                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-14-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3752




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                                                   NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                             __________

                            NO. 01-3752
                             __________

                    THE FLORENCE MINING COMPANY,
                                                        Petitioner

                                   v.

               MARY MACHAK (Widow of Albert Machak);
                    DIRECTOR, OFFICE OF WORKERS’
                       COMPENSATION PROGRAMS,
                 UNITED STATES DEPARTMENT OF LABOR,
                                                              Respondents
                               __________

              On Appeal from the Benefits Review Board
                      U.S. Department of Labor
                          BRB #00-0610BLA
                             __________

                       Argued April 22, 2002
    Before:    SCIRICA, RENDELL and NOONAN*, Circuit Judges,

                      (Filed     June 14, 2002)
                               __________

                                  George H. Thompson, Esq.
                                  Gregory J. Fischer, Esq.    [ARGUED]
                                  Thompson, Calkins & Sutter
                                  437 Grant Street, Suite 510
                                  Pittsburgh, PA 15219
                                    Counsel for Petitioner
____________________

*Honorable John T. Noonan, Jr., Circuit Judge of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
                              Blair V. Pawlowski, Esq.
                              Heath M. Long, Esq.
                              Pawlowski, Bilonick & Long
                              603 North Julian Street
                              P.O. Box 658
                              Ebensburg, PA 15931

                                  Margarete E. Pawlowski, Esq.     [ARGUED]
                                  1515 Arch Street, 15th Floor
                                  Philadelphia, PA 19102
                                    Counsel for Respondent Mary Machak,
                                    (Widow of Albert Machak)

                                  Helen H. Cox, Esq.
                                  Christian P. Barber, Esq.
                                  United States Department of Labor
                                  Office of the Solicitor
                                  200 Constitution Avenue, N.W.
                             Suite N-2117
                             Washington, DC 20210
                               Counsel for Respondent Director,
                               Office of Workers’ Compensation Programs
                          __________

                     OPINION OF THE COURT
                          __________

RENDELL, Circuit Judge.
     Petitioner, The Florence Mining Co., complains of the Benefits Review Board’s
award in favor of deceased coal miner Albert Machak’s widow, Mary Machak. Petitioner
contends that the Administrative Law Judge ("ALJ") failed to comply with the directives
of the Benefits Review Board’s remand order and that the ALJ also erred by relying on
opinions by certain of the doctors, but not others.
     As this claim arises under the Federal Coal Mine Health and Safety Act, 30 U.S.C.
 901 et seq, we have jurisdiction pursuant to 21(c) of the Longshore and Harbor
Worker’s Compensation Act, 33 U.S.C. 921(c), as incorporated by 422(a) of the
Federal Coal Mine Health and Safety Act, 30 U.S.C. 932(a).
     We review the Benefits Review Board’s decision for legal errors and adherence to
its statutory scope of review. Nelson v. American Dredging Co., 143 F.3d 789, 792 (3d
Cir. 1998). We review the Benefits Review Board’s factual findings for substantial
evidence by conducting an independent review of the record. Id. at 793. Substantial
evidence is "such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations
omitted).
     A brief review of the facts is in order. Albert Machak was employed in the coal
mining industry for 46 years. He retired from the mines in 1983 and died in 1996, having
been diagnosed with cancer just prior to his death. He had smoked five cigarettes per day
for 15 years, but had stopped smoking 30 years before his death. It was uncontroverted
that Machak died of pulmonary thromboembolism. An autopsy was performed by
Dr. Waheeb Rizkalla, who diagnosed Machak as well with simple coal worker’s
pneumoconiosis, focal dust emphysema, metastatic adenocarcinoma, atherosclerotic
coronary artery disease, right ventricular hypertrophy (cor pulmonale), and a history of
pancreatic adenocarcinoma. Rizkalla testified that the coal worker’s pneumoconiosis was
a contributing cause of Machak’s death. Reports or depositions of other physicians (Drs.
Perper, Schaaf, Mittal, Fino, Sinnenberg, Oesterling) were also submitted by the parties.
     A hearing was held before the ALJ in March 1998. Relying on the opinions of
Drs. Rizkalla, Mittal and Schaaf, and rejecting the opinions of Drs. Perper, Fino,
Sinnenberg, and Oesterling, the ALJ determined that the death was caused by, contributed
to, or hastened by the coal worker’s pneumoconiosis, meeting the standards set forth at
20 C.F.R. 718.205 and our decision in Lukosevic v. Director, Office of Workers’
Compensation Programs, 888 F.2d 1001, 1006 (3d Cir. 1989). The petitioner filed an
appeal, and the Benefits Review Board remanded the case to the ALJ for reconsideration
of the relevant medical evidence of record. On remand the ALJ, again relying on the
same medical opinions as before, issued a decision awarding benefits, and on appeal to
the Benefits Review Board, this ruling was affirmed. A dissenting opinion was issued by
Administrative Appeals Judge Regina C. McGranary.
     Petitioner challenges the ALJ’s compliance with the initial remand order of the
Benefits Review Board. That order took issue with the ALJ’s having accorded greater
weight to the opinion of the autopsy prosector than to the opinions of others who did not
have the benefit of examining the miner’s lungs. The matter was remanded so that the
ALJ could reconsider the relevant medical opinion evidence without affording weight
depending upon whether the doctors saw the decedent’s lungs, the slides, or neither. On
remand, the ALJ specifically reviewed the opinion of each doctor without considering
this aspect. In the process, the ALJ continued to find Dr. Rizkalla’s opinion to be entitled
to greater weight:
          First, Dr. Rizkalla’s opinion is well reasoned and well-documented.
          Clark v. Karst-Robbins Coal Co., 12 B.L.R. 1-149 (1989) (en banc).
          Specifically, Dr. Rizkalla not only conducted the autopsy, but also
          conducted a thorough record review, taking into consideration the
          Miner’s extensive coal mining history and pneumoconiosis as well as
          his many other medical problems which ultimately contributed to his
          death.

The ALJ also credited the opinions of Drs. Schaaf and Mittal, while at the same time
stating failings he found in the opinions of Drs. Fino, Sinnenberg, and Perper. The ALJ
had found Oesterling’s opinion to be well-reasoned and well documented, and entitled to
greater weight, although Oesterling found that the pneumoconiosis was not severe enough
to have caused the miner’s death.   After explaining why he accepted, or did not accept,
these opinions, he weighed the relevant medical opinion evidence and found "by a
preponderance of the evidence that the miner’s death was caused, contributed to, or
hastened by pneumoconiosis." As we noted above, the Benefits Review Board affirmed.
     Examining the relevant opinions, it is clear that the ALJ did in fact re-weigh the
medical opinion evidence, as ordered by the Benefits Review Board. That the ALJ
complied with that order is further borne out by the Benefits Review Board’s affirmance
of the ALJ’s opinion.
     In affirming the ALJ, the Benefits Review Board noted:
          We affirm the Administrative Law Judge’s determination to credit
          the opinion of Drs. Rizkalla, Schaaf, and Mittal, as they constitute
          substantial evidence to support a finding of death due to
          pneumoconiosis pursuant to section 218.205(c)(2) (2000). In so
          doing, the Benefits Review Board rejected the petitioner’s assertion
          that the ALJ had "improperly discounted, as poorly explained" the
          opinions of Sinnenberg, Fino and Perper.

     While the petitioner protests that it is not asking for us to re-weigh the medical
evidence, that is in effect what is suggested. The ALJ, and the Benefits Review Board,
accepted opinions from doctors who linked the pulmonary emboli with the miner’s
pulmonary disease and cor pulmonale, and rejected the opinions of those who found no
such link. We have no basis upon which to decide for ourselves which opinions are
entitled to greater weight, as our standard of review is confined, as discussed above, to
"substantial evidence."   The opinions relied upon by the ALJ and by the Benefits Review
Board appear to be complete, thorough, and well documented. We are not at liberty to
critique them, but, instead, are compelled to find that, measured against the standard that is
applicable, they constitute substantial evidence.
     Accordingly, we will affirm the order of the Benefits Review Board.




Florence Mining v. Machak, 01-3752
Judge Noonan, dissenting:

     The evidence offered to support the award in this case is the opinion of the doctor
doing the autopsy, an opinion in which Drs. Schaaf and Mittal in conclusory fashion
agreed. We do not weigh the evidence. But in this case, Dr. Rizkalla’s opinion was shot
full of holes. Administrative Appeals Judge McGranery has already commented on the
inadequacy of the administrative law judge’s review of the record. Drs. Oesterling and
Sinnenberg noted that Dr. Rizkalla’s own autopsy report indicated that both sides of
Machak’s heart showed thickening, not just the right side, as would be characteristic of
cor pulmonale. Drs. Fino and Perper noted that Machak showed none of the clinical
manifestations of cor pulmonale which would lead to the formation of blood clots, such as
enlargement and dilation of the neck veins, swelling of the legs, abnormal heart sounds,
and bed confinement. In contrast to the qualified opinion offered by Dr. Rizkalla, these
four experts stated strongly that Machak died of a pulmonary embolism and that coal
workers’ pneumoconiosis in no way contributed to Machak’s death. Because these four
experts provided unrebutted testimony as to why the theory of petitioner’s primary
authority is wrong, I would find that the order of the Benefits Review Board is not
supported by substantial evidence, and I respectfully dissent.___________________________
TO THE CLERK OF COURT:
     Please file the foregoing Not Precedential Opinion.



                                                                      /s/ Marjorie O. Rendell_
                                                                      Circuit Judge
