Freeman United Coal Min. Co. v. Foster, 93-2923

• Decision Date: 22 August 1994
• Docket Number: No. 93-2923,93-2923
• Citation: 30 F.3d 834
• Parties: FREEMAN UNITED COAL MINING CO., Petitioner, v. William E. FOSTER, et al., Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 834

30 F.3d 834

FREEMAN UNITED COAL MINING CO., Petitioner, v. William E. FOSTER, et al., Respondents.

No. 93-2923.

United States Court of Appeals Seventh Circuit.

Argued April 26, 1994.

Decided July 18, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied Aug. 22, 1994.

Kathryn S. Matkov (argued), Brian M. Shierin, Gould & Ratner, Chicago, IL, for Freeman United Coal Min. Co.

Roscoe C. Bryant, III, Lawrence W. Rogers, Steven D. Breeskin, Jeffrey S. Goldberg, Patricia M. Nece, U.S. Dept. of Labor, Office of Sol., Washington, DC, for Office of Workers Compensation Programs.

Harold B. Culley, Jr., Raleigh, IL (argued), for William E. Foster.

Donald S. Shire, Sol. Gen., Department of Labor, Office of Sol., Lisa L. Lahrman, Benefits

Review Bd. Executive Counsel, Clerk of Bd., Washington, DC, for Benefits Review Bd.

Before POSNER, Chief Judge, and ESCHBACH and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Is a coal miner, afflicted by non-disabling pneumoconiosis and disabled by an unrelated condition, "totally disabled due to pneumoconiosis" within the meaning of 30 U.S.C. Secs. 902(f)(1)(A) and 921? If the answer is yes, then William E. Foster receives black lung benefits--and so does a miner who loses a leg when a coal car rolls over it.

To see how a person disabled by an amputation can collect black lung benefits, it is necessary to work through a chain of definitions and regulations. Congress told the Secretary of Labor to ensure that persons totally disabled by pneumoconiosis receive benefits. 30 U.S.C. Sec. 921(a). The definition of "total disability" in 30 U.S.C. Sec. 902(f) remits us to the Secretary's regulations, but it also requires the regulations to include some presumptions. And there are statutory presumptions as well: any miner suffering from complicated pneumoconiosis is irrebuttably presumed to be totally disabled by that disease. 30 U.S.C. Sec. 921(c)(3); see also Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 22-24, 96 S.Ct. 2882, 2895-96, 49 L.Ed.2d 752 (1976).

The Secretary's definition of "total disability" provides that

(a) A miner shall be considered totally disabled due to pneumoconiosis if:

(1) His pneumoconiosis prevents him from engaging in gainful work in the immediate area of his residence requiring the skills and abilities comparable to those of any work in a mine or mines in which he previously engaged with some regularity and over a substantial period of time (that is, "comparable and gainful work"; see Secs. 410.424 through 410.426); and

(2) His impairment can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than 12 months.

20 C.F.R. Sec. 410.412. But few miners attempt to prove disability directly. Most rely on presumptions. Foster made his claim for benefits in 1977, so the controlling regulations are those of the "interim presumption" in 20 C.F.R. Sec. 727.203:

(a) Establishing interim presumption. A miner who engaged in coal mine employment for at least 10 years will be presumed to be totally disabled due to pneumoconiosis, or to have been totally disabled due to pneumoconiosis at the time of death, or death will be presumed to be due to pneumoconiosis, arising out of that employment, if one of the following medical requirements is met:

(1) A chest roentgenogram (X-ray), biopsy, or autopsy establishes the existence of pneumoconiosis (see Sec. 410.428 of this title);

(2) Ventilatory studies establish the presence of a chronic respiratory or pulmonary disease (which meets the requirements for duration in Sec. 410.412(a)(2) of this title) as demonstrated by values which are equal to or less than the values specified in the following table: * * *

(3) Blood gas studies which demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood as indicated by values which are equal to or less than the values specified in the following table: * * *

(4) Other medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establishes the presence of a totally disabling respiratory or pulmonary impairment;

* * *

(b) Rebuttal of interim presumption. In adjudicating a claim under this subpart, all relevant medical evidence shall be considered. The presumption in paragraph (a) of this section shall be rebutted if:

(1) The evidence establishes that the individual is, in fact, doing his usual coal mine work or comparable and gainful work (see Sec. 410.412(a)(1) of this title); or

(2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work (see Sec. 410.412(a)(1) of this title); or

(3) The evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment; or

(4) The evidence establishes that the miner does not, or did not, have pneumoconiosis.

Now let us apply these regulations to the one-legged miner.

Our hypothetical miner has simple pneumoconiosis, which does not prevent him from doing his regular job. An x-ray reading permits this miner to activate the interim presumption under Sec. 727.203(a)(1) even though the ventilatory and blood gas studies to which Secs. 727.203(a)(2) and (3) refer do not produce "qualifying" values (that is, do not show functional impairment). The mine operator turns to Sec. 727.203(b), which lists means of rebuttal. Section 727.203(b)(4) is inapplicable, and in any event it may not be used if the miner activates the presumption under Sec. 727.203(a)(1). Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 150, 108 S.Ct. 427, 435, 98 L.Ed.2d 450 (1987). Section 727.203(b)(1) allows rebuttal if the miner is doing his usual work, but our miner is not working. He is unable to work, which renders Sec. 727.203(b)(2) irrelevant. That leaves Sec. 727.203(b)(3), which permits rebuttal if the disability did not arise "in whole or in part out of coal mine employment". But our miner's leg was lost in an accident at work. The handicap arose out of coal mine employment, and Sec. 727.203(b)(3) falls away.

Dissatisfaction with this outcome, which uses a disability unrelated to pneumoconiosis to support an award of black lung benefits, led the Benefits Review Board to turn back to Sec. 727.203(b)(2), which it treated as authorizing rebuttal when the miner is disabled but the disability has no connection to pneumoconiosis. Sykes v. Amon Coal Co., 2 BRL 1-1089 (1980). In Wetherill v. Director, OWCP, 812 F.2d 376 (7th Cir.1987), a panel of this court threw cold water on that approach, remarking:

The Board apparently interpreted paragraph (b)(2) to allow rebuttal if the admitted inability to work is caused by a disease other than pneumoconiosis. This interpretation of paragraph (b)(2) seems contrary to its plain language and therefore erroneous. We have previously noted that this interpretation of paragraph (b)(2) was problematic but did not need to resolve the issue because the Board also correctly relied on paragraph (b)(4) in that case. We reiterate that paragraph (b)(2) is probably an improper provision with which to rebut the presumption in a case such as this. Once again, however, there is no need to resolve that question because rebuttal has been accomplished here under paragraph (b)(3).

812 F.2d at 379-80 (citations omitted). Today we cannot escape decision.

Foster, born in 1918, worked in underground coal mines for 26 years, until 1975. In 1972 he suffered a back injury on the job. Three operations left him unable to perform his old work as a driller. Between 1972 and 1975 he worked intermittently at different jobs underground, but finally he gave up. Since 1975 he has been unemployed. An administrative law judge denied Foster's application under the Black Lung Benefits Act. The ALJ concluded that an x-ray taken in September 1986 entitled Foster to the benefit of the Sec. 727.203(a)(1) presumption. Two B-readers interpreted the film as positive for pneumoconiosis; two read it as negative; the ALJ gave Foster the benefit of the draw. (This finding, apparently depending on the "true doubt" rule, is precarious in light of Director, OWCP v. Greenwich Collieries, --- U.S. ----, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994), but the mine operator does not contest the matter.) The ALJ deemed the presumption rebutted under Sec. 727.203(b)(2). It is undisputed that Foster quit because of a back injury. Although Foster testified that he had trouble breathing, the ALJ credited the assessment of Stephen S. LeFrak, Co-Director of Pulmonary Disease and Respiratory Care at the Washington University School of Medicine in St. Louis, that Foster did not have any pulmonary disability. According to Dr. LeFrak, ventilatory and blood gas studies showed normal pulmonary function.

Shortly before the ALJ issued his decision, we handed down the opinion in Wetherill. The Benefits Review Board reversed on the basis of Wetherill, instructing the ALJ to reconsider under Sec. 727.203(b)(3). The BRB deemed itself bound by our opinion but added: "We note our disagreement with the Court's holding in Wetherill as it precludes rebuttal under subsection (b)(2) where no respiratory or pulmonary disability has been shown. Such interpretation conflicts with the intent of Congress to provide benefits under this Act for disability due to pneumoconiosis, not other disabling conditions." (Emphasis in original.)

On remand, the ALJ disagreed with the BRB's understanding of Wetherill. The passage in our opinion addressing Sec. 727.203(b)(2) was dictum, the ALJ believed, and therefore not binding on the BRB. But the ALJ believed that the instructions remanding the case were binding on him, so he turned to Sec. 727.203(b)(3). That subsection is transparently inapplicable, because Foster's disability arose out of his coal mine employment--he suffered the back injury while performing his duties in the...