Freeman United Coal Min. Co. v. Benefits Review Bd., U.S. Dept. of Labor, No. 88-2009

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before BAUER, Chief Judge, CUMMINGS, Circuit Judge, and ESCHBACH; ESCHBACH
• Citation: 879 F.2d 245
• Parties: FREEMAN UNITED COAL MINING COMPANY, Petitioner, v. BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR, Donald L. Jones, and Director, Office of Workers' Compensation Programs, Respondents.
• Docket Number: No. 88-2009
• Decision Date: 28 June 1989

Page 245

879 F.2d 245 FREEMAN UNITED COAL MINING COMPANY, Petitioner,
v.
BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR,
Donald L. Jones, and Director, Office of Workers'
Compensation Programs, Respondents. No. 88-2009. United States Court of Appeals,
Seventh Circuit. Argued June 13, 1989.
Decided June 28, 1989.

Page 246

Louis R. Hegeman, Louis D. Bernstein, Chicago, Ill., for petitioner.

Harold B. Culley, Jr., Raleigh, Ill., Donald S. Shire, Sol. Gen., Dept. of Labor, Linda M. Meekins, Benefits Review Bd., Sylvia T. Kaser, Dept. of Labor, Black Lung Div., Paul Frieden, U.S. Dept. of Labor, SOL/BL, Washington, D.C., for respondents.

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

ESCHBACH, Senior Circuit Judge.

Freeman United Coal Mining Company petitions for review of a decision of the Benefits Review Board of the Department of Labor. The Board reversed the decision of an administrative law judge (ALJ) denying respondent Donald L. Jones benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901 et seq. We reverse the Board's decision and remand to the ALJ for further proceedings consistent with this court's order.

I.

Donald L. Jones worked for Freeman United Coal Mining Company as a coal miner for approximately forty-five years. Jones was sixty-one years old when he filed for black lung benefits with the United States Department of Labor on October 27, 1978. Jones continued to work for several months after filing his claim, but he eventually retired in 1979. Jones died on November 3, 1981.

Prior to Jones' death the ALJ issued a decision denying Jones benefits under the Act. The Benefits Review Board reversed, finding that the ALJ failed to invoke the interim presumption under 20 C.F.R. Sec. 727.203(a)(1) ¹ in the presence of x-ray evidence that showed the existence of pneumoconiosis and the ALJ also improperly allowed a rereading of this x-ray to defeat this threshold showing, in violation of the regulations. The Board remanded the case to the ALJ for reconsideration and for the purpose of allowing the parties to submit additional x-ray evidence if they desired. The ALJ reopened the record to allow additional submissions and granted the parties an extension of time until September 1981 for this purpose. In October 1981, the ALJ issued a supplemental decision in which he determined that the interim presumption was invoked and Freeman had failed to submit any rebuttal evidence. When Freeman advised the ALJ that the ALJ had given the parties until September to submit additional evidence and that Freeman did submit x-ray evidence in August suggesting that Jones did not have pneumoconiosis, the ALJ suspended his October order until such time that he reviewed this additional evidence.

Jones also submitted additional x-ray evidence in November 1981. Thus, the ALJ had three readings of a single x-ray before him: a negative reading for pneumoconiosis by Dr. Rosenstein (a "B" reader ²); a

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positive reading for pneumoconiosis by Dr. Brandon (a "B" reader); and, a positive reading for pneumoconiosis by Dr. Minetree (a board-certified radiologist). Two years later, on January 1, 1983 (no reason is given for this delay), the ALJ issued a supplemental order in which he rejected as inadmissible Dr. Rosenstein's reading submitted by Freeman. The ALJ also rejected Dr. Brandon's reading, stating that it was submitted "long after the time provided for the admission of additional evidence." ³ Consequently, the ALJ found that the x-ray reading by Dr. Minetree was sufficient to invoke the interim presumption and, in the absence of rebuttal evidence, Jones was entitled to benefits.

Less than one month later, however, the ALJ reversed his decision and concluded that Dr. Rosenstein's reading was admissible. The ALJ then reasoned that Dr. Rosenstein's reading must be given greater weight than Dr. Minetree's since Dr. Rosenstein was a "B" reader. The ALJ therefore vacated his supplemental order awarding Jones benefits and reinstated his original order denying benefits on the grounds that the x-ray evidence did not invoke the presumption. Jones requested the ALJ to reconsider his decision, specifically the exclusion of Dr. Brandon's reading. The ALJ denied Jones' request as untimely and offered that even if he considered the merits of Jones' request his decision would be unchanged.

The Board reversed the ALJ's decision, finding, preliminarily, that Jones' request for reconsideration was timely and, further, that the ALJ should have permitted Dr. Brandon's reading into the record. The Board concluded that based upon the readings by Drs. Brandon and Minetree, the interim presumption was invoked. Further, the Board found the evidence insufficient to establish rebuttal. The Board reversed the ALJ's decision and awarded Jones benefits.

Freeman appeals, contending that the Board exceeded its proper scope of review. Freeman does not appeal the Board's finding that the motion for reconsideration was timely or that the additional x-ray evidence was improperly excluded. Freeman argues only that the ALJ properly weighed the...