Freeman United Coal Min. Co. v. Office of Workers' Compensation Program, No. 92-1992

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore BAUER, Chief Judge, COFFEY, Circuit Judge, and ESCHBACH; PER CURIAM
Citation988 F.2d 706
Docket NumberNo. 92-1992
Decision Date15 April 1993
PartiesFREEMAN UNITED COAL MINING COMPANY, Petitioner, v. OFFICE OF WORKERS' COMPENSATION PROGRAM and Fairy Dell Jones, widow of Donald L. Jones, Respondents.

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.

Page 707

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

Page 708

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

Page 709

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

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17 practice notes
  • Office of Workers' Compensation, v. Greenwich Collieries, 93744
    • United States
    • United States Supreme Court
    • June 20, 1994
    ...(CA3 1993). In so holding, the court expressly disagreed with Freeman United Coal Mining Co. v. Office of Workers' Compensation Programs, 988 F.2d 706 (CA7 1993). We granted certiorari to resolve the conflict. 510 U.S. ----, 114 S.Ct. 751, 127 L.Ed.2d 69 (1994). II As a threshold matter, we......
  • Midland Coal Co. v. Director, Office of Workers' Compensation Programs, No. 97-1166
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 31, 1998
    ...to black lung litigation. "Unquestionably, the APA applies to black lung adjudications." Freeman United Coal Mining Co. v. OWCP, 988 F.2d 706, 710 n. 6 (7th Cir.1993). But this does not mean that every provision of the APA necessarily applies in black lung cases. "The [Black ......
  • Grizzle v. Pickands Mather and Company/Chisolm Mines, No. 91-1078
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 2, 1993
    ...990 F.2d 730 (3rd Cir.1993); Skukan v. Consolidation Coal Co., 993 F.2d 1228 (6th Cir.1993); Freeman United Coal Mining Co. v. DOWCP, 988 F.2d 706 (7th Cir.1993). Inasmuch as resolving this issue is not necessary to its decision, the majority chooses not to enter this intercircuit fray. See......
  • Consolidation Coal Co. v. McMahon, No. 95-3005
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 11, 1996
    ...of the claimant." Zeigler Coal, 23 F.3d at 1238 (quoting Freeman United Coal Mining Co. v. Office of Workers Compensation Program, 988 F.2d 706, 710 Page 903 (7th Cir.1993), vacated, --- U.S. ----, 114 S.Ct. 2732, 129 L.Ed.2d 854 (1994)). "The [BRB] ... 'consistently upheld the pr......
  • Request a trial to view additional results
17 cases
  • Office of Workers' Compensation, v. Greenwich Collieries, 93744
    • United States
    • United States Supreme Court
    • June 20, 1994
    ...(CA3 1993). In so holding, the court expressly disagreed with Freeman United Coal Mining Co. v. Office of Workers' Compensation Programs, 988 F.2d 706 (CA7 1993). We granted certiorari to resolve the conflict. 510 U.S. ----, 114 S.Ct. 751, 127 L.Ed.2d 69 (1994). II As a threshold matter, we......
  • Midland Coal Co. v. Director, Office of Workers' Compensation Programs, No. 97-1166
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 31, 1998
    ...to black lung litigation. "Unquestionably, the APA applies to black lung adjudications." Freeman United Coal Mining Co. v. OWCP, 988 F.2d 706, 710 n. 6 (7th Cir.1993). But this does not mean that every provision of the APA necessarily applies in black lung cases. "The [Black ......
  • Grizzle v. Pickands Mather and Company/Chisolm Mines, No. 91-1078
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 2, 1993
    ...990 F.2d 730 (3rd Cir.1993); Skukan v. Consolidation Coal Co., 993 F.2d 1228 (6th Cir.1993); Freeman United Coal Mining Co. v. DOWCP, 988 F.2d 706 (7th Cir.1993). Inasmuch as resolving this issue is not necessary to its decision, the majority chooses not to enter this intercircuit fray. See......
  • Consolidation Coal Co. v. McMahon, No. 95-3005
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 11, 1996
    ...of the claimant." Zeigler Coal, 23 F.3d at 1238 (quoting Freeman United Coal Mining Co. v. Office of Workers Compensation Program, 988 F.2d 706, 710 Page 903 (7th Cir.1993), vacated, --- U.S. ----, 114 S.Ct. 2732, 129 L.Ed.2d 854 (1994)). "The [BRB] ... 'consistently upheld the pr......
  • Request a trial to view additional results

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