Consolidation Coal Co. v. Williams, 05-2108.

Decision Date13 July 2006
Docket NumberNo. 05-2108.,05-2108.
Citation453 F.3d 609
PartiesCONSOLIDATION COAL COMPANY, Petitioner, v. Billy D. WILLIAMS; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: William Steele Mattingly, JACKSON & KELLY, P.L.L.C., Morgantown, West Virginia, for Petitioner. Helen Hart Cox, UNITED STATES DEPARTMENT OF LABOR, Office of Workers' Compensation Programs, Washington, D.C.; Robert F. Cohen, Jr., COHEN, ABATE & COHEN, Morgantown, West Virginia, for Respondents. ON BRIEF: Howard M. Radzely, Solicitor of Labor, Christian P. Barber, Counsel for Appellate Litigation, UNITED STATES DEPARTMENT OF LABOR, Office of the Solicitor, Washington, D.C., for Respondent Director, Office of Workers' Compensation Programs.

Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.

Petition denied by published opinion. Judge GREGORY wrote the opinion, in which Judge MOTZ and Judge DUNCAN joined.

OPINION

GREGORY, Circuit Judge:

Consolidation Coal Company ("Consolidation") petitions for review of a final decision issued by the Benefits Review Board ("Board") of the Department of Labor ("DOL") affirming an award of black lung benefits by an Administrative Law Judge ("ALJ") to Billy D. Williams under the Federal Coal Mine Health & Safety Act of 1969 ("Act"), 30 U.S.C. § 901 et seq. For the reasons that follow, we affirm the Board's decision and deny the petition.

I.

Billy D. Williams was a coal miner for at least thirty years. In 1957, Williams began his employment as a mechanic and welder in one of Consolidation's preparation plants. In his last position, he performed the same duties at one of Consolidation's outside coal mine shops from 1981 to 1987, at which point he retired due to shortness of breath.

On July 27, 1995, Williams filed his first claim for black lung benefits before the DOL. While the claim was pending, Dr. Jerome J. Lebovitz examined Williams on September 28, 1995, and sent a letter dated November 9, 1995 with attached reports to Williams's counsel. Dr. Lebovitz's letter stated his view that Williams was "permanently and totally disabled secondary to the entity of Coal Worker's Pneumoconiosis." J.A. 23. Despite receiving the letter, neither Williams nor his counsel sent it to the DOL.

At the DOL's request, Dr. Andrzej J. Jaworski examined Williams on October 30, 1995. Dr. Jaworski ultimately concluded that Williams's respiratory impairments would not prevent him from performing his position as a shop mechanic. Thereafter, on January 11, 1996, the DOL denied Williams's claim for benefits.

On June 6, 2001, Williams filed a second claim for black lung benefits. In connection with this claim, five physicians examined Williams. First, Dr. Prasad V. Devabhaktuni took x-rays of Williams's lungs on July 31, 2001, and diagnosed Williams with hypertension, chronic obstructive pulmonary disease secondary to smoking, and coal worker's pneumoconiosis secondary to occupational dust exposure. During his deposition, Dr. Devabhaktuni testified that Williams's chronic obstructive pulmonary disease resulted primarily from his smoking habits, but that his coal mine dust exposure could have contributed to the impairment. In addition, Dr. Devabhaktuni stated that he diagnosed coal worker's pneumoconiosis based on the x-rays and Williams's occupational history.

Second, Dr. Joseph J. Renn, III examined Williams on October 31, 2001, and determined that Williams suffered from chronic bronchitis with obstruction secondary to cigarette smoking. Dr. Renn also concluded that coal mine dust exposure did not contribute to Williams's chronic bronchitis, and that Williams did not have pneumoconiosis. Finally, Dr. Renn opined that Williams would be able to perform his last position as a shop mechanic.

Third, Dr. John E. Parker performed pulmonary function studies on Williams, and reviewed the reports prepared by Drs. Devabhaktuni and Renn. In reviewing Williams's x-rays, Dr. Parker concluded that they did not establish pneumoconiosis. Nevertheless, Dr. Parker cited several studies in support of his view that "people with coal mine dust exposure may have airflow obstruction with a normal radiograph. . . ." J.A. 168. Based on these studies, Dr. Parker opined that people with pneumoconiosis could exhibit small opacities of the 0/1 type, and that it was unusual for an elderly patient such as Williams to have rounded changes of that nature. For these reasons, Dr. Parker concluded that Williams's lungs likely contained some macules of pneumoconiosis.

Dr. Parker further determined that Williams suffered from chronic obstructive pulmonary disease resulting from a "combination of tobacco smoke inhalation as well as work place dust exposure." J.A. 85. Dr. Parker admitted that it was impossible to apportion the cause of Williams's airflow obstruction between exposure to cigarette smoking or coal mine dust. However, Dr. Parker declined to rule out coal dust exposure as a cause of Williams's airflow obstruction using Dr. Renn's approach, which examined the mid-max expiratory flow rate, because, in Dr. Parker's view, the mid-max expiratory flow rate was an unreliable indicator subject to daily variance. Dr. Parker thus concluded that Williams's lung injury definitely arose, at least in part, from coal dust exposure "because he was a coal miner and . . . because his chest radiograph was not normal." J.A. 179. Ultimately, Dr. Parker opined that Williams's breathing impairment would prevent him from returning to his last position as a shop mechanic.

Fourth, Dr. David M. Rosenberg reviewed the medical reports prepared by Drs. Jaworski, Lebovitz, Devabhaktuni, and Renn, as well as readings performed by other physicians of an x-ray taken on October 31, 2001. As an initial matter, Dr. Rosenberg determined that the x-rays did not establish pneumoconiosis. Although Dr. Rosenberg noted some moderate obstruction in Williams's airways, he opined that this condition was due to tobacco smoke, and not coal mine dust exposure. Finally, because Williams's maximum voluntary ventilation (MVV) appeared normal, Dr. Rosenberg concluded that Williams could return to his previous coal mining position.

Fifth, Dr. Robert A.C. Cohen reviewed the medical reports prepared by Drs. Devabhaktuni, Renn, Parker, and Rosenberg, and conducted his own x-rays, physical exam, and pulmonary function tests on July 15, 2003. Dr. Cohen concluded that Williams suffered from coal worker's pneumoconiosis based on the following considerations: (1) Williams's significant occupational exposure to coal mine dust for thirty-one years; (2) Williams's symptoms of chronic lung disease, which included "progressively worsening shortness of breath and cough and wheezing" and "sputum production"; (3) pulmonary function studies indicating moderate obstruction with diffusion impairment; (4) arterial blood gases showing mild hypoxemia; and (5) a chest x-ray indicating a positive reading for "opacities consistent with classical pneumoconiosis at a profusion of 1/0." J.A. 223. Dr. Cohen opined that even setting aside the x-ray evidence, he would still conclude that Williams demonstrated clinical and physiological signs of pneumoconiosis.

Dr. Cohen asserted that Drs. Renn, Rosenberg, and Jaworksi incorrectly concluded that coal mine dust exposure failed to contribute to Williams's obstructive lung disease. In citing several academic studies, Dr. Cohen argued that coal mine dust can cause significant airflow obstruction. Specifically, Dr. Cohen argued that these studies established a correlation between coal mine dust exposure and substantial decreases in lung function, forced vital capacity, forced expiratory volume in one second, forced expiratory flow, and carbon monoxide diffusion capacity. Ultimately, Dr. Cohen concluded that Williams's lung impairments would prevent him from performing his previous job as a shop mechanic.1

On September 11, 2003, the ALJ held a hearing on Williams's second claim for black lung benefits. Although the parties raised a host of evidentiary issues, the ALJ expressed its intention to admit the exhibits in their entirety, note the objections, and permit post-hearing motions to strike. Williams subsequently presented testimony in support of his claim. Immediately after the close of Williams's case, Consolidation moved for summary judgment, asserting that Williams's second claim was barred by the three-year time limitation triggered by Dr. Lebovitz's report under 20 C.F.R. § 725.308. The ALJ provisionally denied the motion with leave to renew the motion in post-hearing submissions.

The ALJ then addressed Williams's outstanding motion to compel with respect to fourteen interrogatories served prior to the hearing. Upon representation from counsel that Consolidation had disclosed all of the records relevant to the experts' diagnoses, Williams withdrew the motion to compel with respect to interrogatories one through four (which sought all x-rays, medical reports, and records relevant to Williams's case).

With respect to the remaining interrogatories, Consolidation argued that they were irrelevant and overly burdensome. In rejecting Consolidation's objection to Williams's interrogatory five, which sought the number of referrals Consolidation had made to Dr. Renn, the ALJ opined that it was relevant to "show bias and a number of referrals." J.A. 401. After Williams agreed to limit the interrogatory to referrals from Consolidation to its counsel, and to a time period of 1999 to 2002, the ALJ granted the motion to compel.

With respect to interrogatory six, which sought the number of cases in which Dr. Renn had found pneumoconiosis, the ALJ and Consolidation became engaged in an increasingly heated exchange. Ultimately, in granting the motion to compel with respect to interrogatory six, the ALJ specifically stated "[t]his is discovery. I'm not making any...

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