the BRB.

After briefing and oral argument, the BRB unanimously ruled that full benefits are payable to each "widow" a miner may leave, even if there is more than one. The BRB upheld the underlying award of benefits by a split vote, ruling 2-1 that substantial evidence supported the ALJ's finding that pneumoconiosis hastened Mays's death. Mays v. Piney Mountain Coal Co., 21 BLR 1-59 (BRB 1997).

Piney Mountain has petitioned for our review.

II.
A.

The standard of review is a familiar one: we must affirm the decision of the ALJ if it is in accordance with law and is supported by substantial evidence. See 30 U.S.C. § 932 (incorporating 33 U.S.C. § 921(b)(3)); Doss v. Director, OWCP, 53 F.3d 654, 658 (4th Cir.1995); Wilson v. Benefits Review Bd., 748 F.2d 198, 199-200 (4th Cir.1984). "Substantial evidence is more than a mere scintilla, and must do more than create a suspicion of the existence of the fact to be established." NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939). Rather, in light of the whole record, it must be of sufficient quality and quantity " 'as a reasonable mind might accept as adequate to support' " the finding under review. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. of New York v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). In referring to a singular "reasonable mind," the Supreme Court has directed us to uphold decisions that rest within the realm of rationality; a reviewing court has no license to " 'set aside an inference merely because it finds the opposite conclusion more reasonable or because it questions the factual basis.' " Doss, 53 F.3d at 659 (quoting Smith v. Director, OWCP, 843 F.2d 1053, 1057 (7th Cir.1988)). 1

B.

The claims before us are subject to the permanent regulations at 20 C.F.R. Part 718. 2 Under those regulations claimants for survivor's benefits must show that the miner had "pneumoconiosis" as it is defined in the regulations, that the pneumoconiosis arose from coal mine employment, and that the miner's death was "due to" the disease. See 20 C.F.R. §§ 718.201 (definition of pneumoconiosis), 718.202 (existence of disease), 718.203 (relationship with coal mine employment), and 718.205 (survivor's claims). The claimant has the burden of proof by a preponderance of the evidence on all elements. 5 U.S.C. § 556(d); Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994).

The final element of entitlement is the only one at issue in this case. According to the regulations, a death is "due to" pneumoconiosis if the disease was the primary (§ 718.205(c)(1)) or a "substantially contributing" (§ 718.205(c)(2)) cause of death, or if the irrebuttable presumption of § 718.304 is applicable. 3

However, survivors are not eligible for benefits where the miner's death was caused by a traumatic injury or the principal cause of death was a medical condition not related to pneumoconiosis, unless the evidence establishes that pneumoconiosis was a substantially contributing cause of death.

20 C.F.R. § 718.205(c)(4).

Just what is a "substantially contributing cause?" The Director has adopted a temporal approach in interpreting the phrase. If pneumoconiosis actually serves to hasten death in any way, pneumoconiosis is a "substantially contributing cause." We have approved this interpretation, see Shuff v. Cedar Coal Co., 967 F.2d 977, 979 (4th Cir.1992), cert. denied, 506 U.S. 1050, 113 S.Ct. 969, 122 L.Ed.2d 124 (1993), and we will apply it here. 4

C.

A brief synopsis of Mays's final illness will bring the legal and factual issues into focus. Mays was admitted to Tazewell Community Hospital in Tazewell, Virginia, in February 1990. He was suffering from jaundice, and a computed tomography (CT) scan of his abdomen revealed an obstructing mass at the head of the pancreas. Upon performing a cholecystojejunostomy to bypass the obstruction, Mays's doctors discovered inoperable metastatic adenocarcinoma. He was treated with radiation and chemotherapy, but he grew progressively weaker and more jaundiced as the cancer spread through his liver. He lived just thirteen months following diagnosis. The ultimate issue before the ALJ was whether "pneumoconiosis" as defined in the Act actually hastened Mays's death, notwithstanding that he would have died eventually of cancer, and the ultimate issue before us is whether the ALJ's finding that it did is in accordance with law and supported by substantial evidence. 5

III.
A.

The primary pieces of evidence are an autopsy report, slides of lung tissue preserved from the autopsy, and the reports of consulting doctors who reviewed the slides and Mays's medical records. There is little disagreement among the doctors as to what the slides show. On the other hand, their opinions about the course of Mays's demise differ significantly.

Dr. Mario Stefanini conducted the autopsy. On gross examination, he found:

Larynx, trachea, bronchi and bronchioles contain non[-] expectorated foamy mucus mixed with debris. Pulmonary arterial tree appears grossly free. Right and left pleural cavities contain 600 and 700 ml. of turbid fluid respectively. Right and left lung[s] weigh 510 and 497 gms, respectively. Pleural surfaces show multiple blackish lines which extend within the parenchyma and numerous white subpleural nodules, 0.3 X 0.4 cms. Emphysematous bullae are noted at both apices. Serial sections show consolidation of right middle and lower lobes, with areas of increased consistency and airlessness, [and] numerous hard and blackish nodules, as large as 0.4 X 0.4 cms.

In addition, Dr. Stefanini noted "regurgitated dark debris" in Mays's esophagus and that the liver was "peppered by round, whitish nodules averaging 0.7 X 0.6 cms." The pancreas could not be evaluated because of "marked subhepatic fibrosis."

Microscopic examination of the lungs revealed numerous pathologies, many related to Mays's pancreatic cancer:

[There is] thickening of pleural surfaces; bronchi appear essentially unremarkable; there are foci of adenocarcinoma ... which are subpleural, parenchymal, perivascular and appear as tumor emboli; there is content in bronchioles of mucus secretion as well as debris[,] and surrounding confluent atelectases are numerous; ... calcified nodules are noted throughout the parenchyma; ... there are thrombi, recent, in the smallest segments of the pulmonary arterial tree and infarcts are correspondingly present; there is marked subpleural anthracosis extending into the parenchyma; there is marked peribronchiolar and perivascular anthracosis also; fibroanthracotic nodules are numerous[,] and conglomerates are occasionally present; [and] there are massive tumoral intraparenchymal metastases in areas.

Metastases were present as well in Mays's bone marrow, lymph nodes, and liver. Dr. Stefanini's "final anatomical diagnoses" included, among others, adenocarcinoma of probable pancreatic origin with metastases; failure to expectorate mucus and aspiration of debris in the airway; marantic thrombosis of the pulmonary arterial tree; chronic obstructive pulmonary disease with interstitial fibrosis and bullous...

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