Cornett v. Benham Coal.

• Citation: 227 F.3d 569
• Decision Date: 05 May 2000
• Docket Number: No. 99-3469,99-3469
• Parties: (6th Cir. 2000) Dennis Cornett, Petitioner, v. Benham Coal, Inc.; Kentucky Producers' Self-Insurance Fund; and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 569

227 F.3d 569 (6th Cir. 2000)

Dennis Cornett, Petitioner, v. Benham Coal, Inc.; Kentucky Producers' Self-Insurance Fund; and Director, Office of Workers' Compensation Programs, United States Department of Labor,

Respondents.

No. 99-3469

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Submitted: May 5, 2000

Decided and Filed: September 7, 2000

On Petition for Review of a Decision and Order of the Benefits Review Board, United States Department of Labor; No. 98-0480 BLA.

[Copyrighted Material Omitted]

Dennis Cornett, Gilley, Kentucky, pro se.

Denise M. Davidson, Barrett, Haynes, May, Carter & Roark, Hazard, Kentucky, for Respondent.

H. Kent Hendrickson, RICE & HENDRICKSON, Harlan, Kentucky, for Respondent.

Christian P. Barber, Edward Waldman, U.S. DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

Before: MERRITT, CLAY, and CUDAHY,^* Circuit Judges.

OPINION

CUDAHY, Circuit Judge.

Dennis Cornett began working as a Kentucky coal miner in 1968. For the next 23-and-a-half years his work required that he crawl for eight hours, lift 35 to 40 pounds hundreds of times and carry 50 pounds a distance of 200 feet more than 100 times each day in the mines. During this period, Cornett also smoked about half-a-pack of cigarettes per day. Cornett developed pulmonary problems--coughing, wheezing, mucous production, shortness of breath, chest pains, etc.--and in early 1992 he sought workers' compensation. On March 2, 1992, Cornett was examined by two doctors in connection with his Kentucky state workers' compensation claim. Dr. Glen Baker examined Cornett twice--once on March 2 and again on December 21, 1992. During the March examination, Dr. Baker administered a pulmonary function study and evaluated an x-ray of Cornett's chest. Both times, Dr. Baker diagnosed coal workers' pneumoconiosis, chronic obstructive airway disease and chronic bronchitis. See J.A. at 69, 95. The second doctor, Dr. Abdi Vaezy, also examined Cornett on March 2, 1992, and he, in addition, reviewed the pulmonary function study and an x-ray of Cornett's chest. Dr. Vaezy diagnosed coal workers' pneumoconiosis and chronic obstructive pulmonary disease. See id. at 38. Both doctors believed that Cornett's pneumoconiosis and obstructive airway disease prevented him from performing the tasks of his usual coal mine employment, see id. at 38, 69, although in his December 1992 report, Dr. Baker referred to Cornett's impairment as "mild," id. at 95. Dr. Baker also reported that Cornett should have no further coal dust exposure. See id. at 69. Dr. Vaezy and Dr. Baker both concluded that long-term exposure to coal dust significantly contributed to Cornett's respiratory impairment. See id. at 38, 69.

In October of 1992, Cornett filed an application for benefits under the Black Lung Benefits Act (BLBA), 30 U.S.C. § 901 et seq., with the Department of Labor. On April 9, 1993, a district director within the Department of Labor denied Cornett's application, and the Director, Office of Workers' Compensation Programs (the Director), referred Cornett's claim to the United States Department of Labor, Office of Administrative Law Judges for a formal hearing. An administrative law judge (ALJ) was assigned to adjudicate Cornett's claim and considered reports by Drs. Vaezy and Baker as well as medical reports from three additional doctors--Dr. Broudy, Dr. Dahhan and Dr. Fino.

Drs. Vaezy and Baker concluded in new reports, which were based on their prior examinations of Cornett, that he was suffering from coal miners' pneumoconiosis due to his prolonged exposure to coal dust. Both doctors also stated that Cornett was totally disabled, meaning that he was unable to continue the strenuous work in the mines, as a result of his pneumoconiosis. They noted, however, that it was impossible to determine the extent to which Cornett's smoking history contributed to his respiratory problems. See J.A. at 129-32. They were both clear, however, that exposure to coal dust was a "significant factor" in causing Cornett's moderate respiratory impairment. See id. at 129, 131. The three other doctors disagreed. Dr. Bruce Broudy examined Cornett on April 11, 1997 (having previously examined him on June 22, 1992) and diagnosed Cornett with chronic bronchitis and hypertension but believed that Cornett did not have coal workers' pneumoconiosis. See id. at 137-38. He further concluded that Cornett's chronic bronchitis stemmed solely from Cornett's many years of cigarette smoking, not from exposure to coal dust. See id. at 138. Dr. A. Dahhan had examined Cornett in 1993, and his report stated that there was no evidence of pneumoconiosis or of any pulmonary disabilities that were caused by coal dust exposure. Dr. Dahhan concluded that Cornett suffered from mild chronic bronchitis resulting solely from his smoking history. See id. at 105. Dr. Gregory Fino never personally examined Cornett but rather reviewed prior medical records and tests. He issued a "consultative report" in which he stated that Cornett's condition was not consistent with a coal dust related condition but rather was consistent with smoking. See id. at 125. Drs. Broudy, Dahhan and Fino all concluded that Cornett was neither partially nor totally disabled and was capable of returning to his last mining job or a job requiring similar efforts. See id. at 105, 125, 138.

Evaluating this evidence, the ALJ found that the medical reports of Drs. Baker and Vaezy were of little merit because "[t]hey did not provide support as to why they diagnosed Cornett with pneumoconiosis rather than non-occupational chronic bronchitis." J.A. at 20. Instead, the ALJ found that "[t]hey based their diagnoses of coal workers' pneumoconiosis on their interpretations of an x-ray and a history of coal dust exposure." Id. at 19. Because their evaluations were "merely a restatement of a positive x-ray," the ALJ determined the reports were entitled to "little weight." Id. at 19-20. On the other hand, the ALJ gave "substantial weight" to the other doctors' reports and found that Cornett failed to prove the existence of coal workers' pneumoconiosis. See id. 19-22. In addition, the ALJ found that Cornett failed to prove total disability due to pulmonary problems and on these two grounds denied Cornett's request for benefits on November 28, 1997. See id. at 23.

Cornett appealed the ALJ's decision to the Department of Labor Benefits Review Board, and on December 22, 1998, the Board affirmed the ALJ's denial of benefits. See J.A. at 28. Cornett then moved the Board for reconsideration, which was also denied. See id. at 30. On April 12, 1999, Cornett filed a pro se petition for review with this court. See id. at 32. After Cornett filed his brief, the Director, OWCP--a nominal respondent in Cornett's petition for review--filed a brief arguing in support of Cornett's position. Benham Coal, the responsible coal company,¹ filed its response to Cornett's petition and a motion to strike the Director's brief.

I. Benham Coal's Motion to Strike

Benham Coal's motion to strike argues that the Director was without authority to file a pro-petitioner brief in a BLBA case. As part of its argument, Benham Coal concedes that under Ingalls Shipbuilding, Inc. v. Director, OWCP, 519 U.S. 248 (1997), the Director may file a pro-petitioner brief in cases on review under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-50. In Ingalls, the Supreme Court held that under the LHWCA the Director has standing to argue in the courts of appeals as a respondent, and it explained that "[t]he Director, even as a respondent, is free to argue on behalf of the petitioner." 519 U.S. at 270. But, Benham Coal argues vociferously that this authority does not extend to cases under the Black Lung Benefits Act. We, however, disagree: the Director does have such authority in cases under the BLBA.

Although it is true, as Benham Coal argues, that Ingalls was decided under the LHWCA and that BLBA claims are administered in a slightly different fashion by the Department of Labor, these distinctions are of no moment.² The BLBA itself explicitly provides for the Director's involvement in any case, see 30 U.S.C. § 932(k) ("The Secretary [represented by the Director] shall be a party in any proceeding relative to a claim for benefits" under the BLBA), and the legislative history suggests that Congress intended that the Director be authorized to file pro-petitioner briefs. See Senate Comm. on Human Resources, S. Rep. No. 95-209, at 22 (1977), Black Lung Benefits Reform Act of 1977 ("This [Director's] participation is especially significant in black lung claims when, for example, the claimant has been unable to obtain legal representation or where significant issues relating to the interpretation of the Act are to be determined.") More importantly, this court has held that "[t]he Director is permitted to seek review of Board decisions in the courts to 'ensure proper and consistent administration' of the Act" under the BLBA. Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1114 n.2 (6th Cir. 1984). And further, we have acknowledged the Director's authority to file a pro-petitioner brief as a respondent, precisely as he has done here. See id.; Staton v. Norfolk & Western Ry. Co., 65 F.3d 55, 58 (6th Cir. 1995); Bentley v. Peabody Coal Co., No. 96-3353, 1997 WL 560057, at *1, n.1 (6th Cir. Sept. 5, 1997) (unpublished opinion). Therefore, despite Benham Coal's arguments to the contrary, we hold that the Director, as a respondent, is authorized to file a pro-petitioner brief in this court in a claimant's appeal from a Board decision under the BLBA.

But, Benham Coal also argues that, even if the Director generally has the authority to file a pro-petitioner brief, the Supreme Court's decision in Director, OWCP v. Perini N. River Assocs., 459 U.S. 297 (1983), establishes prerequisites for such a filing and that those prerequisites have not been met here. Benham Coal contends that...