                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-24-2005

Inland Steel Co v. Director OWCP
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4269




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Inland Steel Co v. Director OWCP" (2005). 2005 Decisions. Paper 362.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/362


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                    NO. 04-4269
                                   ____________

                           INLAND STEEL COMPANY,
                                                            Petitioner

                                          v.

                        DIRECTOR, OWCP, United States
                         Department of Labor; SHIRLEY
                       KINNEY, Widow/Patrick; BENEFITS
                               REVIEW BOARD,
                                                   Respondents
                                ____________

           Petition for Review of an Order of the Benefits Review Board
                         United States Department of Labor
                                (BRB No. 04-0151)
                                   ____________

                 Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                October 20, 2005

            BEFORE: SCIRICA, Chief Judge, VAN ANTWERPEN and
                         ALDISERT, Circuit Judges

                              (Filed October 24, 2005)
                                   ____________

                            OPINION OF THE COURT
                                 ____________

VAN ANTWERPEN, Circuit Judge

     Inland Steel Company (“Inland”) brings this Petition for Review of an order of the
Benefits Review Board (“BRB”) of the United States Department of Labor, which upheld

an award of benefits to Shirley Kinney, the widow of Patrick Kinney. For the reasons set

forth below, we deny the Petition.

                                             I.

       Because we write solely for the parties, we recount only those facts relevant to our

decision. Patrick Kinney worked in a mine for at least eighteen years, until it closed in

1983. After that he worked in various jobs, but never returned to mining. In 1993 he was

diagnosed with synovial carcinoma, and on October 28, 1994, he died at age 54. He was

survived by his widow, Shirley Kinney, who is the duly qualified claimant, and three

daughters, including Megan Kinney, a proper augmentee.

       Shirley filed a claim under the Longshore and Harbor Workers’ Compensation

Act, 33 U.S.C. § 901-950. The Department of Labor subsequently determined that she

was entitled to survivor’s benefits and issued an award of benefits against Inland. At

Inland’s request, the matter was referred to the Office of Administrative Law Judges for a

formal hearing. The Administrative Law Judge (“ALJ”) affirmed the award of benefits

on March 23, 2001. Inland appealed to the BRB, which initially affirmed, but, on

reconsideration, vacated the award and remanded. On remand, the ALJ again awarded

benefits. In reaching his decision, the ALJ relied on the deposition of Dr. John Yerger,

who opined that pneumoconiosis accelerated Patrick Kinney’s death. Inland again

appealed; this time, the BRB affirmed. Inland now appeals to this Court.



                                             2
                                            II.

      This Court has jurisdiction to review a decision of the BRB pursuant to 33 U.S.C.

§ 921(c). Our standard of review was set forth succinctly in Lango v. Director, Office of

Workers’ Compensation Programs:

      We must decide whether the ALJ or the Benefits Review Board committed an
      error of law. Kowalchick v. Director, OWCP, 893 F.2d [615, 619 (3d Cir.
      1990)]. Under the BRB’s standard of review, the ALJ’s factual findings must
      be supported by substantial evidence. Id. Therefore, this court must, when
      reviewing factual findings, “independently review the record and decide
      whether the ALJ's findings are supported by substantial evidence.” Id.
      (citations omitted).

104 F.3d 573, 576 (3d Cir. 1997).

                                           III.

      By virtue of 30 U.S.C. § 901(a), Congress, in cooperation with the states,

established a system to provide benefits to coal miners (and their surviving dependents)

who have become totally disabled due to legal pneumoconiosis. Benefits are paid to an

eligible survivor of a miner who died as a result of pneumoconiosis if the claimant can

prove that: “(1) [t]he miner had pneumoconiosis (see § 718.202); (2) [t]he miner’s

pneumoconiosis arose out of coal mine employment (see § 718.203); and (3) [t]he miner’s

death was due to pneumoconiosis as provided by this section.” 20 C.F.R. § 718.205(a)

(2005). The sole question before us is whether substantial evidence supports the finding

that Patrick Kinney’s death was “due to pneumoconiosis.”

      When a miner’s death is caused by a medical condition unrelated to



                                            3
pneumoconiosis, a claimant is entitled to benefits only if “the evidence establishes that

pneumoconiosis was a substantially contributing cause of death.” 20 C.F.R. §

718.205(c)(4). “[P]neumoconiosis is a substantially contributing cause whenever it

actually hastens a miner’s death even if a disease unrelated to pneumoconiosis played a

role as well.” Lango, 104 F.3d at 576 (citing Lukosevicz v. Director, OWCP, 888 F.2d

1001, 1006 (3d Cir. 1989); see also 20 C.F.R. § 718.205(c)(5). Therefore, if the record

evidence substantially supports a finding that Kinney’s pneumoconiosis hastened his

death, the ALJ’s decision should stand.

       Inland takes issue with this Circuit’s legal standard for evaluating whether

pneumoconiosis “hastens” death. Inland would have us adopt what it considers to be the

standard adopted in Eastover Mining Co. v. Williams by the Sixth Circuit1 , where the

court stated:

       One can always claim . . . that if pneumoconiosis makes someone weaker, it
       makes them less resistant to some other trauma. If, for instance, a miner with
       pneumoconiosis gets hit by a train and bleeds to death, [Dr.] Woolum (or
       someone adopting his position) would argue that the pneumoconiosis
       “hastened” his death because he bled to death somewhat more quickly than
       someone without pneumoconiosis. . . . Legal pneumoconiosis only “hastens”
       a death if it does so through a specifically defined process that reduces the
       miner’s life by an estimable time.

338 F.3d 501, 517-18 (6th Cir. 2003) (emphasis added). Inland argues that under this

approach, we may only find that pneumoconiosis “hastens” a miner’s death if the record

   1
      We question whether this “standard” was adopted by the Sixth Circuit, as it
appears to be mere dicta and has not been cited by any other Sixth Circuit Court of
Appeals decision addressing the “hastening” issue.

                                             4
evidence demonstrates (1) a process by which the disease contributed to the death, and (2)

an estimate of how much longer the miner might have lived had he not become afflicted

with pneumoconiosis.

       The first consideration is undoubtedly already a part of this Circuit’s reasoning.

We have previously stated that an award of benefits must be supported by more than a

“mere statement of a conclusion by a physician,” and instead requires an explanation of

the reasoning underlying the statement. Lango, 104 F.3d at 577. Therefore, “the ALJ

may permissibly require the treating physician to provide more than a conclusory

statement before finding that pneumoconiosis contributed to the miner’s death.” Id. In

this case, Dr. Yerger explained that pneumoconiosis and centrilobular emphysema

reduced Kinney’s ability to oxygenate his blood. These ailments combined with his

sarcoma to produce breathlessness, which then induced cardio-respiratory arrest. As the

BRB recognized, the record contains substantial evidence demonstrating the process by

which the disease substantially contributed to Kinney’s death.

       The only issue remaining is whether the record evidence must also include an

estimate of how much longer Kinney would have lived had he not been afflicted with

pneumoconiosis. Although Inland claims that this question “is neither inconsistent with

this Court’s discussion of the standard or burdensome to the parties,” (Appellant Brief at

16), Petitioner fails to explain how this information is germane under our precedent.2

   2
      We do not have the authority to overrule a prior precedent of this Court unless its
holding has been “overruled or rejected by the Supreme Court” or by an en banc panel of

                                             5
       In Lukosevicz, 888 F.2d at 1004, we held that a “condition that hastens death, even

briefly, can be considered a substantially contributing cause of death.” (emphasis added.)

Furthermore, we have explained that “a testifying physician need not express his

conclusions in terms of reasonable degree of medical certainty to be credited by the ALJ;

the ALJ must instead accept a documented opinion of a physician exercising reasoned

medical judgment.” Mancia v. Director, Office of Workers' Compensation Programs, 130

F.3d 579, 588 (3d Cir. 1997) (quoting Tennessee Consolidated Coal Co. v. Crisp, 866

F.2d 179, 185 (6th Cir. 1989)) (quotation marks omitted). “Reasoned medical judgment

has been defined . . . as a hypothesis representing a physician’s professional judgment as

to the most likely one among the possible causes of the physical condition involved.” Id.

at 589 (quoting Brazzalle v. Director, OWCP, 803 F.2d 934, 936 (8th Cir. 1986)). None

of this is consistent with Inland’s position.

       Instead, Inland’s approach would unnecessarily and improperly raise the burden on

a claimant to produce evidence to a medical degree of certainty not previously demanded

in this Circuit. Here, Dr. Yerger testified that pneumoconiosis accelerated Kinney’s

death. Although evidence that Kinney would have lived a day, a week, or a year longer

certainly would have strengthened Respondent’s claim, the lack of such evidence does not

undercut the ALJ’s findings. Because Dr. Yerger’s testimony was sufficient to support

the ALJ’s decision, we will deny the petition.


this Court. Rubin v. Buckman, 727 F.2d 71, 73-74 (3d Cir. 1984) (Garth, J., concurring)
(discussing Third Circuit Internal Operating Procedure (“IOP”) 8©, now IOP 9.1).

                                                6
