Freeman United Coal Min. Co. v. Office of Workers' Compensation Program

• Decision Date: 29 March 1994
• Docket Number: No. 93-1089,93-1089
• Citation: 20 F.3d 289
• Parties: FREEMAN UNITED COAL MINING COMPANY, Petitioner, v. OFFICE OF WORKERS' COMPENSATION PROGRAM, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 289

20 F.3d 289

FREEMAN UNITED COAL MINING COMPANY, Petitioner, v. OFFICE OF WORKERS' COMPENSATION PROGRAM, Respondent.

No. 93-1089.

United States Court of Appeals Seventh Circuit.

Argued Dec. 3, 1993.

Decided March 29, 1994.

Barry S. Hyman (argued), Kathryn S. Matkov, Gould & Ratner, Chicago, IL, for petitioner.

Eileen M. McCarthy (argued), Dept. of Labor, Appellate Litigation, Marta Kusic, Dept. of Labor, Office of Sol., Washington, DC, John H. Secaras, Sol. Gen., Dept. of Labor, Chicago, IL, for respondent Office of Workers' Compensation Programs.

Harold B. Culley, Jr. (argued), Raleigh, IL, for respondent Robert Forsythe.

Lisa L. Lahrman, Benefits Review Bd., Executive Counsel, Clerk of Bd., Washington, DC, for party-in-interest Benefits Review Bd.

Before LAY, ^* RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

Freeman United Coal Mining Company ("Freeman") petitions this court for review of a final decision of the United States Department of Labor Review Board (the Board), which affirmed an award of disability benefits under the Black Lung Benefits Act (the Act), 30 U.S.C. Sec. 901, et seq. For the following reasons, we deny the petition and affirm the award.

I.

The claimant in this case, Robert Forsythe ("Forsythe"), worked in a variety of coal mining jobs at Freeman for 30 years. During his last 20 years, Forsythe worked as a slope belt operator. This was an above-ground, push-button operation, which required Forsythe to monitor the movement of coal along a conveyor belt. Occasionally, Forsythe would have to clean up spills that occurred along the belt, as well as perform other periodic maintenance. Other than this, however, Forsythe's usual coal mining work was characterized by the ALJ as light in nature. Forsythe worked in this position until November, 1977, when he suffered a major heart attack. After his heart attack, Forsythe left Freeman.

On January 4, 1978, Forsythe filed an application with the Department of Labor ("DOL") for benefits under Part C of the Act ¹ due to his disabling condition. The DOL issued a notice of initial finding on July 15, 1980, in which it awarded benefits to Forsythe. Freeman contested liability and the matter was submitted to an Administrative Law Judge (ALJ) for a formal hearing, which was not held until July 18, 1988. The reason for this eight-year delay stemmed from a dispute between Freeman and the DOL over whether liability for Forsythe's claim should be transferred to the DOL. Pursuant to the Black Lung Benefits Amendment of 1981, in certain circumstances liability for benefits may be transferred from the employer to a trust fund, known as the Black Lung Benefits Trust Fund, which is administered by the Director of the Office of Workers' Compensation Programs (Director) pursuant to regulations promulgated by the Secretary of Labor. The ALJ initially dismissed Freeman and transferred liability to the trust fund, thus returning the claim to the Director for payment. The Director appealed this transfer of liability to the Board, which, in 1985, vacated the ALJ's determination and found Freeman liable for any eventual award of benefits under the Act. Forsythe v. Freeman United Min. Co., BRB No. 82-2098 BLA (Dec. 10, 1985). The Board then remanded Forsythe's claim to the ALJ for consideration on the merits.

Following remand, the ALJ heard evidence in support of Forsythe's claim that he was totally disabled due to pneumoconiosis arising out of coal mining employment. The ALJ found, and Freeman did not contest, that Forsythe was a coal miner within the meaning of the Act for thirty years ending in 1977. Because Forsythe had more than ten years of coal mining employment and his claim for benefits was filed before March 31, 1980, the ALJ analyzed his claim according to the interim regulations ² set forth by the Secretary of Labor in 20 C.F.R. Sec. 727.203. Under these regulations, a miner can invoke an "interim" presumption of total disability due to pneumoconiosis if, in addition to establishing ten or more years of coal mine employment, he can meet one of four specific medical requirements: (1) chest x-rays establishing the presence of pneumoconiosis; (2) ventilatory studies establishing the presence of a respiratory or pulmonary disease (commonly referred to as "qualifying studies"); (3) blood gas studies demonstrating the presence of an impairment in the transfer of oxygen from the lungs into the blood; or (4) other medical evidence, including the documented opinion of a physician exercising reasonable medical judgment, establishing the presence of a totally disabling respiratory impairment. See 20 C.F.R. Sec. 727.203(a)(1)-(4).

The record before the ALJ contained five x-rays and several rereadings of those same x-rays. ³ The ALJ recognized that, on balance, the majority of the x-ray rereadings were negative, but noted that "many of these negative rereadings are cumulative rereadings of the same x-ray." Order & Decision at 5. He also noted that "the record contains both positive and negative interpretations by B-readers." ⁴ Id. The ALJ further observed that the most recent x-ray was interpreted as positive by two of the three readers who interpreted it, and that "[b]oth of the positive readings were obtained as part of Employer's examination of the Claimant." Id. Having considered the x-ray evidence "in its entirety," id., the ALJ concluded that "true doubt" existed whether the x-ray evidence was positive or negative for pneumoconiosis. Id. The ALJ then applied the "true doubt" rule, which gives the claimant the benefit of any doubt in invoking the presumption of pneumoconiosis, and resolved the evidentiary doubt in Forsythe's favor.

The ALJ next considered whether Freeman could rebut the interim presumption pursuant to one of the rebuttal provisions listed in 20 C.F.R. Sec. 727.203(b)(1)-(4). Freeman attempted to rebut the presumption by establishing that Forsythe was able to do his usual coal mine work or comparable and gainful work, Sec. 727.203(b)(2), or, in the alternative, that Forsythe's total disability did not arise in whole or in part out of coal mine employment, Sec. 727.203(b)(3). In making his rebuttal determinations, the ALJ relied largely upon the medical opinions of four physicians: Drs. Khan and Vest, who testified for Forsythe, and Drs. Sanjabi and Selby, who testified for Freeman. Turning first to examine rebuttal under (b)(2), the ALJ noted that the medical opinion evidence was in conflict. Drs. Khan and Vest stated that Forsythe was totally disabled as a result of a respiratory ailment which resulted from his coal mining employment. Drs. Sanjabi and Selby, on the other hand, were of the opinion that Forsythe's total disability was not attributable to any significant respiratory or pulmonary impairment, but rather, was the result of his acute heart disease and history of cigarette smoking. The ALJ ultimately gave more weight to Dr. Khan, Forsythe's treating physician, because "[he] is in the best position to comment on the overall nature of Claimant's conditions," and less to Dr. Selby because he "never examined Claimant but rather reviewed the medical evidence of record." Order & Decision at 7-8. Furthermore, the ALJ noted that neither Dr. Sanjabi nor Dr. Selby had sufficiently "rule[d] out the existence of at least some degree of respiratory or pulmonary impairment." Id. Additionally, the ALJ observed that although Drs. Sanjabi and Selby did not find Forsythe totally disabled due to a respiratory or pulmonary impairment, they both agreed that Forsythe was totally disabled as a result of his heart disease. Given Drs. Sanjabi's and Selby's concession of total disability from heart disease, the ALJ, apparently relying on dicta from this court's decision in Wetherhill v. Director, OWCP, 812 F.2d 376 (7th Cir.1987), noted that this was enough to preclude a showing of rebuttal under subsection (b)(2). Id. at 8. But the ALJ did not stop there. Instead, he went on to state that "the record contains no evidence that supports my [sic] finding that Claimant is able to perform comparable and gainful employment." Id. Based on all of the above, the ALJ concluded that Freeman could not establish rebuttal under Sec. 727.203(b)(2).

In its analysis under Sec. 727.203(b)(3), the ALJ, again relying on this court's decision in Wetherhill, pointed out that rebuttal under (b)(3) can be established only if the employer proves that the claimant's pneumoconiosis is not a contributing cause of his impairment. Using this standard, the ALJ observed that although Drs. Sanjabi and Selby both "attributed Claimant's impairments to his heart disease and cigarette smoking," neither "were able effectively to rule out the effects of Claimant's thirty-year history of coal mine employment on his overall condition." Id. As a result, the ALJ concluded that Freeman's evidence was insufficient to establish rebuttal under Sec. 727.203(b)(3), and awarded Forsythe benefits under the Act.

Freeman appealed the ALJ's decision to the Board which, on April 30, 1992, affirmed the ALJ's conclusions both as to his application of the true doubt rule, as well as his finding no rebuttal under (b)(2) and (b)(3). On May 29, 1992, Freeman filed a timely motion for reconsideration with the Board pursuant to 33 U.S.C. Sec. 921(b)(5) and 20 C.F.R. Sec. 802.407(a). While this motion was pending, the Illinois Industrial Commission, on June 8, 1992, rendered its decision on a state workers' compensation claim Forsythe had filed while his claim under the Black Lung Act was pending. In its order, the Commission found that Forsythe had "sustained permanent partial disability to the extent of 25% under Sec. 8(d)(2) of the [Illinois Workers' Compensation] Act due to his pneumoconiosis." Forsythe v. Freeman United Coal Min. Co., No. 92 IIC 0598 (June 8, 1992). On July 21, 1992, Freeman filed a supplemental motion to its original motion for reconsideration, arguing that the...