Freeman United Coal Mining Co. v. Benefits Review Bd., U.S. Dept. of Labor

• Decision Date: 30 November 1990
• Docket Number: No. 89-2308,89-2308
• Citation: 919 F.2d 451
• Parties: FREEMAN UNITED COAL MINING COMPANY, Petitioner, v. BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR, Director, Office of Workers' Compensation Programs, and Delores Shoemake (Widow of Thomas Shoemake), Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 451

919 F.2d 451

FREEMAN UNITED COAL MINING COMPANY, Petitioner, v. BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR Director, Office of Workers' Compensation Programs, and Delores Shoemake (Widow of Thomas Shoemake), Respondents.

No. 89-2308.

United States Court of Appeals Seventh Circuit.

Argued May 1, 1990.

Decided Nov. 30, 1990.

Louis R. Hegeman, Jay D. Stein, Louis D. Bernstein, Gould & Ratner, Chicago, Ill., for petitioner.

Linda M. Meekins, Benefits Review Bd., Dept. of Labor, Washington, D.C., Harold B. Culley, Jr., Raleigh, Ill., Donald S. Shire, Sol. Gen., Michael J. Denney, Robert E. Kirschman, Jr., Dept. of Labor, Office of the Solicitor, Washington, D.C., John H. Secaras, Sol. Gen., Dept. of Labor, Chicago, Ill., Rae Ellen Frank James, Michael J. Rutledge, Dept. of Labor, Black Lung Div., Washington, D.C., for respondents.

Before BAUER, Chief Judge, CUDAHY, Circuit Judge, and PELL, Senior Circuit Judge.

CUDAHY, Circuit Judge.

Freeman United Coal Mining Company ("Freeman") petitions this court for review of an award of black lung benefits to the surviving spouse of Thomas Shoemake. The sole issue on appeal is whether Freeman established rebuttal of the interim presumption of total disability under 20 C.F.R. Sec. 727.203(b)(3). The Administrative Law Judge and Benefits Review Board both agreed that the evidence did not establish rebuttal and awarded benefits. For the reasons set forth below we affirm.

I.

Freeman employed Thomas Shoemake as a miner from 1948 to 1984. In 1980 Shoemake filed a claim for black lung benefits pursuant to 30 U.S.C. Sec. 901 et seq. When he died four years later in 1984, Shoemake's wife filed a claim for survivor's benefits which, after being initially denied in 1986, ¹ was referred to an Administrative Law Judge for a formal hearing. Because Shoemake's claim was filed before April 1, 1980, the ALJ applied the benefits criteria contained in Part 727, subpart C. See 20 C.F.R. Sec. 725.4(a). The ALJ determined that Shoemake had invoked the interim presumption of total disability due to pneumoconiosis arising out of coal mining employment under Sec. 727.203(a)(1). The ALJ found that the interim presumption applied based on Shoemake's length of employment with Freeman (stipulated by the parties to be 20 years) and based on the autopsy reports of Drs. Thompson and Eggleston, which established pneumoconiosis.

Having found the presumption invoked, the ALJ evaluated Freeman's rebuttal evidence. Under Sec. 727.203(b) a responsible operator may introduce evidence showing (1) that the miner is still working in the mine or performing comparable work, (2) that the miner is able to perform his coal mining work or comparable work, (3) that the miner's disability was not caused by his mining employment or (4) that the miner does not have pneumoconiosis. 20 C.F.R. Sec. 727.203(b)(1-4). After considering the medical evidence submitted by the parties (and discussed more fully below) the ALJ determined that Freeman failed to introduce evidence sufficient to rebut causation under (b)(3) and therefore granted benefits to Shoemake's widow. Freeman timely appealed to the Benefits Review Board, arguing that the ALJ should have found rebuttal under Sec. 727.203(b)(3) based on medical evidence indicating lack of a causal link between Shoemake's disability and his coal mining employment. ² The Board affirmed the ALJ's order and decision awarding benefits, and Freeman filed this timely petition for review pursuant to 33 U.S.C. Sec. 921(c).

II.

On review, we must determine whether the ALJ's decision is supported by substantial evidence, is in accordance with the law and is not irrational. Zettler v. Director, O.W.C.P., 886 F.2d 831, 834 (7th Cir.1989); Pancake v. AMAX Coal Co., 858 F.2d 1250, 1255 (7th Cir.1988); AMAX Coal Co. v. Burns, 855 F.2d 499, 501 (7th Cir.1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). While this court must review the entire record, we may neither redetermine the facts nor substitute our own judgment for that of the ALJ. Zettler, 886 F.2d at 834. Because the evidence introduced by Freeman does not establish rebuttal, the ALJ's decision must be affirmed.

At the hearing before the ALJ the parties presented evidence establishing that Shoemake smoked one pack of cigarettes a day for thirty years and that he was diagnosed as having cancer in 1983. The parties also introduced into evidence medical reports from five different doctors. Two of the reports were prepared following Shoemake's death. The first autopsy report, prepared by Dr. Thompson in December 1984, diagnosed Shoemake as having, among other things, coal workers' pneumoconiosis. Freeman introduced a second autopsy report prepared by Dr. Eggleston who reviewed the original autopsy report in 1986. He reported that, "[t]here is no evidence of a pneumoconiosis of any type which would have disabled this patient during life or contributed signi[fi]cantly to his death."

Also introduced into evidence were the reports of three physicians who examined Shoemake while he was alive. Dr. William Hays examined Shoemake in 1980 and diagnosed him to have coal workers' pneumoconiosis and chronic bronchitis. Dr. Hays concluded that Shoemake's condition was related to dust exposure in the patient's coal mining employment. Dr. William Getty examined Shoemake in 1981. He reported that the miner suffered from, among other things, obstructive pulmonary disease caused by both a history of smoking and exposure to coal dust.

Other evidence submitted includes Dr. Thomas Hyde's records spanning from 1983 to the time of Shoemake's death in November 1984. Dr. Hyde treated Shoemake during a four week hospital stay in late 1983. The records submitted cover that period of hospitalization as well as treatments both preceding and following the stay. In August of 1984 Dr. Hyde stated in a letter that "Mr. Thomas Shoemake is totally disabled with ... x-ray evidence of coal miner's pneumoconiosis." Although Dr. Hyde did not elucidate the basis for his conclusion in this letter, the record indicates that Dr. Hyde had treated Shoemake on at least a dozen occasions prior to making this statement. Finally, the record contains a report of Dr. Carson who examined Shoemake in 1983. That report diagnosed Shoemake as having obstructive lung disease (black lung disease).

III.

Freeman argues that the ALJ erred when he failed to find that the medical testimony was sufficient under (b)(3) to rebut the interim presumption of disability. ³ As suggested previously, in order to rebut the presumption pursuant to (b)(3), the employer may establish "that the miner's pneumoconiosis was not a contributing cause of his total disability." Wetherill v. Director, Office of Workers' Compensation Programs, 812 F.2d 376, 380 (7th Cir.1987) (emphasis supplied); Pancake, 858 F.2d at 1257. Contrary to Freeman's suggestion, the test for rebuttal is not whether the medical evidence establishes that pneumoconiosis was not the sole cause of the disability. Rather, when all the relevant evidence is viewed, as required by Sec. 727.203(b), rebuttal is established under subsection (b)(3) only if the employer demonstrates that pneumoconiosis was in no way a factor contributing to the coal miner's disability. Freeman v. Benefits Review Board, 912 F.2d 164, 172 (7th Cir.1990). The ALJ rejected Freeman's arguments and concluded that the company had not rebutted the presumption that Shoemake's disability was related in some way to his mining employment. ⁴

In support of its argument, Freeman first claims that the ALJ, in evaluation of the rebuttal evidence, failed to accord Dr. Eggleston's autopsy report significant probative value. According to the company, this report (in combination with the reports of Drs. Getty and Hays) dictates a finding that Shoemake's disability was not caused by pneumoconiosis. Dr. Eggleston stated that he did not find any evidence of pneumoconiosis that would have disabled Shoemake during his life. He did not say, however, that pneumoconiosis did not play any part in Shoemake's disability and, under Wetherill, Freeman has the burden of showing the absence of any such causal link. Pneumoconiosis did not have to be the only factor in Shoemake's disability, it had to be merely a contributing factor. The second part of Eggleston's statement, that there was no evidence that pneumoconiosis contributed significantly to Shoemake's death, further tends to support the ALJ's finding that Eggleston's report did not establish rebuttal under (b)(3). By stating that the disease did not contribute "significantly" to his death, the doctor did not exclude the possibility that the disease contributed in some, presumably lesser, degree. ⁵ In sum, the statement made by Eggleston is ambiguous and, for that reason, the ALJ could have properly discounted it. Moreover, the reports submitted by Dr. Hays and Dr. Getty do not strengthen Freeman's argument. Dr. Hays concluded that...