Blanche Castle v. Jockey Hollow Coal Company, O L D R E P U B L I C I N S U R A N C Ecompany

*The Hon. Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0655n.06
Filed: August 3, 2005
No. 04-4053
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BLANCHE CASTLE,
Petitioner,
v.
JOCKEY HOLLOW COAL COMPANY,
O L D R E P U B L I C I N S U R A N C E
COMPANY, and DIRECTOR, OFFICE OF
W O R K E R S ’ C O M P E N S A T I O N
PROGRAM S, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
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ON PETITION FOR REVIEW OF
ORDER OF THE BENEFITS REVIEW
B O A R D , U N I T E D S T A T E S
DEPARTMENT OF LABOR
Before: SUHRHEINRICH and DAUGHTREY, Circuit Judges, and HOOD, * District
Judge.
PER CURIAM. The petitioner, Blanche Castle, seeks review of the Benefits Review
Board’s order affirming an administrative law judge’s ruling that she is not entitled to
benefits under the Black Lung Benefits Act. The petitioner’s husband, Bobby Castle,
worked underground in the coal mines for 17 years, ending in 1978, and died in 2000. The
petitioner claims that she is entitled to benefits because her husband’s death was hastened
by pneumoconiosis and because the Department of Labor violated her due process rights

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by reopening Bobby Castle’s original black lung benefits case in 1987. We find that the
administrative record contains substantial evidence to support the denial of benefits by the
ALJ and the Benefits Review Board, and we therefore decline to overturn those decisions.
During his 17 years as an underground coal miner, Bobby Castle worked at the
“face” of the mine and was thus exposed to large amounts of coal dust. Blanche Castle
testified that when her husband came home from the mines, he would have black dust
everywhere, all over his clothes and in his ears, nose, and mouth. She further testified that
her husband would cough and spit up “coal dirt.” In 1978, Bobby Castle stopped working
in the coal mines because he was experiencing shortness of breath.
Castle’s health steadily deteriorated in the late 1980's and 1990's. In spite of his
poor health, Castle continued to smoke regularly, estimated at the rate of a pack to a pack
and a half daily for 40 to 50 years. In 1989, Castle had a heart attack and underwent open
heart surgery. In the late 1990's, he was on dialysis for chronic renal failure and also under
treatment for congestive heart failure, diabetes, chronic obstructive pulmonary disease
(including smoker’s bronchitis and emphysema), high blood pressure, and various intestinal
diseases, as well as other medical conditions outlined in his medical reports.
When Bobby Castle died in his home in March 2000, no autopsy was performed, but
on the death certificate, the coroner listed “respiratory arrest, cardiac arrest, and black lung”
as the causes of death. Blanche Castle filed a survivor’s claim for black lung benefits that
was denied by an ALJ despite the judge’s finding that Castle suffered from “legal

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pneumoconiosis” caused by his coal mine employment, because the judge also found that
his death was not hastened by his pneumoconiosis.
The record contains the opinions of four doctors, but only two, Dr. Jurich and Dr.
Rosenberg, were assigned much weight by the administrative law judge. In determining
that Castle suffered from pneumoconiosis, the administrative law judge relied primarily on
the testimony of Dr. Jurich, the miner’s personal physician, whose specialty was family
medicine and who had no special expertise in pulmonary disease. Dr. Jurich treated Castle
from 1985 to 1998, during which time he saw Castle several times a year. He testified that
he had diagnosed Castle with chronic obstructive pulmonary disease (COPD) because of
Castle’s chronic shortness of breath and feelings of “smothering” and because of the
sounds he could hear when listening to Castle’s lungs. His conclusion that Castle’s COPD
was related to his work as a coal miner was based principally on his patient’s history as an
underground miner, although Jurich acknowledged that Castle’s long and persistent history
of smoking was also a cause of his COPD. As the administrative law judge noted, Dr.
Jurich’s COPD diagnosis fell under the definition of legal pneumoconiosis for purposes of
the Black Lung Benefits Act. To explain his reason for according dispositive weight to Dr.
Jurich’s diagnosis, the administrative law judge noted:
During his deposition, Dr. Jurich detailed the precise manner he employed
when diagnosing COPD arising in part out of coal mine employment. His
candid testimony demonstrated his impartial and accurate approach to
diagnosing the existence and etiology of Miner’s COPD. Through his status
as Miner’s treating physician for fourteen years, Dr. Jurich has gained
superior and relevant information regarding Miner’s physical condition. Even

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though he holds no special credentials in the area of pulmonary medicine, I
accord controlling weight to Dr. Jurich’s well-reasoned and well-documented
opinion based on the information he gained as Miner’s treating physician.
(Emphasis added.)
The deference paid by the ALJ to the opinion of Dr. Jurich as “well-reasoned and
well-documented” is somewhat puzzling, however, given that Jurich was not a pulmonary
specialist; that he discounted, without scientific reason, overwhelming x-ray evidence dating
back to 1975 that was negative for pneumoconiosis; that he had not treated Bobby Castle
during the last two years of his life and gave an opinion concerning his condition without
knowing the cause of death; and that he conceded in a deposition that he had never
actually diagnosed pneumoconiosis in Castle or in any of his other patients. Also puzzling
is the judge’s decision not to credit Dr. Rosenberg’s opinion that Castle’s voluminous
medical records reflected no evidence of clinical pneumoconiosis, even though the judge
recognized that Dr. Rosenberg was a board-certified pulmonary specialist who had based
his diagnosis on a thorough review of the x-ray reports and Castle’s extensive medical
records. At the same time, the ALJ credited Rosenberg’s conclusion that pneumoconiosis
did not hasten the miner’s death and based the decision to deny benefits entirely on
Rosenberg’s opinion.
Nevertheless, despite these apparent inconsistencies in the ALJ’s analysis of the
medical records in this case, the record fully supports the judge’s determination that
“[d]uring the last several years of life, Mr. Castle was in a downward spiral with progressive
renal failure requiring dialysis, multiple episodes of congestive heart failure, ventricular

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arrhythmias, various occurrence of sepsis, anemia, etc.,” and that pneumoconiosis played
no part in his death. Because there is substantial evidence to support the decision, it must
be upheld.
Nor do we find any merit to the petitioner’s contention that the Department of Labor
violated her right to due process by reopening Bobby Castle’s benefits case in 1987. He
had actually filed for benefits under the federal Black Lung Benefits Act twice during his
lifetime and was ultimately denied benefits both times. He first applied in 1978 and was
granted benefits while the agency attempted to contact his previous employer, Jockey
Hollow Coal Company, to notify it of the claim. However, Jockey Hollow did not respond
to the Department’s notices. In 1981, a supervisory claims examiner with the Department
of Labor identified Old Republic Insurance Company as the entity providing coverage for
Jockey Hollow and promptly sent Old Republic notice of Castle’s claim. It does not appear
from the record that Old Republic made any reply to the notice. Because the responsible
party failed to respond, the Department of Labor informed Castle that he would receive his
benefit payments from the Black Lung Trust Fund.
In August 1987, however, the Department of Labor “reopened” Castle’s case and
issued an “amended notice” of the claim to Old Republic. This time, Old Republic
responded, objecting that Castle was not entitled to benefits. In early 1988, the Deputy
Commissioner of the Employment Standards Administration issued a determination that
Castle was eligible for benefits, and Old Republic appealed. After reviewing the copious

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evidence produced by Old Republic, an administrative law judge issued a decision in 1990
finding that Castle had failed to establish the existence of pneumoconiosis. The Benefits
Review Board affirmed the administrative law judge’s decision to deny Castle benefits. In
September 1993, Castle filed a second claim for benefits, which was denied by an
administrative law judge in 1995, based as before on a determination that Castle had once
again failed to establish that he suffered from pneumoconiosis.
The petitioner now contends that she was deprived of her due process rights
because she was not able to challenge the Department of Labor’s decision to reopen her
husband’s black lung case in 1987. Central to this contention is the fact that under the law
in effect at the time of the initial award, the petitioner would have been automatically eligible
for survivor’s benefits without having to prove that pneumoconiosis hastened or caused her
husband’s death. However, she cites no case law or authority for her assertion that the
Department of Labor violated her due process rights, and we conclude that her claim must
fail.
The due process clause of the Fourteenth Amendment protects against the
deprivation of only those “interests that a person has already acquired in specific benefits.”
Board of Regents v. Roth, 408 U.S. 564, 576 (1972). As the Department of Labor correctly
points out, the petitioner was not a party to the earlier claims because she had no protected
property interest in them. “To have a property interest in a benefit, a person must clearly
have more than an abstract need or desire for it. He must have more than a unilateral

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expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id. at 577.
Until her husband died, the petitioner had no legitimate claim to his black lung benefits.
Furthermore, the petitioner’s right to survivor’s benefits was derivative of her
husband’s rights to benefits under the Black Lung Act. Hers was not a separate
entitlement, but rather was based upon her husband’s entitlement, which was simply
transferred to her when he died. Any interest that she had in her husband’s black lung
benefits was thus adequately protected by the fact that he had the ability and opportunity
to challenge the decisions of the Department of Labor. There is no basis on which to find
a due process violation under these circumstances.
For the reasons set out above, we decline to overturn the decision of the Benefits
Review Board to deny benefits in this case.

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