Alabama By-Products Corp. v. Killingsworth, BY-PRODUCTS

Decision Date08 June 1984
Docket NumberBY-PRODUCTS,No. 83-7176,83-7176
Citation733 F.2d 1511
Parties15 Fed. R. Evid. Serv. 1062 ALABAMACORPORATION, Petitioner, v. Charles B. KILLINGSWORTH, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
CourtU.S. Court of Appeals — Eleventh Circuit

H. Thomas Wells, Jr., and A. Inge Seiden, III, Birmingham, Ala., for petitioner.

James Allen Sydnor, Jr., and Frederick T. Kuykendall, III, Birmingham, Ala., for Killingsworth.

Roger M. Siegel, Dept. of Labor, Washington, D.C., for Director, OWCP.

Mary-Helen Mautner and Barbara J. Johnson, U.S. Dept. of Labor, SOL, Sp. Appellate and Supreme Court Litigation Div., Washington, D.C., for Secretary, Dept. of Labor.

Petition for Review of an Order of the Benefits Review Board.

Before KRAVITCH and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

Alabama By-Products Corporation ("ABC") petitions for review of the Benefits Review Board's (the "Board") decision awarding benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended 1 (the "Act"), 30 U.S.C Sec. 901 et seq., to Charles B. Killingsworth 2, a former employee of the corporation. We affirm the award.


Killingsworth worked as a coal miner for thirty-nine years, the first thirty-five years underground and the last four on the surface as a shop electrician. He voluntarily retired in 1978 at age sixty-two. Killingsworth filed a claim for benefits under the Act on May 22, 1978 for alleged total disability due to pneumoconiosis. Pneumoconiosis, which is commonly known as "black lung," is a dust disease of the lungs arising from coal mine employment. 3 The Department of Labor approved the claim, holding the coal mine operator, ABC, liable. ABC contested its potential liability and a formal hearing was held on February 11, 1980 before an Administrative Law Judge (the "ALJ"), who awarded benefits to Killingsworth.

Before the ALJ, Killingsworth testified that he retired because he did not feel he was doing a good job for his employer due to his shortness of breath and some problems with his knees. The medical evidence presented to the ALJ included findings from three doctors who examined Killingsworth. The first was Dr. A. David Russakoff for the Department of Labor. Dr. Russakoff, who is a "B" reader, 4 stated in a written medical report dated February 19, 1979 that Killingsworth had minimal radiographic evidence of pneumoconiosis, but that his ventilatory function tests were normal and that the pneumoconiosis should not be the cause of any significant impairment in physical activity. Dr. Russakoff found it conceivable that hypertension could be a factor contributing to Killingsworth's breathing difficulties. During his deposition, Dr. Russakoff stated that he did not believe that the minimal amount of pneumoconiosis present was disabling.

Killingsworth was next examined by his doctor, Seaburt Goodman, on April 9, 1979. In his medical report, Dr. Goodman diagnosed emphysema and simple pneumoconiosis. He reported that there was a "prolongation of the expiratory phase of respiration with only fair air exchange." In his opinion, Killingsworth was approximately 15 to 20% disabled due to pneumoconiosis. On May 30, 1979, Dr. Edgar G. Givhan examined Killingsworth at ABC's request. In his written report, Dr. Givhan stated that the x-rays did not indicate pneumoconiosis, so he could not ascribe any disability due to pneumoconiosis. Dr. Givhan reported that Killingsworth's shortness of breath was more likely caused by arterial hypertension than by pneumoconiosis.

The ALJ found that the evidence was sufficient to invoke the presumption of total disability due to pneumoconiosis under 20 C.F.R. Sec. 727.203(a)(1). The ALJ then determined that ABC had failed to rebut the presumption under 20 C.F.R. Secs. 727.203(b)(2) and (b)(3). On appeal, ABC challenges the constitutionality of the presumption at section 727.203(a), the ALJ's finding that the employer bears the burden of proof on rebuttal, and the ALJ's finding that ABC failed to rebut the presumption under sections 727.203(b)(2) and (b)(3).

A. The Nature of Employer's Burden

We first address ABC's contention that the ALJ improperly construed the effect of the presumption at 20 C.F.R. Sec. 727.203(a)(1) 5 by giving it independent evidentiary weight and by finding that the presumption, once invoked, shifted the burden of proof to the employer. ABC claims that under the "bursting bubble" theory of presumptions, once the employer offers some rebuttal evidence, the presumption falls out of the case. In other words, ABC asserts that to rebut the presumption, the employer has only the burden of production, not the burden of persuasion. According to ABC, the burden of proof or persuasion remains with the claimant. We disagree with ABC's analysis.

The burden of persuasion may be judicially or legislatively assigned to a specific party to establish a particular fact. NLRB v. Transportation Management Corp., --- U.S. ----, ----, n. 7, 103 S.Ct. 2469, 2475 n. 7, 76 L.Ed.2d 667 (1983). The plain meaning of the regulatory language of 20 C.F.R. Sec. 727.203(b) 6 demonstrates that the burden of persuasion shifts to the employer on rebuttal. Under section 727.203(b), the employer is required to "establish" the elements of rebuttal. "Establish" is clearly synonymous with "prove." Furthermore, under section 727.203(b), the factfinder must consider "all relevant medical evidence" to determine if the presumption has been rebutted, thus indicating that the factfinder must consider evidence introduced by both sides and that the operator must persuade the factfinder. Our holding is in accord with that of other circuits that have construed section 727.203. See Consolidation Coal Co. v. Smith, 699 F.2d 446, 449 (8th Cir.1983); Hampton v. United States Department of Labor Benefits Review Board, 678 F.2d 506, 508 (4th Cir.1982) (employer's burden is to effectively rule out the causal relationship between disability and coal mine employment). But see Underhill v. Peabody Coal Co., 687 F.2d 217, 222 (7th Cir.1982) ("As with any presumption, the effect is to shift the burden of going forward to the opposing party"). Moreover, the Board has ruled that the operator bears the burden of persuasion. McCluskey v. Zeigler Coal Co., 2 BLR 1-1248, 1272-73 (1981).

Nevertheless, ABC argues that Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), supports its position. In Turner Elkhorn, the Supreme Court stated that the presumptions under sections 411(c)(1) and (2) of the Act, 30 U.S.C. Sec. 921(c)(1) and (2), are "explicitly rebuttable, and the effect of each is simply to shift the burden of going forward with evidence from the claimant to the operator." 428 U.S. at 27. The applicable presumptions in Turner Elkhorn, however, differ significantly from the presumption at issue in this case. In Turner Elkhorn, the statutory presumptions under sections 411(c)(1) and (2) are described merely as "rebuttable;" the statute does not require the rebutting party to "establish" particular facts.

By comparison, in applying section 411(c)(4) of the Act, 30 U.S.C. Sec. 921(c)(4), which requires the party opposing the claim to "establish" certain facts in rebuttal, the Fifth Circuit has required the rebutting party to prove by a preponderance of evidence that the claimant is not disabled. United States Steel Corp. v. Gray, 588 F.2d 1022, 1028 (5th Cir.1979). Accord Rose v. Clinchfield Coal Co., 614 F.2d 936, 939 (4th Cir.1980) (the operator must "effectively ... rule out" the relationship between the miner's cancer and pneumoconiosis or between his cancer and his coal mine employment in order to prevail); Ohler v. Secretary of Health, Education and Welfare, 583 F.2d 501, 506 (10th Cir.1978) ("once the existence of a disabling respiratory impairment is established the burden shifts to the Secretary to prove that it is not pneumoconiosis"). But see Prokes v. Mathews, 559 F.2d 1057, 1060 (6th Cir.1977) (operator bears only a burden of production in rebuttal).

ABC also argues that Rule 301 of the Federal Rules of Evidence 7 applies. Rule 301, however, controls only if an act of Congress has not provided otherwise. Here, the regulation specifically states that the operator must "establish" the rebutting factor and therefore, Rule 301 does not apply.

We conclude that the burden of persuasion or proof shifts to the operator on rebuttal. Therefore, the ALJ acted properly in the case at hand.

B. Rebuttal Under Sections 727.203(b)(2) and (b)(3)

ABC claims that the ALJ erred in finding that ABC failed to rebut the presumption of total disability under 20 C.F.R. Sec. 727.203(b)(2). 8 Section 727.203(b)(2) provides that the presumption of total disability is rebutted if "[i]n light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work."

In reviewing agency action, this Court is limited to a determination of whether the findings were supported by "substantial evidence," which is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Home Health Services of the U.S., Inc. v. Schweiker, 683 F.2d 353, 356 (11th Cir.1982). The ALJ's decision shows that he considered all relevant evidence. 9 He did not disregard the opinions of Dr. Givhan and Dr. Russakoff but chose to give greater weight to the lay testimony of Killingsworth, the clinical evidence of the disease, and Dr. Goodman's report. We cannot substitute our judgment for that of the agency or reverse the findings on the basis that we might have decided the case differently. Home Health Services of the U.S., Inc. v. Schweiker, 683 F.2d at 356-57. Therefore, we hold that the ALJ did not err in finding that ABC had not rebutted the presumption under ...

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