Taylor v. Clinchfield Coal Co.

Decision Date05 February 1990
Docket NumberNo. 87-3852,87-3852
Citation895 F.2d 178
PartiesJohn A. TAYLOR, Petitioner, v. CLINCHFIELD COAL CO.; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
CourtU.S. Court of Appeals — Fourth Circuit

Sherry Lee Wilson (Client Centered Legal Services of Southwest Virginia, Inc., on brief) for petitioner.

Michael Francis Blair (Penn, Stuart, Eskridge & Jones, Abingdon, Va., on brief) for respondents.

Before ERVIN, Chief Judge, and WIDENER and WILKINS, Circuit Judges.

WIDENER, Circuit Judge:

John A. Taylor seeks review of the decision of the Benefits Review Board affirming the denial of his claim for disability benefits pursuant to the Black Lung Benefits Act, 30 U.S.C. Secs. 901 et seq. (1986). The Board upheld the determination of the Administrative Law Judge that Clinchfield Coal Company had successfully rebutted claimant's presumption of total disability due to pneumoconiosis. On appeal, Taylor argues that application of the interim Labor Department regulation rebuttal provisions, 20 C.F.R. Sec. 727.203(b)(3) and (4), to find rebuttal of his claim, violates 30 U.S.C. Sec. 902(f). We agree with that argument and remand the case for further consideration under the interim Health, Education and Welfare regulation rebuttal provisions found in 20 C.F.R. Sec. 410.490(c).

Taylor applied for Black Lung benefits on November 5, 1976. Initially, the benefits were awarded. Clinchfield Coal Company was named the responsible operator having been Taylor's final employer for a period of more than one year. Clinchfield filed a controversion.

A hearing was held on December 14, 1983, before an Administrative Law Judge who denied the claim on October 26, 1984, having evaluated the claim under the interim Labor Department regulations, 20 C.F.R. Sec. 727.203. The ALJ invoked the interim presumption provided for in Sec. 727.203(a)(3), finding that Taylor satisfied the 10-year requirement of coal mine employment and was totally disabled by pneumoconiosis based on qualifying arterial blood gas studies. However, the ALJ went further and found the presumption rebutted pursuant to Sec. 727.203(b)(3) and (4). He concluded that the physicians' opinions in the record supported his finding of rebuttal that Taylor did not have pneumoconiosis under Sec. 727.203(b)(4) and was "not totally disabled from this disease" under Sec. 727.203(b)(3). 1 The Board affirmed the ALJ's decision on May 14, 1987. This appeal followed.

Taylor is 55 years old. The record shows that he worked about 12 years in coal mines, his most recent employment being with Clinchfield ending in 1972. Taylor smoked approximately one pack of cigarettes a day for 30 years. He is also 20 pounds overweight for his height.

The medical evidence includes six X-rays between 1971 and 1983. The first reading, from an X-ray taken on June 6, 1971, noted some P-type nodules, but was insufficient to establish pneumoconiosis under the regulations. The next film, taken September 3, 1976, was read showing P and S-type opacities with a profusion of 1/1, which qualifies as a positive reading under the regulations. A January 17, 1977, X-ray was read by Dr. Navani, a B-reader, as consistent with pneumoconiosis. An X-ray dated August 26, 1981, done as part of a physical examination requested by Clinchfield, was read as negative five different times. An X-ray dated February 16, 1983, was read by claimant's physician as positive for the disease, P/Q 1/1; however, Clinchfield's readers found that film negative on three different readings. The last X-ray is dated November 3, 1983, and was read negative twice by Clinchfield's readers. Further, none of the four pulmonary function studies in the record qualifies claimant under the regulations.

As noted, the ALJ invoked the interim presumption on the basis of Taylor's arterial blood gas studies. Of the 7 blood gas studies performed, one in 1976, three in 1981, and three in 1983, the latter three were obviously qualifying under the regulations and the ALJ properly invoked the presumption.

Taylor has seen several physicians, including one at the request of the Department of Labor and two at the request of Clinchfield. His treating physicians, Dr. Kanwal and Dr. Smiddy, diagnosed pneumoconiosis in February of 1983. Chronic bronchitis was the diagnosis of Dr. Tholpady who examined claimant in 1977 at the request of the Department. Dr. Garzon and Dr. Dahhan, who both examined the claimant at the request of Clinchfield, attributed his pulmonary impairment to his cigarette smoking. Also at the request of Clinchfield, Dr. Kress, a non-examining, non-treating physician, reviewed the medical records. His conclusion was that the claimant suffered from chronic bronchitis secondary to his cigarette smoking and obesity. Drs. Kanwal, Smiddy, and Garzon stated in their opinions that claimant's pulmonary impairment was of sufficient severity to preclude him from coal mine work or other comparable employment.

Claimant argues that application of the rebuttal provisions of the interim Labor regulations found under 20 C.F.R. Sec. 703.203(b) violates 30 U.S.C. Sec. 902(f)(2). Under Sec. 902(f)(2), "[c]riteria to be applied by the Secretary of Labor in the case of ... any claim ... shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973." At this point, we think the history of the dual system of application of the regulations bears repeating. It is described in the case of Broyles v. Director, OWCP, 824 F.2d 327, 328-329 (4th Cir.1987), which was consolidated with Sebben and affirmed in the recent Supreme Court decision of Pittston Coal Group v. Sebben, 488 U.S. 105, 109 S.Ct. 414, 102 L.Ed.2d 408 (1988).

A miner is entitled to disability benefits under the Black Lung Benefits Act if he is totally disabled by pneumoconiosis arising out of his coal mine employment. See 30 U.S.C. Secs. 901(a) and 902(b) (1986). Congress and the various agencies responsible for administering the benefits program have recognized that the existence and causes of pneumoconiosis are difficult to determine, and have over the years established a number of evidentiary presumptions to assist miners in proving their claims. Regulations creating presumptions to establish the elements of a claim for benefits have been promulgated in accordance with the legislative mandate to give the benefit of the doubt to claimants. Southard v. Director, OWCP, 732 F.2d 66, 71 (6th Cir.1984). Congress has repeatedly amended the acts to ensure the liberal award of benefits and to rectify what it perceived as a persistent administrative practice of undue strictness in the award of benefits. Director v. Bethlehem Mines Corp., 669 F2d 187, 190 (4th Cir.1982).

The "interim presumption" at 20 C.F.R. Sec. 410.490 was promulgated by the Secretary of Health, Education and Welfare in response to the Congressional directive that he loosen the eligibility requirements for benefits and facilitate prompt processing of claims. Tally v. Mathews, 550 F2d 911, 916 (4th Cir.1977). When promulgated, however, 20 C.F.R. Sec. 410.490 by its terms applied only to claims filed by living miners before July 1, 1973 or by their survivors before July 1, 1974. 20 C.F.R. Sec. 410.490(b).

The interim presumption available under 20 C.F.R. Sec. 410.490 is clearly the least restrictive presumption which has ever been available to a black lung claimant. This interim presumption can be established through an x-ray read as showing pneumoconiosis and a showing that the disability arose out of coal mine employment. The only way to rebut this presumption is to show that the claimant is either doing or capable of doing his usual coal mine work. 20 C.F.R. Sec. 410.490. This regulation provides a standard which is easily met. A somewhat similar interim presumption is provided under 20 C.F.R. Sec. 727.203, however, it requires that the miner in question have ten years of coal mine employment.

In contrast, all claims filed after January 1, 1974, see 30 U.S.C. Sec. 931 (1986), were initially adjudicated under more restrictive criteria. These claims were administered by the Secretary of Labor. Initially, no regulations were promulgated to govern the entitlement benefits. Instead, the Secretary of Labor adjudicated these claims under the "permanent" [HEW] regulations located at 20 C.F.R. Secs. 410.401-410.476.

Thus, the Secretary of Labor was adjudicating claims only under the more restrictive permanent regulations at the same time the Secretary of Health, Education and Welfare was applying the far more lenient interim presumption available at 20 C.F.R. Sec. 410.490 to claims filed before the magic date of July 1, 1973. Congress, perceiving the inequity, enacted the 1978 amendments to the Act in an effort to make the proof of claims more uniform. Director v. Bethlehem Mines Corp., 669 F2d at 190.

The 1978 amendments added 30 U.S.C. Sec. 902(f)(1)(B), which directed the Secretary of Labor to create new "permanent" criteria governing eligibility requirements. Most significantly for the purposes of this appeal, the 1978 amendments provided at 30 U.S.C. Sec. 902(f)(2):

Criteria to be applied by the Secretary of Labor in the case of--

* * * * * *

(C) any claim filed on or before the effective date of [the new, "permanent" ] regulations promulgated under this subsection [i.e., under 30 U.S.C. Sec. 902(F)(1)(D) ] by the Secretary of Labor ...

shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973, whether or not the final disposition of any such claim occurs after the date of such promulgation of regulations by the Secretary of Labor.

Mr. Broyles initially filed his claim on September 17, 1976. Mr. Colley filed his claim on September 18, 1974. The Secretary of Labor did not effectively promulgate the new "permanent" regulations, located at 20 C.F.R. Part 718, until April 1, 1980. In each appellant...

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