, Employer challenged that a finding that pneumoconiosis was progressive in this case because the miner's pulmonary function and blood gas studies, up to two and one-half years preceding his death, were within normal limits such that pneumoconiosis could not have hastened the miner's death. Employer noted that the miner was diagnosed with colon cancer, which had metastasized to his liver and lungs and which caused the miner's death. The court stated that "the tenet that pneumoconiosis is non-progressive is simply inconsistent with the ‘assumption of [disease] progressivity that underlies much of the statutory regime.'" Moreover, the court stated that, even assuming that the disease was not progressive, the absence of a "clinically significant" pulmonary impairment two and one-half years prior to the miner's death "certainly does not establish that Kramer had incurred no damage to his lung tissue and no pulmonary burden of any degree whatsoever as a result of his occupational exposure." The court further noted that "nothing in the evidence that Consolidation points to would negate the conclusion that a preexisting pulmonary burden, albeit insufficient standing alone to result in measurable loss of lung function, could nonetheless in combination with a further affront to the pulmonary system through advancing cancer have decreased to some degree the lungs' ability to continue to compensate."
3. Evidence relevant to finding pneumoconiosis
a. Anthracosis and anthracotic pigment
By unpublished decision in Taylor v. Director, OWCP, BRB No. 01-0837 BLA (July 30, 2002) (unpublished), the Board noted that a physician concluded, on autopsy, that no coal workers' pneumoconiosis was present and, yet he also stated that there was "minimal anthracosis in the mediastinal lymph nodes." As a result, the Board remanded the case to the ALJ to determine whether the legal definition of pneumoconiosis at 20 C.F.R. § 201, which includes anthracosis, was satisfied. The Board held that "anthracosis found in lymph nodes may be sufficient to establish the existence of pneumoconiosis."
Updated citation: Hapney v. Peabody Coal Co., 22 B.L.R. 1-106 (2001)(en banc).
B. Regulatory methods of establishing pneumoconiosis
3. Evidence under all sections must be weighed together
In Furgerson v. Jericol Mining, Inc., 22 B.L.R. 1-__, BRB No. 01-0728 BLA (Sept. 24, 2002)(en banc), a case arising in the Sixth Circuit, the Board declined to apply the Fourth Circuit's holding in Island Creek Coal Co. v. Compton, 211 F.3d 203 (4th Cir. 2000), which required that a determination of the presence of pneumoconiosis be based on weighing all types of evidence under 20 C.F.R. § 718.202 together. Rather, the Board noted that "the Sixth Circuit has often approved the independent application of the subsections of Section 718.202(a) to determine whether claimant has established the existence of pneumoconiosis." See also Consolidation Coal Co. v. Director, OWCP [Held], 314 F.3d 184 (4th Cir. 2002).
C. Presumptions related to the existence of pneumoconiosis
1. Complicated pneumoconiosis
Citation correction: Eastern Associated Coal Corp. v. Director, OWCP [Scarbro], 220 F.3d 250 (4th Cir. 2000).
In Braenovich v. Cannelton Industries, Inc., ___ B.L.R. ___, BRB No. 02-0365 BLA (Feb. 12, 2003), the Board upheld the ALJ's "equivalency determination" that a 1.5 centimeter lesion on autopsy would constitute a 1.0 centimeter or greater opacity on a chest x-ray, thus establishing the presence of complicated pneumoconiosis under 20 C.F.R. § 718.304. In support of the ALJ's finding, the Director argued that the autopsy prosector and a reviewing pathologist found a lesion larger than one centimeter in the miner's lungs. The Director stated that, although another reviewing pathologist, Dr. Naeye, found a 0.9 centimeter lesion on the slides, this would not "disprove the existence of a nodule larger than one centimeter in the miner's lungs." The Director noted that one of Employer's experts, Dr. Kleinerman, "acknowledged that a tissue sample shrinks by about 10 - 15% when prepared for a slide . . .." See also Hawker v. Zeigler Coal Co., ___ B.L.R. ___, BRB No. 99-0434 BLA (Aug. 23, 2000).
By unpublished decision in Keene v. G&A; Coal Co., BRB No. 96-1689 BLA-A (Sept. 27, 1996), the Board affirmed a finding of complicated pneumoconiosis under 20 C.F.R. § 718.304. It held that the ALJ properly found that a chest x-ray, in conjunction with CT-scan findings, was sufficient to find complicated pneumoconiosis. The ALJ specifically noted that physicians reviewing a CT-scan "confirm(ed) the presence of a large irregular density or mass greater than one centimeter in diameter." The Board further held that a finding of complicated pneumoconiosis need not be accompanied by findings of Category 2 or Category 3 simple pneumoconiosis, contrary to Employer's argument. The Board also found that the ALJ properly concluded that "Dr. Wheeler's opinion, that claimant's large opacity is compatible with tuberculosis, (did) not negate its compatibility with complicated pneumoconiosis."
2. Fifteen years of coal mine employment
In Freeman United Coal Mining Co. v. Summers, 272 F.3d 473 (7th Cir. 2001), the court held that the ALJ properly invoked the 15 year presumption at 30 U.S.C. § 921(c)(4) having found that the miner's work at the surface of the mine was under "conditions substantially similar to those in an underground coal mine." The ALJ found "similarity" based on the miner's un-refuted testimony about his employment conditions. The miner worked as an electrician in the mines during some of his coal mine employment but most of his work "occurred when he worked inside the offices and shops that were built above ground on the coal company's property." The court found that the miner described, in detail, the dusty conditions in his work areas and it noted the following:
Summers intermittently labored underground or in buildings located atop subterranean coal mines, performing tasks inexorably intertwined with coal production. Therefore, he is a miner, according to the regulations, and we will not require him to prove similarity in a different manner merely because he did not wield a pickaxe and a shovel while he worked.
Id.
IV. Etiology of the pneumoconiosis
In Wisniewski v. Director, OWCP, 929 F.2d 952 (3d Cir. 1991), the court held that an inference that the miner's pneumoconiosis was caused by coal dust exposure may be raised "if the record [affirmatively] indicates [that there was] no other potential dust exposure."
V. Establishing total disability
C. Methods of demonstrating total disability
4. Reasoned medical opinions
a. Burden of proof
Citation correction: The assessment of medical opinion evidence has been re-codified from former section § 718.204(c)(4) to the amended § 718.204(b)(2)(iv) (2000).
VI. Etiology of total disability
A. "Contributing cause" standard
In Scott v. Mason Coal Co., 289 F.3d 263 (4th Cir. 2002), the court held that the ALJ erroneously accorded greater weight to the opinions of Drs. Castle and Dahhan, who found that the miner's disability was not caused by coal workers' pneumoconiosis, because the physicians concluded that the miner did not suffer from the disease contrary to the ALJ's findings. Citing to Toler v. Eastern Assoc. Coal Co., 43 F.3d 109 (4th Cir. 1995) and Grigg v. Director, OWCP, 28 F.3d 416 (4th Cir. 1994), the court stated the following:
[A]n ALJ who has found (or has assumed arguendo) that a claimant suffers from pneumoconiosis and has total respiratory disability may not credit a medical opinion that the former did not cause the latter unless the ALJ can and does identify specific and persuasive reasons for concluding that the doctor's judgment on the questions of disability causation does not rest upon her disagreement with the ALJ's finding as to either or both of the predicates in the causal chain.
The fact that Drs. Dahhan and Castle stated that their opinions would not change even if the miner suffered from pneumoconiosis did not alter the court's position that the opinions could carry little weight pursuant to its holding in Toler:
Both Dr. Dahhan and Dr. Castle opined that Scott did not have legal or medical pneumoconiosis, did not diagnose any condition aggravated by coal dust, and found no symptoms related to coal dust exposure. Thus, their opinions are in direct contradiction to the ALJ's finding that Scott suffers from pneumoconiosis arising out of his coal mine employment, bringing our requirements in Toler into play. Under Toler, the ALJ could only give weight to those opinions if he provided specific and persuasive reasons for doing so, and those opinions could carry little weight, at most.
Indeed, the court found that the opinions of Drs. Dahhan and Castle could not outweigh a contrary "poorly documented" opinion linking the miner's disability to his pneumoconiosis, because the contrary opinion was based on a finding of coal workers' pneumoconiosis consistent with the ALJ's findings.
2. After applicability of December 2000 regulations
In Tennessee Consolidated Coal Co. v. Director, OWCP [Kirk], 264 F.3d 602 (6th Cir. 2001), the Sixth Circuit interpreted the amended provisions at 20 C.F.R. § 718.204(c) (2000), which provide that pneumoconiosis is a "substantially contributing cause" to the miner's total disability if it:
(ii) Materially worsens a totally disabling respiratory or pulmonary impairment which is caused by a disease or exposure unrelated to coal mine employment.
20 C.F.R. § 718.204(c) (2000). Under the facts presented to the court, Employer argued that the miner's chronic obstructive pulmonary disease "was primarily, if not entirely, a consequence of the estimated quarter-of-a-million cigarettes he had smoked." Said differently, Employer maintained that "there is no substantial evidence that Kirk's total disability, which was not caused by pneumoconiosis in 1988, had suddenly become caused by this disease in 1992." The court found that, under the amended regulatory provisions, the mere fact that Claimant's non-coal dust related respiratory disease would have left him totally disabled even without exposure to coal dust, this would not preclude entitlement to benefits. The court held that Claimant "may nonetheless possess a compensable injury if his pneumoconiosis ‘materially worsens' this condition."
By unpublished decision in Pittsburgh & Midway Coal Mining Co. v. Sanchez, 2001 WL 997947, Case No. 00-9538 (10th Cir. Aug. 31, 2001), the court declined to apply the causation standard set forth in the amended regulations at 20 C.F.R. § 718.204(c)(1) and stated, in a footnote, that "[a]s petitioners concede, . . . we apply the Mangus causation standard that was in effect when Sanchez filed for benefits in 1988."10
Survivors' Claims: Entitlement Under Part 718
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II. Standards of entitlement
D. Survivors' claims filed on or after January 1, 1982 where there is
no miner's claim or miner not found entitled to benefits as a result
of claim filed prior to January 1, 1982
2. "Hastening death" standard
a. Prior to applicability of December 2000 regulations
Citation update: Shuff v. Cedar Coal Co., 967 F.2d 977 (4th Cir. 1992), cert. denied, 113 S. Ct. 969 (1993).
Onset, Augmentation, Termination, and Interest