165 F.3d 1126 (7th Cir. 1999), 97-3721, Peabody Coal Co. v. Director, Office of Workers' Compensation Programs

Docket Nº:97-3721.
Citation:165 F.3d 1126
Party Name:PEABODY COAL COMPANY and Old Republic Insurance Company, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor; and Joan Durbin, as widow of Ronald Durbin, Respondents.
Case Date:January 20, 1999
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1126

165 F.3d 1126 (7th Cir. 1999)

PEABODY COAL COMPANY and Old Republic Insurance Company, Petitioners,

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United

States Department of Labor; and Joan Durbin, as

widow of Ronald Durbin, Respondents.

No. 97-3721.

United States Court of Appeals, Seventh Circuit

January 20, 1999

Argued Sept. 29, 1998.

Page 1127

Mark E. Solomons (argued), Laura M. Klaus, Arter & Hadden, Washington, DC, for Petitioners.

Michelle S. Gerdano, Dept. of Labor, Appellate Litigation, Jeffrey S. Goldberg, Christian P. Barber, Dept. of Labor, Office of Solicitor, Washington, DC, for Respondent Office of Workers' Compensation Programs.

Sandra M. Fogel (argued), Culley & Wissore, Carbondale, IL, for Respondent Durbin.

Before POSNER, Chief Judge, and BAUER and WOOD, Jr., Circuit Judges.

POSNER, Chief Judge.

Peabody Coal challenges the award of black lung benefits in a typically protracted case that began when Ronald Durbin applied for benefits in 1975 (shortly after he had retired following a heart attack) and that has outlived him. We can skip over the intermediate proceedings and come directly to the administrative law judge's opinion of June 1994, awarding the benefits to Durbin's widow. The administrative law judge invoked the invalid "true doubt" rule, Director v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994); Freeman United Coal Mining Co. v. Hilliard, 65 F.3d 667, 668 (7th Cir.1995); Van Dyke v. Missouri Mining Inc., 78 F.3d 362, 363 n. 1 (8th Cir.1996); Consolidation Coal Co. v. McMahon, 77 F.3d 898, 902-03 (6th Cir.1996), to find that the x-ray evidence established a presumption that Durbin had been totally disabled as a result of having black lung disease (pneumoconiosis). This error does

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not warrant reversal, however, because the administrative law judge found in the alternative that Durbin's autopsy "produced uncontroverted evidence of pneumoconiosis." 20 C.F.R. § 727.203(a).

At this point the burden shifted to the coal company to prove if it could that Durbin did not have, or was not totally disabled by, pneumoconiosis. § 727.203(b); R & H Steel Buildings, Inc. v. Director, 146 F.3d 514, 517 (7th Cir.1998); Plesh v. Director, 71 F.3d 103, 112 (3d Cir.1995). Again the administrative law judge committed a harmless error, remarking that "if Claimant is...

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