Youghiogheny & Ohio Coal Co. v. Milliken

866 F.2d 195, 1989 WL 3524
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 23, 1989
DocketNo. 88-3213
StatusPublished
Cited by22 cases

This text of 866 F.2d 195 (Youghiogheny & Ohio Coal Co. v. Milliken) 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
Youghiogheny & Ohio Coal Co. v. Milliken, 866 F.2d 195, 1989 WL 3524 (6th Cir. 1989).

Opinion

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. § 901, et seq. On appeal, Y & O claims that the Board erred in applying the “Part B” regulations at 20 C.F.R. § 410.490 to this claim. Alternatively, Y & O maintains that the Board misinterpreted section 410.490, re-[197]*197suiting 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 AU’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 AU considered the claim pursuant to the regulations at 20 C.F.R. § 727.203. He determined that Milliken’s autopsy evidence was sufficient to invoke the presumption of section 727.203(a)(1) that Mil-liken 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 AU also found, however, that the interim presumption was rebutted under 20 C.F.R. § 727.203(b)(3) based on evidence that Milliken’s pneumo-coniosis did not impair his lung function and could not have contributed to his disability at death or his death. Therefore, the AU issued an order denying benefits and Milliken’s widow appealed to the Board.

The medical evidence relied on by the AU 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. § 727.202. The AU 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. Kleiner-man had reviewed four slides from Milliken’s autopsy containing eight sections of living tissue before concluding that Milliken did not have pneumoconiosis. Dr. Klein-erman specifically stated that pneumoconi-osis 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 pneumoconi-osis as exceedingly mild. Dr. Kress indicated that this minimal level of pneumoco-niosis could not have contributed to Milliken’s death and could not have caused any impairment or disability at the time of Mil-liken’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 AU 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 AU’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. § 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, § 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. § 410.490b(l)(i). Because the Board found Y & O incapable of rebutting the presumption under section 404.-[198]*198490(c)(1) or (2), it reversed the AU and awarded benefits to Milliken’s widow.

Y & 0 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 & 0 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, 116 (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 AU’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 AU’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 AU. We must now determine whether the Board’s action was proper.

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Bluebook (online)
866 F.2d 195, 1989 WL 3524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/youghiogheny-ohio-coal-co-v-milliken-ca6-1989.