Youghiogheny and Ohio Coal Co. v. Milliken

• Decision Date: 23 January 1989
• Docket Number: No. 88-3213,88-3213
• Citation: 866 F.2d 195
• Parties: The YOUGHIOGHENY AND OHIO COAL COMPANY, Petitioner, v. Evelyn MILLIKEN, widow of Harold Milliken; and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 195

866 F.2d 195

The YOUGHIOGHENY AND OHIO COAL COMPANY, Petitioner, v. Evelyn MILLIKEN, widow of Harold Milliken; and Director Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 88-3213.

United States Court of Appeals Sixth Circuit.

Argued Nov. 29, 1988.

Decided Jan. 23, 1989.

Thomas M. Hazlett (argued), Kinder, Harper, Hazlett & Hinzey, St. Clairsville, Ohio, for petitioner, Youghiogheny and Ohio Coal Co.

Evelyn Milliken (Widow of Harold Milliken), Cadiz, Ohio, respondent, pro se and Gregory Kostelac (argued), Columbus, Ohio, for Evelyn Milliken.

Karen Lynne Baker, Sylvia Kaser (argued), U.S. Dept. of Labor, Office of the Sol., Washington, D.C., for respondent Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor.

Before KENNEDY, GUY and RYAN, Circuit Judges.

RALPH B. GUY, Jr., Circuit Judge.

Youghiogheny and Ohio Coal Company (Y & O) seeks review of the order of the Benefits Review Board (Board) that reversed the order of the administrative law judge (ALJ) and awarded survivor benefits to Evelyn Milliken pursuant to the Black Lung Benefits Act (Act), 30 U.S.C. Sec. 901, et seq. On appeal, Y & O claims that the Board erred in applying the "Part B" regulations at 20 C.F.R. Sec. 410.490 to this claim. Alternatively, Y & O maintains that the Board misinterpreted section 410.490, resulting in its improper award of benefits to Milliken.

We conclude, based on a review of the record and applicable law in our circuit, that the Board did err in applying the Part B regulations to Milliken's claim and therefore reverse and reinstate the ALJ's order denying benefits.

I.

Harold Milliken worked in the coal mines for approximately forty years before leaving in 1973 due to health problems. He died two years later and his widow, Evelyn Milliken, filed a claim for surviving spouse benefits under the Act in 1975.

The ALJ considered the claim pursuant to the regulations at 20 C.F.R. Sec. 727.203. He determined that Milliken's autopsy evidence was sufficient to invoke the presumption of section 727.203(a)(1) that Milliken had pneumoconiosis arising from his coal mine employment causing his total disability and death. The medical evidence was deemed insufficient to invoke the presumption under the remaining provisions of section 727.203(a). The ALJ also found, however, that the interim presumption was rebutted under 20 C.F.R. Sec. 727.203(b)(3) based on evidence that Milliken's pneumoconiosis did not impair his lung function and could not have contributed to his disability at death or his death. Therefore, the ALJ issued an order denying benefits and Milliken's widow appealed to the Board.

The medical evidence relied on by the ALJ to invoke the presumption under section 727.203(a)(1) consisted of autopsy evidence disclosing, among other ailments, some degree of anthracosis and fibrosis. Anthracosis falls within the definition of pneumoconiosis. 20 C.F.R. Sec. 727.202. The ALJ gave Dr. Karanjawala's autopsy report greater weight than conflicting reports of other pathologists because of his board certification and opportunity to view the entire lung specimen while conducting the autopsy.

The evidence relied on to rebut the presumption consisted of Dr. Kress's review of various medical records, including those of Dr. Jerome Kleinerman. Dr. Kleinerman had reviewed four slides from Milliken's autopsy containing eight sections of living tissue before concluding that Milliken did not have pneumoconiosis. Dr. Kleinerman specifically stated that pneumoconiosis could not have been the cause of any disability, that Milliken did not suffer a disability at the time of his death due to coal mine dust exposure, and that Milliken's death was not affected in any way by dust exposure. After reviewing all of the medical reports, Dr. Kress characterized Milliken's autopsy evidence of pneumoconiosis as exceedingly mild. Dr. Kress indicated that this minimal level of pneumoconiosis could not have contributed to Milliken's death and could not have caused any impairment or disability at the time of Milliken's death. Dr. Kress noted that the autopsy report revealed that Milliken died of cardiac arrest secondary to generalized arteriosclerotic cardiovascular disease and that there was no suggestion of lung cancer until after Milliken's death. In finding Dr. Kress's opinion sufficiently persuasive under section 727.203(b)(3) to establish rebuttal, the ALJ gave minimal weight to the portion of Milliken's death certificate listing, albeit illegibly, pneumoconiosis as a contributing cause of death. The primary cause listed was heart disease.

The Board reversed the ALJ's decision after finding itself obliged, sua sponte, to consider Milliken's widow's claim pursuant to the Part B regulations at 20 C.F.R. Sec. 410.490 in light of our findings in Kyle v. Director, OWCP, 819 F.2d 139 (6th Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 566, 102 L.Ed.2d 591 (1988). Under those regulations the Board found that Milliken's widow was entitled to a presumption that Milliken's pneumoconiosis was induced by his coal mine employment, Sec. 410.416(a), because he worked in the coal mines well over the requisite ten years. Additionally, the autopsy evidence was deemed sufficient to invoke the presumption that Milliken was totally disabled by and died from pneumoconiosis. Sec. 410.490b(1)(i). Because the Board found Y & O incapable of rebutting the presumption under section 404.490(c)(1) or (2), it reversed the ALJ and awarded benefits to Milliken's widow.

Y & O now appeals the Board's decision on two grounds. First, it claims that the Board erred in applying 20 C.F.R. Part 410 to this claim. Second, Y & O argues that even if 20 C.F.R. Part 410 applies, the Board misinterpreted those regulations and, consequently, improperly awarded benefits to Milliken's widow. Y & O's position that the Board erred in applying Part 410 to this claim is supported by the Director of the Office of Workers' Compensation Programs (Director), United States Department of Labor, in its brief as the federal respondent. Milliken's widow claims that the Board's decision is correct.

II.

Before proceeding to the issues at hand, we note the limitations on our review of a decision of the Board. "The court of appeals scrutinizes Board decisions for errors of law and for adherence to the statutory standard governing the Board's review of the administrative law judge's factual determinations." Director, OWCP v. Rowe, 710 F.2d 251, 254 (6th Cir.1983) (quoting Bumble Bee Seafoods v. Director, OWCP, 629 F.2d 1327, 1329 (9th Cir.1980)); see also Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1116 (6th Cir.1984), cert. denied, 471 U.S. 1116, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985). Likewise, the Board's review of the ALJ's order is confined to reviewing the order for errors of law and ascertaining whether substantial evidence gleaned from the record as a whole supports the ALJ's factual findings. Rowe, 710 F.2d at 254.

In this instance, the Board took it upon itself to correct a perceived erroneous application of law by the ALJ. We must now determine whether the Board's action was proper.

As synopsized in Mullins Coal Co. v. Director, OWCP, 484 U.S. ----, 108 S.Ct. 427, 98 L.Ed.2d 450 (1987), the black lung benefits program evolved under several statutory enactments accompanied by different rules and regulations governing the processing of benefit claims, the application of which depended on the time the claim was filed. Claims filed before July 1, 1973, were processed by the Social Security Administration in accordance with Part 410 of the regulations established by the Secretary of the Department of Health, Education and Welfare (HEW). These claims were deemed "Part B" claims and were federally funded.

"Part C" claims encompass those filed on or after July 1, 1973, are employer funded, and are administered by the Director of Office of Workers' Compensation in accordance with regulations established by the Secretary of Labor (Secretary). Under Part C, claims filed after April 1, 1980, are evaluated in accordance with permanent criteria set forth at 20 C.F.R. Part 718 and Sec. 725.4(a). Claims filed prior to April 1, 1980, are governed by interim regulations set forth in Part 727 and established by the Secretary pursuant to 30 U.S.C. Sec. 902(f)(1). Importantly, the Secretary was directed via a 1977 amendment to 30 U.S.C. Sec. 902 that criteria established for Part C claims must be no more restrictive than criteria applicable to a claim filed on June 30, 1973, 30 U.S.C. Sec. 902(f)(2), when the Part B regulations of HEW were in effect. The pertinent statutory provisions state:

(f)(1) The term "total disability" has the meaning given it by regulations of the Secretary of Health and Human Services for claims under part B of this subchapter, and by regulations of the Secretary of Labor for claims under part C of this subchapter, subject to the relevant provisions of subsections (b) and (d) of section 923 of this title....

....

(2) Criteria applied by the Secretary of Labor in the case of--

(A) any claim which is subject to review by the Secretary of Health and Human Services, or subject to a determination by the Secretary of Labor, under section 945(a) of this title;

(B) any claim which is subject to review by the Secretary of Labor under section 945(b) of this title; and

(C) any claim filed on or before the effective date of regulations promulgated under this subsection by the Secretary of Labor;

shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973, whether or not the final disposition of any such claim occurs after the date of such promulgation of regulations by the Secretary of Labor.

30 U.S.C. Sec. 902(f)(1)-(2).

In Kyle v. Director, 819 F.2d 139 (6th Cir.1987), ¹ we determined that Kyle's claim for black lung benefits had to be considered under HEW's Part 410 regulations...