Bethlehem Mines Corp. v. Massey, 83-2130

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before WIDENER, SPROUSE and CHAPMAN; SPROUSE
• Citation: 736 F.2d 120
• Parties: BETHLEHEM MINES CORPORATION, Petitioner, v. George MASSEY, Jr., Respondent, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Intervenor.
• Docket Number: No. 83-2130,83-2130
• Decision Date: 05 June 1984

Page 120

736 F.2d 120 BETHLEHEM MINES CORPORATION, Petitioner,
v.
George MASSEY, Jr., Respondent,
and
Director, Office of Workers' Compensation Programs, United
States Department of Labor, Intervenor. No. 83-2130. United States Court of Appeals,
Fourth Circuit. Argued April 6, 1984.
Decided June 5, 1984.

Page 121

David A. Barnette, Charleston, W. Va. (Jackson, Kelly, Holt & O'Farrell, Charleston, W. Va., on brief), for petitioner.

Thomas H. Zerbe, Charleston, W. Va., for respondent.

Joseph T. Bednarik, U.S. Dept. of Labor, Washington, D.C., for intervenor.

Before WIDENER, SPROUSE and CHAPMAN, Circuit Judges.

SPROUSE, Circuit Judge:

Bethlehem Mines Corporation (Bethlehem) appeals from the award of disability benefits to George Massey, Jr., under the Federal Coal Mine Health and Safety Act of 1969 (Black Lung Act), as amended, 30 U.S.C. Secs. 901-45. The presiding Administrative Law Judge (ALJ) ruled that Bethlehem had failed to rebut the interim presumption of total disability due to pneumoconiosis and awarded benefits. The Benefits Review Board of the Department of Labor affirmed in a short unsigned opinion. Bethlehem, on appeal, contends that its rebuttal evidence was considered under an improper legal standard. We affirm.

George Massey is a sixty-four-year-old coal miner with little formal education. He began work in the mines at age seventeen and accumulated over thirty-seven years of underground experience before disabling pulmonary problems forced his retirement in 1973. His last years of employment were marked by recurring breathing difficulties and coughing episodes. He applied for black lung benefits immediately after his retirement and received an initial certification of eligibility from the Department of Labor. Bethlehem contested his application, forcing the matter into the administrative adjudicatory system for resolution.

Soon after leaving his job with Bethlehem, Massey entered a Charleston, West Virginia, hospital complaining of shortness of breath, chest pains, and persistent coughing of blood. He was diagnosed as suffering from carcinoma of the right lung and underwent a pneumonectomy to have the lung removed. The biopsy report on the lower lobe of the removed lung confirmed

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the diagnosis of carcinoma. It also disclosed the presence of bronchitis, interstitial pneumonitis, and anthracosis, a compensable pulmonary impairment. 20 C.F.R. Sec. 727.202. Dr. Nahatuska, the surgeon performing the pneumonectomy, prepared a post-operative report on Massey's condition indicating moderate impairment of his ventilatory functions and the presence of emphysema in his remaining left lung.

A year after his surgery, Massey was examined by Dr. Pushkin, a respiratory specialist. Dr. Pushkin concluded that Massey suffered from anthracosis and pneumoconiosis caused by years of exposure to coal dust. His conclusions were corroborated fifteen months later by two other examining physicians specializing in respiratory disorders, Dr. Rojas and Dr. Daniel. Dr. Rojas based his conclusion of pneumoconiosis largely on diagnostic tests performed by Dr. Daniel. The blood gas study conducted as part of these tests revealed serious impairment in the rate of oxygen transfer from Massey's lung alveoli to his bloodstream. Ventilatory tests confirmed serious impairment, but the results were only partially complete because Massey's physical condition prevented him from participating in the most strenuous phase of the test. Two x-rays taken in connection with the examination produced negative findings.

The ALJ, after considering all relevant medical evidence, ruled that Massey qualified for the interim presumption of total disability due to pneumoconiosis under two of the regulation's criteria. 20 C.F.R. Sec. 727.203. He correctly noted that Massey's thirty-seven years of coal mine experience, combined with the results of his blood gas study, satisfied the requirements of 20 C.F.R. Sec. 727.203(a)(3). He then surveyed the various examining physicians' reports and concluded that Massey also qualified for the interim presumption under section 727.203(a)(4), which provides that the presumption is invoked by "[o]ther medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establish[ing] the presence of a totally disabling respiratory or pulmonary impairment." His decision to invoke Sec. 727.203(a)(4) was based on the findings of carcinoma and emphysema by Dr. Nahatuska, the biopsy report indicating anthracosis, and the medical opinions of Dr. Rojas and Dr. Pushkin attributing Massey's total disability to coal dust exposure.

Bethlehem's rebuttal evidence consisted of an affidavit from Dr. Swoyer, the pathologist who performed the biopsy on Massey's removed lung, and a medical report from Dr. Kress, a specialist in respiratory disorders. Dr. Swoyer confirmed his earlier biopsy findings of bronchogenic carcinoma and anthracosis, but opined that there was no evidence of clinical pneumoconiosis. He expressed the view that Massey's total disability was caused by the combined effects of the loss of lung tissue from the pneumonectomy and emphysema of the left lung. Dr. Kress, relying solely on medical reports prepared by all the examining physicians, concluded that Massey's totally disabling emphysema was the direct result of cigarette smoking. None of the examining physicians had mentioned smoking as a possible cause of Massey's emphysema.

The ALJ carefully weighed Bethlehem's submissions and concluded that they neither ruled out the causal nexus between Massey's total disability and coal mine employment, 20 C.F.R. Sec. 727.203(b)(3), nor...