Pittsburg & Midway Coal Mining v. Director, Owcp

• Decision Date: 28 November 2007
• Docket Number: No. 06-15141.,06-15141.
• Citation: 508 F.3d 975
• Parties: THE PITTSBURG & MIDWAY COAL MINING CO., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

508 F.3d 975

THE PITTSBURG & MIDWAY COAL MINING CO., Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.

No. 06-15141.

United States Court of Appeals, Eleventh Circuit.

November 28, 2007.

John William Hargrove, Bradley, Arant, Rose & White, Birmingham, AL, for Petitioner.

Helen H. Cox, Patricia M. Nece, U.S. Dept. of Labor, Washington, DC, Jonathan Coleman Sapp, The Sapp Law Firm, LLC, Jasper, AL, for Respondents.

Petition for Review of a Decision of the Benefits Review Board.

Before MARCUS and PRYOR, Circuit Judges, and LAND,^* District Judge.

MARCUS, Circuit Judge:

The Pittsburg & Midway Coal Mining Company ("P & M") petitions for review of a decision of the Benefits Review Board affirming an administrative law judge's award of survivor's benefits under the Black Lung Benefits Act (the "BLBA" or the "Act"), 30 U.S.C. §§ 901-945. The central issue on appeal is whether the claimant, Dorothy Cornelius, established that her husband's death was "due to" pneumoconiosis as required by the Act. After thorough review, we conclude that substantial evidence supports the administrative law judge's conclusion that, under § 411(c)(3) of the Act and its implementing regulation, 20 C.F.R. § 718.304, Ms. Cornelius was entitled to an irrebuttable presumption that her husband's death was "due to" pneumoconiosis, and we therefore deny the petition for review.

I.

A.

An understanding of the relevant statutory and regulatory framework as well as the basic facts is essential to deciding this case. The Black Lung Benefits Act provides benefits "to coal miners who are totally disabled due to pneumoconiosis and to the surviving dependents of miners whose death was due to such disease. . . ." 30 U.S.C. § 901(a). The Act delegates to the Secretary of Labor ("Secretary") the task of prescribing standards for determining whether a miner's total disability or death is "due to" pneumoconiosis, id. § 921(b), subject to several statutorily-created evidentiary presumptions. The most important of these presumptions is contained in § 411(c)(3) of the Act, which provides that "there shall be an irrebuttable presumption that [the miner] is totally disabled due to pneumoconiosis or that [the miner's] death was due to pneumoconiosis" if the

miner is suffering or suffered from a chronic dust disease of the lung which (A) when diagnosed by chest roentgenogram, yields one or more large opacities (greater than one centimeter in diameter) and would be classified in category A, B, or C in the International Classification of Radiographs of the Pneumoconioses by the International Labor Organization, (B) when diagnosed by biopsy or autopsy, yields massive lesions in the lung, or (C) when diagnosis is made by other means, would be a condition which could reasonably be expected to yield results described in clause (A) or (B) if diagnosis had been made in the manner prescribed in clause (A) or (B) . . . .

30 U.S.C. § 921(c)(3).

The Secretary has, in turn, incorporated Section 411(c)(3)'s "irrebuttable presumption" into the black lung regulations at 20 C.F.R. § 718.304.¹ The Secretary has incorporated § 718.304 into 20 C.F.R. § 718.205(c), the general regulation establishing standards for determining whether a miner's death is "due to" pneumoconiosis. Section 718.205(c) provides in pertinent part:

[D]eath will be considered to be due to pneumoconiosis if any of the following criteria is met:

(1) Where competent medical evidence establishes that pneumoconiosis was the cause of the miner's death, or (2) Where pneumoconiosis was a substantially contributing cause or factor leading to the miner's death or where the death was caused by complications of pneumoconiosis, or

(3) Where the presumption set forth at § 718.304 is applicable.

(4) 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.

B.

This case arises from the death of Clyde Cornelius, a retired coal miner. Mr. Cornelius worked in coal mines for approximately twenty-five years, ending in 1987. He died in 1999 at the age of 74. His death certificate listed congestive heart failure as the immediate cause of death and anemia as a contributing cause of death; pneumoconiosis was not mentioned.²

Following Mr. Cornelius's death, his widow, Dorothy Cornelius, filed a claim for survivor's benefits under the Act. After identifying P & M as the responsible employer, the Department of Labor ("DOL") adjudication officer issued a proposed decision and order finding that Ms. Cornelius was entitled to benefits under the Act. P & M contested the proposed decision and requested a formal hearing before an administrative law judge ("ALJ").

At the formal hearing conducted by the ALJ, Ms. Cornelius relied on the autopsy report and deposition testimony of Dr. Mary Louise Guerry-Force, the board-certified pathologist who performed an autopsy of Mr. Cornelius's lungs. According to the autopsy report, Dr. Guerry-Force's gross examination revealed the following:

The pleural surfaces reveal moderate subpleural anthracotic type pigment deposition bilaterally. Multiple grey black subpleural nodules measuring from 0.1 up to 0.3 cm are noted throughout all of the lobes. In addition, the right upper lobe reveals multiple, irregular, gray black areas of induration measuring up to 1.2 cm.

(DX 11, Autopsy Report at 2).³ The autopsy report also stated that on microscopic examination Dr. Guerry-Force found that

[s]ections of the lungs demonstrate a focally thickened pleura with moderate subpleural anthracotic type pigment deposition. Multiple scattered fibroanthracotic nodules measuring up to 1.2 cm are seen. The nodular lesions consist of dense collagen and granular pigment; many are stellate in appearance. Their distribution is widespread: pleural based; interstitial; perivascular; and adjacent to the walls of respiratory bronchioles. These microscopic features are consistent with a complicated pneumoconiosis, as defined by the Black Lung Program Guidelines (U.S. Department of Labor — 8/92).

(Id.). In a section titled "Final Anatomical Diagnoses," the autopsy report listed, among other things, "[f]ibroanthracotic nodules (bilateral lungs) measuring up to 1.2 cm, compatible with complicated pneumoconiosis, as defined by the Black Lung Program Guidelines (U.S. Department of Labor — 8/92)." (Id. at 3).

During her deposition, Dr. Guerry-Force said that the "Black Lung Program Guidelines" she referred to in her autopsy report had been sent to her by the DOL's Employment Standards Administration during her evaluation of an earlier black lung case. The guidelines, which are contained in a letter dated August 11, 1992 from the Employment Standards Administration to Dr. Guerry-Force, state in pertinent part

The presence of complicated pneumoconiosis is established if:

1. The gross examination of the cut lung revealed a marked degree of simple pneumoconiosis and progressive massive fibrosis (massive lesions of the lung or large, dense fibrous masses) was present; and

2. The microscopic examination revealed fibrotic mass or masses composed of carbon deposits and interlaced by bundles of dense fibrous tissues.

(DX 11 at 2). Dr. Guerry-Force explained that her autopsy findings satisfied the guidelines' requirements for "complicated pneumoconiosis because of the size and extent of the nodules present." (DX 11, Guerry-Force Dep. at 10). Specifically, her gross examination

revealed a marked degree of simple pneumoconiosis and . . . larger areas of fibrosis that were one centimeter or greater in dimension, and that correlates with the ILO pulmonary lung classification for complicated, the larger nodules . . . . the microscopic examination also had the fibrotic masses.

(Id. at 11). Finally, Dr. Guerry-Force also averred that pathologists are best able to make a diagnosis of complicated pneumoconiosis when they perform both a gross and microscopic examination because "the things you see grossly are not . . . necessarily in toto represented on the slides . . . ." (Id. at 13). In other words, a gross examination allows a pathologist to "get an impression of the disease of the lung in toto . . . that one may not fully appreciate from the microscopic." (Id. at 15).

To counter Dr. Guerry-Force's opinion, P & M relied on the expert report of Dr. P. Raphael Caffrey and the expert report and testimony of Dr. Ben V. Branscomb. Because he did not perform the autopsy, Dr. Caffrey's opinion was limited to reviewing the autopsy slides prepared by Dr. Guerry-Force. Dr. Caffrey reported that the largest nodule he could find on the slides was 0.9 centimeters, and he, accordingly, concluded that Mr. Cornelius did not have complicated pneumoconiosis even under the standard applied by Dr. Guerry-Force. Dr. Branscomb agreed with Dr. Caffrey, opining that Mr. Cornelius had only simple, not complicated, pneumoconiosis. He also testified that the term "massive lesions" usually refers to complicated pneumoconiosis, and that "massive lesions" are generally the "size of a chicken egg," "the size of one-third of one lung," or "the size of a tennis ball." (Hearing Tr. at 40). Finally, Dr. Branscomb acknowledged that autopsy is more effective "by far" than x-rays for diagnosing coal workers' pneumoconiosis. (Id. at 44).

Based on Dr. Guerry-Force's opinion, the ALJ concluded that Ms. Cornelius was entitled to the irrebuttable presumption of causation provided in § 718.304, and, accordingly, awarded her benefits. See Cornelius v. Pittsburgh & Midway Coal Mining Co., 2003-BLA-5015, slip. op. at 13 (Sept. 29, 2003). The Benefits Review Board ("BRB") vacated that decision and remanded the case for further consideration, because the ALJ had not explained which...