Blakley v. Amax Coal Co.

• Decision Date: 25 May 1995
• Docket Number: No. 94-2169,94-2169
• Citation: 54 F.3d 1313
• Parties: Lois BLAKLEY, Widow of Morris Blakley, Petitioner, v. AMAX COAL COMPANY, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1313

54 F.3d 1313

Lois BLAKLEY, Widow of Morris Blakley, Petitioner, v. AMAX COAL COMPANY, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 94-2169.

United States Court of Appeals Seventh Circuit.

Argued Feb. 10, 1995.

Decided May 25, 1995.

Thomas E. Johnson (argued), Leslie A. Jones, Johnson, Jones, Snelling & Gilbert, Chicago, IL, for petitioner.

Patricia M. Nece, Lawrence W. Rogers, Barry H. Joyner (argued), Barry H. Joyner, Dept. of Labor, Office of the Sol., Washington, DC, for Director, Office of Workers Compensation Programs.

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

Paul E. Travers, Benefits Review Bd., Donald S. Shire, Sol. Gen., Dept. of Labor, Office of the Sol., Washington, DC, for Benefits Review Bd.

Before FLAUM and EASTERBROOK, Circuit Judges, and CRABB, District Judge. ^*

FLAUM, Circuit Judge.

In this appeal, we consider a petition for review of an order of the Benefits Review Board of the United States Department of Labor denying Lois Blakley benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901-945. Coal miner Morris Blakley applied for black lung benefits on January 5, 1981, prior to his death in 1985. Petitioner Lois Blakley, his widow, timely filed a claim for survivor benefits. Mrs. Blakley now appeals the ruling of the Benefits Review Board ("the Board") affirming the decision of the Administrative Law Judge ("ALJ") denying benefits. For the reasons that follow, we enforce the decision of the Board.

I.

Morris Blakley was a coal miner for twenty-one years. His social security records, which cover 1940-1952 and 1954-1979, established at least twenty one years of coal mine employment with a number of coal companies. Specifically, and what is important for this appeal, Mr. Blakley worked at the Amax Coal Company's ("Amax") Thunderbird Mine, an underground coal mine, between August, 1969 and January, 1972, and then at Amax's Aycoe Mine, a surface mine, until May, 1978. He then worked at Amax's Ayrshire surface mine, until he retired on January 5, 1982. In addition to his exposure to coal dust, Blakley smoked approximately two packs of cigarettes per day for close to forty-five years, resulting in a smoking history of between 80 and 120-pack years. Mr. Blakley suffered from atherosclerosis, hypertension, and amyotrophic lateral sclerosis, a disease affecting his respiratory muscles, and had a heart attack in 1983. On May 19, 1985, at age sixty-five, he died as a result of respiratory arrest and amyotrophic lateral sclerosis.

In 1981, Morris Blakley filed an application for benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901-945 (the "Act"). The Deputy Commissioner of the Office of Workers' Compensation Programs ("OWCP") of the United States Department of Labor rejected this application on June 9, 1981, concluding that the evidence did not establish that Blakley was totally disabled due to pneumoconiosis. Blakley did not contest this decision or file for reconsideration within sixty days, thus abandoning the claim as a matter of law. See 20 C.F.R. Sec. 725.410(c).

On May 6, 1982, within one year of the denial of benefits, Gene Bradley, a lay representative of the United Mine Workers, sought modification of the OWCP's decision pursuant to 20 C.F.R. Sec. 725.310 on the basis of evidence submitted by Blakley in the form of a certificate of retirement and the evidence developed by the OWCP in connection with Blakley's original claim for benefits. On May 13, 1982, the Deputy Commissioner awarded benefits to Blakley based on this information. Amax contested this decision, which the OWCP affirmed on February 18, 1983. Amax again contested the determination and sought a formal hearing before an ALJ.

At the April, 1985 ALJ hearing, Amax requested that the ALJ only consider: (1) the scope of the OWCP's and ALJ's roles when modification is requested and (2) what evidence should be considered in determining whether a claimant has satisfied his burdens of proof under Sec. 725.310. The ALJ concluded that Blakley had not provided evidence of a change in condition or demonstrated a mistake of fact in the original decision, as required by the Act's modification provision. 30 U.S.C. Sec. 932(a). ¹ The Director appealed this decision, arguing that the ALJ erred in confining his modification inquiry to the evidence submitted by Bradley, and that the ALJ instead should have conducted a de novo review of the record as a whole. Consistent with Amax Coal Co. v. Franklin, 957 F.2d 355 (7th Cir.1992), the Board agreed with the Director's argument and on June 30, 1989, vacated the ALJ's denial of benefits and remanded for further proceedings.

On remand, the ALJ held a hearing on May 2, 1991, at which he considered all evidence of record under Sec. 725.310. The ALJ admitted into evidence the Director's thirty exhibits from Mr. Blakley's original claim, the Director's eleven exhibits from Mrs. Blakley's claim, twenty exhibits from Amax, and twelve new exhibits from Mrs. Blakley. The parties also entered into a joint stipulation of medical evidence summarizing the x-ray evidence, pulmonary function and arterial blood studies, physicians' reports, hospital records, and death certificate. The record contains medical opinions from six physicians, as well as hospital and nursing home records. We briefly summarize the relevant testimony of each physician.

Dr. Peter G. Tuteur is board-certified in internal and pulmonary medicine. He reviewed Mr. Blakley's records and in a March 11, 1991 report diagnosed advanced chronic obstructive pulmonary disease caused by smoking. Dr. Tuteur concluded that Blakley did not have coal miner's pneumoconiosis or any other condition arising out of coal mine employment. He found that Blakley had neither a restrictive ventilatory defect nor an impairment of gas exchange, two symptoms associated with "disabling pneumoconiosis." At his July 31, 1991 and August 28, 1991 depositions, Dr. Tuteur again stated that there was no evidence of restrictive impairment which would have been caused by coal dust exposure. He testified that, contrary to the opinions of two other physicians, coal dust exposure could not cause an obstructive impairment, although he noted that in some rare cases, a non-smoking miner could develop a "trivial" obstruction. He further testified that where a miner developed obstructive disease, if the miner was also a heavy smoker, then the miner's condition should be attributed, with a reasonable degree of medical certainty, to the smoking and not the coal dust.

Dr. Lloyd Craig Miller is board-certified in both internal and pulmonary medicine. In his April 19, 1985 deposition, he concluded, based on his review of various medical records, that Blakley did not have coal worker's pneumoconiosis but did suffer from respiratory dysfunction, arising out of chronic obstructive lung disease of an emphysematous type caused by smoking. Dr. Miller also testified, however, that he could not "state to a reasonable medical certainty that Mr. Blakley's coal mine employment was not at least a contributing factor to his significant lung disease."

Dr. Kenneth Wilhelmus examined Blakley on behalf of the Department of Labor, taking a chest x-ray, conducting pulmonary function and arterial blood gas studies, and performing a physical examination. He diagnosed Blakley as having a moderate chronic pulmonary impairment which was both obstructive (due to smoking) and restrictive (due to "mucus plugging"), as well as arteriosclerotic heart disease and hypertension.

Dr. Donald L. Rasmussen, board certified in internal medicine, concluded in his May 31, 1991 report that Blakley was totally disabled by a respiratory impairment whose etiologic factors were smoking and coal mine employment. At his June 26, 1991 and September 5, 1991 depositions, Dr. Rasmussen again stated that Blakley's obstructive impairment was consistent with both smoking and coal dust exposure. Dr. Peter Orris, who is board certified in preventive and occupational medicine, reached substantially similar conclusions in a June, 1990 report and so testified at a May 24, 1991 deposition.

On January 27, 1992, the ALJ denied benefits. The ALJ found that Blakley failed to satisfy his burden of proving that he had pneumoconiosis under Sec. 718.202(a)(1) and that he failed to demonstrate the existence of pneumoconiosis by reasoned medical opinion evidence under Sec. 718.202(a)(4). The ALJ then considered whether Blakley had established the existence of pneumoconiosis on the basis of the presumptions contained in Sec. 718.305. The ALJ determined that Blakley established that he had worked for fifteen or more years in underground or substantially similar coal mining conditions and that he was entitled to the rebuttable presumption that he was totally disabled due to pneumoconiosis. 20 C.F.R. Secs. 718.305(c), 718.204(c)(4). The ALJ then held that Amax rebutted this presumption by showing that: (1) Blakley did not have pneumoconiosis; and (2) even if he did have the disease, it did not arise in whole or in part from dust exposure during his coal mine employment. 20 C.F.R. Sec. 718.305(d). The ALJ concluded that Blakley neither met his burdens under Sec. 718 nor established a change in condition or mistake in fact that might entitle him to modification under Sec. 725.310. Consequently, Mrs. Blakley could not recover benefits on her survivor's claim. After a denial of her motion for reconsideration, Mrs. Blakley sought review by the Board. The Board affirmed the ALJ's decision on March 30, 1994. Mrs. Blakley then petitioned us for review.

II.

The fundamental issue on appeal is whether the ALJ erred in denying benefits. ² Specifically, Blakley contends that he was eligible for benefits under the fifteen year presumption found in the Act. 30 U.S.C. Sec. 921(c)(4), and 20 C.F.R. Sec. 718.305...