Chastain v. Freeman United Coal Mining Co.

• Decision Date: 06 December 1990
• Docket Number: No. 88-3381,88-3381
• Parties: Helen CHASTAIN, Widow of Donald Chastain, Petitioner, v. FREEMAN UNITED COAL MINING COMPANY and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 485

919 F.2d 485

Helen CHASTAIN, Widow of Donald Chastain, Petitioner, v. FREEMAN UNITED COAL MINING COMPANY and Director, Office of

Workers' Compensation Programs, United States

Department of Labor, Respondents.

No. 88-3381.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 19, 1989.

Decided Dec. 6, 1990.

Harold B. Culley, Jr., Raleigh, Ill., for petitioner.

Louis R. Hegeman, Louis D. Bernstein, Gould & Ratner, Chicago, Ill., for Freeman United Coal Mining Co., respondent.

Barbara J. Johnson, Patricia M. Nece, Appellate Litigation, Donald S. Shire, Sol. Gen., Office of the Sol., Washington, D.C., John H. Secaras, Sol. Gen., Dept. of Labor, Chicago, Ill., for Office of Workers' Compensation Programs.

Carla Chapman, Benefits Review Bd., Dept. of Labor, Washington, D.C., for Benefits Review Bd.

Before CUDAHY, FLAUM, and RIPPLE, Circuit Judges.

CUDAHY, Circuit Judge.

Donald F. Chastain filed a Part C claim for benefits under the Black Lung Benefits Act (the "Act"), as amended 30 U.S.C. Sec. 901 et seq. Prior to the hearing on his claim, Donald Chastain died and his wife pursued his claim in order to receive survivor's benefits. The Administrative Law Judge ("ALJ") found that invocation had been established under 20 C.F.R. Sec. 727.203(a)(3) & (4), which entitled Chastain ¹ to a presumption that he was totally disabled due to pneumoconiosis arising out of coal mine employment. 20 C.F.R. Sec. 727.203(a). However, the ALJ found that the employer, Freeman United Coal Mining Company ("Freeman"), had rebutted that presumption under Sec. 727.203(b)(4), and the claim was denied. The Benefits Review Board (the "BRB") affirmed the ALJ's decision, and the en banc BRB affirmed on reconsideration. Helen Chastain appealed, and we now reverse.

I. STATEMENT OF THE CASE

A. Facts

The ALJ found, and respondents do not contest, that Donald Chastain was a coal miner within the meaning of the Act for twenty years and eleven months. Because Chastain had more than ten years of qualifying employment and his claim for benefits was filed prior to March 31, 1980, the claim was reviewed under 20 C.F.R. Sec. 727.203. Under that section, an interim presumption that a miner is entitled to benefits can be invoked through: (1) x-ray, autopsy or biopsy evidence establishing pneumoconiosis; (2) ventilatory studies establishing the presence of a chronic pulmonary disease; (3) blood gas studies demonstrating an impairment in the transfer of oxygen; (4) other medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establishing the presence of a totally disabling respiratory or pulmonary impairment; or (5) in the case of a deceased miner where no medical evidence is available, by affidavit of the survivor or a person with knowledge. The ALJ found that invocation had been established under (a)(3) and (a)(4), ² which entitled Chastain to a presumption that he was totally disabled due to pneumoconiosis arising out of his coal mine employment. 20 C.F.R. Sec. 727.203(a). The propriety of invocation under (a)(3) and (a)(4) is not challenged on appeal.

Invocation having been established, the ALJ proceeded to consider whether Freeman was able to rebut the presumption of entitlement to benefits. Under Sec. 727.203(b), rebuttal is accomplished if evidence establishes that: (1) the miner is in fact doing his usual coal mine work or comparable work; (2) the miner is able to do such work; (3) the total disability or death did not arise in whole or in part from coal mine employment; or (4) the miner does not in fact have pneumoconiosis. The ALJ found that rebuttal was not established under (b)(1) or (2) because Chastain was not doing his usual coal mine work or comparable work before his death and because the evidence demonstrated that Chastain was totally disabled before his death. In addition, Freeman failed to establish, pursuant to (b)(3), that the total disability did not arise at least in part from coal mine employment.

In the (b)(3) analysis, the ALJ focused upon the medical report of Dr. McDonald, a pulmonary specialist. Doctors Thornburg and Sanjabi had indicated that Chastain's condition was, or could be, related to coal dust exposure. Dr. McDonald, however, declared that the chronic obstructive lung disease was fully attributable to Chastain's history of cigarette smoking. ³ The ALJ noted that the BRB in Blevins v. Peabody Coal Co., 6 Black L.Rep. 1-750 (1983) ("Blevins III "), has established guidelines for assessing the weight of a physician's opinion attributing a miner's lung disease to smoking. ⁴ Based on those considerations, the ALJ found that Dr. McDonald's opinion was insufficient to establish rebuttal under (b)(3). That same report by Dr. McDonald, however, was then used by the ALJ to find that Freeman had established the absence of pneumoconiosis under (b)(4). The ALJ gave credence under (b)(4) to Dr. McDonald's determination that Chastain did not have pneumoconiosis, and that Chastain's smoking rather than coal mine employment caused his illness. Because rebuttal was accomplished under (b)(4), the claim for benefits was denied. That finding was upheld by the BRB on review and on en banc reconsideration. In both opinions, the BRB concluded that (b)(3) and (b)(4) provided independent means of rebuttal and that evidence deemed insufficient under (b)(3) could nevertheless establish rebuttal under (b)(4).

B. Arguments on Appeal

On appeal, Helen Chastain asserts that the ALJ erred in finding (b)(4) rebuttal and that the denial of the claim therefore was contrary to law, irrational and unsupported by substantial evidence. In developing this argument, Chastain focuses upon the distinction between "clinical" and "statutory" pneumoconiosis. ⁵ In addition to including coal workers' pneumoconiosis and other enumerated diseases, the statutory definition includes any chronic respiratory or pulmonary disease arising out of coal mine employment. ⁶ According to Chastain, (b)(4) rebuttal that "the miner does not, or did not, have pneumoconiosis" is effective only as regards "clinical" pneumoconiosis; however, the medical reports used in this case to establish invocation under (a)(3) and (a)(4) established statutory, not clinical, pneumoconiosis. Therefore, Chastain contends that Freeman's (b)(4) rebuttal was ineffective, and because neither (b)(2) nor (b)(3) rebuttal was established, benefits should have been granted. Finally, Chastain maintains that even if (b)(4) is applicable to statutory pneumoconiosis, Dr. McDonald's statements were insufficient to negate statutory pneumoconiosis.

In response, Freeman emphasizes that (b)(3) and (b)(4) are mutually exclusive rebuttal provisions, and that failure to satisfy (b)(3) cannot preclude recourse to (b)(4) rebuttal. Freeman reasons that (b)(3) was not satisfied because McDonald's statements attributing the disability to smoking did not satisfy the "evidentiary foundation guidelines" set forth in Blevins III. Freeman then asserts that the Blevins III guidelines are inapplicable to (b)(4) rebuttal and, therefore, rebuttal was properly found under (b)(4).

II. ANALYSIS

A. Rebuttal under (b)(4) Includes Statutory Pneumoconiosis

Chastain's assertion that (b)(4) applies only to cases of clinical pneumoconiosis is contradicted by several decisions construing that subsection. For instance, in Shonborn v. Director, OWCP, 8 Black L.Rep. 1-434, 1-436 (1986), the BRB held that "to rebut the interim presumption under subsection (b)(4), the party opposing entitlement must establish not only the absence of 'clinical' pneumoconiosis as defined by the medical community ... but also the absence of 'statutory' pneumoconiosis as defined in the Act and regulations." Accord Pavesi v. Director, OWCP, 758 F.2d 956, 965 (3d Cir.1985). The Shonborn holding is also implicit in decisions that analyze whether evidence negates the existence of a chronic respiratory impairment. See, e.g., Conn v. White Deer Coal Co., 862 F.2d 591 (6th Cir.1988). Finally, restriction of (b)(4) rebuttal to clinical pneumoconiosis would imply the absence of any provision for rebutting the presumption of respiratory disease (statutory pneumoconiosis) arising from coal mine employment. Miners could then invoke a presumption based upon statutory pneumoconiosis, but employers would have no established means of rebutting such a presumption with other evidence. The resulting "irrebuttable" presumption would frustrate the purpose of the Act and might be unconstitutional. See Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 159 n. 32, 108 S.Ct. 427, 440 n. 32, 98 L.Ed.2d 450 (1987). Chastain is unable to identify any decision interpreting (b)(4) in such a restrictive manner, and we hold that (b)(4) can properly be used to rebut a presumption of statutory pneumoconiosis.

B. Rebuttal of Statutory Pneumoconiosis under (b)(4)

The relevant issue, then, is whether in the circumstances of this case, the ALJ properly found (b)(4) rebuttal. As indicated, the medical reports used to invoke the interim presumption pointed to statutory pneumoconiosis. Therefore, to rebut under (b)(4), Freeman had to establish that Chastain did not have a chronic pulmonary or respiratory disease arising out of coal mine employment. By its terms, statutory pneumoconiosis could be negated either by a showing that Chastain experienced no chronic pulmonary or respiratory disease or by demonstrating that the disease did not arise out of coal mine employment. See Underhill v. Peabody Coal Co., 687 F.2d 217, 223 (7th Cir.1982). See also Adams v. Director, OWCP, 886 F.2d 818, 823 n. 5 (6th Cir.1989); Kline v. Director, OWCP, 877 F.2d 1175, 1177-79 (3d Cir.1989). These alternative means of (b)(4) rebuttal will be discussed separately.

1. Existence of a Chronic Pulmonary or Respiratory Disease

First, a coal mine employer could under (b)(4) attempt to negate the existence of a pulmonary or respiratory disease. In this...