Freeman United Coal Mining v. Summers

• Decision Date: 15 November 2001
• Docket Number: No. 01-1430,01-1430
• Citation: 272 F.3d 473
• Parties: (7th Cir. 2001) FREEMAN UNITED COAL MINING CO., Petitioner, v. HERMAN E. SUMMERS, Respondent
• Court: U.S. Court of Appeals — Seventh Circuit

Page 473

272 F.3d 473 (7th Cir. 2001)

FREEMAN UNITED COAL MINING CO., Petitioner, v. HERMAN E. SUMMERS, Respondent.

No. 01-1430

In the United States Court of Appeals For the Seventh Circuit

Argued SEPTEMBER 17, 2001

Decided November 15, 2001

Petition for Review from the Benefits Review Board of the United States Department of Labor BRB No. 00-0108 BLA

[Copyrighted Material Omitted] Before COFFEY, EASTERBROOK and WILLIAMS, Circuit Judges.

COFFEY, Circuit Judge.

Petitioner Freeman United Coal Mining Company ("Freeman") appeals an order of the Bene fits Review Board of the United States Department of Labor, which granted Respondent Herman E. Summers' ("Summers") claim for relief under the Black Lung Benefits Reform Act. We enforce the decision of the Board.

I. PROCEDURAL HISTORY

This is the second time that Summers' claim for benefits has come before the court. Summers worked as a coal miner in southern Illinois from 1948 to 1965 and 1974 to 1980. He retired and filed a claim for black lung benefits October 9, 1980. After an administrative law judge ("ALJ") denied the request, the Board remanded for further review and then affirmed the denial. We upheld the Board's order. Summers v. Freeman United Coal Mining Co., 14 F.3d 1220 (7th Cir. 1994). Summers subsequently petitioned the agency to modify its decision, stating that he had obtained new medical reports and data, which strengthened his claim. An ALJ originally denied the petition, but the Board reversed and allowed Summers to supplement the record with this additional information.

The case was remanded for further consideration before a new judge, Thomas M. Burke. After considering the record as a whole, ALJ Burke proceeded to award benefits in an order dated September 2, 1999. The Board affirmed. Freeman subsequently filed this appeal and argues that the ALJ erred in: (1) invoking the statutory presumption that Summers was totally disabled by pneumoconiosis; and (2) failing to find that this presumption was rebutted by the medical evidence submitted by the coal company, which suggested that Summers' disability is wholly attributable to severe asthma and is unrelated to his coal mining.

II. FACTUAL BACKGROUND

Summers was exposed to coal dust for most of his 23 years in the mining industry. Some of his exposure occurred while he was stationed in underground mines between May 1948 and November 1950 and April 1975 to August 1975. During the former period, Summers hung electrical wire and trolley wire in Old Ben Coal Company's #9 mine in West Frankfort, Ill. During the latter period, Summers upgraded the electrical equipment in the bottom of Freeman's #4 mine in Benton, Ill. Black dust permeated the working environment at Old Ben, and, according to Summers, there was "substantial coal dust" in the Benton mine as well.

The majority of Summers' exposure to coal dust, however, occurred when he worked inside the offices and shops that were built above ground on the coal company's property. Summers worked at the site of Freeman's United Crown Mine in Springfield, Ill., from November 1950 to July 1960 and the site of Freeman's #5 mine in Benton from July 1960 to April 1965. He was an unusually hard worker, putting in a straight shift plus one hour of overtime each weekday, and another overtime shift each Saturday. Moreover, he was on call around the clock. He left the coal company to work at Southern Illinois University in April 1965 but re turned in September 1974 to help overhaul the infrastructure of the #5 mine. After several months, he was promoted and transferred to Freeman's central offices in West Frankfort, where he was given responsibility for maintaining and repairing electrical equipment in all of the area's coal mines and processing plants. Summers worked 5 days a week in this position until he retired in October 1980.

While in the central offices, Summers spent portions of almost every weekday inspecting Freeman's coal preparation plants and portions of one or two additional weekdays maintaining Freeman's underground mines. He described how the miners' activities in the preparation plants stirred up so much dust that he regularly left work with coal tracings all over his hair, eyebrows, and clothes. In fact, he stated that he was "probably" exposed to as much dust in the coal preparation plants as he was in the underground mines at Old Ben in the 1940s. Part of Summers' deposition reads as follows:

Q: Can you describe the coal preparation plant?

A: Well, depending on the plant, they are sometimes three, four, five stories high and it has all kinds of shakers. When the coal comes in, it's usually run over these shakers to size the coal to get the different sizes. They sell coal on order. Some companies want small coal, some want large coal. So this coal is run over these shakers so the small ones fall through, and then as it goes on it gets to the bigger ones, and there is a lot of dust in these preparation plants because they are handling coal all the time.

Q: Could you compare the dust generated at the coal preparation plant with the dust you were exposed to when you were working underground at Old Ben? A: It's a difficult thing. I'd say it's pretty much the same . . . if you're around any of these shakers or if you're around where they are loading the coal in the coal cars, I would say that you are probably exposed to as much dust there as you are working underground.

Summers also explained that he was exposed to substantial levels of dust during his 15 years in Springfield and Benton. He divided his time among the coal preparation plants, the hoist rooms, and the repair shops. He worked at least once or twice a week for 15 minutes to several hours in the preparation plants, where the conditions mirrored those described above. In the hoist rooms, where he worked for 60 to 90 minutes on weekdays and eight hours on Saturdays, machine generators hummed away with circulation fans stirring up coal dust while Summers lowered men into the mine shaft or performed routine maintenance tasks. Finally, in the repair shops, where Summers spent approximately 30 to 45 minutes a day, the dust so permeated the air that he would "always" leave work "covered with coal dust." The shops were one-room, 300 square-foot hovels with seven foot ceilings, a lone window, and no exhaust fans. Summers used an air hose to blow the coal dust off and out of the machines he restored; dust collected on the walls and the ceilings and needed to be swept out periodically. The company did not provide its employees with masks.

Summers described the hoist rooms as "very dusty areas" and the repair shops as some of "the dustiest areas" on the surface of the mine. Part of his deposition discusses the extent of his exposure as follows:

Q: What were the dustiest areas on the surface at the Crown Mine when you worked there?

A: The dustiest areas?

Q: Yes.

A: Well, the motor repair shop was one of the dustiest areas. The hoist room was certainly a dusty area, because in the front of this building we had this large hole where the two ropes went out that were tied on to these buckets. And that window was about, I'd say, five feet across and four feet up and down, and we're sitting there while they are loading coal cars right out in front of this building, and the prevailing winds would also blow it right into the hoist room. It was a very dusty area.

ALJ Burke took Summers' claim for black lung benefits under submission in 1998. The voluminous record included scores of x-rays, dozens of pulmonary function and blood gas tests, 11 reports from physicians, and several depositions and affidavits. The underlying facts were undisputed: the parties agreed that Summers has severe asthma and such obstructive lung diseases as emphysema, chronic obstructive pulmonary disease ("COPD"), and bronchitis. The parties strongly disagreed, however, about the cause of these ailments. Two x-rays were positive for pneumoconiosis, but 15 were negative. Several doctors believed that Summers was totally disabled by asthma or COPD, but other experts concluded that his disability was substantially caused by his exposure to coal dust. The coal company relied mainly on the opinions of Dr. Gregory J. Fino; Summers bolstered his claim primarily with the reports of Dr. Robert A.C. Cohen and Dr. David M. Hinkamp. ALJ Burke concluded that Summers' own testimony raised an inference of disability caused, at least in part, by coal dust. The judge then turned to the medical evidence proffered by the coal company in an attempt to rebut this inference. He found this evidence unconvincing and, therefore, granted Summers' petition for benefits.

III. STANDARD OF REVIEW

We review questions of law de novo, but we give the ALJ's factual findings considerable deference. We ask only whether the ALJ's decision is rational, supported by substantial evidence, and in accordance with the law. Peabody Coal Co. v. Helms, 859 F.2d 486, 489 (7th Cir. 1988). "Substantial evidence is 'such relevant evidence as a rational mind might accept as adequate to support a conclusion.'" Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). We do not reweigh the evidence, resolve inconsistencies in the record, make credibility determinations, or substitute our inferences for those drawn below. Blakley v. Amax Coal Co., 54 F.3d 1313, 1322 (7th Cir. 1995); Amax Coal Co. v. Beasley, 957 F.2d 324, 327 (7th Cir. 1992).

IV. DISCUSSION

A. The 15-Year Presumption

The landmark Federal Coal Mine Health and Safety Act of 1969, as amended, is remedial legislation that is liberally construed to effectuate its purpose of improving the well-being of coal miners.¹ One component of this legislation, the Black Lung Benefits Reform Act, 30 U.S.C. sec. 911 et seq., aids miners who are totally disabled by black lung disease and establishes certain statutory presumptions that help remove the obstacles facing miners who seek to obtain such aid.

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