Plesh v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 01 December 1995
• Docket Number: No. 94-3572,94-3572
• Parties: Salvadore PLESH, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 103

71 F.3d 103

Salvadore PLESH, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR, Respondent.

No. 94-3572.

United States Court of Appeals, Third Circuit.

Argued June 27, 1995.

Decided Dec. 1, 1995.

Andrew K. Soto (argued), Ball, Janik & Novack, Portland, OR, for Petitioner.

Thomas S. Williamson, Jr., Donald S. Shire, Christian P. Barber, C. William Mangum (argued), United States Department of Labor, Office of the Solicitor, Washington, DC, for Respondent.

Before: HUTCHINSON, ^* ROTH and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

Petitioner Salvadore Plesh, a retired miner, petitions for review of an order entered by the Benefits Review Board (BRB) of the United States Department of Labor (DOL). The BRB upheld the decision of the DOL administrative law judge (ALJ) who terminated Plesh's benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901 et seq. (BLBA). We conclude that the BRB erred in terminating Plesh's benefits and we will therefore reverse.

I.

Born on May 28, 1917, Plesh began working in a coal mine in 1943, for the Lehigh Valley Coal Company in Hazelton, Pennsylvania. Plesh worked for more than seventeen years, from 1943 to 1960, in underground mines and later in strip mines as a rock and coal driller. Plesh testified that he left the coal mines after he began to feel ill and his doctor advised him to discontinue coal mine employment. After abandoning coal mine work, Plesh worked as a janitor, a nightwatchman and a mail sorter.

Plesh first filed a claim for benefits under the BLBA on May 29, 1979. ¹ This application was governed by the guidelines set forth in 20 C.F.R. Part 727, which provide certain presumptions in favor of the miner. On March 29, 1980, the Director awarded benefits and began making monthly payments retroactive to May 1979.

More than six years later, on September 16, 1986, the Director sent a letter to Plesh informing him that a recent review of Plesh's claim file revealed "certain deficiencies." The letter requested that Plesh provide "[m]edical information showing the condition of your lungs" and "[d]ocuments to establish your relationship to any dependents." The letter further instructed Plesh to "undergo a complete set of medical tests at [DOL] expense."

Plesh underwent the required medical testing. On November 6, 1986, Dr. Leo Corazza examined Plesh, performed a chest x-ray, and conducted a pulmonary function study (PFS) and an arterial blood gas study (BGS). Dr. Corazza found that the x-ray "demonstrate[d] no evidence of pneumoconiosis." Jt.App. 377. Dr. Stanley Laucks and Dr. W.S. Cole, both "B-readers," ² reread the x-ray and concluded that it was negative for pneumoconiosis.

Dr. Corazza found that the BGS results were within normal limits but noted that the PFS results were "compatible with the diagnosis of chronic obstructive pulmonary disease, moderately severe." Jt.App. 380. Based on his examination of Plesh, Dr. Corazza diagnosed chronic bronchitis, pulmonary emphysema and ankle edema (of unknown etiology). Dr. Corazza also opined, without explanation, that Plesh's condition was not related to coal mine employment.

After conducting further PFS and BGS tests on January 14, 1987, Dr. Corazza observed a decrease in vital capacity "compatible with the presence of some restrictive pulmonary disease." Jt.App. 367. Dr. Corazza further opined that "[t]he appearance of the spirogram ³ [wa]s compatible with some degree of obstructive disease." Id.

The Director determined that the additional medical evidence compiled by Dr. Corazza failed to establish that Plesh was totally disabled due to pneumoconiosis. Consequently on March 11, 1987, the Director issued an Order to Show Cause, which directed Plesh to "show cause within thirty (30) days why the original award should not be modified to reflect that eligibility shall cease effective April 1, 1987." Jt.App. 360. The Order to Show Cause required Plesh to submit evidence showing that he was totally disabled due to pneumoconiosis caused by coal mine employment.

Rather than complying with this mandate, Plesh returned the Order with the following handwritten note on the last page of the Order:

Dear Sir--I am appealing this as of now. Having went to the Howard Hospital, for my Pulmonary Medical Records and I was told they were sent to Mt. Sterling KY Labor Dept--and having taken another exam at Dr. Corrazza [sic]--Now I am going to get another exam and will give you further med. evidence of my health for Black Lung after 26 years in coal mines. I will send this to you as soon as possible--thank you

Sincerely yours

Salvadore Plesh

[Social Security number omitted]

P.S. Mr. Ratliff--this is the only means of survival that my wife and I have to live on now--thank you.

Jt.App. 360-61 (emphasis added). This letter was received by the Office of Workers' Compensation (OWCP) on March 26, 1987. The Director did not respond to Plesh's letter, but instead issued a final order on April 28, 1987 terminating benefits, effective April 1, 1987. Plesh did not appeal this order.

Two years later, on April 13, 1989, Plesh submitted a new or second claim for benefits. On July 5, 1989, Dr. Philip Witorsch examined Plesh, took x-rays, and conducted PFS and BGS tests. Based on these tests, Dr. Witorsch diagnosed "chronic obstructive pulmonary disease--chronic bronchitis ... most likely due to [Plesh's] history of tobacco use." Dr. Witorsch observed that the "chest x-ray is consistent with simple coal workers' pneumoconiosis." Dr. Witorsch opined, however, that "[t]he contribution, if any, of patient's coal mine employment to this impairment is uncertain." At the same time, Dr. Witorsch recommended performing further tests, including a lateral x-ray, lung volume test and an exercise study, to further evaluate whether Plesh's respiratory impairment was attributable to coal dust exposure. Permission to perform these tests was denied.

The Director issued a Proposed Decision and Order Denying Benefits on October 23, 1989. In denying Plesh's claim, the Director explained that because Plesh had filed his second claim more than one year after the denial of his first claim, Plesh's second claim would be treated as a duplicate claim under 20 C.F.R. Sec. 725.309 ⁴ rather than as a request for modification under 20 C.F.R. Sec. 725.310. ⁵ The Director explained further that Plesh had failed to establish "a material change in condition," a necessary prerequisite to filing a duplicate claim.

Plesh appealed to the BRB, which remanded to the Office of Administrative Law Judges pursuant to Lukman v. Director, OWCP, 896 F.2d 1248 (10th Cir.1990). ⁶ The ALJ concluded that Plesh's March 26, 1987 letter, wherein Plesh declared "I am appealing this as of now," constituted an effective appeal of the Director's final order terminating Plesh's benefits.

Because Plesh filed his first claim for benefits before April 1980, the ALJ first evaluated Plesh's claim under 20 C.F.R. Part 727. Part 727 provides for a rebuttable "interim" presumption that a claimant with at least ten years of coal mine employment is totally disabled due to pneumoconiosis if the claimant meets any one of the criteria set forth in 20 C.F.R. Sec. 727.203(a). The ALJ found that Plesh had satisfied the (a)(2) ⁷ and (a)(4) ⁸ requirements.

The ALJ further found, however, that the interim presumption had been rebutted, pursuant to 20 C.F.R. Sec. 727.203(b)(3), ⁹ by Dr. Witorsch's testimony that Plesh's coal mine employment did not significantly contribute to his disability. The ALJ therefore concluded that Plesh was not entitled to benefits under Part 727.

Relying on Caprini v. Director, OWCP, 824 F.2d 283 (3d Cir.1987), ¹⁰ the ALJ then proceeded to evaluate Plesh's claim under the standards set forth in Part 718. Part 718 requires that the claimant bear the burden of proving (1) that he suffers from pneumoconiosis; (2) that the disease arose out of coal mine employment; and (3) that he is totally disabled due to pneumoconiosis. See 20 C.F.R. Sec. 718.201-.204. See also Director, OWCP v. Mangifest, 826 F.2d 1318, 1320 (3d Cir.1987). The ALJ found that Plesh had established the first two prongs but not the last prong (i.e. total disability). Accordingly, the ALJ denied benefits to Plesh.

The BRB, on appeal, held that Plesh had not timely appealed the April 28, 1987 order and hence the ALJ had erred in applying Part 727. The BRB reasoned that the ALJ had improperly merged Plesh's second claim with Plesh's first claim, and vacated the ALJ's Part 727 findings.

Turning to Plesh's second claim, the BRB held that Plesh by submitting new medical evidence, established a "material change in conditions," as required by 20 C.F.R. Sec. 725.309. See supra note 5. The BRB, having decided that Part 727 was inapplicable because Plesh's appeal was untimely, did not review the ALJ's Part 727 findings, which it had vacated. The BRB then concluded that the ALJ's decision to deny benefits under Part 718 was supported by substantial evidence. Plesh filed a timely petition for review of the BRB's decision.

II.

The BRB had jurisdiction to review the final order of an ALJ granting or denying compensation benefits under section 21(b)(3) of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. Sec. 921(b)(3), as incorporated into the BLBA by 30 U.S.C. Sec. 932(a). See Elliot Coal Mining Co. v. Director, OWCP, 17 F.3d 616, 625 (3d Cir.1994). We have jurisdiction over an appeal from the final order of the BRB under section 21(c) of the LHWCA, 33 U.S.C. Sec. 921(c). Id.

The BRB is bound by an ALJ's findings of fact "if they are rational, supported by substantial evidence, and consistent with applicable law." Id. at 626. See also 33 U.S.C. Sec. 921(b)(3), as incorporated into the BLBA by 30 U.S.C. Sec. 932(a); O'Keeffe v. Smith, Hinchman & Grylls Assocs., 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965). We review...