American Coal Co. v. Benefits Review Bd., U.S. Dept. of Labor, 82-1432

• Citation: 738 F.2d 387
• Decision Date: 06 July 1984
• Docket Number: No. 82-1432,82-1432
• Parties: 16 Fed. R. Evid. Serv. 54 AMERICAN COAL COMPANY and Energy Mutual Insurance Company, Petitioners, v. BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 387

738 F.2d 387

16 Fed. R. Evid. Serv. 54

AMERICAN COAL COMPANY and Energy Mutual Insurance Company, Petitioners, v. BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR, Respondent.

No. 82-1432.

United States Court of Appeals, Tenth Circuit.

July 6, 1984.

David Lloyd, Salt Lake City, Utah, for petitioners.

Troy B. Smith, Atty., U.S. Dept. of Labor, Washington, D.C. (T. Timothy Ryan, Jr., Sol. of Labor, Donald S. Shire, Associate Sol., J. Michael O'Neill, Asst. Counsel, Washington, D.C., for Black Lung Benefits, and Bonnie J. Brownell, Atty., U.S. Dept. of Labor, Washington, D.C., on brief), for respondent.

Before SETH, Chief Judge, and HOLLOWAY and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

The American Coal Company (employer) has appealed an award of benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901-945, to claimant Jack Callor. The issues on appeal are whether the Benefits Review Board erred in upholding the administrative law judge's (ALJ) decision construing the effect of the presumption under 20 C.F.R. Sec. 727.203(a) and whether the Board erred in refusing to join Peabody Coal Company as the party who would be primarily liable to claimant.

After considering documentary evidence and oral testimony, the ALJ awarded claimant black lung benefits payable by American Coal Company. The ALJ found that claimant's evidence invoked the presumption of total disability due to pneumoconiosis arising out of coal mine employment, 20 C.F.R. Sec. 727.203(a), and stated that the resolution of the case "thus focuses on whether the presumption has been rebutted under Sec. 727.203(b)." ¹ The ALJ evaluated the extensive testimony of the employer's expert, Theodore Noehren, M.D., along with other medical evidence contained in claimant's file. The ALJ held that the rebuttal evidence offered to establish that claimant suffered from heart rather than lung disease was inconclusive and that claimant was therefore entitled to receive benefits.

The employer appealed the ALJ's decision to the Benefits Review Board. The employer argued that the ALJ erred by construing the presumption under 20 C.F.R. Sec. 727.203(a) as shifting the burden of persuasion rather than shifting the burden of producing contrary evidence. The employer also appealed the ALJ's denial of the employer's motion to add Peabody Coal Company as the party primarily liable. The Benefits Review Board affirmed the ALJ's decision. The instant appeal followed.

I

Claimant Callor worked approximately twenty-four years in the coal mining industry, working underground for more than fifteen of those years. Between January 1970 and his retirement in August 1979 claimant worked at a mine that was operated by Peabody Coal Company until January 1977 and then by American Coal Company. Between 1970 and 1975 claimant spent all but one year in underground mining. In December 1974 claimant began to serve as a training instructor. That position also required that he spend some time in the mine. From July 1977 until his retirement in August 1979 he served as a training coordinator.

The medical evidence in this case consists of a lung tissue biopsy, two chest x-ray reports, a blood gas study, four ventilatory function test reports, written reports and opinions of P.R. Cutler, M.D., and a report and testimony of Theodore H. Noehren, M.D. Claimant's x-ray reports and ventilatory function test reports triggered the presumption of claimant's total disability due to pneumoconiosis under 20 C.F.R. Sec. 727.203(a). The ALJ found as facts that:

"(1) An x-ray establishes the existence of pneumoconiosis. Claimant's exhibit 1 is a roentgenographic interpretation by Dr. E.N. Sargent, a 'B' reader, dated December 27, 1978, of an x-ray taken January 12, 1978. Dr. Sargent finds small opacities--rounded-type 'p', category 1/1 in all lung zones. This is sufficient to trigger the presumption under 20 C.F.R. Sec. 410.428(a) which is incorporated by reference in Sec. 727.203(a).

(2) Ventilatory studies establish the presence of a chronic respiratory or pulmonary disease.

The values shown in claimant's exhibit 2 (a study dated January 19, 1979) show an FEV1 of 2.05 liter per second, which is below the 2.6 specified in Sec. 727.203(a)(2), and a MVV of 61.3 which is below the 104 specified in the regulation. In a study interpreted by Dr. Noehren, dated June 20, 1979, the corresponding values are FEV1 1.167 before and 2.084 after bronchodilator and MVV 56 before and 62 after bronchodilator, which are likewise below the regulatory criteria."

R.I, 40.

Dr. Noehren, an expert witness for the employer, is a nationally recognized pulmonary specialist. Dr. Noehren conducted a complete pulmonary examination of claimant and testified that he did not think claimant had a disabling lung disease associated with long-term exposure to coal dust. Rather, he stated that he would concur with claimant's treating physician's report that claimant had symptoms more commonly associated with arteriosclerotic heart disease. Dr. Noehren found it significant that claimant was currently being treated and taking medication for heart disease and not pulmonary disease and that claimant's lungs were actually functioning adequately because there was enough oxygen flow to the bloodstream both at rest and after exercise. Dr. Noehren found a lack of focal emphysema and silicosis in the biopsy of lung tissue and said that claimant's bronchitis symptoms were probably not caused by coal mining.

Nonetheless, Dr. Noehren acknowledged that claimant's clinical history supports a finding of either pulmonary or cardiac problems. Dr. Noehren stated that from the evidence available to him he could not definitively diagnose a heart condition. Dr. Noehren stated that he thought tobacco bronchitis was one of claimant's problems, but he stated later that he couldn't give a definitive determination of the cause of bronchitis, especially when the patient has not smoked for several years. (Claimant quit smoking about 1968.)

Dr. Noehren stated that he based his opinion that claimant does not have a disabling lung impairment mostly on the normal blood gas test results. However, Dr. Noehren also testified that both blood gas and ventilatory function tests are useful to measure lung functions and that occupational history is one of the most important factors in evaluating chest diseases. Dr. Noehren stated that this case exemplifies that a difficult, if not impossible, question for a pulmonary physician is whether the cause of certain disabilities is the lungs or the heart.

Claimant testified that coughing and other breathing problems interfered with his ability to work. He stated that he had discussed these problems with his superiors and retired because he was unable to perform his duties. During the two months before his retirement, claimant missed eighteen days of work because of sickness. Wilfred LaVon Day, claimant's former supervisor, testified that he did not know why claimant retired but that on several occasions claimant indicated he could not keep up the pace.

II

The employer contends that Fed.R.Evid. 301 controls the operation of the presumptions in this case. It bases its argument on Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), in which the Court stated,

"Turning our attention to the statutory regulations of proof of Sec. 402(f) disability, we focus initially on the Operators' challenge to the presumptions contained in Secs. 411(c)(1) and (2). Section 411(c)(1) provides that a coal miner with 10 years' employment in the mines who suffers from pneumoconiosis will be presumed to have contracted the disease from his employment. Section 411(c)(2) provides that if a coal miner with ten years' employment in the mines dies from a respiratory disease, his death will be presumed to have been due to pneumoconiosis. Each presumption is explicitly rebuttable, and the effect of each is simply to shift the burden of going forward with evidence from the claimant to the operator. See Fed.Rule Evid. 301."

Id. at 27, 96 S.Ct. at 2898 (footnotes omitted).

We believe that defendant misinterprets the Supreme Court's reference to Fed.R.Evid. 301 and that the Federal Rules of Evidence are inapplicable to the adjudication of this case. First, the Federal Rules of Evidence by their express terms apply only to proceedings in the federal courts and before U.S. Magistrates. Fed.R.Evid. 101, 1101. They are not intended to apply to administrative hearings such as those held under the Black Lung Benefits Act.

Second, Rule 301 applies only to "civil actions and proceedings not otherwise provided for by Act of Congress or by these rules...." The Black Lung Benefits Act, 30 U.S.C. Sec. 932(a), incorporates by reference section 23(a) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 923(a), which precludes mandatory application of "common law or statutory rules of evidence or ... technical or formal rules of procedure" in adjudicating claims within the federal administrative process.

Third, Congress has also otherwise provided for interpretation of presumptions under the Black Lung Benefits Act by delegating to the Secretary of Labor the authority to create presumptions with limited rebuttal methods. The Act, in 30 U.S.C. Sec....