John A. Soubik, of the Estate of Cecilia Soubik v. Director, Office of Workers' Compensation Programs, United States Department of Labor

366 F.3d 226, 2004 U.S. App. LEXIS 8536, 2004 WL 912807
CourtCourt of Appeals for the Third Circuit
DecidedApril 30, 2004
Docket03-1668
StatusPublished
Cited by32 cases

This text of 366 F.3d 226 (John A. Soubik, of the Estate of Cecilia Soubik v. Director, Office of Workers' Compensation Programs, United States Department of Labor) 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
John A. Soubik, of the Estate of Cecilia Soubik v. Director, Office of Workers' Compensation Programs, United States Department of Labor, 366 F.3d 226, 2004 U.S. App. LEXIS 8536, 2004 WL 912807 (3d Cir. 2004).

Opinions

McKEE, Circuit Judge.

The widow of a deceased coal miner1 returns to this court to appeal the Benefits Review Board’s third denial of her claim for survivor’s benefits under the Black Lung Benefits Act (“BLBA”), 30 U.S.C. §§ 901-945. She claims that the ALJ did not properly weigh the lay and medical evidence on remand following our earlier decision, Soubik v. Office of Workers’ Compensation Programs, 181 F.3d 85, 1999 WL 529893 (3d Cir. June 25, 1999) (“Soubik I”), and that the Board should not have affirmed the AL J’s decision. For the reasons that follow, we will once again reverse and remand.

I.

After mining and hauling coal for nearly 50 years, Michael Soubik filed a claim under the BLBA in August 1980. The claim stated that Soubik could no longer work because he was short-winded and had difficulty climbing stairs. The Office of Workers’ Compensation Programs (OWCP) denied his claim in July 1981. He requested a hearing in 1982 after being notified that the denial of benefits had been reaffirmed, and a hearing was held before an ALJ in 1986. He died shortly after the hearing. Dr. Jere Wagner, one of his treating physicians, signed a death certificate that listed acute myocardial infarction as the cause of death. In 1987, an ALJ again denied his application for benefits. Although the OWCP had stipulated that Mr. Soubik suffered from coal miners’ pneumoconiosis,2 the ALJ concluded that the pneumoconio-sis had neither substantially contributed to, nor hastened, Soubik’s death as required for BLBA benefits. The BRB affirmed in 1988.

In 1986, while her husband’s claim was still being litigated, Cecilia Soubik filed her claim for survivor benefits under the BLBA. The OWCP administratively denied her claim on February 2, 1987, and Mrs. Soubik requested a hearing before an ALJ three days later. The claim was then referred to another ALJ, who found that [228]*228the only remaining question was whether pneumoconiosis substantially contributed to, or hastened, her husband’s death. However, this ALJ concluded that he was bound by the original ALJ’s determination that pneumoconiosis did not hasten Mr. Soubik’s death. Accordingly, the second ALJ denied Mrs. Soubik’s claim for surviv- or’s benefits.

In December 1989, Mrs. Soubik appealed to the BRB. It affirmed the ALJ’s decision denying her benefits in March 1991, and denied her motion to reconsider its decision in October 1991.3 Mrs. Soubik then submitted a request for modification of the BRB’s decision to OWCP,4 which denied it in April 1992.

Over five years later in 1997, OWCP granted Mrs. Soubik’s request for another hearing before an ALJ. That July, an ALJ denied Mrs. Soubik’s claim. Mrs. Soubik appealed to the BRB, but it denied her appeal on July 28, 1998. She then filed a petition for review in this court. We reversed the BRB’s affirmance of the ALJ’s decision in Soubik I and remanded the case back to the BRB.

Two years later, in June 2001, the BRB remanded the case to an ALJ for proceedings consistent with Soubik I. That ALJ again denied Mrs. Soubik benefits. The BRB affirmed and this petition for review followed.

A. Evidence before the third ALJ in 1997

The third ALJ had before him the medical opinions of three doctors as well as the lay opinions of Mr. Soubik’s friends and family. This evidence is summarized below.

1. Medical opinions

a. Dr. Karlavage

Dr. Karlavage, who was board-certified in family practice and dedicated about 40 percent of his practice to treating coal miners and former coal miners for pulmonary problems, treated Mr. Soubik from October 1985 until his death in April 1986. During that six-month period, Soubik had three office visits. In his 1986 deposition, Dr. Karlavage stated that he was aware of Soubik’s three pulmonary function tests (“PFTs”). He stated that the 1981 PFT was abnormal, the 1985 PFT was normal, and the 1986 PFT was “essentially normal” because it had some normal readings although one reading was “consistent with obstructive lung disease at 29 percent.” Dr. Karlavage also stated in his deposition that an x-ray from 1981 indicated anthra-cosilicosis and one from 1985 indicated “pneumoconiosis uncomplicated.”

Based on his examinations of Soubik, his review of Soubik’s medical and occupational history, and the medical tests he ran, Dr. Karlavage concluded that Soubik “had lung disease best described as pneumoco-niosis and I think did have coronary artery disease.” He concluded that the pneumo-coniosis was caused by Soubik’s “exposure over a several decade period ... to silica, rock, and coal dusts.” He reconciled the variable results from the three PFTs with his conclusion that Soubik’s death was substantially related to his pneumoconiosis, stating that Soubik:

[229]*229has a chest x-ray that does indicate pneumoconiosis. His physical examination revealed, in my opinion, some lung disease. There is variability among pulmonary function tests that certainly does occur.... [P]ulmonary function tests can and do change from month to month and from year to year. So, he was apparently breathing a little bit better more recently.

He also noted a contrary negative reading of one of the chest x-rays indicating that Soubik did not have pneumoconiosis. However, he explained that result by noting the “obvious discrepancies” in the doctor’s report who read the chest x-ray as normal. That doctor also claimed that the results of a PFT that was taken at the same time as this x-ray were abnormal. Dr. Karlavage also discounted the significance of the normal PFT in 1985 because the doctor who conducted that test did not account for the medication Soubik was taking and the effect it would have had on the PFT.

In February 1995, Dr. Karlavage wrote a letter to Mrs. Soubik’s attorney. It stated in relevant part:

During that time [in which I took care of Mr. Soubik], I had the opportunity to review a positive chest x-ray and an abnormal pulmonary function test. As you are aware, Mr. Soubik expired when he was 74 years old at the Shamokin Hospital. The patient’s death certificate indicates arteriosclerotic heart disease but on further inquiry, the family has discovered directly from the attending physician, that coal worker’s pneumoco-niosis was involved in his death, (sic)
In conclusion, it is my opinion, as it was before, that ... the patient’s death was substantially incurred due to coal worker’s pneumoconiosis. Indeed, he had ar-teriosclerotic heart disease and nerve block, but there is no doubt in my mind that coal worker’s pneumoconiosis weakened him, worsened his condition, and speeded his death.

b. Dr. Wagner

Dr. Wagner treated Mr. Soubik for his heart condition from May 1984 until Sou-bik’s death, and signed Soubik’s death certificate.5 Soubik’s death certificate listed his cause of death as acute myocardial infarction with complete heart block and included cardiogenic shock under “other significant conditions.” Dr. Wagner was unaware that Soubik had also been treated by Dr. Karlavage when he signed the certificate. Nine years after Soubik died, Dr. Wagner wrote a letter in response to an inquiry from Mrs. Soubik.

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366 F.3d 226, 2004 U.S. App. LEXIS 8536, 2004 WL 912807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-a-soubik-of-the-estate-of-cecilia-soubik-v-director-office-of-ca3-2004.