Sixth Circuit Affirms Widow’s Award, Discounts Company Doctors’ Reasoning (Lemarco, Inc. v. Helton)
Today in Lemarco, Inc. v. Helton, 559 F. App’x 465 (6th Cir. 2014) (slip op. here), the U.S. Court of Appeals for the Sixth Circuit affirmed an award of black lung benefits in a widow’s case and rejected the company’s arguments that its physicians’ opinions should have been given more weight.
In an unpublished decision by Judge Cook (joined by Judges Keith and Kethledge), the court applied the deferential substantial evidence standard and concluded that the ALJ’s weighing of the medical evidence was reasonable. The decision has limited precedential value, but the Sixth Circuit did not apply the “estimable time” portion of the test for whether black lung hastened a miner’s death, suggesting that physicians may no longer need to estimate the extra time that a miner would have lived were in not for black lung.
Wayne Helton worked as a coal miner for thirteen years and died of congestive heart failure. His widow filed a claim for black lung benefits and submitted opinions from Dr. William Clarke and the treating physician Dr. Rachel Eubank, which both supported Mrs. Helton’s claim. Importantly, Dr. Eubank explained that Mr. Helton’s COPD caused cor pulmonale which ultimately caused his heart failure. The company submitted opinions from Dr. David Rosenberg and Dr. Matthew Vuskovich, which both opined that Mr. Helton’s COPD was not related to coal mine dust exposure and did not cause his death.
The ALJ credited the opinions of Drs. Clarke & Eubank as well-reasoned and discounted the opinions of Drs. Rosenberg and Vuskovich because their opinions clashed with the preamble to the Department of Labor’s regulations. For example, even though the regulations say a claimant does not need to prove fibrosis, Dr. Rosenberg said the lack of fibrosis meant Mr. Helton’s COPD was not due to coal mine dust (implying that Mr. Helton would need to prove fibrosis to win, a view in tension with the regulations). Similarly, although the regulations recognize that coal mine dust and smoking may combine to cause pneumoconiosis, Dr. Vuskovich did not offer any explanation for excluding coal mine dust and attributing all of Mr. Helton’s COPD to smoking.
The Sixth Circuit reaffirmed that an ALJ can consult the preamble and afford less weight to opinions that conflict with the medical principles adopted by the Department of Labor. Because the company doctors used flawed theories to deny that Mr. Helton had pneumoconiosis, their conclusions about the cause of Mr. Helton’s death were undermined.
Further undermining the company’s position, although a cardiovascular specialist determined that Mr. Helton had signs of cor pulmonale, Dr. Vuskovich said “there was no evidence of chronic cor pulmonale.” For some reason, rather than confront this conflict, the attorneys for the company maintained that Dr. Vuskovich did not make such a determination. The Sixth Circuit found this discrepancy as a convincing reason to discount the credibility of Dr. Vuskovich—and in turn, the company’s argument.
An interesting aspect of the decision concerned the “estimable time” portion of the Sixth Circuit’s test to determine whether pneumoconiosis hastened the miner’s death. In Eastover Mining Co. v. Williams, 338 F.3d 501, 508 (6th Cir. 2003), the court stated that a survivor must provide medical evidence describing “a specifically defined process” by which pneumoconiosis “reduce[d] the miner’s life by an estimable time.” The “estimable time” portion of the test is problematic because physicians have difficulty estimating with any precision how much longer a miner would have lived if it weren’t for black lung. However, in Lemarco, Inc. v. Helton, the court did not apply the “estimable time” portion of the test. This is the same approach that the court used in a similar case from 2012, Sandy Fork Mining Co. v. Beverly, 491 F. App’x 662, 663 (6th Cir. 2012). The court now has two holdings—albeit via unpublished decisions—which suggest that the court has abrogated the “estimable time” portion of the test. This is good news for survivors and the credibility of the black lung system because it removes an unnecessary requirement which physicians often see as unanswerable.
Congratulations to John C. Carter for the win on behalf of Mrs. Helton.
2 Responses to “Sixth Circuit Affirms Widow’s Award, Discounts Company Doctors’ Reasoning (Lemarco, Inc. v. Helton)”
Great job Evan! I like your comments about estimable time. I argued Gatha Conley v National Mines (2010) in the Sixth Circuit and here is what the Court said about this issue. Is Conley the LAST published case on this issue?
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There is some room for argument, we acknowledge, about what it means to
hasten death “by an estimable time.” Does that mean that every medical opinion must quantify a precise number of days by which pneumoconiosis hastens death? Will an estimate of months suffice? Of years? Or will a range of any of the above do the trick?
And what if for a medically legitimate reason an estimate cannot be made? We believe that, as is so frequently true when it comes to the application of a legal principal, context and common sense will govern the resolution of these questions. For instance, the “estimable time” language employed in Eastover Mining does not exist in a vacuum; it follows upon the heels of the requirement that legal pneumoconiosis be shown by medical opinion to hasten death “through a specifically defined process.” A conclusory medical opinion, in other words, will not suffice. Neither will an opinion, like Dr. Potter’s, that addresses the issue at such a high level of generality—”the healthier we are, the better we’re able to deal with serious problems”—that it amounts to nothing more than a conclusion. A medical opinion that pneumoconiosis expedited death through a “specifically defined process” must explain why that is so and generally should be able to explain how and to what extent—customarily through a range of time—that process
hastened a specific patient’s death. In that regard, it bears emphasis that every death, like every person, is different. More precision may legitimately be expected when it comes to the relationship of legal pneumoconiosis to some primary illnesses than to others.
In the end, however, we need not decide today whether a medical opinion may
suffice under Eastover Mining without making some range-of-time estimate in
describing the “specifically defined process” by which legal pneumoconiosis sped the demise of an individual already suffering from a deadly illness, because the issue is not presented. Here, Dr. Potter’s opinion fell well short of “specifically defin[ing]” the process by which pneumoconiosis hastened Dave Conley’s death. As stated in Eastover Mining, “[o]ne can always claim . . . that if pneumoconiosis makes someone weaker, it makes them less resistant to some other trauma.” 338 F.3d at 517. Dr. Potter’s opinion, like that of the physician in Eastover Mining, even if medically true, is legally inadequate to support his conclusion that legal pneumoconiosis hastened Dave Conley’s death. The petitioner bore the burden of proof as to that issue, and her failure to present adequate evidence to support the ALJ’s ruling is fatal to her appeal.
This Court therefore affirms the decision of the Benefits Review Board.
Thanks Doug! Conley is the last published 6th Circuit case on the issue (unfortunately).
The court’s reasoning on that issue is very weak. In the portion of the opinion just before the part you quoted, the court says that while the test from Eastover Mining is arguably dicta, the court is going to deem it not be dicta (without any analysis of whether the “estimable time” test was necessary for the holding in Eastover Mining.) Then after that paragraph about how confusing the “estimable time” test is, the court says that it doesn’t even need to decide whether the “estimable time” test is necessary.
Sounds to me like the epitome of “dicta about dicta.” Pierre N. Leval, Judging Under the Constitution: Dicta about Dicta, 81 N.Y.U. L. Rev. 1249 (2006).
The good news is that in addition to today’s decision and Sandy Fork, there’s also another post-Conley unpublished decision which says an ALJ was unreasonable in NOT crediting a physician’s opinion that a miner’s death was hastened by pneumoconiosis. See Kidd v. Consolidation Coal Co., 454 F. App’x 389 (6th Cir. 2011). The court did not discussing the timing issue, which further suggests that the “estimable time” test doesn’t have much vitality. I think three contrary unpublished decisions combined with weak reasoning in the first place should make the court willing to reconsider the necessity of the “estimable time” test should it come up.
The bad news is that until we get a clear holding, it’s still in our clients’ interest to build a record including physicians’ estimates of the time, so we have to keep asking doctors an unanswerable question.
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