Dodson v. National Transp. Safety Bd.

• Decision Date: 12 March 1981
• Docket Number: No. 80-1440,80-1440
• Citation: 644 F.2d 647
• Parties: Harold R. DODSON, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD and The Federal Aviation Administration, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 647

644 F.2d 647

59 A.L.R.Fed. 672

Harold R. DODSON, Petitioner, v. NATIONAL TRANSPORTATION SAFETY BOARD and The Federal

Aviation Administration, Respondents.

No. 80-1440.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 30, 1980.

Decided March 12, 1981. ^*

David R. Aplington, Westervelt, Johnson, Nicoll & Keller, Peoria, Ill., for petitioner.

Carlene V. McIntyre, Dept. of Justice, Civil Division, Washington, D. C., for respondents.

Before CUMMINGS, PELL and WOOD, Circuit Judges.

PER CURIAM.

Harold R. Dodson, the petitioner, seeks review of an order of the National Transportation Safety Board ("NTSB"). The Administrator of the Federal Aviation Administration ("FAA") denied Dodson's application for a second class airman's medical certificate. The administrative law judge ("ALJ"), on appeal, set aside the denial because she found petitioner's coronary artery disease could not reasonably be expected to lead to myocardial infarction. The NTSB reversed the ALJ and affirmed the denial of the certificate. We conclude that the petition for review must be denied. The NTSB's order is affirmed. ¹

I.

The gravamen of Dodson's petition addresses the issue of whether the NTSB order denying the certificate was supported by substantial evidence as mandated by 49 U.S.C. § 1486 (1976 and Supp. III 1979). We must first determine whether petitioner's coronary condition could reasonably be expected to lead to myocardial infarction (heart attack). The NTSB found petitioner to be subject to risk of unacceptable proportions and therefore his condition could reasonably result in a myocardial infarction. We agree. Petitioner has not presented sufficient evidence to demonstrate that this risk is within the acceptable limits for aviation safety. 49 U.S.C. § 1422 (1976 and Supp. III 1979).

The certificate denial by the FAA was based upon 14 C.F.R. §§ 67.15(e)(1)(ii) and 67.15(f)(2) (1980). Section 67.15(e)(1)(ii) disqualifies applicants with angina pectoris or other evidence of coronary disease which "may reasonably be expected to lead to myocardial infarction." ² Section 67.15(f)(2) disqualifies all applicants whose medical condition makes them unable to safely perform the duties under or exercise the privileges of an airman's certificate. Since petitioner's arteriosclerosis fits within the former more narrow regulation, it follows that he is also disqualified under the more general provisions of Section 67.15(f)(2). See, e. g., Petition of Ewing, 1 NTSB 1192, 1193 (1971).

It is undisputed that two of petitioner's three coronary arteries are occluded or stenosed to an 85% level, which accordingly causes approximately 30% of his heart muscle to be undernourished. The testifying cardiovascular experts agreed that a 75% blockage in any artery is critical and clinically significant. The third coronary artery is currently at a 40% level of stenosis.

What is disputed, however, is the resultant degree of risk of myocardial infarction to which petitioner's condition makes him susceptible. Petitioner's expert, Dr. Thomas J. Zimmerman, a Board certified physician in internal medicine and cardiovascular diseases, opined that petitioner had a 2% per year chance of having a fatal heart attack and a 4% per year chance of having a nonfatal heart attack. Zimmerman also stated that these percentages would be somewhat diminished given petitioner's efforts to control his various risk factors, such as obesity, smoking, and hypertension.

Dr. Robert I. Martin, who also testified for petitioner, is a family practitioner as well as an occupational and industrial physician, but does not specialize in cardiovascular disease. He has served as a designated aviation medical examiner since 1976. His opinion indicated that because petitioner had reduced his risk factors, his chance of having a myocardial infarction was little (if any) greater than any other person of similar age, weight, or lifestyle. He presented no specific risk percentages in the proceedings below.

A third expert, Dr. Albert J. Miller, is Board certified in internal medicine (1956) and cardiovascular diseases (1965). He is a cardiovascular specialist who has been in practice for thirty-five years. Miller testified for the Administrator. ³ In his opinion, which was based upon the most conservative studies in the literature covering a maximum five-year period, petitioner's chance of having a fatal and nonfatal infarction were respectively 5% and 10% per year. Thus, within two years, the chance would be 10% and 20%. Miller was uncertain as to the impact of the alleviation of the risk factors, but stated that even in the absence of the factors, petitioner's coronary artery disease would possibly progress with the passage of time.

The ALJ chose to accept Dr. Zimmerman's opinions over Dr. Miller's as appearing to be more logical, persuasive, and encompassing more in-depth considerations of the various elements of petitioner's condition. Thus, she concluded that petitioner's probability of having a myocardial infarction was 4% per year, whereas the percentage for a man of similar age with no diagnosis of cardiovascular disease would be about 1%. She also accepted Dr. Martin's opinion that there would be little or no difference between the chance for attack of petitioner and a man with no disease but who presented similar risk factors with similar levels of severity. She concluded, therefore, that petitioner's disease could not reasonably be expected to lead to myocardial infarction. Since petitioner had evinced no anginal symptoms during the previous year, the ALJ further determined that petitioner's disease was not of sufficient severity to be reasonably expected, at that time or within two years, to render him unable to safely perform the duties or exercise the privileges of a holder of an airman's certificate.

Upon appeal, the NTSB reversed the ALJ's decision and found petitioner to be disqualified for airman medical certification. The NTSB determined that the record did not support the ALJ's initial decision. Therefore, the NTSB ruled that petitioner had not met his burden of establishing by a preponderance of substantial, reliable, and probative evidence that he was qualified for a medical certificate under Sections 67.15(e)(1)(ii) and 67.15(f)(2).

In reaching its result, the NTSB evaluated the expert testimony. The Board noted that Dr. Zimmerman admitted upon cross-examination that petitioner was in real danger of having a myocardial infarction, an incapacitating event. Dr. Martin, in addition, admitted that while petitioner's condition was improved, his arteriosclerosis was probably "almost exactly the same as a year ago." Dr. Miller, as mentioned, was of the view that petitioner presented an unacceptable risk of myocardial infarction and sudden death. The NTSB, after detailing the disagreement among the experts as to petitioner's percentage of risk of myocardial infarction, looked to the evidence upon which all of the experts were in accord. This included the fact that petitioner's two artery blockages were above the critical level, and therefore he was subject to an increased likelihood of attack. The NTSB added that while the risk factors had been reduced or alleviated, all experts agreed that petitioner's degree of artery disease remained the same, and some believed would even worsen over time. The NTSB also explained that granting a medical certificate to a person with petitioner's degree of coronary artery disease would be contrary to NTSB policy and inconsistent with past NTSB precedent which had found qualification only when all three coronary arteries were open, properly flowing, and likely to remain in such a state.

Petitioner attacks the NTSB order as not being supported by a preponderance of substantial evidence. He avers that the NTSB's reversal was arbitrary and capricious and should therefore be reversed. He argues that his condition may not reasonably be expected to lead to myocardial infarction. We find that the NTSB order, reversing the ALJ, is amply supported by the record, which shows petitioner to have significant artery blockage so as to subject him to unreasonable risk of infarction and which renders him a substantial risk to air safety. Our study of the record convinces us that there is in fact such substantial evidence. ⁴ Loomis v. McLucas, 553 F.2d 634, 636 (10th Cir. 1977); Herring v. Administrator, F. A. A., 532 F.2d 1003 (5th Cir. 1976) (per curiam).

That part of the expert testimony which is in agreement and is uncontested, in our view, constitutes substantial evidence supportive of the NTSB order. In such circumstances, it is not our function to reweigh or reevaluate such evidence. Terry v. N. T. S. B., 608 F.2d 418, 421 (10th Cir. 1979); Doe v. Dept. of Transportation, F. A. A., 412 F.2d 674, 677 (8th Cir. 1969) (Blackmun, J.). Since the NTSB's findings are supported by substantial evidence they are conclusive upon us. 49 U.S.C. § 1486(e) (1976 and Supp. III 1979). See Stern v. Butterfield, 529 F.2d 407, 409 (5th Cir. 1976).

It is settled that the burden of proving eligibility for a certificate rests with the petitioner. Doe v. Dept. of Transportation, F. A. A., 412 F.2d 674, 677 (8th Cir. 1969); Day v. N. T. S. B., 414 F.2d 950, 952 (5th Cir. 1969); Greve v. C. A. B., 378 F.2d 651, 655 (9th Cir. 1967). While we note that there was a conflict as to the percentage of likelihood of infarction, we conclude, given the evidence upon which there is no dispute, that petitioner has failed to meet the burden of establishing that his condition could not reasonably lead to myocardial infarction.

Petitioner also assails the NTSB's reversal of the ALJ's decision. ⁵ The NTSB's reversal, however, is vulnerable only if it fails to reflect attentive consideration of the ALJ's decision. However, the reversal can be upheld if the NTSB presents a reasoned explanation. Greater Boston Television Corp. v. F. C. C., 143 U.S.App.D.C. 383, 444 F.2d...