788 F.2d 158 (3rd Cir. 1986), 85-3421, Kertesz v. Crescent Hills Coal Co.

Docket Nº:85-3421.
Citation:788 F.2d 158
Party Name:In the Matter of Frank KERTESZ, Petitioner, v. CRESCENT HILLS COAL CO., and Old Republic Companies, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
Case Date:April 14, 1986
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 158

788 F.2d 158 (3rd Cir. 1986)

In the Matter of Frank KERTESZ, Petitioner,


CRESCENT HILLS COAL CO., and Old Republic Companies, and

Director, Office of Workers' Compensation

Programs, United States Department of

Labor, Respondents.

No. 85-3421.

Submitted Under Rule 12(6)

United States Court of Appeals, Third Circuit

April 14, 1986

March 4, 1986.

As Amended June 5, 1986.

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Ada Guyton, U.M.W.A. Dist. 5, Belle Vernon, Pa., for petitioner.

John Eric Jones, Jr., George H. Thompson, Christopher L. Wildfire, Tillman and Thompson, Pittsburgh, Pa., for Crescent Hills Coal Co. and Old Republic Companies.

J. Michael O'Neill, Brian E. Peters, Office of the Solicitor, U.S. Dept. of Labor, Washington, D.C., for Director, Office of Workers' Compensation.

Before GIBBONS, BECKER, and ROSENN, Circuit Judges.


ROSENN, Circuit Judge.

Frank Kertesz petitions for review of a Benefits Review Board (BRB) decision denying him benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901-960 (1982) (the Act). 1 The BRB reversed an Administrative Law Judge (ALJ) order granting benefits, holding that the ALJ erred in discrediting a doctor's uncontradicted expert opinion by substituting his own medical judgment. We agree and affirm.

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Kertesz applied for benefits in 1976, when after two heart attacks he retired from coal mining. At the time he was 54 years old and had worked in the mines approximately 22 years. He had held a wide variety of mining jobs, and had been employed by at least 14 different coal mining companies. He worked steadily as a miner until 1954, but except for a brief stint in 1957, he did not work in mines again until 1973. From 1973 until his retirement in 1976 he worked for Crescent Hills Coal Company (Crescent Coal), which as the responsible operator under 20 C.F.R. Sec. 725.493 (1985), is a respondent in this action. Old Republic Insurance Company is a respondent as Crescent Coal's insurer.

Shortly after Kertesz filed his claim, Dr. Francisco F. Bruno examined him for the United States Department of Labor. 2 Dr. Bruno concluded that x-rays of Kertesz's lungs "could be indicative of very early pneumoconiosis," that the examination showed "[p]robable chronic restrictive and obstructive lung disease," and that he had heart disease. The parties agree that Dr. Bruno's report is inconclusive as to Kertesz's respiratory condition.

Pursuant to statute, 30 U.S.C. Sec. 921 (1982), the Department of Labor has promulgated regulations establishing an interim presumption of total disability. Under the regulations, a person who worked at least 10 years as a coal miner is presumed to be totally disabled by pneumoconiosis and entitled to benefits under the Act if any of four conditions are met: (1) an x-ray reading establishes the condition; (2) ventilatory study measurements establish the presence of a chronic respiratory disease as numerically defined; (3) blood gas studies reveal impairment of the flow of oxygen, again as numerically defined; or (4) the documented reasoned opinion of a doctor establishes the presence of a total impairment. 20 C.F.R. Sec. 727.203(a) (1985). It is undisputed that Dr. Bruno's reading of the x-rays is sufficient to invoke the interim presumption of disability under 20 C.F.R. Sec. 727.203(a)(1) (1985). 3

Dr. C. Vaughn Strimlan examined Kertesz on behalf of Crescent Coal in 1979. Board certified in internal medicine, his major area of practice was pulmonary disease and he was the director of pulmonary disease at Mercy Hospital and St. Clair Memorial Hospital, both in Pittsburgh. He was also a federal "A" reader of chest x-rays for pneumoconiosis. He found that Kertesz had a significant cardiovascular history and that, in addition to nitroglycerine tablets, he was taking a number of other medications including a diuretic and another heart pill. He was not taking any pulmonary medicine and his pulmonary function study was essentially within normal limits. In his report and his subsequent deposition, Dr. Strimlan asserted repeatedly that although Kertesz's severe heart problems rendered him totally disabled, respiratory problems attributable to his mine work played no significant role in his disability. He concluded:

I think the whole man is totally impaired and disabled. I think the primary disability is because of his heart disease.... [T]he pulmonary functions are essentially normal. He doesn't have any significant degree of respiratory impairment. He does have the disease [pneumoconiosis], but I don't think it is really a major factor in contributing to his disability. And that is my best opinion.

Dr. Strimlan administered a blood gas test to Kertesz in 1979 and found a reduced p O2 (plasma concentration of oxygen)

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with values that...

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