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

• Decision Date: 15 April 1993
• Docket Number: No. 92-1992,92-1992
• Citation: 988 F.2d 706
• Parties: FREEMAN UNITED COAL MINING COMPANY, Petitioner, v. OFFICE OF WORKERS' COMPENSATION PROGRAM and Fairy Dell Jones, widow of Donald L. Jones, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 706

988 F.2d 706

FREEMAN UNITED COAL MINING COMPANY, Petitioner, v. OFFICE OF WORKERS' COMPENSATION PROGRAM and Fairy Dell

Jones, widow of Donald L. Jones, Respondents.

No. 92-1992.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 3, 1993.

Decided March 4, 1993.

As Corrected April 15, 1993.

Louis D. Bernstein, Paul W. Carroll (argued), Gould & Ratner, Chicago, IL, for petitioner Freeman United Coal Min. Co.

Barbara J. Johnson, Christian P. Barber (argued), Dept. of Labor, Office of the Sol., Washington, DC, Louis W. Rogers, Dept. of Labor, Office of Workers' Compensation Program, Washington, DC, for respondent Office of Workers Compensation Programs.

Harold B. Culley, Jr. (argued), Raleigh, IL, for respondent Fairy Dell Jones.

Donald S. Shire, Sol. Gen., Dept. of Labor, Office of the Solicitor, Washington, DC, John H. Secaras, Sol. Gen., Dept. of Labor, Chicago, IL, Lisa L. Lahrman, Benefits Review Bd., Executive Counsel, Clerk of the Bd., Washington, DC, for party-in-interest Benefit Review Bd.

Before BAUER, Chief Judge, COFFEY, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

PER CURIAM.

Freeman United Coal Mining Company ("Freeman") petitions for review of a decision of the Benefits Review Board of the Department of Labor. The Board affirmed the decision of an administrative law judge ("ALJ") awarding respondent Donald L. Jones benefits under the Black Lung Benefits Act ("Act"), 30 U.S.C. §§ 901-945. For the reasons stated below, we deny Freeman's petition for review.

I. BACKGROUND

The travails of this case through the Department of Labor and the court of appeals from 1978 through 1989 are presented at length in Freeman United Coal Mining Co. v. Benefits Review Board, 879 F.2d 245 (7th Cir.1989). For the sake of brevity, only portions are repeated here. Donald L. Jones worked for Freeman as a coal miner for approximately forty-five years. Jones was sixty-one years old when he filed for benefits with the United States Department of Labor in October of 1978. He continued to work for several months after filing his claim, but he eventually retired in 1979. Jones died in November of 1981.

Prior to Jones's death the ALJ issued a decision denying him benefits under the Black Lung Benefits Act. The Benefits Review Board reversed, finding that the ALJ erred in failing to invoke the interim presumption under 20 C.F.R. § 727.203(a)(1) ¹ in the presence of X-ray evidence showing the existence of pneumoconiosis, and that the ALJ improperly allowed a rereading of this X-ray to defeat this threshold showing, in violation of the regulations. On remand, the ALJ first issued two successive orders awarding benefits, but ultimately denied benefits. Jones appealed the denial to the Benefits Review Board. The Board considered the X-ray evidence, which consisted of three readings of a single X-ray of Jones's chest. It found the interim presumption invoked but not rebutted, reversed the ALJ's decision, and awarded benefits.

On review of the Board's decision, this court found that the Board had exceeded its scope of review by considering the X-ray evidence de novo, rather than remanding the case to the ALJ to assess the evidence. See Freeman United Coal, 879 F.2d at 249. The court vacated the Board's decision and ordered the case remanded to the ALJ for further consideration of the X-ray evidence.

On remand, the ALJ weighed the three readings of the single X-ray of record. The readings of Drs. Brandon and Minetree were positive for pneumoconiosis; Dr. Rosenstein's reading was negative. The ALJ disregarded the positive reading by Dr. Minetree, who is a board-certified radiologist but not a "B" reader, in favor of the readings of Drs. Rosenstein and Brandon, both of whom are "B" readers and board-certified radiologists. ² The ALJ reasoned that physicians "having both of those qualifications are more qualified than readers who only have one or the other of the qualifications." Left with "an equal number of readings by equally qualified readers" (the positive reading by Dr. Brandon and the negative reading by Dr. Rosenstein) the ALJ concluded that "true doubt" existed whether the X-ray was positive or negative for pneumoconiosis. Believing that the so-called "true doubt rule" required him to resolve the evidentiary doubt in Jones's favor, the ALJ found that Jones had established the presence of pneumoconiosis. Accordingly, the ALJ found the interim presumption of disability invoked. He then found that the record was insufficient to rebut the presumption, and awarded benefits to Jones.

The Board affirmed the award of benefits, holding that the ALJ properly resolved the conflict between the equally probative X-ray readings in Jones's favor, and properly found that the interim presumption was invoked and not rebutted. Freeman appealed.

II. DISCUSSION

Although this is an appeal from the decision of the Benefits Review Board, this court actually reviews the decision of the ALJ, asking whether it is supported by substantial evidence, is in accord with the law, and is rational. Amax Coal Co. v. Beasley, 957 F.2d 324, 327 (7th Cir.1992). Freeman's contention is that the ALJ's decision to award benefits to Jones is not in accordance with the law. Specifically, Freeman asserts that the linchpin in the ALJ's decision, the true doubt rule, is at odds with section 7(c) of the Administrative Procedure Act ("APA") because the rule allows an ALJ to award black lung benefits to a claimant who has not proven his right to them by a preponderance of the evidence. ³

Freeman's appeal is not easy to understand without understanding the interplay between the true doubt rule and the rebuttable presumption of disability that is conditionally granted to claimants in black lung adjudications. To make out a claim for black lung benefits, a miner must establish: (1) total disability, (2) caused at least in part by pneumoconiosis, (3) that arose out of employment in a coal mine. See Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 141, 108 S.Ct. 427, 431, 98 L.Ed.2d 450 (1987). These three elements are presumed, so far as bears on this case, if the claimant has ten years of qualifying experience in a coal mine and produces a chest X-ray that establishes the existence of pneumoconiosis. 20 C.F.R. § 727.203(a)-(a)(1). ⁴ There is one caveat, however, which turns out to be important in this case. The claimant cannot invoke the presumption by producing an X-ray that simply constitutes evidence of the presence of pneumoconiosis. Mullins Coal, 484 U.S. at 147, 108 S.Ct. at 433-34; Cook v. Director, OWCP, 816 F.2d 1182, 1185 (7th Cir.1987). The chest X-ray produced by the claimant must show the presence of pneumoconiosis by a preponderance of the evidence. Mullins Coal, 484 U.S. at 147-52, 108 S.Ct. at 433-36. The effect of the presumption is to shift both the burden of production and of persuasion to the employer. Amax Coal Co. v. Director, OWCP, 772 F.2d 304, 305 (7th Cir.1985); Peabody Coal Co. v. Hale, 771 F.2d 246, 248 n. 2 (7th Cir.1985). But see Underhill v. Peabody Coal Co., 687 F.2d 217, 222 (7th Cir.1982) (holding, without extended discussion, that the presumption shifts only the burden of production). The presumption may be rebutted by showing that the claimant does not, or did not, have pneumoconiosis. 20 C.F.R. § 727.203(b).

The true doubt rule is a judicial construct designed to effectuate Congress's intent that the Black Lung Benefits Act be liberally construed to ensure payment to deserving claimants. The rule derives from a Senate Report accompanying 1972 amendments to the black lung program which noted that the Act "is intended to be a remedial law.... In the absence of definitive medical conclusions there is a clear need to resolve doubts in favor of the disabled miner or his survivors." S.Rep. No. 743, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 2305, 2315. Congress reaffirmed its expressed intent that the benefit of any evidentiary doubt be given to the miner when it further amended the Act in 1977. ⁵

Many courts have harvested this language from the Senate Report in formulating the rule that, when equally probative but contradictory evidence is presented in the record and selection of one set of facts results in a finding for the claimant and the other leads to a finding against the claimant, the evidence must be resolved in favor of the claimant. See, e.g., Adkins v. Director, OWCP, 958 F.2d 49, 52 n. 4 (4th Cir.1992); Bosco v. Twin Pines Coal Co., 892 F.2d 1473, 1476 (10th Cir.1989); Stomps v. Director, OWCP, 816 F.2d 1533, 1534-35 (11th Cir.1987); Ware v. Director, OWCP, 814 F.2d 514, 517 (8th Cir.1987); Haywood v. Secretary of Health & Human Svcs., 699 F.2d 277, 281 n. 7 (6th Cir.1983). This court too has endorsed the true doubt rule as a means of breaking evidentiary gridlock in black lung cases. See Freeman United Coal, 879 F.2d at 249; Collins v. Old Ben Coal Co., 861 F.2d 481, 489-90 (7th Cir.1988); Peabody Coal Co. v. Director, OWCP, 778 F.2d 358, 362 (7th Cir.1985). When it is applied, the rule ensures that the employer will prevent invocation of the presumption only when its evidence is stronger than the claimant's.

Jones enjoyed the benefit of the true doubt rule in this case. The ALJ found that the X-ray evidence supporting and opposing Jones's claim for benefits was in equipoise. Were it not for the true doubt rule, Jones might have failed to invoke the presumption of disability, for if there are conflicting readings of the same X-ray the fact that one of them is positive does not necessarily establish the presumption. Cook, 816 F.2d at 1185. That is certainly true in this case since Jones's positive reading was countered by an equally probative negative reading. The true doubt rule revived Jones's claim by giving his evidence the benefit of the evidentiary doubt. Hence Jones's X-ray, which was insufficient to establish the presence of pneumoconiosis by itself, became...