Greenwich Collieries v. Director, Office of Workers' Compensation Programs

• Citation: 990 F.2d 730
• Decision Date: 23 March 1993
• Docket Number: No. 92-3270,92-3270
• Parties: GREENWICH COLLIERIES, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, and Andrew Ondecko, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 730

990 F.2d 730

61 USLW 2588

GREENWICH COLLIERIES, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United

States Department of Labor, and Andrew Ondecko, Respondents.

No. 92-3270.

United States Court of Appeals,

Third Circuit.

Argued Jan. 12, 1993.

Decided March 23, 1993.

John J. Bagnato (argued), Spence, Custer, Saylor, Wolfe & Rose, Johnstown, PA, for petitioner.

C. William Mangum (argued), U.S. Department of Labor, Washington, DC, for Director, Office of Workers' Compensation Programs.

Margarete E. Pawlowski (argued), Bolger, Picker, Hankin & Tannenbaum, Philadelphia, PA, David J. Tulowitzki, Daneil G. Walter, Pawlowski, Tulowitzki, Bilonick & Walter, Edensburg, PA, for Andrew Ondecko.

Before: HUTCHINSON, SCIRICA, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This petition for review of a decision of the Director, Office of Workers' Compensation Programs, presents a novel question in this circuit relating to the claimant's burden of proof in a black lung benefit case. Andrew Ondecko, the claimant, filed an application for benefits with the United States Department of Labor pursuant to the Black Lung Benefits Act, 30 U.S.C. §§ 901-45 (1982) (the Act). Ondecko claimed total disability due to pneumoconiosis contracted through coal mine exposure, and further, that this condition precluded him from performing his regular or comparable work.

The employer, Greenwich Collieries, strongly contested the claim. The Administrative Law Judge (ALJ) found that the copious conflicting medical evidence created a "true doubt" as to the presence of pneumoconiosis, and she utilized the true doubt rule to resolve that doubt in favor of the claimant. The ALJ then found a causal relationship between Ondecko's condition and his tenure in mine employment on the basis of the presumption triggered by the ALJ's finding of pneumoconiosis and Ondecko's 31 years of service in coal mines. See 20 C.F.R. § 718.203 (1992). Finally, the ALJ concluded, despite the testimony of a pulmonary specialist that Ondecko was not disabled, that there was a true doubt as to whether Ondecko was totally disabled, and she again resolved this doubt in favor of the claimant.

Greenwich appealed the ALJ's Decision to the Benefits Review Board (the Board), arguing, inter alia, that the Administrative Procedure Act (the APA), 5 U.S.C. sections 551-59, 701-06 (1988), requires that a claimant prove the existence of pneumoconiosis and total disability by a preponderance of the evidence, thus precluding use of the true doubt rule in cases under the Act. The Board affirmed the ALJ's decision, and Greenwich thereafter timely appealed to this court. ¹ We vacate the Board's decision and remand.

I. THE FACTS

Ondecko worked for approximately 31 years in coal mine employment. He was most recently employed by Greenwich Collieries as a pipe man in a coal mine where he worked underground fixing and replacing pipe for five to six years.

After considering Ondecko's application for benefits, the Department issued a Preliminary Determination of Non-entitlement, finding that he did not suffer from a disease or disability. Pursuant to Ondecko's request, the ALJ held a hearing, and she subsequently issued a Decision and Order awarding benefits to the claimant.

In reaching her decision, the ALJ found that the copious conflicting medical evidence and testimony created a true doubt as to whether Ondecko suffered from pneumoconiosis and whether that condition rendered him totally disabled. In other words, the evidence as to these ultimate facts was equally probative and therefore in equipoise. She thereupon awarded Ondecko benefits by resorting to the true doubt rule, i.e., she resolved the doubt over the presence or absence of pneumoconiosis and disability in favor of the claimant. Thus, it is unclear whether the ALJ ever considered whether the claimant had proved his entitlement to benefits by a preponderance of the evidence.

II. DISCUSSION

Our review of the propriety of the ALJ's use of the true doubt rule, a question of legal interpretation, is plenary. See, e.g., Carozza v. United States Steel Corp., 727 F.2d 74, 77 (3d Cir.1984).

Disability benefits are payable to a miner if (a) he or she is totally disabled, (b) the disability was caused, at least in part, by pneumoconiosis, and (c) the disability arose out of coal mine employment. All three of these conditions of eligibility are presumed if the claimant was engaged in coal mine employment for at least 10 years and if the claimant meets one of the four medical requirements: (1) a chest X ray establishes the presence of pneumoconiosis ....

Mullins Coal Co. v. Director, OWCP, U.S. Dep't of Labor, 484 U.S. 135, 141, 108 S.Ct. 427, 431, 98 L.Ed.2d 450 (1987) (footnote omitted); see also 20 C.F.R. § 718.303-05 (1992).

The ALJ utilized the true doubt rule to find that Ondecko does in fact suffer from pneumoconiosis and is totally disabled. The true doubt rule is a tool adopted by several courts to evaluate the evidence on the record as a whole:

"[T]he factfinder operates under the statutory policy that all doubtful fact questions are to be resolved in favor of the injured employee because the intent of the statute is to place the burden of possible error on those best able to bear it." Noble Drilling Co. v. Drake, 795 F.2d 478, 481 (5th Cir.1986). In effect, the statute eases the ordinary preponderance of the evidence standard applicable in most civil suits. Id.

Avondale Shipyards, Inc. v. Kennel, 914 F.2d 88, 90-91 (5th Cir.1990); see also Fidelity & Casualty Co. v. Burris, 59 F.2d 1042, 1044 (D.C.Cir.1932) ("Where there is doubt, it should be resolved in favor of the injured employee or his dependent family."); Parsons Corp. of Cal. v. Director, OWCP, U.S. Dep't of Labor, 619 F.2d 38, 41 (9th Cir.1980); Bath Iron Works Corp. v. White, 584 F.2d 569 (1st Cir.1978). ²

The premise underlying the true doubt rule, originally put forth in Burris, is that compensatory statutes such as the Act should provide indemnity in cases of faultless injury at the worksite and therefore should be interpreted liberally in favor of the claimant. Burris, 59 F.2d at 1044. "Accidents in industry are inevitable, and the enactment of compensation laws grew out of a general recognition of a duty by society to an injured employee to secure him protection." Id.

Thus, the true doubt rule has become a shorthand and convenient method utilized by some courts and administrative agencies to allocate the ultimate burden of persuasion, i.e., the risk of non-persuasion, to the employer because it is the party best able to bear that risk.

Greenwich Collieries vigorously maintains that an ALJ may not resolve evidentiary conflicts in a claimant's favor when the evidence for and against entitlement under the Black Lung Benefits Act is found to be equally probative.

A. The ALJ's use of the true doubt rule to find pneumoconiosis was improper according to Supreme Court precedent.

Pursuant to regulations under the Act, there are four bases for determining the existence of pneumoconiosis in a living claimant. 20 C.F.R. § 718.202. The first basis, which is the one utilized by the ALJ in the case sub judice, requires a claimant to produce a qualifying X ray which establishes the presence of pneumoconiosis. 20 C.F.R. §§ 718.202(a)(1), 718.102.

The Supreme Court has decided that the X ray produced by the claimant may not merely "constitute evidence" of pneumoconiosis, but must show the presence of pneumoconiosis by a preponderance of the evidence. Mullins, 484 U.S. at 138, 147-52, 108 S.Ct. at 429, 433-37; Freeman United Coal Mining Co. v. OWCP, 988 F.2d 706, 709 (7th Cir. 1993). ³

Therefore, in this case, Mullins mandates that Ondecko's X ray must prove the existence of pneumoconiosis by a preponderance of the evidence. However, medical experts disagreed as to whether Ondecko's X ray established the presence of pneumoconiosis. The ALJ could not resolve this disagreement and found that there was true doubt as to whether Ondecko actually suffered from the ailment. Therefore, the ALJ did not find that Ondecko's X ray proved the existence of pneumoconiosis by a preponderance of the evidence; rather, she merely found the X ray and the accompanying medical readings created evidentiary equipoise as to the existence of pneumoconiosis. She then applied the true doubt rule to find in favor of Ondecko.

As discussed more thoroughly below, a preponderance of the evidence is defined as:

Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is evidence which as a whole shows that the fact sought to be proved is more probable than not.

Black's Law Dictionary 1182 (6th ed. 1990). The ALJ in this case found in favor of Ondecko, despite the fact that it was no more likely than not that he suffered from pneumoconiosis, in contravention of Mullins.

B. The true doubt rule generally contravenes the regulations under the Act and the APA.

As discussed, Mullins precludes the ALJ's use of the true doubt rule to find the ultimate fact of the presence of pneumoconiosis pursuant to 20 C.F.R. section 718.202(a)(1). Further, if the presence of pneumoconiosis is not proved by a preponderance of the evidence, the presumption of causality upon which the ALJ relied in this case is improper, regardless of the length of the claimant's coal mine employment. These conclusions are sufficient to dispose of the present case. However, this section is necessary to show why the ALJ's use of the true doubt rule to find total disability was improper and also generally to explain why the use of the true doubt rule is not allowed in any case under the Act, whether or not a presumption is involved.

1. The claimant bears the ultimate burden of persuasion.

Traditionally, under our system of jurisprudence, both in the criminal and civil law, the ultimate burden of persuasion is placed on...