g' . U.S. Department of Labor Office of Administrative Law Judges Seven Parkway Center Pittsburgh, 15220 412 644-5754 In the Matter of: - THEODORE M. LATUSEK, JR DATE ISSUED: 2 6 Claimant Case No. 95-BLA-2096 V. OWCP No- CONSOLIDATION COAL COMPANY Employer and -31" Dean DIRECTOR, OFFICE or :t COMPENSATION PROGRAMS Party in Interest APPEARANCES: -- If . Sue Ann Howard, Esq. For the Claimant William S. Mattingly, Esq. J: For the Employer p. - cs Before: DANIEL L. LELAND Administrative Law Judge DECISION AND ORDER - AWARDING BENEFITS This proceeding arises from a claim for benefits under the Black Lung Benefits Act, 30 U.S.C. 901 et fiq. In accordance with the Act and the pertinent regulations, this case was referred to the Office of Administrative Law Judges by the Director, Office of Workers' Compensation Programs for a formal hearing. Benefits under the Act are awarded to persons who are totally disabled within the meaning of the Act due to pneumoconiosis or to the survivors of persons whose death was caused by pneumoconiosis. Pneurnoconiosis is a dust disease of the lungs arising from coal mine employment and is commonly known as black lung. 3 EXB. NO. CONSISTING cc, -2- A formal hearing was held in Morgantown, West Virginia, on February 25, 1997, at which all parties were afforded full opportunity -to present evidence and argument, as provided in the Act and the regulations found in Title 20 Code of Federal Regulations. Regulation section numbers mentioned in this Decision and Order refer to sections of that Title. At the hearing, Director's exhibits (DX) 1-36, claimant's exhibits (CX) 1-3, and employers exhibits (EX) 1318 were admitted into evidence. The record was lefi open for briefs which were filed by claimant on May 12, 1997 and by employer on May 15, 1997. ISSUES The employer has stipulated that claimant has twenty four years of coal mine employment, that he has pneumoconiosis arising out of coal mine employment, and that he has a totally disabling pulmonary impairment. The only issue is whether claimant's total disability is due to pneumcconiosis. - FINDINGS OF FACT AND CONCLUSIONS OF LAW 1 Procedural Historv Theodore M. Latusek, Jr. (claimant) filed a claim for benefits under the Act on July 5, 1994." (DX 1) Although the claim was initially denied by a claims examiner, benefits were awarded by the district director on May 12, 1995. (DX 31) The employer requested a hearing and the case was referred to the Office of Administrative Law Judges on June 21, 1995. (DX 36) Claimant was born on --and has two dependents for purposes of augmentation: his wife, Donna, and his daughter, Jennifer, who was born on November 16, 1977 and is a time college student. (DX 1; TR 11) Claimant began working for Consolidation Coal in 1970 as a general inside laborer, and has since worked as a shuttle car operator, loading machine operator, miner operator, mechanic, section boss, and long wall operations coordinator. (TR 11-12) As long _wa_ll operations coordinator, claimant oversaw the long wall operations at two coal mines and was exposed to significant amounts of rock dust. (TR 12-19) At age forty, claimant was given a mandatory physical examination. He had a dry cough and the company physician told him he had some pulmonary problems. (TR 20) Claimant saw Dr. Roger Abrahams, who confirmed the presence of pulmonary problems, and he was later referred to Dr. Joseph Renn, a pulmonary specialist, in 1992. (TR 21) Dr. Renn ordered that a lung biopsy be performed in June 1992, and placed claimant on Prednisone and later on Cytoxan. (TR 22) Claimant's health did not improve and his prognosis was poor. (TR 22-23) Dr. Renn referred claimant to the National Jewish Center for Immunology and Respiratory Medicine in Denver, CO 1 The following abbreviations have been used in this opinion: DX Director's exhibit, CX claimant's exhibit, EX employer's exhibit, TR transcript of hearing. 7 -3- where he came under the care of Dr. Constance A. Jennings in October 1993. (TR 22-23) Dr. Jennings put claimant on Solu--Medrol and recommended that claimant be removed from filrther exposure to coal dust. (TR 24) On her advice, claimant retired on disability; his last day of work was April 30, 1994. (TR 25) Claimant has never smoked cigarettes. (TR 25) He is currently a candidate for a lung transplant. (TR 26) After he retired, c1aimant's lung problems worsened, but they have stabilized since May 1996. (TR 26-27) Pulmonaxv Function Studies Exhibit No. Date DX 10 10/11/90 DX 10 3/6/91 DX 10 6/18/91 DX 10 12/17/91 DX 10 4/14/92 DX 10 10/28/93 DX 10 3/9/94 ., DX.. 13. DX 9 9/1/94 EX 4 5/26/95 CX 2 8/9/95 EX 5 8/24/95 CX 2 1/2/96 CX 2 1/4/96 *post bronchodilator Blood Gas Tests MedicalEvidence Height Age FEV1 FVC MW 69'' 40 3.55 4.24 166 70" 40 3.24 3.98 113 3.42* 4.11 98 70" 40 3.40 4.02 139 3.29* 3.91* 118* 70" 41 3.32 4.01 5 121 3.33* 4.00 132* 69" 41 3.47 4.29 -- -- 43 3.03 3.61 -- 69" 43 3.04 3.56 -- . 2.71* 3.11* -- 70" 43 2.88 3.47 -- 2.92* 3.46* -- 69" 44 2.74 3.38 138 -- 44 2.67 3.31 -- 69" 44 2.64 3.14 162 69 1/2" 45 2.89 3.33 -- 2.77* 3.30* -- 69" 45 2.67 3.32 -- *exercise values -- 4 .. Exhibit No. Date PCO2 1j__2_ DX 10 3/6/91 36.3 84.8 DX 10 7/21/5/27/93 36 74 DX 10 9/2/10/28/3/9/8/10/9/1/94 39.3 86.7 351* 76.9* EX 5 8/24/94 41 84 CX 2 1/2/96 37 66 39* 57* Medical Reports Dr. Roger Abrahams treated claimant from March 6, 1991 to November 24, 1992 and noted dense Velcro rales in claimant's lungs, a dry cough, mild wheezing, and on exertion. Dr. Abrahams diagnosed possible early interstitial fibrosis and concluded that claimant's cough could be due to industrial bronchitis or interstitial changes. (DX 10) Dr. Joseph Renn treated claimant fiom April 14, 1992 to August 31, 1993 and diagnosed interstitial pulmonary fibrosis (FF), also known as usual interstitial pneumonitis (UIP). (DX 10) A biopsy of the right middle and right upper lobes of claimant's lungs was performed at Monongalia General Hospital on June 15, 1992. The biopsy showed UIP in both lobes, and the prosector queried whether claimant has a history of coal mine employment. (DX 10) The biopsy slides were reviewed by Dr. James A. Waldron of the National Jewish Center and he found the presence of UIP with pulmonary honeycombing consistent with idiopathic pulmonary fibrosis, and dust macules consistent with simple coal workers' pneumoconiosis. Id. Claimant was first evaluated at the National Jewish Center for Irmnunology and Respiratory Medicine by Dr. Cecile Rose on October 28, 1993. (DX 10) Dr. Rose diagnosed coal workers' pneumoconiosis and idiopathic pulmonary fibrosis of the ususal interstitial pneumonia type. She stated that claimant had a moderate to severe respiratory impairment of the restrictive variety due to severe exercise-induced hypoxemia. Dr. Rose averred that the relationship between IPF and coal workers' pneumoconiosis is uncertain. Dr. Constance Jennings of the National Jewish Center examined claimant on March 10, 1994. She diagnosed interstitial lung disease and noted the side effects of claimant's steroid medication. Dr. Jennings felt that claimant should be completely removed from underground coal mine employment. She maintained that difliise interstitial lung disease is increasingly recognized as correlated with pneumoconiosis, and that claimant's prior silica exposure should be presumed to have contributed to his diffiise lung disease. (DX 10) Dr. Jennings again evaluated claimant on August 15, 1994 and diagnosed coal workers' pneumoconiosis, and diffuse interstitial fibrosis related to coal workers' pneumoconiosis. (DX 10) Dr. P. V. Devabhaktuni examined claimant on September 1, 1994. (DX 11) He diagnosed a mild restrictive pulmonary impairment due to pulmonary fibrosis which could be due to claimant's occupational exposure to coal dust. In a letter dated November 23, 1994, Dr. Rose stated that claimant pulmonary impairment . rating. was thfiffii 100% impairment of the whole person. (DX 10) Dr. Richard L. Naeye, a board certified anatomic and clinical pathologist, reviewed the biopsy slides. In a February 7, 1995 report (DX 25), Dr. Naeye reported that there was mild simple coal workers' pneumoconiosis present in claimant's lungs characterized by anthracotic rnicronodules, as well as focal and centrilobular Dr. Naeye found that the pneumoconiosis was too mild to prevent claimant from doing hard physical work in the coal mines or to increase the work of the heart or produce arterial oxygen desaturation. Dr. Naeye also stated that little or none of claimanfs centrilobular can be attributed to claimant's exposure to coal dust. Dr. Naeye concluded that claimant's major pulmonary problem is a chronic inflammatory disorder of unknown etiology which Dr. Naeye stated "does not resemble any occupational disorder that I can recognize." Dr. Jerome Kleinerman, who is a board certified anatomic and clinical pathologist, reviewed the biopsy slides and the other medical records in a report dated March 8, 1995. (DX 25) Dr. Kleinerman found a minimal amount of simple coal workers' pneumoconiosis in claimant's lungs but no evidence of simple nodular silicosis, complicated coal workers' pneumoconiosis or conglomerate silicosis. Dr. Kleinerman determined that claimant has a mild restrictive lung disease and arterial hypoxemia which he did not attribute to coal dust exposure or coal workers' pneumoconiosis. Dr. Kleinerman opined that claimant is not totally disabled and is -5- capable of performing his regular coal mine work, but that if he is disabled, it is not related to his coal mine dust exposure. Dr. Renn, a board certified pulmonary specialist, was deposed on May 19, 1995. (DX 33) Dr. Renn treated claimant starting in April 1992 and last saw him less than one month before his deposition. Id at p. 5. Dr. Renn attributed claimant's pneumoconiosis to his coal mine employment, but did not know the cause of claimant's UIP which has no known cause but has not been known to be caused by coal dust inhalation. Id at p. 10. Dr. Renn testified that the rapid decline in claimant's gas exchange is not consistent with a coal mine-induced lung disease. Id at p. 11. Claimant is totally disabled fiom doing manual labor in underground coal mines as a result of his UIP which was not contributed to by his pneumoconiosis. Id at pp. 16-17. Dr. Renn stated that there is nothing in the medical literature relating coal workers' pneumoconiosis to IPFMorgan provided a consultative report, dated June 23, 1995, after reviewing the medical evidence. EX 1. Dr. Morgan determined that claimant has a mild to moderate restrictive pulmonary impairment due to IPF or UIP. He found minimal evidence of coal workers' pneumoconiosis whichgwas not responsible for claimant's pulmonary impairment. Dr. Morgan stated that based on medical and scientific opinion IPF is not caused by coal workers' pneumoconiosis. He also concluded that claimant is not presently disabled from performing his usual coal mine job. Dr. Gregory Fino examined Mr. Latusek on August 24, 1995. (EX 5) In the examination Dr. Fino. noted rales. at the.1ung_bases.- fibmsis and "'35 classified as 0/0. Clairnant's forced vital capacity, lung volumes, and capacityiiwereiredifced and oxygen saturation and blood gases were normal. Dr. Fino diagnosed coal workers' pneumoconiosis based on the biopsy report but he found it to be clinically insignificant. He attributed claimant's restrictive pulmonary impairment to his IPF.. Dr. Fino found nothing in the medical literature showing a causal connection between IPF and coal workers' pneumoconiosis. Dr. Koichi Honma reviewed the biopsy slides and diagnosed coal workers' pneumoconiosis with UIP-type interstitial fibrosis. In a letter to Dr. Jennings dated September 14, 1995, Dr. Honma stated that this was a case of nonasbestos pneumoconiosis with UIP-type fibrosis. He averred that coal workers' pneumoconiosis of the simple type is claimant's underlying occupational lung disease. Dr. Honma felt that claimant's UIP represents a dust- related disorder. (CX 1) In his deposition, Dr. Devabhaktuni testified that he is unable to determine if claimant's pulmonary fibrosis is idiopathic or if it is related to his coal dust exposure. (EX 11, pp. 17-13) Dr. Samuel V. Spagnolo, a pulmonary specialist and a professor of medicine at George Washington University School of Medicine and Health Care Sciences, evaluated the evidence in this case. (EX 8) Dr. Spagnolo diagnosed coal workers' pneumoconiosis limited to the upper lung zones and concluded that it was too mild to have resulted in any clinically significant pulmonary impairment. He also assessed only a mild lung impairment which would not prevent claimant from doing hard physical work. -- - Dr. Rose is board certified in internal medicine, pulmonary diseases and occupational medicine and is a staff physician at the National Jewish Center. (EX 12, p. 5) Sh"e.first examined claimant on October 28, 1993. _Id at p. 11. She testified that there is enormous uncertainty about the relationship between exposure to occupational dust with the development of pneumoconiosis and interstitial fibrosis, although she maintained that in some people there is a relationship. Id at pp. 17-18. Dr. Rose maintained that the onset of IPF in claimant's late 30's is quite unusual because the disease typically appears in patients in their 60's and 70's. Id at p. 18. Given the atypical nature and presentation of claimant's IPF lesion, his history of coal dust exposure, and the findings of coal workers' pneumoconiosis with Dr. Rose stated that, to a reasonable probability, claimant's occupational exposure to coal dust was associated with his subsequent development of IPF. Id at p. 19. She stated that claimant is disabled from performing - his usual coal mine work based on his pulmonary status. Id at p. 20. Dr. Rose referred to medical studies by Dr. Honma, Dr. Monso, and Dr. Iwai which suggest that there is a causative relationship between coal workers' pneumoconiosis and IPF. Id at pp. 28-30. Dr. Rose stated on cross examination that although she is uncertain as to the connection between coal workers' pneumoconiosis and IPF, there probably is a connection. Id at p. 50. Dr. Jennings was deposed on November 9, 1996. (EX 15) She was formerly a stafi' member in the pulmonary branch of the National Institute of Health for two years working exclusively with interstitial lung disease. Id at p. 5. Dr. Jennings is the Clinical Director of the . Interstitial Lung.Dis,easeLaboratory_ latthe National . Medicine, Pulmonary Division, University of Colorado Health Sciences Center. The National Jewish Center is one of the best known centers for the studies of IPF. (EX 15, pp. 5-7) She is board certified in internal medicine, pulmonary diseases, and critical care medicine and has published several articles on IPF. Dr. Jennings was claimant's primary physician at the National Jewish Centerthe opinion that clamant's IPF arose out of his exposure to silicates in the coal mines. Id at p. 22. She cites studies by Drs. Monso, Iwai, and Honma linking exposure to silicates to the development of IPF. Id at pp. 22-24. Dr. Jennings is in agreement with Dr. Rose that claimant was relatively young for the development of IPF. Id at p. 27. Dr. Jennings is able to relate claimant's IPF to his coal mine employment based on his relative youth, his heavy exposure to coal dust, and the histological evidence of coal workers' pneumoconiosis and silicate deposition, especially in the areas of honeycomb. Id at pp. 28-29. Dr. Kleinerman is board certified in clinical pathology and pathologic anatomy. He was the chairman of the committee that authored the pathological standards for the diagnosis of coal workers' pneumoconiosis. (EX 13, p. 7) He stated that coal workers' pneumoconiosis does not develop into IPF nor does coal dust exposure cause IPF. Id at pp. 18-19. Dr. Kleinerman was unable to determine an etiology for claimant's IPF which is true in approximately 50% of the cases. Id at p.20. Dr. Kleinerman reviewed the three articles cited by Dr. Rose and Dr. Jennings -3- and found them to be unconvincing and that they carry no supportive weight. Id at pp. 42-45. There is no likelihood that claimant's pneumoconiosis contributed to his respiratory insufficiencysupplemental report dated December 1, 1995, Dr. Kleinerrnan reviewed the biopsy slides and concluded that there are no materials present in the areas of interstitial pneumonitis and fibrosis. There was evidence of silica and silicates in the lung sections with coal workers' pneumoconiosis. (EX 14) Dr. Morgan is a widely recognized expert in occupational lung diseases, particularly coal mine-induced lung diseases. (EX 16, pp. 9-10) Based on his personal experience, he found that coal dust exposure does not cause IPF. Id at p. 59. Dr. Morgan takes issue with the findings in the articles referred to by Dr. Rose and Dr. Jennings. Id at pp. 61-70. 2 Dr. Morgan averred that claimant's coal mine employment did not contribute to or aggravate his IPF which is the cause of -- his disabling pulmonary impairment. Id at p. 72. Dr. Fino, who is board certified in internal medicine and pulmonary diseases, stated in his deposition that coal dust inhalation does not cause IPF. EX 17 at p. 16. There is nothing in the medical literature, other than the three articles cited by Dr. Rose and Dr. Jennings, that links IPF to coal dust exposure. Id at pp. 44-45. Dr. Fino offered a critique of the three articles in which he criticized the authors' research methods and conclusions. Id at pp. 45-50. Dr. Fino does not know what caused claimant's IPF but he is certain that it was not his exposure to coal dust. Id at p. 52. Robert G. Carpenter, a medical statistician, performed a statistical analysis of three medical articles cited by Dr. Rose and Dr. Jennings. EX 18. He concluded that the articles provide no evidence that in coal workers' pneumoconiosis, interstitial fibrosis is due to dust exposure. Conclusions of Law As the employer _has stipulated that claimant has pneumoconiosis arising out of coal mine employment and a totally disabling pulmonary impairment, the only issue is whether claimant's total disability is due to pneurnoconiosis. To establish this nexus, claimant must prove by a preponderance of the evidence that his pneurnoconiosis was at least a contributing cause of his totally disabling respiratory irnpairment. Robinson v. Pickands Mather Co.. 914 F. 2 The articles, which are appended to Dr. Morgarfs deposition, are Difiizse Interstitial Fibrosis in Nonasbestos Pneumoconiosis-A Pathological Stuafy, by Honma, Koichi and Chiyotani, Keizo, published in 1993 in Respiration, Idiopathic Pulmonary Fibrosis, by Iwai, Kazuro et. al. published in 1994 in The American Journal of Respiratory and Critical Care Medicine and Mineralogical Microanalysis of Idiopathic Pulmonary Fibrosis by Monso, Eduard et. al. published in 1990 in Archives of Environmental Health. 2d 35, 14 BLR 2-68 Cir. 1990). All the physicians agree that claimant's total respiratory disability is due to IPF. Dr. Jennings, Dr. Rose, and Dr. Honma concluded that c1aimant's IPF is caused by his inhalation of coal dust. Iftheir opinions are credited, c1aimant's IPF meets the definition of pneumoconiosis in 718.201 as a "chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment" and claimant would be entitled to benefits. Dr. Spagnolo, Dr. Naeye, Dr. Kleinerman, Dr. Morgan, Dr. Renn, and Dr. Fino contend that c1aimant's totally disabling IPF is not related to his coal mine employment. Dr. Devabhktuni was unable to determine if clairnant's IPF was related to his coal dust exposure. I give little weight to Dr. Spagnolo's opinion because it does not address the question of whether there is a causal relationship between IPF and coal mine employment. Dr. Naeye's opinion is also somewhat deficient because he did not focus on the core issue in this case, but merely stated that claimant has a chronic inflammatory disorder which did not resemble any occupational disorder he could recognize. I accord the most weight to the opinion of Dr. Jennings, supported by Dr. Rose, because of her expertise regarding IPF. Dr. Jennings studied IPF at NIH, she is employed by the National Jewish Center for Immunology and Respiratory Medicine, a leading center for the study of IPF-, and she has published articles on that disease process. Although Dr. Kleinennan is a leading expert on the pathology of occupational lung diseases, and Drs. Renn, Morgan, and Fine are pulmonary specialists with expertise on occupational pulmonary disorders, none of them possesses the knowledge regarding IPF that Dr. Jennings does. Moreover, the opinion of Dr. . his 00211 dust articles published by Drs. Honma, Iwai, and Monso. Although Dr. Kleinerman, Dr. Morgan, and Dr. Fino have disparaged the research methods and findings of these articles, they were subject to peer review and were authored by reputable physicians. 3 Drs. Kleinerman, Renn, Morgan, and 3 Employer argues that the three articles cited by Dr. Jennings and Dr. Rose should be disregarded based on Rule 702 of the Federal Rules of Evidence and the Supreme Court's holding in Daubert V. Merrell Do_w Pharmaceuticals. Inc.. 509 U. S. 579 (1993). See also U. S. V. Dorsey, 45 F. 3d 309 Cir. 1995). 29 CFR ?18.702, which is modeled on Rule 702 of the FRE, states If scientific, technical, or other specialized knowledge will assist the judge as trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. It is clear that Rule 702 and the holdings in Daubert and Dorsey deal with the threshold question of whether expert testimony is admissible. In this case, the articles cited by Dr. Jennings and Dr. Rose are already part of the record and were appended to EX 16, the deposition of Dr. Morgan. Employer may disagree with the research methods and conclusions of the articles, but it can not now take issue with their admissibility. //if -10- Fino based their findings on their own clinical experience, but they were unable to cite any medical articles finding that there was no causal connection between and coal dust exposure. I therefore conclude that claimant's IPF arose out of his coal mine employment and that he is totally disabled due to pneumoconiosis. Claimant has satisfied all the elements of entitlement. As claimant ceased all employment on April 30, 1994 on the advice of Dr. Jennings, I consider this date to be the onset date of his total disability. Benefits should therefore commence on May 1, 1994. Claimant's counsel has thirty days to file a fully supported fee application and her attention is directed to ??725.365 and 725.366. Employefs counsel has ten days to respond with objections. ORDER IT IS ORDERED THAT Consolidation Coal Company (1) pay claimant all the benefits to which he is entitled beginning as of May 1, 1994, augmented by two dependents, (2) pay claimant all the medical benefits to which he is entitled beginning as of May 1, 1994, (3) reimburse the Director, Office ofworkers' Compensation Programs for payments made to claimant, ofworkers' specified in 725.608 beginning thirty days after the initial determination of liability by the district director. DANIEL L. LELAND Administrative Law Judge DLL/lab NOTICE OF APPEAL RIGHTS: Pursuant to 20 C.F.R ?725.481, any party dissatisfied with this Decision and Order may appeal it to the Benefits Review Board within 30 days from the date of this Decision and Order by filing a notice of appeal with the Benefits Review Board, AT N: Clerk of the Board, P.0. Box 37601, Washington, DC 20013-7601. A copy of a notice of appeal must also be served on Donald S. Shire, Esq., Associate Solicitor for Black Lung Benefits. His address is Frances Perkins Building, Room N-2605, 200 Constitution Avenue, NW, Washington, DC 20210. -11.. SERVICE SHEET Case Name: THEODORE M. LATUSEK JR. Case Number: Title of Document: DECISION AND ORDER - AWARDING BENEFITS - . JUN 2 1997 . . I hereby certify that on a copy of the above--ent1tled document was mailed to the following parties: 0% . LAURA ANN BROWN Legal Technician CERTIFIED MAIL REGULAR MAIL Ronald Gurka David Lotz Associate Regional Solicitor U.S. DOL Regional Director Ballston Tower #3 Rm 516, 4015 Wilson Boulevard Arlington, VA 22203 Sue Ann Howard, Esq. 1301 Jacob Street - A William S. Mattingly, Esq. Jackson Kelly P.O. Box 629 Morgantown, WV 26507 UNITED PARCEL SERVICE Steven Breeskin Chief, Branch of Claims Review, U.S. Room C-3511, FPB 200 Constitution Avenue, N.W. Washington, DC 20210 U.S. DOL Room 15200, Gateway Building 3535 Market Street Philadelphia, PA 19104 Co--Counsel for Black Lung Benefits E.&D.epmment..ofLabaorgia ,2 Room N-2605, FPB 200 Constitution Avenue, N.W. Washington, DC 20210 Theodore M. Latusek, Jr. 102 Skyline Drive Fairmont, WV 26554 Consolidation Coal Company c/0 Employers Service Corp . P.O. Box 3389 Charleston, WV 25333