Conn v. White Deer Coal Co.

• Decision Date: 01 December 1988
• Docket Number: No. 87-3982,87-3982
• Parties: Dow CONN, Petitioner, v. WHITE DEER COAL COMPANY; Old Republic Companies; Office of Workers' Compensation Programs; United States Dept. Labor, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 591

862 F.2d 591

Dow CONN, Petitioner, v. WHITE DEER COAL COMPANY; Old Republic Companies; Office of

Workers' Compensation Programs; United States

Dept. Labor, Respondents.

No. 87-3982.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 19, 1988.

Decided Dec. 1, 1988.

Albert A. Burchett (argued), Prestonsburg, Ky., for petitioner.

Kiernan F. Kilcullen, Kilcullen, Wilson & Kilcullen, Jeffrey J. Bernstein, Office of the Sol., U.S. Dept. of Labor, Barbara J. Johnson, Mark E. Solomons (argued), Arter & Hadden, Washington, D.C., Laura Metcoff Klaus, for respondents.

Before WELLFORD and BOGGS, Circuit Judges, and BROWN, Senior Circuit Judge.

PER CURIAM.

I.

This black lung appeal involves a challenge to a lengthy decision of an administrative law judge (ALJ) denying benefits, later affirmed by the Benefits Review Board (BRB). The record includes a plethora of conflicting medical evidence concerning all of the tests for both invocation and rebuttal of the interim presumption of total disability due to pneumoconiosis arising out of coal mine employment set forth in 20 C.F.R. Sec. 727.203. In his decision, issued before the United States Supreme Court's decision in Mullins Coal Co. v. Director, OWCP, --- U.S. ----, 108 S.Ct. 427, 98 L.Ed.2d 450 (1987), the ALJ invoked the presumption of disability under both Sec. 727.203(a)(3) and (a)(4), but found the presumption rebutted by the employer under Sec. 727.203(b)(2) as well as (b)(4). We affirm the denial of benefits upon the alternative ruling of the ALJ under subsection (b)(4). Although the BRB did not affirm on this basis, the issue was presented to it and is therefore properly before us, taking into account that both the BRB and this court apply the same standard of review to the ALJ's decision.

II.

Dow Conn, born April 30, 1928, filed an application in 1975, approximately three weeks following his retirement from underground coal mining, seeking federal Black Lung Benefits Act benefits. During the period 1945 through 1975, Conn was employed in the underground coal mines for ten and one-half years.

Following denial of Conn's claim by the Department of Labor (DOL) in August of 1977, and a subsequent DOL denial of Conn's claim in November 1979 after automatic review pursuant to the Black Lung Benefits Reform Act of 1977, a hearing was held before the administrative law judge (ALJ) in October of 1981. At the hearing, substantial medical evidence was adduced, "including chest x-ray interpretations, pulmonary function and arterial blood gas test results, and medical reports and depositions evaluating Conn's health).

Conn was examined by Dr. W. Grady Stumbo, who took a complete history, conducted a physical examination, took a chest x-ray, and performed ventilatory function studies in December of 1974. Not a "B" reader, ¹ Dr. Stumbo interpreted Conn's x-ray as revealing stage 1/1 q pneumoconiosis. The ventilatory function tests resulted in qualifying values, but no tracings or statement of effort were attached. Dr. Stumbo diagnosed pneumoconiosis and concluded that Conn was therefore "unemployable in his usual acceptable occupation as a coal miner."

The following February Conn was examined by Dr. W.T. Anderson, who conducted a physical examination, including chest auscultation and percussion, pulmonary function studies including spirometry, and a chest x-ray. Dr. Anderson testified that Conn's x-ray revealed early second stage pneumoconiosis and that his breathing capacity, as demonstrated by his pulmonary function studies, was definitely impaired, with FEV and FEF values both below 40% of those predicted. Conn's objective and subjective symptoms were found generally to be consistent with this diagnosis. Dr. Anderson concluded that, if asked, he would recommend that Conn be rejected for coal mining employment because of the disease's progressive nature. Dr. Anderson also opined that Conn would be precluded from any other employment because of his lack of pulmonary reserve.

Subsequently, in September of 1975, Conn was seen by Dr. Ballard Wright, who performed a physical examination, EKG, pulmonary function studies, and an x-ray. Dr. Wright noted a mild increase in the AP diameter of Conn's chest with distant breath sounds, but heard no rales or rhonchi. Both the EKG and the x-ray were within normal limits, and Dr. Wright found no pneumoconiosis. The pulmonary function studies yielded FEV 1 and FVC values within normal limits; however, Dr. Wright noted some evidence of mild obstructive airway disease. Also, Conn had mild resting hypoxemia, but his blood oxygen level was normal with exercise, indicating ventilatory reserve. Dr. Wright diagnosed chronic obstructive pulmonary disease, bronchetic type, associated with physiologic evidence of small airway disease.

One month later, Dr. Lowell Martin evaluated Conn, conducting a physical examination and taking a chest x-ray. Dr. Martin's report consisted of a form letter, which included the pre-printed sentence "His Physical Examination disclosed him to be short of breath." Upon examination of Conn's x-ray, Dr. Martin, an "A" reader, ² concluded that Conn had pneumoconiosis, 1/1 q stage. The form letter also contained the pre-printed opinion that "[t]his patient should not return to underground coal mining because of his silicosis."

Dr. Martin testified that Conn's subjective and objective symptoms were consistent with the diagnosis of pneumoconiosis and stated further that Conn showed evidence of pulmonary impairment. He gave no further explanation of the "symptoms" to which he referred, however, and did not describe the extent of Conn's impairment. In response to several leading questions, Dr. Martin affirmed that, in his opinion, Conn was totally and permanently disabled from working either in the coal mines or any other work where he would be exposed to dust or noxious gases, or that would require physical labor. Dr. Martin, who performed pre-employment exams for coal mining companies, also stated that Conn would be rejected for employment if diagnosed with pneumoconiosis.

In the next month, November of 1975, Conn was examined by Dr. W.F. Clarke, who also took a chest x-ray and completed pulmonary function studies. Dr. Clarke heard coarse rales throughout Conn's lung field, primarily in the left lung, and observed a prolonged expiratory phase with increased AP chest diameter. The values obtained by the pulmonary function studies exceeded those specified in 20 C.F.R. Sec. 727.203(a)(2) and were therefore insufficient to establish the presence of a chronic respiratory or pulmonary disease pursuant to that regulation. Based upon Conn's chest x-ray, Dr. Clarke diagnosed 1/2 p pneumoconiosis and concluded that Conn was "permanently and totally disabled from all work in a dusty environment."

Several years later, in May of 1979, Dr. J.W. Sutherland examined Conn and found his chest to be clear and his chest diameter to be normal. He reported two arterial blood gas tests with results within normal limits both before and after exercise and pulmonary function study values within normal limits. He noted that Conn could only climb forty-four steps before complaining of shortness of breath. Apparently based upon Conn's reported employment history, (twenty-one years claimed of underground coal mining and chronic cough and sputum production), Dr. Sutherland did not feel the need to describe an objective impression of the severity of this impairment.

Conn was most recently examined by Dr. Allen L. Cornish in May of 1980. Dr. Cornish conducted a physical examination and an EKG, took a chest x-ray, and administered a spirogram and blood gas studies. Although Conn's spirometry tests yielded normal results, his blood gas studies revealed severe hypoxemia, an inconsistency for which Dr. Cornish could not account. Upon physical examination, Dr. Cornish found Conn to be slightly cyanotic and noted that his fingernails were of a "watch-glass" configuration. Dr. Cornish found no evidence of silicosis or other occupational disease.

In addition to the x-ray interpretations by examining doctors, several non-examining doctors either reread certain x-rays or took and interpreted additional x-rays. In December of 1975, Dr. Benjamin Felson, a "B" reader, reread the x-ray taken by Dr. Wright in September of 1975 and, like Dr. Wright, found no evidence of pneumoconiosis or other significant abnormality. Dr. G.N. Combs, also a "B" reader, interpreted an x-ray taken in 1975 and one taken in 1980 as showing no evidence of pneumoconiosis. Dr. Richard P. O'Neill and Dr. Eugene P. Pendergrass, a "B" reader, in 1975 and 1976 respectively, reread the 1975 x-ray initially interpreted by Dr. Martin, who found pneumoconiosis stage 1/1 q. Dr. O'Neill diagnosed pneumoconiosis; Dr. Pendergrass found possible manifestations of pneumoconiosis. In 1976, Dr. R.H. Morgan, a "B" reader, reread the 1975 x-ray initially interpreted by Dr. Clarke and found the film barely acceptable but completely negative. Dr. R. Quillin, a "B" reader, interpreted a 1980 x-ray and discovered no evidence of pneumoconiosis or emphysema. Finally, in 1981, Dr. Brent Brandon, a "B" reader, reread the 1974 x-ray interpreted by Dr. Stumbo as showing pneumoconiosis stage 1/1 q and concluded that it exhibited nodular densities in the right upper lung zone consistent with pneumoconiosis stage 1/0 p.

The ALJ, in a decision and order issued March 31, 1982, determined first that Conn was a coal miner for ten and one-half years, last employed by White Deer Coal Company in 1975, when Conn ceased working. Because Conn had in excess of ten years of coal mine employment, the ALJ went on to consider whether Conn was entitled to the interim presumption of total disability due to pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. Sec. 727.203(a).

Under 20 C.F.R. Sec. 727.203(a)(1), the interim presumption is invoked if a chest x-ray establishes the existence...