741 F.2d 968 (7th Cir. 1984), 83-1225, Consolidation Coal Co. v. Chubb

Docket Nº:83-1225.
Citation:741 F.2d 968
Party Name:CONSOLIDATION COAL COMPANY, Petitioner, v. Louis CHUBB, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
Case Date:August 13, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 968

741 F.2d 968 (7th Cir. 1984)

CONSOLIDATION COAL COMPANY, Petitioner,

v.

Louis CHUBB, and Director, Office of Workers' Compensation

Programs, United States Department of Labor, Respondents.

No. 83-1225.

United States Court of Appeals, Seventh Circuit

August 13, 1984

Argued Feb. 9, 1984.

Page 969

Douglas A. Smoot, Jackson, Kelly, Holt & O'Farrell, Charleston, W. Va., for petitioner.

Diane M. Hodes, Dept. of Justice, Washington, D.C., for respondents.

Page 970

Before COFFEY, Circuit Judge, and FAIRCHILD and PELL, [*] Senior Circuit Judges.

FAIRCHILD, Senior Circuit Judge.

Consolidation Coal Company petitions for review of a final order of the United States Department of Labor Benefits Review Board affirming the decision and order of an Administrative Law Judge (ALJ) awarding benefits to a former coal miner under the Black Lung Benefits Act, 30 U.S.C. Sec. 901 et seq. We affirm.

Louis Chubb worked as a coal miner for more than twenty-five years, the last ten of which were spent in the employ of Consolidation Coal Company in Ohio. From 1944 to 1964 Mr. Chubb had worked in various mines in Indiana. Virtually all of this employment was in underground coal mines, often in extremely dusty conditions.

Mr. Chubb filed a black lung benefit claim on March 25, 1974. He retired July 29, 1975 on the advice of his physician. In November, 1978, a claims examiner of the Department of Labor notified Consolidation Coal that an initial finding had been made under the Federal Mine Safety and Health Act of 1977, as amended, that Mr. Chubb had become totally disabled July 1, 1976, and that Consolidation Coal was liable to pay benefits from that date. Consolidation Coal denied liability and requested a hearing. A hearing was held on October 22, 1979 before an ALJ. On February 25, 1980, the ALJ issued a Decision and Order awarding benefits to the miner. The applicable regulations provide that a claimant who has compiled a work record of at least ten years of coal mine employment is entitled to a presumption of total disability due to pneumoconiosis arising out of such employment if certain conditions exist. The regulations then provide four possible ways in which the presumption is rebutted. One of the conditions which gives rise to the presumption is that a chest x-ray establishes the existence of pneumoconiosis. 20 C.F.R. Sec. 727.203(a)(1).

The ALJ found that an x-ray referred to as the Beeler x-ray establishes the existence of pneumoconiosis and that the presumption was not rebutted.

Consolidation Coal appealed from the decision of the ALJ to the Benefits Review Board. The Board affirmed. Consolidation Coal now seeks review in this court. It suggests that the Beeler x-ray was "questionable" and argues that in any event that x-ray could not, on this record, establish the existence of pneumoconiosis and give rise to the presumption. Secondly, Consolidation Coal argues that if the presumption did arise, there was no substantial evidence permitting the conclusion that the presumption was not rebutted.

I. OUR JURISDICTION

The Black Lung Benefits Act incorporated the judicial review provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 921(c). See 30 U.S.C. Sec. 932(a). Section 921(c) provides for a petition for review of a Benefits Review Board decision to be filed "in the United States court of appeals for the circuit in which the injury occurred." 1 The respondent, Director of the Office of Workers' Compensation Programs, argues that the place of the claimant's last exposure to coal mine dust is the place of injury, and is therefore determinative of where the review should be sought. In this case the place of last exposure is Ohio; thus respondent argues that the Court of Appeals for the Sixth Circuit has exclusive jurisdiction.

The jurisdictional problem arises because pneumoconiosis is a "cumulative" injury. It is caused by extensive, extended exposure

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to coal dust, and it is impossible to say that any one exposure caused the disease. In the instant case, the miner worked in mines in Indiana for many years before working in mines in Ohio. Therefore he was exposed to coal dust in both the Sixth and Seventh Circuits, although most recently in the Sixth.

To support the contention that the place of last exposure is the place of injury for jurisdictional purposes, respondent relies on cases concerning employer liability under the Longshoremen's Act. Courts have interpreted the Act as assigning disability liability in cumulative injury cases according to the last employer doctrine. This doctrine provides that "the last employer in whose employment an employee was exposed to an injurious stimuli [is] liable for the full amount of the award with no apportionment of damages between successive employers." United Brands v. Melson, 594 F.2d 1068, 1073 (5th Cir.1979); Smith v. Aerojet-General Shipyards, Inc., 647 F.2d 518, 523 (5th Cir.1981); Cordero v. Triple A Machine Shop, 580 F.2d 1331, 1336 (9th Cir.1978); General Dynamics Corp. etc. v. Benefits Review Board, 565 F.2d 208 (2nd Cir.1977). "The policy behind this holding is the need to avoid complex decisions apportioning liability among employers." Hon v. Director, Office of Workers' Compensation Programs, 699 F.2d 441, 443 (8th Cir.1983). The Director urges a consistent approach on the issue of jurisdiction.

While the Director's advocacy of consistency has some appeal, the situations are not really parallel. The statutory language does not require, nor is there any clear policy reason for the reading for which the Director contends. In this case, the place of injury merely determines jurisdiction. There is no complex problem of apportionment of liability as in the cases cited by respondent. In Hon v. Director, Office of Workers' Compensation Programs, the only case cited or found which has addressed this jurisdictional issue, the court held:

The primary concern is that the forum be convenient and connected to the injury. In cases where the place of injury is unknown or undeterminable, this concern is best served by a fair and flexible jurisdictional rule. We hold that in such cases, appeal lies in any circuit in which the claimant worked and was exposed to the danger, prior to manifestation of the injury.

699 F.2d at 444. We agree. Because Mr. Chubb was earlier employed in coal mines in Indiana, this court has jurisdiction.

II.

Our review of the Benefits Review Board decision is governed by the identical standards as is the Board when it reviews the ALJ's decision and order. We must therefore determine whether the ALJ's decision was supported by substantial evidence, was not irrational, and was in accord with the law. Bishop v. Peabody Coal Co., 690 F.2d 131, 135 (7th Cir.1982); Underhill v. Peabody Coal Co., 687 F.2d 217, 222 (7th Cir.1982); Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797, 799 (7th Cir.1977). Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

The ALJ examined evidence pertaining to four chest x-rays of Louis Chubb in determining that Mr. Chubb was entitled to invocation of the interim presumption. The first film, taken April 10, 1974, was reviewed by three physicians. Dr. Yobbagy believed the film showed pneumoconiosis, type "s", 1/1, in all lung zones. The other two physicians, Drs. Siegelman and Cole, both "B" readers, 2 found the x-ray negative. The ALJ reasonably considered that the "B" readers' reports were entitled to greater weight than Dr. Yobbagy's. An

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x-ray was taken June 3, 1974 and read by Dr. Szalontay as showing no abnormalities. The third x-ray was taken in August, 1975. Dr. Stupar found evidence of a small "fibrocalcific deposit" in the base of the right lung, but no active disease. The ALJ concluded that since the term "pneumoconiosis" is defined as a dust "disease" of the lung, Dr. Stupar's finding that the x-ray showed no active disease suggested that the "fibrocalcific deposit" noted was not the equivalent of pneumoconiosis.

The fourth x-ray was the Beeler x-ray. It came into the record as follows.

After the notice of the initial finding of liability, Consolidation Coal selected Dr. Charles Test of Indianapolis to examine Chubb pursuant to 20 C.F.R. Sec. 727.105(b)(2). 3 Dr. Test wrote the attorney for the Company February 12, 1979 reporting on his examination January 23. This report was furnished to the Director and it was admitted into evidence without objection, apparently as part of the Director's file on the claim. The report included Chubb's history, Test's findings on examination, results of laboratory tests and electrocardiogram, description of the Beeler x-ray, and summary of pulmonary function tests done at the Indiana University Hospital.

The paragraph concerning the Beeler x-ray read as follows: "X-rays of the chest were taken in the office of Dr. John Beeler, and interpreted by him as '1/0, s, right mid and lower third, and left mid lung...

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