U.S. Steel Corp. v. Gray, 77-3096

Citation588 F.2d 1022
Decision Date02 February 1979
Docket NumberNo. 77-3096,77-3096
PartiesUNITED STATES STEEL CORPORATION, Petitioner, v. Frank GRAY and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
CourtU.S. Court of Appeals — Fifth Circuit

James D. Strader, Gen. Atty., Philip J. Sheehe, Charles T. Myers, Pittsburgh, Pa., for petitioner.

Carin A. Clauss, Sol. of Labor, Laurie M. Streeter, Assoc. Sol., U.S. Dept., of Labor, Washington D.C., Frank White, Lee D. Richardson, Dept. of Labor, Washington, D.C., for respondents.

Petition for Review of an Order of the Benefits Review Board (Alabama Case).

Before WISDOM, COLEMAN, and RONEY, Circuit Judges.

WISDOM, Circuit Judge:

The United States Steel Corporation ("U. S. Steel") petitions for review of the Benefit Review Board's decision awarding disability benefits under Title IV of the Federal Coal Mine Health and Safety Act, 30 U.S.C. § 901 Et seq., to Frank Gray, a former employee of the corporation. The primary questions raised by this case concern the Board's application of the evidentiary presumption set forth in section 411(c)(4) of the Act. 30 U.S.C. § 921(c)(4). Because the Board improperly applied the standards of section 411(c)(4) in evaluating the evidence presented at the administrative hearing, we grant the petition and remand the case to the Board for reconsideration.

I

Claimant-Respondent Frank Gray worked for United States Steel and its predecessors as a mine construction man from 1948 until 1974, with the exception of a two-year period from 1950 to 1952. In early 1974, after leaving his employment with the petitioner, Gray filed a claim for total disability benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969. Gray claimed that he was totally disabled by a chronic, dust-related respiratory impairment related to his employment with U.S. Steel. The Department of Labor's Office of Workers' Compensation Programs determined that Gray was eligible for black lung benefits and that U. S. Steel was responsible for the payment of benefits. U. S. Steel objected to that determination and requested a hearing.

The hearing was held in 1975. Gray's evidence, in addition to his own testimony, consisted of letters of diagnosis and pulmonary test reports from Dr. Francis Connery, Gray's personal physician, a written summary of an examination by Dr. E. G. Givhan, and a copy of a settlement Gray reached with U. S. Steel under Alabama's Workmen's Compensation Law. Dr. Connery's diagnosis was that Gray was 100 percent disabled by pacinar emphysema. Dr. Connery saw no evidence of dust retention in Gray's lungs, but concluded that dust aggravated Gray's condition. Dr. Givhan's reading of Gray's x-rays was that Gray had advanced emphysema. But did not have silicosis or advanced pneumoconiosis. The Director of the Office of Workmen's Compensation introduced x-ray readings by Drs. Robert Walton and Seaburt Goodman, and rereadings by Dr. R. H. Browning. Dr. Walton diagnosed Gray's impairment as severe emphysema. Dr. Goodman likewise diagnosed the condition as severe emphysema, but he also saw in the x-rays evidence of linear fibrosis consistent with chronic bronchitis, as well as diffuse nodular fibrosis "consistent with Simple Pneumoconiosis Class II to III". Dr. Browning's rereadings stated that the x-rays were wholly negative for pneumoconiosis. He found a form of severe emphysema. None of the doctors whose diagnoses were submitted into evidence by the claimant and the Director testified at the hearing.

U. S. Steel's medical evidence consisted of the testimony of Dr. Ben Branscomb and Dr. Branscomb's letter of diagnosis of Gray's condition. Dr. Branscomb concluded that Gray had conventional emphysema of a kind typically found in persons who have not been constantly exposed to dust. He read the x-rays as negative for pneumoconiosis and added that if severe emphysema such as Gray's were related to black lung it would be highly unusual for the x-rays not to show "impressive evidence" of black lung. On cross-examination Dr. Branscomb conceded, however, that he would not state "for sure" that coal dust did not cause emphysema.

Because Gray's x-rays were negative as to pneumoconiosis, he had to rely upon the evidentiary presumption of pneumoconiosis set forth in section 411(c)(4) of the Act. Under the Social Security Administration regulations issued under the authority of section 411(a) of the Act (30 U.S.C. 921(a)), a claimant can establish entitlement to black lung disability benefits only by showing "that he is totally disabled due to pneumoconiosis, and that his pneumoconiosis arose out of employment in the Nation's coal mines". 20 C.F.R. § 410.410(b). The statutory definition of pneumoconiosis in effect at the time of the hearing stated that pneumoconiosis means "a chronic dust disease of the lung arising out of employment in a coal mine". 1 30 U.S.C. § 902(b). Section 411(c) (4) of the Act provides that if a person who was employed for fifteen or more years in coal mines can demonstrate by other than x-ray evidence that he has a totally disabling respiratory or pulmonary impairment, he is entitled to a rebuttable presumption of total disability due to pneumoconiosis even if his chest x-rays are interpreted as negative. The presumption can be rebutted by establishing that "(A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine". 30 U.S.C. § 921. See also 40 C.F.R. § 410.414(b). The hearing officer found that Gray had worked for more than fifteen years in underground mines, and that he had a totally disabling respiratory or pulmonary impairment. He therefore gave Gray the benefit of the statutory presumption. Finding the corporation's evidence insufficient to rebut the presumption of pneumoconiosis, the hearing officer rendered a decision that U. S. Steel was liable for the payment of 100 percent disability benefits to the claimant.

U. S. Steel appealed that decision to the Benefits Review Board. The Board affirmed the hearing officer's decision and order, and U. S. Steel petitioned for review in this Court.

II

U. S. Steel raises basically two issues in its petition. The first issue concerns the constitutionality of the Benefits Review Board's interpretation of section 411(c)(4) of the Act, the provision concerning the rebuttable presumption of 100 percent disability due to pneumoconiosis. The petitioner argues that the Board violated its due process rights by interpreting the statute to restrict rebuttal evidence to such evidence as tends to establish either that the claimant does not have pneumoconiosis or that the claimant's impairment did not arise in connection with employment in a coal mine. We find no merit in this contention. The statute in plain terms does limit rebuttal to evidence showing the absence of pneumoconiosis or showing that the claimant's impairment is related to his occupation. 2 This is hardly surprising, however, because the presumption that the Secretary or mine operator seeks to rebut is the presumption that the claimant is totally disabled by pneumoconiosis as a result of his employment in the coal mines. We need not, however, decide the constitutionality of section 411(c)(4) in the abstract. Even assuming that a coal mine operator might wish to adduce a type of rebuttal evidence that is not encompassed by the rebuttal clause of section 411(c)(4), the petitioner in this case was not prevented by the hearing officer from submitting whatever rebuttal evidence it wished to submit. All of U. S. Steel's evidence related to the issues of whether Gray in fact had pneumoconiosis and whether Gray's impairment was related to his employment at U. S. Steel. At oral argument, the petitioner admitted that the Board's interpretation of section 411(c)(4) in no way hampered the presentation of its rebuttal case.

The second issue is more substantial. This is the petitioner's contention that the Benefits Review Board's conclusion of compensable total disability is not supported by substantial evidence. U. S. Steel does not argue that the section 411(c)(4) presumption was not properly applicable to Gray. It does not dispute the finding that Gray worked fifteen or more years in an underground mine within the meaning of the statute. Rather, U. S. Steel argues that it successfully rebutted the presumption. The evidence, it contends, overwhelmingly points to the conclusion that Gray is not suffering from pneumoconiosis and that his present impairment is unrelated to his work as an employee of U. S. Steel.

Turning to the decision of the hearing officer, we find that he did not adequately evaluate the evidence. Under the statute, to repeat, the petitioner could rebut the presumption of disabling, occupation-related pneumoconiosis by showing (a) that Gray did not have pneumoconiosis, or (b) that his respiratory or pulmonary impairment was not related to his employment with U. S. Steel. § 411(c)(4), 30 U.S.C. § 921(c)(4). In his opinion, the hearing officer stated that the employer "failed to introduce sufficient evidence to rebut (the) presumption". He observed that the evidence was insufficient to show that Gray's impairment did not arise out of or in connection with his employment. The hearing officer felt that the medical evidence suggesting that dust may have contributed to or aggravated Gray's condition precluded successful rebuttal on the ground of job-relatedness. He found that Gray was "totally disabled by a respiratory or pulmonary impairment which has been diagnosed as severe emphysema and may include pneumoconiosis". He nowhere found that Gray suffers from pneumoconiosis and nowhere stated his disposition of U. S. Steel's rebuttal theory that Gray does not have pneumoconiosis. The defect is not remedied by the hearing officer's finding that Gray's disability might have been...

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