Arnold v. Peabody Coal Co., 94-1250

• Citation: 41 F.3d 1203
• Decision Date: 09 December 1994
• Docket Number: No. 94-1250,94-1250
• Parties: Grester ARNOLD, Petitioner, v. PEABODY COAL COMPANY, Old Republic Insurance Company and Director, Office of Workers Compensation Programs, United States Department of Labor, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1203

41 F.3d 1203

Grester ARNOLD, Petitioner, v. PEABODY COAL COMPANY, Old Republic Insurance Company and Director, Office of Workers Compensation Programs, United States Department of Labor, Respondents.

No. 94-1250.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 26, 1994.

Decided Dec. 9, 1994.

Raymond T. Reott, Robert L. Denby (argued), Jenner & Block, Chicago, IL, for Grester Arnold.

W.C. Blanton (argued), Terri A. Czajka, Ice, Miller, Donadio & Ryan, Indianapolis, IN, for Peabody Coal Co., Old Republic Ins. Co.

John H. Secaras, Sol. Gen., Dept. of Labor, Chicago, IL, Louis W. Rogers, Dept. of Labor, Office of Workers' Compensation Program, Washington, DC, Jeffrey S. Goldberg (argued), Christian P. Barber, U.S. Dept. of Labor, Office of the Sol., Washington, DC, for Director Office of Workers Compensation Programs.

Lisa L. Lahrman, Benefits Review Bd., Executive Counsel, Clerk of the Bd., Washington, DC, Donald S. Shire, Sol. Gen., U.S. Dept. of Labor, Office of the Sol., Washington, DC, for Benefits Review Bd.

Before FLAUM and KANNE, Circuit Judges, and WILL, District Judge. ^*

WILL, District Judge.

Petitioner, Grester Arnold, filed a Request for Modification of a Department of Labor decision denying him black lung benefits under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. Sec. 901 et seq. The Office of Worker's Compensation Programs ("OWCP") denied Arnold's request, and appeals to an Administrative Law Judge ("ALJ") and the Benefits Review Board ("the Board") affirmed that decision. Arnold now petitions this court for review of the Board's order affirming the ALJ's determination that the evidence he submitted in support of his Request for Modification was not sufficient to trigger the x-ray rereading prohibition of 30 U.S.C. Sec. 923(b) and that he was not entitled to a hearing. For the reasons discussed below, we conclude that the rereading prohibition was violated, reverse the decision of the Board, and remand for a hearing on Arnold's Request for Modification.

BACKGROUND

Grester Arnold was a coal miner for 32 years. In March 1980, he filed for black lung benefits under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. Sec. 901 et seq. The OWCP made an initial finding of entitlement, but after notification, respondent Peabody Coal Company controverted that finding and the OWCP reversed itself and denied benefits. In September 1982, Arnold requested reconsideration and submitted additional evidence. This request was forwarded to an ALJ, a formal hearing was held, and on August 28, 1985 a decision was issued denying benefits. That decision was appealed and affirmed by the Board on August 25, 1987.

On August 19, 1988, Arnold filed a Request for Modification on the grounds that there had been a change in his physical condition and/or that the ALJ had made a mistake in his determinations of fact. In support, Arnold submitted a recent medical examination from Dr. Stephen Hessl and a reading of a recent chest x-ray by Dr. Fitzpatrick, a board-certified radiologist. Dr. Hessl's report included a pulmonary function study and an arterial blood gas study both showing "normal" non-qualifying results. It also summarized Arnold's medical history and physical limitations, including the fact that Arnold never smoked and was currently unable to walk 2 blocks or climb 10 steps without wheezing. The report further noted that Arnold suffered from dyspnea, orthopnea, coughing, and paroxysmal nocturnal dyspnea.

Despite the two non-qualifying test results, Dr. Hessl ultimately diagnosed Arnold as having chronic bronchitis, probable coal workers' pneumoconiosis ¹ not evident on x-ray, probable tuberculosis and heart disease, an A.M.A. cardio-respiratory impairment of grade II or III, and concluded that he was "totally disabled from coal mine employment." Dr. Hessl's report also concluded that none of Arnold's disabling conditions were non-cardiopulmonary. Dr. Fitzpatrick read and found Arnold's recent x-ray to be positive for pneumoconiosis.

The Department of Labor received Arnold's Request for Modification along with Dr. Hessl's report and Dr. Fitzpatrick's x-ray reading, and, apparently without considering the x-ray rereading regulations, had Arnold's x-ray reread by two additional board certified radiologists. Dr. Jay Gordonson and Dr. Nicholas Sargent both interpreted Arnold's x-ray as being negative for pneumoconiosis. Thereafter, on November 15, 1988, a claims examiner concluded that a preponderance of the evidence did not support the awarding of benefits, and thus denied petitioner's modification request. On November 22, 1988, Arnold filed a request for a hearing before an ALJ to review the claims examiner's decision. The ALJ declined to hold a hearing, and held that a review of the evidence, including the two x-ray rereadings by Drs. Gordonson and Sargent, did not support Arnold's On April 2, 1990, Arnold appealed to the Board on the grounds that he was entitled to a hearing, and that the claims examiner and the ALJ had both wrongfully relied upon x-ray rereadings that were done in violation of the rereading prohibition of 30 U.S.C. Sec. 923(b) and 20 C.F.R. Sec. 727.206(b). ² The Board vacated the ALJ's order and remanded the case back to the ALJ to consider whether the rereading prohibition was applicable to Arnold's submission. Specifically, the Board asked the ALJ to determine whether Dr. Hessl's medical report was sufficient "other evidence" to trigger 30 U.S.C. Sec. 923(b).

Request for Modification. Arnold filed for reconsideration arguing that he was entitled to a hearing, but the ALJ responded that he was not required to hold a hearing on every request for modification and denied reconsideration on July 18, 1989.

On June 23, 1992, the ALJ issued his Decision On Remand concluding that the rereading prohibition was not applicable. The ALJ determined that Dr. Hessl's report was not sufficient "other evidence" because, in his opinion, it was not well reasoned or documented. ³ Arnold appealed again to the Board, but the Board affirmed the ALJ's decision stating that the ALJ had "rationally concluded that Dr. Hessl's report was not reasoned inasmuch as Dr. Hessl failed to indicate how his documentation supported his conclusion." Arnold now appeals to this court to review the Board's Order affirming the ALJ's Decision On Remand.

DISCUSSION

Although Arnold appeals the final decision of the Board, our task is to review the ALJ's decision which the Board affirmed to determine whether it is rational, supported by substantial evidence, and in accord with the law. Poole v. Freeman United Coal Mining Co., 897 F.2d 888, 892 (7th Cir.1990).

Arnold argues that the ALJ misapplied the law when he denied him a hearing and determined that the evidence submitted in support of his Request for Modification was insufficient to invoke the x-ray rereading prohibition of 30 U.S.C. Sec. 923(b) and 20 C.F.R. Sec. 727.206(b). We agree.

In relevant part the rereading prohibition of 30 U.S.C. Sec. 923(b) provides that:

In any case ... in which there is other evidence that a miner has a pulmonary or respiratory impairment, the Secretary shall accept a board certified or board eligible radiologist's interpretation of a chest roentgenogram which is of quality sufficient to demonstrate the presence of pneumoconiosis submitted in support of a claim for benefits under this subchapter if such roentgenogram has been taken by a radiologist or qualified technician, except where the Secretary has reason to believe that the claim has been fraudulently represented. ⁴

To determine whether the Department of Labor improperly solicited, and the ALJ improperly considered, additional rereadings of Arnold's x-ray, we apply the above provision to the evidence that Arnold filed in support of his Request for Modification. It is undisputed Precisely this question was presented to the ALJ on remand from the Board. Arnold claimed that Dr. Hessl's report was more than sufficient other evidence to invoke the rereading prohibition. The ALJ, however, found that the other evidence requirement had not been met because he did not believe Dr. Hessl's opinion was well reasoned or documented and it did "not establish that claimant has a significant and measurable respiratory or pulmonary impairment." The ALJ seemed particularly concerned that the arterial blood gas and pulmonary function studies produced non-qualifying results, and yet Dr. Hessl had diagnosed Arnold as having a respiratory impairment and being totally disabled. The ALJ therefore ultimately concluded that Dr. Hessl's assessment was purely subjective and insufficient to invoke the rereading prohibition.

that, with Dr. Fitzpatrick's reading and analysis of the recent x-ray, Arnold submitted a chest x-ray interpreted by a board certified radiologist as being positive for pneumoconiosis. Moreover, there has been no suggestion that the recent x-ray was improperly administered, fraudulently represented or otherwise flawed. The only remaining criteria, and the disputed issue here, is thus whether Dr. Hessl's report constitutes "other evidence" that Arnold suffered from a pulmonary or respiratory impairment.

We find that the ALJ's analysis misapplies the "other evidence" requirement of 30 U.S.C. Sec. 923(b). In order to prevent x-rays from being reread by the Department of Labor, a claimant need not make the same evidentiary showing that is ultimately necessary to establish total disability or an entitlement to benefits. Nor does application of the rereading prohibition confer benefits, create any presumptions, or prevent the submission of additional evidence. What constitutes the requisite other evidence is broadly defined to include "medical tests such as blood-gas studies, pulmonary function studies or physical performance tests, physical examinations or medical histories which establish the presence of a chronic respiratory or...