Hixson v. Director, OWCP

401 F. App'x 639
CourtCourt of Appeals for the Third Circuit
DecidedNovember 10, 2010
Docket08-2222
StatusUnpublished
Cited by1 cases

This text of 401 F. App'x 639 (Hixson v. Director, OWCP) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hixson v. Director, OWCP, 401 F. App'x 639 (3d Cir. 2010).

Opinion

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Betty Hixson (Hixson), widow of Dempsey Hixson (Dempsey), filed a petition for review of the Black Lung Benefits Review Board denying her claim for benefits under 30 U.S.C. § 921(a). We will deny the petition.

I.

Because we write solely for the parties, we narrate only those portions of the facts and procedural history that are necessary to our decision. The Black Lung Benefits Act (Act), 30 U.S.C. § 901 et seq., and its implementing regulations impose upon certain coal mine operators liability for the total disability or death of workers in the operators’ mines if the disability or death was caused by pneumoconiosis (a lung disease) arising out of coal mine employment. See 30 U.S.C. § 921(a); 20 C.F.R. *640 §§ 718.204 (total disability), 718.205 (death).

Dempsey Hixson, a coal miner for over 20 years, smoked cigarettes regularly for much of his life. Dempsey retired from mining in 1983, suffered various pulmonary and respiratory difficulties that increased in severity with time, and ultimately died from pneumonia in 2001.

Dempsey filed multiple applications for benefits under the Act. In his final application, after protracted proceedings before multiple Administrative Law Judges (ALJs) and the Benefits Review Board, Dempsey was ultimately found to be suffering from pneumoconiosis arising from coal mining and to be totally disabled. Nevertheless, the Board denied benefits based on a lack of proof that Dempsey’s total disability was caused by the pneumoconiosis. Dempsey filed a number of motions for modification, some of them including additional evidence. Before his last motion could be heard, Dempsey died, and Hixson added a survivor’s claim.

Because the previous medical evidence had established Dempsey’s pneumoconiosis, U.S. Steel conceded that he had suffered from the disease and that it arose out of coal mine employment, but maintained that his disability and death were not caused by it. U.S. Steel offered the expert opinion of Dr. Everett Oesterling, a board-certified clinical pathologist, who opined that Dempsey’s pneumoconiosis was too minor in nature to have caused either his disability or his death. Oesterling instead pointed to Dempsey’s cigarette smoking and asthma as the causal agents behind his pulmonary and respiratory problems. 1 The ALJ found Dr. Oesterling’s opinion to be persuasive and in accord with the weight of the medical evidence adduced in prior proceedings. Accordingly, the ALJ denied the motion for modification. Hixson appealed to the Board, which affirmed.

II.

Hixson now petitions for review of the denial of the motion for modification. 2 An order denying benefits can be modified “on grounds of a change in conditions or because of a mistake in a [previous] determination of fact.” 20 C.F.R. § 725.310(a). In reviewing an ALJ’s decision with respect to benefits: *641 Hill v. Dir., Office of Worker’s Comp. Programs, 562 F.3d 264, 268 (3d Cir.2009) (citations and some internal quotation marks omitted).

*640 [t]he Board is bound by the ALJ’s findings of fact if they are supported by substantial evidence. Our review of the Board’s decision is limited to a determination of whether an error of law has been committed and whether the Board has adhered to its scope of review.
In reviewing the Board’s decision, we must independently review the record and decide whether the ALJ’s findings are rational, consistent with applicable law and supported by substantial evidence on the record considered as a whole. Substantial evidence has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” We exercise plenary review over the ALJ’s legal conclusions that were adopted by the Board.

*641 For the reasons that follow, we will deny the petition.

Ill

Hixson first assails the Board’s affirmance of the ALJ’s conclusion that she failed to prove that Dempsey’s total disability was due to his pneumoconiosis. She does so by maintaining that U.S. Steel’s admission that Dempsey suffered from pneumoconiosis arising from his coal mine employment eliminated the requirement that she make any showing of causation.

20 C.F.R. § 718.204(c)(1) provides that, in order to establish that her husband was “totally disabled due to pneumoconiosis,” Hixson must demonstrate that the disease either had “a material adverse effect on [his] respiratory or pulmonary condition,” id. § 18.204(c)(l)(I), or “[m]aterially worsened]” some other “totally disabling respiratory or pulmonary impairment.” Hixson’s argument relies on the regulatory definition of “pneumoconiosis” found at 20 C.F.R. § 718.201, which reads:

(a) For the purpose of the Act, “pneumoconiosis” means a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment. This definition includes both medical, or “clinical”, pneumoconiosis and statutory, or “legal”, pneumoconiosis.
(b) For purposes of this section, a disease “arising out of coal mine employment” includes any chronic pulmonary disease or respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment.

Hixson maintains that the phrase “substantially aggravated by[] dust exposure in coal mine employment,” as used in this regulatory definition of pneumoconiosis, is substantively identical to § 718.204(c)(l)(i)’s causation requirement of a “materially adverse effect on the miner’s respiratory or pulmonary condition.” Under Hixson’s theory, U.S. Steel’s admission that her husband had pneumoconiosis arising out of coal mine employment absolves her from submitting further proof of causation.

The Board rejected this argument, citing multiple authorities for the proposition that causation is an element of a benefits claimant’s case distinct from the existence of pneumoconiosis. We agree. If § 718.201(b) provided that an illness can be regarded as pneumoconiosis only if it is “substantially aggravated” by such employment, Hixson’s argument might have some merit. But § 718.201(b) expressly states that a lung ailment can also

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Related

Hixson ex rel. Hixson v. Steinberg
179 L. Ed. 2d 1211 (Supreme Court, 2011)

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Bluebook (online)
401 F. App'x 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hixson-v-director-owcp-ca3-2010.