BRB No. 97-0492 BLA
CLARA SUE HUGHES )
(Widow of JAMES HUGHES) )
)
Claimant-Respondent )
)
v. )
)
CLINCHFIELD COAL COMPANY )
)
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED: 11/22/1994
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
) DECISION AND ORDER
Party-in-Interest ) EN BANC
Appeal of the Decision and Order Awarding Benefits of Edith Barnett,
Administrative Law Judge, United States Department of Labor.
Vincent J. Carroll, Richlands, Virginia, for claimant.
Timothy W. Gresham (Penn, Stuart, & Eskridge), Abingdon, Virginia, for
employer.
Jill M. Otte (Henry L. Solano, Solicitor of Labor; Donald S. Shire,
Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
Richard A. Seid and Michael J. Rutledge, Counsel for Administrative
Litigation and Legal Advice), Washington, D.C., for the Director, Office
of Workers' Compensation Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH, BROWN and
McGRANERY, Administrative Appeals Judges, and NELSON, Acting
Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order (95-BLA-0635) of Administrative Law
Judge Edith Barnett awarding benefits on a survivor's claim filed pursuant to the
provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as
amended, 30 U.S.C. §901 et seq. (the Act). The administrative law judge
determined that because Administrative Law Judge Giles J. McCarthy previously found
the existence of pneumoconiosis arising out of coal mine employment established
pursuant to 20 C.F.R. §§718.202(a)(4) and 718.203(b) in the living
miner's claim, employer and the Director, Office of Workers' Compensation Programs
(the Director), were collaterally estopped from relitigating these issues in the
survivor's claim. The administrative law judge additionally found that new
evidence developed in support of the survivor's claim fully supported
Administrative Law Judge McCarthy's finding of occupational pneumoconiosis pursuant
to Section 718.202(a)(4), and that claimant[1]
established that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R.
§718.205(c). Accordingly, benefits were awarded.
On appeal, employer challenges the administrative law judge's invocation of
the doctrine of collateral estoppel, and her weighing of the evidence on the issues
of the existence of pneumoconiosis pursuant to Section 718.202(a)(1)-(4) and death
due to pneumoconiosis pursuant to Section 718.205(c). Claimant responds, urging
affirmance. The Director has filed a limited response, agreeing with employer's
argument that the doctrine of collateral estoppel is inapplicable under the facts
of this case. Pursuant to the Board's Order dated May 6, 1998, oral argument was
held in this case on June 18, 1998, in Charleston, West Virginia.
The Board's scope of review is defined by statute. If the administrative law
judge's findings of fact and conclusions of law are supported by substantial
evidence, are rational, and are consistent with applicable law, they are binding
upon this Board and may not be disturbed. 33 U.S.C. §921(b)(3), as
incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965).
Employer and the Director initially contend that the administrative law judge
erred in finding that all of the criteria for application of the doctrine of
collateral estoppel were met so as to preclude them from relitigating the issue of
occupational pneumoconiosis in the survivor's claim. Employer and the Director
note that benefits were ultimately denied in the miner's claim for failure to
establish total respiratory disability pursuant to 20 C.F.R. §718.204(c)(1)-(4), and they assert that principles of judicial economy would be violated by
requiring a party to appeal or seek modification in order to challenge adverse
findings within a favorable judgment. Additionally, autopsy evidence introduced
into the record in the survivor's claim, which is generally considered to be the
most precise method of establishing the presence or absence of pneumoconiosis,
see Terlip v. Director, OWCP, 8 BLR 1-363 (1985), could not have been
adduced at the time of adjudication of the miner's claim. The arguments of
employer and the Director have merit.
Collateral estoppel forecloses "the relitigation of issues of fact or law
that are identical to issues which have been actually determined and necessarily
decided in prior litigation in which the party against whom [issue preclusion] is
asserted had a full and fair opportunity to litigate." Ramsay v. INS, 14
F.3d 206 (4th Cir. 1994); see Virginia Hosp. Ass'n v. Baliles, 830 F.2d 1308
(4th Cir. 1987). For collateral estoppel to apply in the present case, which
arises within the jurisdiction of the United States Court of Appeals for the Fourth
Circuit, claimant must establish that:
(1) the issue sought to be precluded is identical to one
previously litigated;
(2) the issue was actually determined in the prior proceeding;
(3) the issue was a critical and necessary part of the judgment in
the prior proceeding;
(4) the prior judgment is final and valid; and
(5) the party against whom estoppel is asserted had a full and
fair opportunity to litigate the issue in the previous forum.
See Sedlack v. Braswell Services Group, Inc., 134 F.3d 219 (4th Cir. 1998);
Sandberg v. Virginia Bankshares, Inc., 979 F.2d 332 (4th Cir. 1992);
Ramsey, supra. Inasmuch as benefits were ultimately denied in the miner's
claim, we agree with the arguments of employer and the Director that the third
element has not been satisfied.[2]
"A factual issue is necessarily decided' for issue preclusion purposes if its
determination was necessary to support the judgment entered in the prior
proceeding." N.L.R.B v. Master Slack and/or Master Trousers, 773 F.2d 77,
81 (6th Cir. 1985); see Montana v. United States, 440 U.S. 147, 153
(1979); Parklane Hosiery Co. v. Shore, 439 U.S. 332, 326 (1979). The
requirement that an issue be necessary to a judgment "prevent[s] the incidental or
collateral determination of a nonessential issue from precluding reconsideration
of that issue in later litigation." Sandberg, 979 F.2d at 346, citing
Mother's Restaurant, Inc. v. Mama's Pizza, Inc., 723 F.2d 1566, 1571
(Fed.Cir. 1983). While claimant correctly notes that the existence of occupational
pneumoconiosis is an essential element of entitlement in a living miner's claim,
the establishment of that element does not support, and thus is not "essential" to,
a judgment denying benefits. See generally Levine v. McLeskey, 164 F.3d 210
(4th Cir. 1998); Fletcher v. Atex, Inc., 68 F.3d 1451, 1457-1458 (2d Cir.
1995); Myer v. Rigdon, 36 F.3d 1375, 1379 (7th Cir. 1994);
McDuffie v. Estelle, 935 F.2d 682, 685 (5th Cir. 1991); Ritter v. Mount
St. Mary's College, 814 F.2d 986, 994 (4th Cir. 1987), reh'g denied (May
28, 1987); Detroit Police Officers Ass'n v. Young, 824 F.2d 512, 515 (6th
Cir. 1987); S.E.L. Maduro v. M/V Antonio De Gastaneta, 833 F.2d 1477, 1483
(11th Cir. 1987); N.L.R.B. v. Babad, 785 F.2d 46, 49 n. 4 (2d Cir. 1986,
cert. denied, 479 U.S. 830 (1986); Balcom v. Lynn Ladder & Scaffolding
Co., 806 F.2d 1127 (1st Cir. 1986); Restatement (Second) of Judgments
§27 cmt. h (1982); 18 Wright, Miller & Cooper, Federal Practice and
Procedure §4421 (1981). Consequently, under the facts of this case, we
reverse the administrative law judge's finding that employer is collaterally
estopped from relitigating the issue of occupational pneumoconiosis. Claimant must
therefore establish the existence of pneumoconiosis arising out of coal mine
employment pursuant to Sections 718.202(a)(1)-(4), 718.203(b), by a preponderance
of the evidence.
Turning to the merits, in order to be entitled to benefits in a survivor's
claim filed on or after January 1, 1982, claimant must establish that the miner's
death was due to pneumoconiosis, or that pneumoconiosis was a substantially
contributing cause or factor leading to the miner's death, or that death was caused
by complications of pneumoconiosis, and that the miner had pneumoconiosis which
arose out of coal mine employment. See 20 C.F.R. §§718.205(c),
718.202(a), 718.203; Shuff v. Cedar Coal Co., 967 F.2d 977, 16 BLR 2-90 (4th
Cir. 1992), cert. denied, 113 S.Ct. 969 (1993); Trumbo v. Reading
Anthracite Co., 17 BLR 1-85 (1993); Neeley v. Director, OWCP, 11 BLR 1-85 (1988); Boyd v. Director, OWCP, 11 BLR 1-39 (1988).
Employer accurately maintains that the administrative law judge failed to
evaluate all relevant evidence under each subsection at Section 718.202(a), but
merely found that the weight of the new evidence in the survivor's claim fully
supported Judge McCarthy's prior finding of pneumoconiosis based on medical opinion
evidence. Employer further argues that the administrative law judge selectively
analyzed the evidence and may have misallocated the burden of proof. Employer's
arguments have merit. In evaluating the conflicting medical opinions, the
administrative law judge appeared to consider any diagnosis of a pulmonary
impairment which could fall within the regulatory definition of pneumoconiosis at
20 C.F.R. §718.201 as evidence supportive of claimant's burden. See
Decision and Order at 18-19. The administrative law judge noted that although the
autopsy prosector, Dr. Stefanini, "may have ruled out coal workers' pneumoconiosis
because he did not observe maculae or nodules, he did not specifically so state,"
and the administrative law judge concluded that other findings on autopsy were
consistent with the broad statutory definition of the disease. Decision and Order
at 18; Director's Exhibit 8. Inasmuch as Dr. Stefanini did not link any diagnosed
condition with dust exposure in coal mine employment, however, his report does not
satisfy claimant's burden of establishing the existence of pneumoconiosis.[3] See generally Nance v. Benefits Review
Board, 861 F.2d 68, 12 BLR 1-31 (4th Cir. 1988); McGinnis v. Freeman United
Coal Mining Co., 10 BLR 1-4 (1987); Perry v. Director, OWCP, 9 BLR 1-1
(1986). Similarly, the administrative law judge gave limited weight to the
opinions of Drs. Naeye, Hansbarger, Tomashefski, Caffrey and Branscomb, that the
miner did not have pneumoconiosis, after determining that they diagnosed emphysema
and/or chronic bronchitis, which fall within the regulatory definition of
pneumoconiosis if related to dust exposure in coal mine employment. The
administrative law judge discounted the reasons provided by Drs. Naeye,
Tomashefski, Hansbarger and Caffrey for ruling out a connection between the
diagnosed conditions and dust exposure in coal mine employment as unsupported by
any authority and/or inadequately explained. Decision and Order at 18-19.
Employer maintains, however, that the physicians' conclusions were based on their
medical training as reflected in their qualifications, and employer correctly
asserts that the administrative law judge did not subject the contrary opinions of
Drs. Rupke and Jones, that the miner had pneumoconiosis, to the same scrutiny. The
administrative law judge also discounted Dr. Branscomb's opinion, that the miner
had no disease caused or exacerbated by coal mine employment, because she concluded
that Dr. Branscomb interpreted the definition of pneumoconiosis too narrowly, as
evidenced by his statement that anthracosis is not a disease, which she found
contrary to the regulatory definition of pneumoconiosis at Section 718.201.
Decision and Order at 19. The administrative law judge, however, took Dr.
Branscomb's statement out of context. A review of Dr. Branscomb's report in its
entirety reveals that the physician merely provided his personal definition of
anthracosis, which he equated with anthracotic pigmentation, during his explanation
of the significance of Dr. Stefanini's finding of "anthracotic dusting of lungs"
among the final anatomical diagnoses in the autopsy report. See Employer's
Exhibit 2 at 5. Dr. Stefanini's autopsy report itself does not include any finding
of "anthracosis," Director's Exhibit 8, and the terms "anthracotic pigmentation"
and "anthracotic dusting" are not included within the definition of pneumoconiosis
at Section 718.201. Inasmuch as the administrative law judge's finding that the
doctrine of collateral estoppel was applicable may have affected her weighing of
the evidence, and in view of her uncritical acceptance of the opinions of Drs.
Rupke and Jones in contrast with her treatment of the contrary opinions, we vacate
the administrative law judge's findings pursuant to Section 718.202(a), and remand
this case for consideration and reevaluation of all relevant evidence under each
subsection thereof. See generally Sterling Smokeless Co. v. Akers, 131 F.3d
438, 21 BLR 2-269 (4th Cir. 1997).
Lastly, employer challenges the administrative law judge's weighing of the
evidence at Section 718.205(c). In finding that pneumoconiosis was a substantially
contributing cause of the miner's death, notwithstanding his lung cancer, the
administrative law judge gave particular weight to the opinion of the autopsy
prosector, which she determined attributed the miner's death to "acute
bronchopneumonia due to a long standing and steadily worsening inability of
expectorating respiratory secretions associated with severe obstructive pulmonary
disease," a diagnosis "fully compatible with a finding of pneumoconiosis under the
Act." Decision and Order at 21. Again, however, because Dr. Stefanini did not
affirmatively link any of the miner's pulmonary conditions to dust exposure in coal
mine employment, see Director's Exhibit 8, his opinion is insufficient to
establish death due to pneumoconiosis pursuant to Section 718.205(c).
Additionally, because the administrative law judge gave limited weight to the
opinions of Drs. Naeye, Tomashefski, Caffrey, Hansbarger and Branscomb on the
ground that they did not diagnose pneumoconiosis, and her findings pursuant to
Section 718.202 have been vacated, we also vacate her findings at Section
718.205(c) for reevaluation of all relevant evidence thereunder on remand.
Accordingly, the Decision and Order of the administrative law judge awarding
benefits on the survivor's claim is vacated, and this case is remanded for further
consideration consistent with this opinion.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
Deskbook Sections: Part X.A - Introduction (above case listings on pg. A6-305
and under digests on pg. A6-306 before B - Derivative Entitlement)
& also
Part X.I - Survivors' Claims Under 20 C.F.R. Parts 410 and 718 (above case listings
on pg. A6-328 and under digest on pg. A6-329)
1. In a survivor's claim, the doctrine of collateral estoppel is not applicable
to preclude employer or the Director from relitigating the issue of
occupational pneumoconiosis previously established in the living miner's
claim if benefits were ultimately denied in the miner's claim, because the
issue was not necessary to the judgment. Additionally, where a survivor's
claim includes autopsy evidence which was not available and could not have
been adduced at the time of adjudication of the miner's claim, an exception
to application of the doctrine of collateral estoppel may be warranted to
allow relitigation of the issue of occupational pneumoconiosis. Hughes
v. Clinchfield Coal Co., 21 BLR 1-134 (1999)(en banc).
2. To Top of Document
3. Footnotes.
4.
1) Claimant is Clara Sue Hughes, the widow of the deceased miner, James Hughes, who
died on September 30, 1993. Claimant filed a survivor's claim for benefits herein on December 1, 1993.
Director's Exhibit 1.
Back to Text
2) Under the facts of this case, the fifth element is also implicated. Although newly discovered
evidence is generally not accepted as a sufficient ground to preclude the doctrine of collateral estoppel, an exception may
be warranted when the evidence was either fraudulently concealed or could not have been discovered previously with
due diligence. See Guerrero v. Katzen, 774 F.2d 506 (D.C. Cir. 1985); Constantini v. Trans World
Airlines, 681 F.2d 1199 (9th Cir. 1982), cert. denied, 459 U.S. 1087 (1982); Saud v. Bank of
New York, 929 F.2d 916 (2d Cir. 1991). In cases such as this, where autopsy evidence was not available and
could not have been adduced at the time of adjudication of the miner's claim, fairness considerations may warrant such
an exception to allow relitigation of the issue of the existence of pneumoconiosis in the survivor's claim. See
generally Island Creek Coal Co. v. Alexander, No. 88-3863, slip op. at 2-3 (6th Cir. Aug. 29, 1989)(unpub.),
aff'g Alexander v. Island Creek Coal Co., 12 BLR 1-44 (1988).
Back to Text
3) The administrative law judge additionally determined that Drs. Naeye and Jones diagnosed
cor pulmonale, an established indicator of the existence of pneumoconiosis. Decision and Order at 18. While Dr. Jones
affirmatively diagnosed pneumoconiosis, Claimant's Exhibit 1, Dr. Naeye did not attribute the miner's cor pulmonale
to dust exposure in coal mine employment, Director's Exhibit 9.
Back to Text
NOTE: This is a PUBLISHED BLA Document.
To Top of Document
|
