Ousley v. Director, Office of Workers' Compensation Programs

8 F. App'x 447
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 30, 2001
DocketNo. 00-3352
StatusPublished
Cited by1 cases

This text of 8 F. App'x 447 (Ousley v. Director, Office of Workers' Compensation Programs) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ousley v. Director, Office of Workers' Compensation Programs, 8 F. App'x 447 (6th Cir. 2001).

Opinion

ORDER

Rita A. Ousley (the Claimant), widow of former miner Hermal Ousley (the Miner), petitions for review of the Benefits Review Board’s decision and order denying her claim for survivor’s benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-45. The parties have waived oral argument and this panel unanimously agrees that oral argument is not needed in this case. Fed. R.App. P. 34(a).

The Claimant filed her application for benefits with the Department of Labor (DOL) on December 27,1996, following the December 11, 1996, death of her husband. The DOL denied her claim on December 18, 1997, and, following a formal hearing, an administrative law judge (ALJ) issued a decision and order denying benefits. In accordance with an earlier award of benefits to the Miner while he was alive, the ALJ found that the Miner suffered from pneumoconiosis arising out of his exposure to coal mine dust during his six years as a coal miner. However, the ALJ further found that the Miner’s death was not due to pneumoconiosis and, therefore, denied benefits. The Benefits Review Board (Board) affirmed the ALJ’s decision and order, despite the Director’s motion to remand to the ALJ for further consideration.

In her petition for review, the Claimant argues that the preponderance of the evidence establishes that the Miner’s pneumoconiosis contributed to or hastened his death from lung cancer.

This court must affirm the Board’s decision if the Board has not committed any legal error or exceeded its statutory scope of review of the ALJ’s factual determinations. Glen Coal Co. v. Seals, 147 F.3d 502, 510 (6th Cir.1998). The court reviews the ALJ’s decision only to decide whether it is supported by substantial evidence and is in accordance with the applicable law. Id.; Peabody Coal Co. v. Greer, 62 F.3d 801, 804 (6th Cir.1995). Thus, as long as the ALJ’s conclusions are supported by the evidence, they will not be reversed, “even if the facts permit an alternative conclusion.” Youghiogheny & Ohio Coal Co. v. Webb, 49 F.3d 244, 246 (6th Cir.1995). Given this limited scope of review, this court cannot substitute its own judgment for that of the ALJ where the ALJ has carefully considered each part of the evidence. Knuckles v. Director, OWCP, 869 F.2d 996, 998 (6th Cir.1989).

Because the Claimant applied for benefits after January 1, 1982, she must establish that the Miner’s death was due to pneumoconiosis. See 20 C.F.R. § 718.1(a). The criteria for determining whether a miner’s death occurred as a result of pneumoconiosis are: (1) whether competent medical evidence establishes that the miner’s death was due to pneumoconiosis; (2) whether pneumoconiosis was a substantially contributing cause or factor leading to the miner’s death, or death was caused by complications of pneumoconiosis; or (3) whether the presumption set forth in 20 C.F.R. § 718.304 is applicable to the survivor’s claim. See 20 C.F.R. § 718.205(c)(l)-(3). The presumption found in § 718.304 does not apply to this claim because there is no evidence of complicated pneumoconiosis. Survivors are not eligible for benefits where the principal cause of death is a medical condition not [449]*449related to pneumoconiosis, unless pneumoconiosis was a “substantially contributing cause” of the death. See 20 C.F.R. § 718.205(c)(4). This court has interpreted this regulatory language to encompass situations where pneumoconiosis, even if not a proximate cause of death, actually hastened a miner’s death. See Brown v. Rock Creek Mining Co., 996 F.2d 812, 816 (6th Cir.1993).

The Miner’s death certificate gave the immediate cause of death as small cell lung cancer. No underlying or other significant conditions were listed. The medical records from his last illness focused principally on the cancer, although his black lung disease was noted in several reports. Dr. Gutterman, the Miner’s oncologist, reviewed his records and submitted a letter dated April 8, 1997. In that letter, he stated that the Miner died as a result of his metastatic lung cancer and that he “[did] not believe that Mr. Ousley’s previous pulmonary disability as related to Pneumoconiosis contributed to his death.” Dr. Gutterman also stated that he did not recommend chemotherapy for the Miner

because his cancer was advanced into stage IV including involvement of the liver. The response rates in patients with this stage of lung cancer are poor with chemotherapy. There are significant side effects from chemotherapy and I thought the side effects outweighed any brief benefit he might gain from chemotherapy. His previous lung condition did not cause me to withhold chemotherapy.
Therefore, I do not think that his Pneumoconiosis contributed to his death nor to his cancer. I believe he died from his metastatic lung cancer.

Dr. Lance had been the Miner’s physician since 1990, treating him for black lung and lower back problems, and last seeing the Miner about two weeks before his cancer was diagnosed. Dr. Lance reviewed his records and submitted a letter dated July 18, 1997. He noted the Miner’s diagnosed black lung disease in addition to his small cell lung cancer with metastasis to the liver and referred to attached treatment notes which stated that, while hospitalized for cancer, “his COPD would be treated with nebulizers around the clock along with adequate doses of theophylline.” Dr. Lance continued,

I can state with medical certainty that Mr. Ousley’s death does qualify as death due to pneumoconiosis. This is 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. This is based on the fact that he had a markedly decreased respiratory reserve which was further decreased by his cancer and even further impaired due to the radiation therapy he received, which further decreased his respiratory reserve. It is with certainty that I state that his black lung condition hastened his death.

Finally, the record contains two brief consultative reports prepared by Dr. Sarah Long at the DOL’s request. Her initial report stated that she found no medical basis to establish the diagnosis of coal workers’ pneumoconiosis and that, in her opinion, pneumoconiosis did not cause, contribute to, or hasten the Miner’s death. The DOL requested another opinion from Dr. Long after pointing out that it had previously been established that the Miner did have pneumoconiosis. In her second opinion, dated October 21, 1997, Dr.

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Bluebook (online)
8 F. App'x 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ousley-v-director-office-of-workers-compensation-programs-ca6-2001.