Evosevich v. Consolidation Coal Co., 85-3451
| Citation | 789 F.2d 1021 |
| Decision Date | 07 March 1986 |
| Docket Number | No. 85-3451,85-3451 |
| Parties | Michael EVOSEVICH, Petitioner, v. CONSOLIDATION COAL COMPANY and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. . Submitted Under Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Lawrence R. Chaban, Yablonski, Costello & Leckie, Washington, Pa., for petitioner.
Douglas A. Smoot, Jackson, Kelly, Holt & O'Farrell, Charleston, W.Va., for Consolidation Coal Co.
Brian E. Peters, Office of the Solicitor, U.S. Dept. of Labor, Washington, D.C., for Director, Office of Workers' Compensation.
Before GIBBONS, BECKER, and ROSENN, Circuit Judges.
This petition for review of a decision denying black lung benefits 1 presents two questions, the first of which is whether the report of a non-examining physician based solely on a review of medical records is admissible over a hearsay objection in an administrative hearing. The second, and more difficult, question is whether the Administrative Law Judge (ALJ) erred in the weight he accorded the medical opinion of the non-examining physician hired by an adverse party. The ALJ denied Michael Evosevich's claim for benefits, concluding that the opinions of two doctors hired by the Consolidation Coal Company (the Company), which opposed awarding benefits, had greater probative worth than the opinions of Evosevich's treating physician and a labor department doctor. Only one of the Company's doctors examined Evosevich. The Benefit Review Board (BRB) affirmed the ALJ's decision.
We disagree with Evosevich's contention that the report of a non-examining physician is inadmissible hearsay. After reviewing the record as a whole, we conclude that substantial evidence supports the ALJ's decision, and deny Evosevich's petition for review.
Evosevich worked in coal mines for 47 years before retiring at age 63. All his jobs were underground. For the last 10 years of his career he worked for the Company, which as the responsible operator under 20 C.F.R. Sec. 725.493 (1985) is the respondent in this action. He had an excellent employment record, often working six or seven days a week with few absences. Following his retirement, which he attributes in part to shortness of breath, Evosevich filed a claim under the Black Lung Benefits Act, 30 U.S.C. Secs. 901-960 (1982) (the Act).
Evosevich previously had been examined by several doctors in connection with various medical problems, including a congenital chest deformity (pectus excavatum), a hernia repair, and bladder cancer. Reports of these examinations, as well as of examinations performed to evaluate the merit of Evosevich's claim under the Act, were submitted for consideration to an ALJ. The ALJ also heard testimony from Evosevich, but none of the doctors testified.
Pursuant to statute, 30 U.S.C. Sec. 921 (1982), the Department of Labor has promulgated regulations establishing interim rebuttable presumptions of total disability. A miner who worked at least 10 years in a coal mine is presumed to be totally disabled by pneumoconiosis and entitled to benefits under the Act if one of four requirements are met: (1) a chest x-ray, biopsy, or autopsy establishes the condition; (2) ventilatory studies establish the presence of a chronic respiratory disease as numerically defined (3) blood gas studies reveal impairment of the flow of oxygen, again as numerically defined; or (4) other medical evidence, including the documented reasoned opinion of a doctor, establishes the presence of a totally disabling respiratory impairment. 20 C.F.R. Sec. 727.203(a)(1)-(4) (1985).
After reviewing the evidence, the ALJ concluded and on appeal the Company concedes that Evosevich qualified for the interim presumption on the basis of the ventilatory studies and reasoned doctors' opinions concluding that he suffered a totally disabling respiratory impairment. Evosevich submitted to four ventilatory studies. For a man his height, an FEV-1 under 2.4 and a MVV under 96 qualify for the ventilatory presumption. In three recorded tests, Evosevich's FEV-1 ranged from 1.75 to 1.86 and his MVV from 45 to 72, all qualifying values. Although the values of a fourth test are not reported, the ALJ found they also qualified. Despite conflicting medical opinions, 2 the ALJ found that two doctors' reasoned medical opinions supported invoking the interim presumption. Evosevich did not qualify for the interim presumption on the basis of chest x-rays because the readings were conflicting, with negative readings of the most recent x-rays by the most qualified doctors. Evosevich was tested twice for the blood gas presumption and did not qualify either time.
Two experts hired by the Company, Dr. C.L. Anderson and Dr. George O. Kress, submitted reports concluding that Evosevich had chronic bronchitis and mild obstructive lung disease, caused by his congenital chest deformity and his former pack-a-day cigarette habit, that he had at most mild pneumoconiosis, and that he was not disabled from performing his usual work. Dr. Anderson based his report on his personal examination of Evosevich and on negative readings of x-rays apparently performed and read by Dr. Paul Francke, also retained by the Company. Dr. Kress did not examine Evosevich, and based his conclusions on the hospital and other medical records, Dr. Anderson's report, previous x-ray readings, and his own reading of the latest x-rays of record. Dr. Francke and Dr. Kress are both certified "B" readers. 3
Dr. Thomas E. Morgan submitted a report detailing Evosevich's medical history. Dr. Morgan, a general practitioner who has been Evosevich's family physician for more than 25 years, stated that in the 10 years preceding his retirement Evosevich "began to develop a progressive shortness of breach and a chronic cough," and that breathing problems prevented him from climbing stairs, walking up an incline, or walking further than 100 yards. He also reported that Evosevich's performance on a pulmonary function study and chest x-rays supported his diagnosis. The results of these studies qualify for the interim presumption of pneumoconiosis disability. He concluded that "this patient is totally and permanently disabled for any further employment ... [as] the result of his exposure to heavy concentrations of coal dust as an underground coal miner for over 45 years."
Dr. John Martin examined Evosevich on behalf of the United States Department of Labor and also concluded that he is totally disabled due to pneumoconiosis. Dr. Martin's reasoning was consistent with Dr. Morgan's. He found that Evosevich's breathing problem limited him to walking no more than 50 feet or one flight of steps each day and prevented him from lifting or carrying anything. He stated that "[p]art of [Evosevich's] dyspnea could be due to cigarette smoking as well, but in my estimation less than 50%." Dr. Martin also relied on ventilatory study results, which, like those performed by Dr. Morgan, were qualifying for the interim presumption of pneumoconiosis. In interpreting the ventilatory study, however, he stated that Evosevich's reduced FVC was "compatible with mild restrictive impairment" and his markedly reduced MVV "could be due to either pulmonary or non-pulmonary causes." (Emphasis added.)
Dr. Morgan and three board-certified radiologists, all of whom are not "B" readers, read various x-rays of Evosevich with values that qualify for the interim presumption of pneumoconiosis disability. Dr. McMahon, a "B" reader, also concluded that one of two x-rays register values that qualify for the interim presumption. See supra note 3. Two ventilatory studies were performed after Dr. Morgan and Dr. Martin wrote their reports, and both qualify for the interim presumption of pneumoconiosis and are consistent with the earlier studies. The evidence on which Dr. Morgan relied did not include a blood gas test, a matter Dr. Anderson and Dr. Kress found significant in Evosevich's non-qualifying results.
Dr. Martin, Dr. Morgan, Dr. Anderson, and Dr. Kress were all aware of Evosevich's chest deformity and his smoking habit.
An interim presumption of total disability can be rebutted by evidence establishing any one of the following:
(1) The individual is, in fact, doing his usual coal mine work or comparable and gainful work;
(2) The individual is able to do his usual coal mine work or comparable and gainful work; or
(3) The total disability or death of the miner did not arise in whole or in part out of coal mine employment; or
(4) The miner does not, or did not, have pneumoconiosis.
See C.F.R. Sec. 727.203(b)(1)-(4) (1985). The ALJ held that the reports of Dr. Anderson and Dr. Kress were sufficient to establish rebuttal on all but the first of these grounds. With one exception, 4 Evosevich does not dispute that these reports, if credited, establish: that he was not disabled from doing his usual coal mine work or comparable employment; that any respiratory impairment he suffers resulted from his smoking and his chest deformity, not coal mining; and that despite the positive ventilatory studies and the inconclusive x-ray readings, he did not have pneumoconiosis. Instead, he argues that Dr. Kress' report as a non-examining physician constituted inadmissible hearsay or, at the least, should not have been given substantial weight.
The ALJ gave less weight to the contrary reports of Dr. Morgan and Dr. Martin. He noted that Dr. Morgan's report was written more than a year before the reports of Dr. Anderson and Dr. Kress, and in that time Evosevich submitted to several blood gas tests and x-ray readings that supported the negative conclusions of the later reports. Apparently, the ALJ discredited Dr. Martin's report as tentative and contradictory. Although Dr. Martin concluded that Evosevich was totally disabled by pneumoconiosis and chronic obstructive lung disease, he interpreted a ventilatory...
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