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Livermore v. Amax Coal Co.

July 25, 2002


On Petition for Review of a Decision of the Benefits Review Board, United States Department of Labor No. 00-BLA-693

Before Flaum, Chief Judge, Bauer and Ripple, Circuit Judges.

The opinion of the court was delivered by: Bauer, Circuit Judge.

ARGUED MAY 15, 2002

Maxine Livermore, widow of deceased coal miner Billy Livermore, sought federal black lung benefits pursuant to the Black Lung Benefits Act, 30 U.S.C. §§ 901-945. A district director from the Office of Workers' Compensation Programs of the Department of Labor denied the claim for benefits. Maxine Livermore then requested an administrative hearing. An administrative law judge (ALJ), after reviewing the evidence, found that Billy Livermore's death was caused, at least in part, by coal workers' pneumoconiosis, and awarded benefits to Maxine Livermore. Amax Coal Co. appealed the ALJ's decision to the Benefits Review Board of the Department of Labor (BRB). The BRB vacated the ALJ's decision, finding the ALJ had failed to properly weigh and consider all the evidence. On remand, the ALJ denied benefits, and the BRB affirmed. Maxine Livermore now appeals the decision to deny benefits. Because the ALJ's ruling is supported by substantial evidence, we affirm.


Billy Livermore was an underground coal miner for over forty years. He died at the age of sixty-four. His treating physician, in his final diagnosis, noted "coal workers' pneumoconiosis" as one of Livermore's aliments. The doctor who issued the certificate of death concluded the immediate cause of death was hemorrhagic shock (blood loss) due to esophageal and stomach bleeding. Contributing causes were respiratory failure, severe chronic obstructive pulmonary disease, and "probable" coal workers' pneumoconiosis. The autopsy report, written by another doctor, concluded that there were signs of mild anthracosis *fn1 in Livermore's lungs.

Maxine Livermore and Amax Coal Co. each hired experts to interpret the findings outlined above and give medical opinions as to the cause of Billy Livermore's death. Maxine Livermore's expert, Dr. Miles Jones, concluded that Billy Livermore's pneumoconiosis played a significant role in causing his death. Amax's experts, Dr. Edmond Crouch, Dr. Jerome Kleinerman, Dr. Raphael Caffrey, and Dr. Richard L. Naeye, all found no evidence of coal workers' pneumoconiosis. The treating physician and the two doctors who conducted post-mortem examinations found signs of pneumoconiosis. Dr. Gregory J. Fino prepared a report, not attributed to either party, concluding there was no evidence of pneumoconiosis. Finally, an independent medical expert, Dr. Peter G. Tuteur, opined that there was not enough significant pathology to indicate Billy Livermore suffered from pneumoconiosis.

The ALJ found that the post-mortem evidence showed Billy Livermore had anthracosis, which was sufficient to establish that he had clinical pneumoconiosis. See 20 C.F.R. § 718.201 and 20 C.F.R. §§ 718.202(a)(2), (a)(4). The ALJ credited the opinions of the physicians who actually conducted the biopsy and autopsy evidence, over Amax's experts, who only examined the results of the autopsy. See Peabody Coal Co. v. Shonk, 906 F.2d 264, 269 (7th Cir. 1990) (holding that it is permissible for an ALJ to credit the opinions of physicians who perform an autopsy over those who merely view the results). The ALJ also concluded that Billy Livermore's respiratory conditions, which were caused or exacerbated by the coal dust exposure, "hastened his death". Thus, the ALJ found Maxine Livermore had established that Billy Livermore's death was attributable to pneumoconiosis under 20 C.F.R. § 718.205 and awarded benefits.

On petition for review, the BRB reversed the award, finding the ALJ did not resolve conflicting evidence nor weigh the evidence properly. However, the BRB affirmed the ALJ's finding that the presence of pneumoconiosis was established by autopsy and biopsy evidence. The BRB noted that the ALJ gave undue weight to the fact that several physicians were unable to rule out whether Billy Livermore's respiratory problems were related to or caused by coal dust exposure. The BRB also pointed out there was little affirmative evidence demonstrating the respiratory conditions were caused by coal dust exposure, and that these conditions led to Billy Livermore's death. The BRB concluded that the ALJ's decision was based mostly on a negative inference and could not be sustained.

On remand, the ALJ throughly reviewed the conflicting medical opinions. Drs. Browne, Houser, and Jones found that Billy Livermore's death was due, at least in part, to pneumoconiosis. *fn2 The other physicians, Drs. Tuteur, Kleinerman, Naeye, Caffrey, and Fino, concluded that pneumoconiosis did not cause or hasten Billy Livermore's death. After examining the evidence, the ALJ found that Drs. Fino and Tuteur's opinions were entitled to greater weight because of their "outstanding qualifications in the area of pulmonary medicine". Furthermore, the ALJ stated that the evidence did not "prove" Livermore's death was due to pneumoconiosis. Thus, the ALJ denied benefits, and, on appeal, the BRB affirmed.


A. Standard of Review

Maxine Livermore appeals the BRB's order affirming the ALJ's decision denying benefits. Although, Maxine appeals the BRB's final order, we review the conclusions of the ALJ to determine if the ruling is supported by substantial evidence and in accordance with the law. See Peabody Coal Co. v. Director, Office of Workers' Compensation Programs, 972 F.2d 178, 180-81 (7th Cir. 1992); Arnold v. Peabody Coal. Co., 41 F.3d 1203, 1206 (7th Cir. 1994). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Consolidation Coal Co. v. Office of Workers' Compensation Programs, 54 F.3d 434, 435-36 (7th Cir. 1995) (citations omitted). To ...

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