Amax Coal Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, No. 83-3276
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
| Writing for the Court | Before CUMMINGS, Chief Judge, FLAUM, Circuit Judge, and CAMPBELL; CUMMINGS |
| Citation | 772 F.2d 304 |
| Parties | AMAX COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent, Marion Chavis, Respondent. |
| Docket Number | No. 83-3276 |
| Decision Date | 28 August 1985 |
Page 304
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Respondent,
Marion Chavis, Respondent.
Seventh Circuit.
Decided Aug. 28, 1985.
Page 305
Mark E. Solomons, Kilcullen, Wilson & Kilcullen, Washington, D.C., for petitioner.
Robert D. Nachman, Jenner & Block, Chicago, Ill., for respondent. Jerold S. Solovy, Chicago, Ill., on the brief.
Before CUMMINGS, Chief Judge, FLAUM, Circuit Judge, and CAMPBELL, Senior District Judge. *
CUMMINGS, Chief Judge.
This is a petition for review of an Order of the Benefits Review Board, United States Department of Labor, which affirmed an administrative law judge's decision to award black lung benefits. Petitioner Amax Coal Company challenges the Benefits Review Board Order on the grounds that the administrative law judge (ALJ) failed to comply with the decisional requirements of the Administrative Procedure Act and that the evidence submitted to the ALJ established that the claimant's husband, Marion Chavis, was not disabled. For the reasons set forth below, we affirm the decision of the Benefits Review Board.
On May 26, 1978, Marion Chavis, the widow of Harvey Chavis, filed a claim for survivor benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901, et seq. The Department of Labor (DOL) awarded benefits and the petitioner, Amax Coal Company ("Amax"), controverted liability and requested and received a formal hearing before an ALJ. On August 20, 1980, Administrative Law Judge Charles P. Rippey issued a decision and order awarding benefits to Chavis. The ALJ ruled that the "interim presumption" of entitlement to benefits was applicable because the claimant's husband had been employed for twenty-five or more years in one or more coal mines prior to June 30, 1971. See 30 U.S.C. Sec. 921(c)(5); 20 C.F.R. Sec. 727.204(a). Judge Rippey concluded that the coal-mine employer had not rebutted the presumption because it had not "introduced evidence into the record which would support the conclusion that Harvey Chavis was not even partially disabled due to pneumoconiosis." (App. A4-A5.)
The Benefits Review Board affirmed the ALJ's decision on November 2, 1983, holding that the ALJ was correct in concluding that the evidence submitted "is not indicative * * * of the absence of disability" (App. A2).
This case can be characterized as one where the petitioner failed to recognize its burden and put forth the necessary effort below and having lost in the lower tribunal now seeks to prevail on appeal on procedural grounds. The specific task before this Court is to determine whether the ALJ's decision is supported by substantial evidence. Old Ben Coal Co. v. Prewitt, 755 F.2d 588, 589 (7th Cir.1985). Amax did not contest the invocation of the presumption below but attempted to rebut the Sec. 727.204(a) presumption by demonstrating, in terms of the regulatory language, that "at the time of death [the] miner was not partially or totally disabled due to pneumoconiosis." 20 C.F.R. Sec. 727.204(a). This Court has stated that a coal-mine employer may rebut the presumption of entitlement to benefits by showing that: "(1) the miner did not have pneumoconiosis; or (2) the miner was not totally or partially disabled at the time of his death; or (3) the partial or total disability which the miner may have suffered at the time of his death was not due to pneumoconiosis." Bishop v. Peabody Coal Co., 690 F.2d 131, 134 (7th Cir.1982). The language of 30 U.S.C. Sec. 921(c)(5) stating that the presumption is rebutted only by "establishing" certain points indicates that the presumption shifts the burden of persuasion and not merely the burden of production to the coal-mine employer. See American Coal Co. v. Benefits Review Board, 738 F.2d 387, 390 (10th
Page 306
Cir.1984); Alabama By-Products v. Killingsworth, 733 F.2d 1511, 1513-1514 (11th Cir.1984); Gaudiano v. United States Steel Corp., 4 B.L.R. 1-313, 1-317 (1981); S.REP. NO. 209, 95th Cong., 1st Sess. 18 (1977) ("Any burden of proof is on the Secretary to show that the miner was not partially or totally disabled").Amax focused on showing that the miner was not totally or partially disabled at the time of death and did not attempt to prove directly that the miner did not have pneumoconiosis or that any disability was not the result of...
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Arch Mineral Corp. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, No. 84-2633
...to have been disabled by pneumoconiosis. See 30 U.S.C. Sec. 921(c)(5); 20 C.F.R. Sec. 727.204(a); Amax Coal Co. v. Director, OWCP, 772 F.2d 304, 305 (7th Cir.1985). It was therefore petitioner's burden to rebut the presumption of entitlement to black lung benefits by showing that: "(1)......
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Webber v. Peabody Coal Co., BRB 05-0335 BLA
...consideration of the digital x-rays pursuant to 20 C.F.R. §718.202(a)(1) is harmless error. See Amax Coal Co v. Director, OWCP [Chavis], 772 F.2d 304, 8 BLR 2-46 (7th Cir. 1985); Johnson v. Jeddo-Highland Coal Co., 12 BLR 1-53 (1988); Larioni v. Director, OWCP, 6 BLR 1-1276 (1984). Claimant......
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Freeman United Coal Min. Co. v. Office of Workers' Compensation Program, No. 92-1992
...effect of the presumption is to shift both the burden of production and of persuasion to the employer. Amax Coal Co. v. Director, OWCP, 772 F.2d 304, 305 (7th Cir.1985); Peabody Coal Co. v. Hale, 771 F.2d 246, 248 n. 2 (7th Cir.1985). But see Underhill v. Peabody Coal Co., 687 F.2d 217, 222......
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Marshall v. Eastern Associated Coal Corp., BRB 13-0057 BLA
...earlier smoking history, such as that noted in the 1974 hospital record, is more reliable. See Amax Coal Co. v. Director, OWCP [Chavis], 772 F.2d 304, 306, 8 BLR 2-46, 2-48 (7th Cir. 1985). [9]Additionally, the administrative law judge discounted Dr. Crissali's opinion as “conclusory, ” and......
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Arch Mineral Corp. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, No. 84-2633
...to have been disabled by pneumoconiosis. See 30 U.S.C. Sec. 921(c)(5); 20 C.F.R. Sec. 727.204(a); Amax Coal Co. v. Director, OWCP, 772 F.2d 304, 305 (7th Cir.1985). It was therefore petitioner's burden to rebut the presumption of entitlement to black lung benefits by showing that: "(1) the ......
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Webber v. Peabody Coal Co., BRB 05-0335 BLA
...consideration of the digital x-rays pursuant to 20 C.F.R. §718.202(a)(1) is harmless error. See Amax Coal Co v. Director, OWCP [Chavis], 772 F.2d 304, 8 BLR 2-46 (7th Cir. 1985); Johnson v. Jeddo-Highland Coal Co., 12 BLR 1-53 (1988); Larioni v. Director, OWCP, 6 BLR 1-1276 (1984). Claimant......
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Freeman United Coal Min. Co. v. Office of Workers' Compensation Program, No. 92-1992
...effect of the presumption is to shift both the burden of production and of persuasion to the employer. Amax Coal Co. v. Director, OWCP, 772 F.2d 304, 305 (7th Cir.1985); Peabody Coal Co. v. Hale, 771 F.2d 246, 248 n. 2 (7th Cir.1985). But see Underhill v. Peabody Coal Co., 687 F.2d 217, 222......
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Marshall v. Eastern Associated Coal Corp., BRB 13-0057 BLA
...earlier smoking history, such as that noted in the 1974 hospital record, is more reliable. See Amax Coal Co. v. Director, OWCP [Chavis], 772 F.2d 304, 306, 8 BLR 2-46, 2-48 (7th Cir. 1985). [9]Additionally, the administrative law judge discounted Dr. Crissali's opinion as “conclusory, ” and......