                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2007

Lion Mining Co v. Director OWCP
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4243




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                                                   NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 05-4243


               LION MINING COMPANY;
     FIRE & CASUALTY COMPANY OF CONNECTICUT,

                                         Petitioners,

                               v.

       DARLENE A. COUTTS ( Widow of Ward J. Coutts);
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
        UNITED STATES DEPARTMENT OF LABOR,

                                         Respondents.



            On Petition for Review of an Order of the
                     Benefits Review Board
                    (BRB No. 02-BLA-0121)



           Submitted under Third Circuit LAR 34.1(a)
                       on July 11, 2006

      Before: SMITH, ALDISERT and ROTH, Circuit Judges.

                (Opinion Filed: April 17, 2007 )



                         O P I N I ON
ROTH, Circuit Judge:


       Darlene A. Coutts is the widow of Ward J. Coutts, Jr., a former coal miner. After

Mr. Coutts passed away in May 2000, Mrs. Coutts filed an application as a surviving

spouse for benefits pursuant to the black lung benefits provisions of Title IV of the Federal

Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 901 et seq. To be

eligible for benefits, a claimant must establish that the miner had pneumoconiosis which

arose out of coal mine employment, and that the miner’s death was due to

pneumoconiosis. 20 C.F.R. § 718.205(a). A miner’s death is due to pneumoconiosis if

pneumoconiosis caused the death or was a substantially contributing cause such that it

hastened the death. 20 C.F.R. § 718.205(c). Mrs. Coutts received a hearing to determine

the cause of death before an administrative law judge (ALJ), who heard testimony and

received reports regarding the cause of death from a number of medical experts. The ALJ

concluded that Mrs. Coutts was entitled to recover benefits because pneumoconiosis was a

substantial contributing cause of Mr. Coutts’s death.

       On appeal, the Benefits Review Board (“the Board”) vacated and remanded the

matter to the ALJ so that he could rule on the admissibility of a report and

photomicropgraphs prepared by the employer’s expert pathologist, Dr. Osterling. On

remand, the ALJ admitted all the proffered evidence and again found in favor of Mrs.

Coutts. The Board affirmed this determination. Petitioner files a timely petition for

review, which we will deny.

                                              2
       The Board exercised subject matter jurisdiction over Mrs. Coutt’s claim for black

lung benefits pursuant to 30 U.S.C. § 932(a), which incorporates 33 U.S.C. § 921(b),

authorizing the Board to hear and determine appeals from decisions with respect to claims

by employees. We have jurisdiction to review the Board’s determination pursuant to 33

U.S.C. § 921(c). We exercise plenary review over the Board's interpretation of law and

we also exercise plenary review to satisfy ourselves that the Board adhered to the statutory

scope of review. Barbera v. Director, Office of Workers' Compensation Programs, 245

F.3d 282, 287 (3d Cir. 2001). The Board — and, by extension, we — must accept the

ALJ's findings unless they are contrary to law, irrational or unsupported by substantial

evidence in the record as a whole. Id. Substantial evidence is defined as such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion. Soubik v.

Director, Office of Workers' Compensation Programs, 366 F.3d 226, 233 (3d Cir. 2004).

       Petitioner contends that the ALJ’s determination is unsupported by substantial

evidence because it runs contrary to the findings of its expert, Dr. Osterling. Dr. Osterling

provided testimony and reports in which he concluded that macro-nodules were absent

from Mr. Coutts’s autopsy slides; rather, what appeared to be macro-nodules were really

just micro-nodules clustered together. According to Dr. Osterling, absent macro-nodules,

pneumoconiosis could not have been a substantial contributing cause of death. Other

experts, however, opined that when micro-nodules cluster together, the micro-nodules can

have the same effect on the miner as do macro-nodules. In light of the conflicting

opinions regarding the effects of clustering, a reasonable person examining the evidence

                                              3
easily could find it adequate to support a determination that pneumoconiosis was a

substantial contributing cause of Mr. Coutts’s death.

       Accordingly, we find that the ALJ’s determination was legal, rational, and

supported by substantial evidence. The Board acted within its authority to affirm the

determination. The petition for review will be denied..




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