Sexton v. Director, Office of Workers' Compensation Programs, 84-3093

• Decision Date: 11 January 1985
• Docket Number: No. 84-3093,84-3093
• Parties: Charles R. SEXTON, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 213

752 F.2d 213

Charles R. SEXTON, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Respondent.

No. 84-3093.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 6, 1984.

Decided Jan. 11, 1985.

Lewis Seiler, Cincinnati, Ohio, for petitioner.

Benefits Review Board, Ronald G. Ray (argued), J. Michael O'Neill, U.S. Dept. of Labor, Washington, D.C., for respondent.

Before EDWARDS and KENNEDY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

GEORGE CLIFTON EDWARDS, Jr., Circuit Judge.

Claimant Charles R. Sexton filed a claim for benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901 et seq., on April 26, 1979. The ALJ, after a hearing, denied benefits on July 1, 1982, and the Board affirmed by Decision and Order December 5, 1983.

Claimant is now a 61-year old man. He has an eighth grade education. His work history includes employment at three different coal companies in Kentucky and Ohio. While his work history at coal mining is significantly less extensive than in most such cases, his description of his exposure which is undisputed in this record, bears repetition. As quoted in the transcript of the hearing in this case, it is as follows:

[Sexton]: The job was--I was a slate picker up in the tipple. There's about approximately 65, 70 feet up in the air where all the coal come off the barges, come up in the tipple. As it come into the tipple, there was just like this platform made here. There are three to four men sitting on each side of this big shaker that was in the back. It divided the dust, the lump and the slate as it come down this four foot belt, and it had two windows in it. That's all we had in that room.

The room was around, approximately 20 by 30, or something like that, your Honor, and we wore bandannas, red bandannas and blue bandannas over our noses and our eyes. We got them down like that to keep from sucking all that dust Then, if you got too much dust in you, you push a red button and you go to the door and that guy--the foreman would send another man in and then you would go down on the railroad tracks and take a breather there, see. You throw the lumps of coal up in the boxcars. That went on like that.

down into our stomach, and if you happen to eat a sandwich in there, a peanut butter sandwich or egg, if you take a bite of that sandwich and then if you happen to look down at the sandwich, there would be nothing but a big ring around where you took the bite. That's how much dust was in that one room.

* * *

* * *

Q. You indicated that you wore a bandanna over your face?

[Sexton]: Yes.

Q. What was the reason for that?

[Sexton]: Well, see, to keep the dust, you know, in your mouth--going down in your mouth and nose, and every once in a while you would step onto the outside and shake that bandanna out and come back in and put it back on your face.

* * *

* * *

Q. Did you ever [get] sick from the dust at all?

[Sexton]: Yes, sure. You had to go out.

Q. What kind of sickness would it be?

[Sexton]: Just spitting up that coal dust, you know, blowing your nose.

Q. Would it make you sick to your stomach? Would it make you feel nauseous?

[Sexton]: Oh, yes. You did get dizzy.

Q. Was that daily?

[Sexton]: Just about.

Tr. 8-12.

Claimant's testimony was that he worked for two years at Raymond City Coal Company in North Bend, Ohio, under this exposure. He had previously worked another year at Chevrolet Coal Mining Company in Harlan, Kentucky. He finally had to quit work at a non-coal related job in 1976 because of breathing problems.

The significant testimony in this case from the claimant's point of view is that of Dr. Robert Penman, Director of Pulmonary Medicine at Bethesda Hospital in Cincinnati, Ohio. Dr. Penman examined the claimant twice and wrote three reports which are as follows:

1.

June 8, 1979

History:

* * *

* * *

He has been increasingly short of breath since 1946. He is now breathless on any exertion greater than walking on the level at a normal pace. He wheezes a lot and complains of pain in his chest at times. He has a cough productive of copious sputum. There is no previous history of chest illness or any other illness of note. He now smokes 2 or 3 cigarettes a day, used to smoke up to 1/2 pack of cigarettes daily until quite recently. He is receiving disability from the Veterans Authority for 23 years and is on Social Security Benefits since 1974.

Examination : Chest moves well with respiration. Breath sounds are normal but there are coarse rales at both lung bases. Cardiovascular examination shows no abnormality. Blood pressure, 140/85.

Chest X-ray : This shows fine nodulation in the lower and mid-zones of both lungs consistent with pneumoconiosis stage I (Cincinnati, 1/1 p).

Lung Function Tests : These show no abnormality. Vital capacity is normal (4.4 liters, predicted = 5.0 +/- 1.0). Expiratory flow is normal (FEV 1 = 3.3 liters = 75% of VC).

Conclusion : There is a history of exposure to coal mine dust and other dusts which maybe [sic] adequate for a diagnosis of pneumoconiosis. The X-ray is certainly suggestive of that diagnosis stage I. Lung function is not impaired.

2.

August 4, 1980

History:

* * *

* * *

He has been increasingly short of breath since 1946 and is now breathless on any exertion greater than walking on the level at a normal pace. He wheezes and complains of pain in his chest at times. He has a cough productive of copious sputum. There is no previous history of chest illness or any other illness of note. He has now quit smoking since June of 1979, previously two or three cigarettes a day, had smoked up to 1/2 pack of cigarettes daily for many years. He receives disability benefits from Veterans Authority and has Social Security Benefits.

Examination : Chest moves well with respiration. There are minor wheezes at both lung bases and some coarse rales. Cardiovascular examination is normal. Blood pressure, 125/85.

Chest X-ray : This shows fine nodulation in the lower and mid-zones of both lungs consistent with pneumoconiosis stage I (Cincinnati, 1/1 p).

Lung Function Tests : These show some airway obstruction. Vital capacity is bormal [sic] (5.2 liters, predicted = 4.8). Expiratory flow is reduced (FEV 1 = 3.2 liters = 62% of VC). Arterial blood gases show no abnormality. PO2 is 85. Exercise test was attempted but after one minute of walking on the treadmill at 2 miles an hour the patient complained of weakness and faintness and the test had to be terminated at that time.

Conclusion : Although the history of exposure to coal mine dust and other dust maybe [sic] adequate there is a definite abnormality on the chest X-ray consistent with pneumoconiosis stage I. Lung function is impaired.

3.

January 5, 1981

United States Department of Labor

Employment Standards Administration

121 E. State Street

Columbus, Ohio 43215

Re: Charles Sexton

To Whom It May Concern

Mr. Sexton does in fact have black lung disease, and it has been caused at least in part by coal mining work, and because of the black lung disease Mr. Sexton is totally disabled.

Yours sincerely,

[s/ ] Robert W. Penman, M.D.

In addition to Dr. Penman's report, Dr. William Anderson examined claimant on November 12, 1979, and found that an x-ray indicated 1/1 pneumoconiosis.

The ALJ's denial of black lung benefits is founded upon a report by Dr. C.D. Smith, who is a Board-certified radiologist and B-reader ¹ but who did not examine claimant. As Congress has required in the Black Lung Benefits Act, the negative reading of an X-ray does not mean that the person to whom the X-ray applies does not have pneumoconiosis. 30 U.S.C. Sec. 923(b). ²

We hold that the ALJ and the Board erred in giving greater weight to a non-examining doctor's negative reading of a single As another panel of this court has recently recognized:

X-ray than to the results of examinations and X-ray readings by two qualified physicians. This is particularly true since one of the doctors finding pneumoconiosis, Dr. Penman, possesses qualifications which appear to equal or exceed those of any physician ever cited to this court as a witness on pulmonary diseases. See Appendix, infra.

It is well-established that a single positive X-ray can trigger the presumption in favor of a claimant, and the Secretary cannot rebut that presumption merely by presenting the results of a negative reinterpretation of the same X-ray. See e.g., Haywood v. Secretary, 699 F.2d 277, 283 and 285 (6th Cir.1983); Smith v. Califano, 682 F.2d 583, 587 (6th Cir.1982); Lawson v. Secretary, 688 F.2d 436, 438 (6th Cir.1982); Miniard v. Califano, 618 F.2d 405, 410 (6th Cir.1980); Singleton v. Califano, 591 F.2d 383, 385 (6th Cir.1979); Cunningham v. Califano, 590 F.2d 635 (6th Cir.1978); Dickson v. Califano, 590 F.2d 616, 623 (6th Cir.1978); Burchett v. Mathews, 575 F.2d 1189, 1191 (6th Cir.1978); Ansel v. Weinberger, 529 F.2d 304, 309-310 (6th Cir.1976).

Hatfield v. Secretary of Health and Human Services, 743 F.2d 1150, 1155 (6th Cir.1984).

The judgment of the Benefits Review Board is reversed and the case is remanded for the award of black lung benefits.

APPENDIX

CURRICULUM VITAE

NAME:

Robert William Brown Penman

SEX:

Male

DATE OF BIRTH:

July 14, 1928

PLACE OF BIRTH:

Bihar, India

MARITAL STATUS:

Married

WIFE'S MAIDEN NAME:

Christina N. Blyth

CHILDREN:

Diana, Fiona, David, Susan

EDUCATION:

a) Undergraduate 1943-1945 George Watson's College, Edinburgh, Scotland

b) Medical School 1948-1954--Edinburgh University School of Medicine

Graduated M.B., Ch. B.

PRESENT ADDRESS:

Suite 209, Bethesda Professional Bldg., Oak Street, Cincinnati, Ohio 45206 Phone: 281-2698

GRADUATE TRAINING:

October 1954--March 1955--House Physician (Medical Intern) at Bangour Hospital, West Lothian, Scotland.

April 1955--September 1955--House Surgeon (Surgical Intern) at Chalmer's Hospital, Edinburgh, Scotland.

October 1955--March 1956--House Physician (Medical Intern) at Royal Infirmary (Cardiology Unit), Edinburgh.

April...