Black Diamond Coal Min. Co. v. Benefits Review Bd., 84-7331

Citation758 F.2d 1532
Decision Date29 April 1985
Docket NumberNo. 84-7331,84-7331
PartiesBLACK DIAMOND COAL MINING COMPANY, Petitioner-Appellant, v. BENEFITS REVIEW BOARD, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Peyton Lacy, Jr., Birmingham, Ala., for petitioner-appellant.

Frederick T. Kuykendall, III, Birmingham, Ala., for Raines.

Brian E. Peters, J. Michael O'Neill, U.S. Dept. of Labor, Agnez Kurtz, Clerk, Benefits Review Board, Washington, D.C., for Director O.W.C.P.

On Review From a Decision and Order of the Benefits Review Board of the United States Department of Labor.

Before RONEY and HILL, Circuit Judges, and TUTTLE, Senior Circuit Judge.

RONEY, Circuit Judge:

Under the Black Lung Benefits Reform Act, a coal miner is presumed to be totally disabled due to pneumoconiosis arising out of his employment if he has been engaged in coal mining for 10 years and diagnosed as having a totally disabling respiratory or pulmonary impairment. For the purposes of the Act, pneumoconiosis is defined as a chronic dust disease of the lung arising out of coal mine employment. The employer may rebut the presumption by showing that the disability did not arise in whole or in part out of the coal mine employment, or by establishing that the miner did not have pneumoconiosis. 20 C.F.R. Secs. 727.202, .203(a)(4), .203(b)(3)-(4). 1

Appealing a decision in favor of the plaintiff-employee, which focused on the above provisions of the law, the employer contends the presumption was erroneously invoked, and, in any event, evidence compels a finding that the presumption was rebutted. We affirm.

Plaintiff Milton Raines, a 35-year veteran of coal mine employment, applied for Black Lung benefits on April 4, 1979 and ceased employment February 22, 1980. The medical evidence in the case consists of x-ray interpretations, reports of pulmonary function studies, blood gas studies and physicians' reports. The Administrative Law Judge invoked the presumption based on the testimony of Dr. David Russakoff, who examined Raines on May 5, 1979. At that time Dr. Russakoff diagnosed severe chronic obstructive pulmonary disease, limited the claimant's daily physical activity to one block of walking or climbing a few stairs and opined that Raines' condition was probably due in part to coal mining, although statistically it was more likely due to cigarette smoking. Dr. Russakoff neither explicitly diagnosed nor ruled out pneumoconiosis.

Black Diamond contends Dr. Russakoff's opinion did not establish a "totally disabling ... impairment" sufficient to invoke the presumption. 20 C.F.R. Sec. 727.203(a)(4). It argues that since Dr. Russakoff did no analysis of job content, and placed no limit on lifting or carrying, no evidence of total, work-precluding disability has been presented because claimant could still stand in one place and shovel coal over his shoulder. The claimant is so severely impaired, however, that he cannot walk more than one block or climb one flight of stairs daily, so it is apparent from the record the ALJ could draw an inference from Dr. Russakoff's report that Raines was totally disabled. Physicians need not phrase their medical conclusions in terms of "total disability" in order to establish a presumption sufficient to set out the physical impairments that rule out work. De Felice v. Consolidated Coal Co., 5 Black Lung Rep. 1-275, 1-277 (1982). The ALJ's and Board's decisions that a disabling respiratory or pulmonary ailment existed were wholly supported by Dr. Russakoff's opinion. That a different conclusion might be reached from the same evidence is insufficient reason to overturn the result. Alabama By-Products v. Killingsworth, 733 F.2d 1511, 1515-16 (11th Cir.1984).

The presumption being invoked, it then became incumbent on the employer to show either that the disability did not arise in whole or in part out of the coal mining, 20 C.F.R. Sec. 727.203(b)(3), or that the claimant did not have pneumoconiosis, 20 C.F.R. Sec. 727.203(b)(4).

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