Peabody Coal Co. v. Benefits Review Bd.

• Decision Date: 16 August 1977
• Docket Number: No. 76-2191,76-2191
• Citation: 560 F.2d 797
• Parties: PEABODY COAL COMPANY and Old Republic Companies, Petitioners, v. BENEFITS REVIEW BOARD, United States Department of Labor, Washington D. C., and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 797

560 F.2d 797

PEABODY COAL COMPANY and Old Republic Companies, Petitioners, v. BENEFITS REVIEW BOARD, United States Department of Labor,

Washington D. C., and Director, Office of Workers'

Compensation Programs, United States

Department of Labor, Respondents.

No. 76-2191.

United States Court of Appeals,

Seventh Circuit.

Argued June 7, 1977.

Decided Aug. 16, 1977.

John L. Kilcullen, Washington, D. C., for petitioners.

Ronald E. Meisburg, U. S. Dept. of Labor, Washington, D. C., for respondents.

Before SWYGERT and BAUER, Circuit Judges, and MARSHALL, District Judge. ¹

MARSHALL, District Judge.

The issue raised by this petition for review is whether the decision of the Benefits Review Board, affirming an award of benefits to a coal miner under the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972, 30 U.S.C. § 901, et seq. (1970 ed. & Supp. V, 1975), was supported by substantial evidence in the record as a whole and is in accord with the law. The petition is here pursuant to 30 U.S.C. §§ 925, 932, incorporating and adopting 33 U.S.C. § 921(c) (Supp. V, 1975); Director, OWCP v. Peabody Coal Co. and Director, OWCP v. Southwestern Illinois Coal Co., 554 F.2d 310 (7th Cir. 1977).

The claimant, Charles W. Wells, worked in and around various coal mines from approximately 1936 until September, 1973, when he left work because of heart trouble. He was admitted to a hospital for tests and for open heart surgery in September of 1973. He never returned to work, and formally quit his mining job in March of 1974. The claimant suffered exposure to coal and mining operations dust on all of his mining jobs. He applied for black lung benefits on December 1, 1973. After an administrative hearing, the Department of Labor hearing officer awarded the claimant black lung benefits, payable by the Department from December 1, 1973, and thereafter by the Peabody Coal Company and Old Republic Insurance Companies, the responsible operator and the insurer. The Benefits Review Board affirmed the benefit award as supported by substantial evidence, as not irrational, and as in accordance with the law. The operator and the insurer petition for review. The same standard directs our review here. 30 U.S.C. § 923(b), incorporating by reference 42 U.S.C. § 405(g); Henson v. Weinberger, 548 F.2d 695 (7th Cir. 1977).

Petitioners originally questioned the Board's jurisdiction and the hearing officer's qualifications, but agreed in their reply brief that these issues were resolved by our recent decision in two consolidated cases, Director, OWCP v. Peabody Coal Co., and Director, OWCP v. Southwestern Illinois Coal Co., supra.

I. The Claimant's Employment and Medical Histories

The claimant began his mining work in 1936 by hand loading coal underground in small "slope" mines. In 1942 he left the mines and worked for a time as a welder and a farm worker. In 1945 he returned to mining as an underground shuttle car operator and later as a driller. He again left the mines in 1951 and worked in construction as a welder for the Atomic Energy Commission. He returned to mining in 1953, and from then until 1969 he did welding. As a mine welder, they worked "by the tipple, in the pit, and wherever else he was needed but, primarily, his work was performed in an enclosed shop located some distance from the tipple." Decision and Order of Hearing Officer, App. 23. From 1969 until he stopped working in 1973, claimant was a coal truck driver.

Regarding the conditions of his first mining job, the claimant testified that he loaded coal right after it had been struck off the face of the vein, that the coal was unwashed, and that it was very dusty work. T. 26-27. His subsequent work as a shuttle car operator was also very dusty, taking him back and forth from the face of the vein to the loader head. T. 35-37. As a driller, he worked right at the face of the vein, again in very dusty conditions. T. 39-40. He had a respirator, but it did not effectively keep out the coal dust. T. 43. His first assignment as a mine welder in 1953 subjected him to a lot of coal dust, particularly in and around the coal driers. T. 46-47. After 18 months he was moved to the shop, which was about 400 feet from the tipple, or where the coal cars were unloaded by dumping them. This job was dusty, especially if the wind blew from the direction in which the trucks were dumping the coal. T. 47, 49. Finally, as a coal truck driver, the claimant picked up coal in the pit, sitting in the truck's cab while it was loaded, and then drove to the hopper to dump the coal. T. 51-53. When it was not raining, the claimant was exposed to a lot of coal dust on this job, especially while waiting in line to load or to dump. T. 53-55.

Claimant first experienced trouble breathing around 1969 or 1970 when he quit the mine welding job and became a coal truck driver. T. 56, 67, 86-87. He did not consult a physician, although earlier in 1948 a doctor had told him he had a spot on his lung and that he should work in less dusty conditions. Decision, supra, App. 24. His breathing impairment is now so severe that the claimant is short of breath after walking one-half block, or up a few stairs, and also after bending. He cannot carry even rather light objects, and occasionally awakes during the night unable to breathe. Formerly he coughed up a black sputum.

The hearing officer found the medical evidence conflicting. An August 1974 X-ray report by Dr. Browning found small rounded opacities in five of the claimant's six lung zones, which under the International Classification System, denotes Category 1 pneumoconiosis. In contrast, a March 1975 X-ray report by Dr. Davis, a doctor employed by the operator/carrier, states that "there is not definite evidence of nodulation or consolidation such as is seen in pneumoconiosis." Thus Dr. Davis concluded that the claimant was not disabled from a pulmonary standpoint. He further commented that claimant's "work history does not support adequate exposure to dust to cause a pneumoconiosis." Finally, a June 1974 X-ray report by Dr. Judson says that claimant's lung fields are clear. This report derives from a post-operative evaluation of claimant's heart condition, rather than from a specific test for pneumoconiosis. Decision, supra, App. 24.

The claimant also submitted to two sets of pulmonary function tests, the first in May of 1974 and the second in March of 1975. Both reveal pulmonary impairment amounting to a total disability. Dr. Davis, who conducted the 1975 tests, noted the abnormal results and attributed them to claimant's cardiovascular disease. Id. at App. 25.

Based upon this evidence, the hearing officer awarded the claimant black lung benefits, and the Benefits Review Board affirmed, over one dissent.

II. The Merits

The petitioners contend that the record lacks substantial evidence to support a finding that the primary cause of claimant's totally disabling respiratory impairment is pneumoconiosis rather than his heart ailment.

A claimant may establish his entitlement to black lung benefits in either of two ways. First, he can demonstrate that he is totally disabled by pneumoconiosis in accordance with the regulatory standards promulgated by the Secretary pursuant to his authority under the Act. 30 U.S.C. §§ 921(a), (b), 932(h); 20 C.F.R. §§ 410.422, 410.424, 410.426. Alternatively, the claimant may invoke the rebuttable presumption of total disability due to pneumoconiosis which is provided in the statute, 30 U.S.C. § 921(c)(4). The decision and order of the hearing officer were based upon the regulations. ²

Under the regulations, the hearing officer must determine that the miner is afflicted with pneumoconiosis, that the pneumoconiosis arose from his mining employment, that the miner is totally disabled, and that the reason for his total disability is his pneumoconiosis. The hearing officer found that the claimant has pneumoconiosis, based upon the X-ray report of Dr. Browning indicating the existence of Category 1 pneumoconiosis. This Category 1 diagnosis meets the regulatory standards for the existence of the disease. Employing the presumption outlined in 30 U.S.C. § 921(c)(1), ³ the officer then found that the claimant's pneumoconiosis was causally related to his mining employment. Next, considering the results of the two pulmonary function studies, the officer found that the claimant was totally disabled by his respiratory disease. Finally, he concluded that the evidence warranted the inference that "pneumoconiosis is the operative cause, in whole or in part, of Claimant's totally disabling respiratory condition."

Petitioners contend that the hearing officer did not find the pneumoconiosis was in fact the primary cause of the claimant's total disability, as required by the regulations. Further, they argue that the record lacks substantial evidence to support such a finding, if one was made. The first argument raises the question of whether the hearing officer's decision must at least implicitly include a finding that pneumoconiosis is the primary cause of the claimant's disabling respiratory ailment. We believe that it must. The regulations specifically direct the fact finder to determine that a miner is under a disability "only if his pneumoconiosis is . . . the primary reason for his inability to engage in . . . comparable and gainful work. Medical impairments other than pneumoconiosis may not be considered." 20 C.F.R. § 410.426.

According to the American Heritage Dictionary 1039 (1969), a primary reason is one which is first in degree or importance, or one which is fundamental or basic. ⁴ Thus, in the event that a claimant's respiratory ailment has multiple causes, the hearing officer must determine that pneumoconiosis is the most important or fundamental cause of the impairment. On this point, the hearing officer said only that the "inference is warranted that pneumoconiosis is the operative...