Keeling v. Peabody Coal Co.

• Decision Date: 28 January 1993
• Docket Number: No. 92-1125,92-1125
• Parties: Dollie KEELING, widow of John E. Keeling, Petitioner, v. PEABODY COAL COMPANY, Old Republic Insurance Company and Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 857

984 F.2d 857

Dollie KEELING, widow of John E. Keeling, Petitioner, v. PEABODY COAL COMPANY, Old Republic Insurance Company and Office of Workers' Compensation Programs, United

States Department of Labor, Respondents.

No. 92-1125.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 13, 1992.

Decided Jan. 28, 1993.

Harold B. Culley, Jr. (argued), Raleigh, IL, for Dollie Keeling.

Mark E. Solomons (argued), Laura M. Klaus, Arter & Hadden, Washington, DC, for Peabody Coal Co. and Old Republic Ins. Co.

Eileen M. McCarthy, Dept. of Labor, Appellate Litigation, Barbara J. Johnson, Donald S. Shire, Sol. Gen., Deborah E. Mayer (argued), Dept. of Labor, Office of the Solicitor, Louis W. Rogers, Dept. of Labor, Office of Workers' Compensation Program, Washington, DC, for Office of Workers' Compensation Program.

Linda M. Meekins, Ann McLaughlin, Benefits Review Bd., Dept. of Labor, Lisa L. Lahrman, Benefits Review Bd., Executive Counsel, Clerk of the Bd., Washington, DC, for Benefits Review Bd.

Before CUMMINGS and COFFEY, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

HARLINGTON WOOD, Jr., Senior Circuit Judge.

Fourteen years ago an Illinois miner named John Keeling applied for benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. During the years, Keeling has seen both the Department of Labor and an Administrative Law Judge change their minds numerous times about whether Keeling is eligible for benefits. As the latest decision in this saga seems to embrace both positions, we remand this case in the hope of obtaining a clear and final answer. ¹

I. BACKGROUND

The Black Lung Benefits Act ("Act") provides benefits "to coal miners who are totally disabled due to pneumoconiosis." 30 U.S.C. § 901. Pneumoconiosis is statutorily defined as "a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment." 30 U.S.C. § 902. As the title of the Act would indicate, though, pneumoconiosis is better known as "black lung" disease.

A. The Regulations

Under Department of Labor regulations, a miner with at least ten years employment "will be presumed to be totally disabled due to pneumoconiosis" if one of four medical conditions are met. 20 C.F.R. § 727.203 (a). This "interim presumption" is invoked if: (1) an X-ray, biopsy, or autopsy establish the existence of pneumoconiosis; (2) ventilatory studies establish the presence of a chronic respiratory or pulmonary disease; (3) blood gas studies demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood; or (4) other medical evidence establishes the presence of a disabling respiratory or pulmonary impairment. Id. § 727.203(a)(1)-(4).

Once the interim presumption of disability due to pneumoconiosis is established, it may be rebutted in one of four ways: (1) evidence establishes the individual is actually doing his usual coal mine work or comparable and gainful work; (2) the individual is able to do his usual coal mine work or comparable and gainful work; (3) evidence establishes that the total disability of the miner did not arise in whole or in part out of the coal mine employment; or (4) evidence establishes the miner does not have pneumoconiosis. Id. § 727.203(b)(1)-(4).

B. The Department of Labor

The first chapter in this lengthy story started on August 29, 1978, when John Keeling filed his claim for benefits with the Department of Labor. Almost two years later, the Department notified Keeling that it had denied his claim based on its conclusion that Keeling was not totally disabled. A few months thereafter, on November 5, 1980, the Department concluded Keeling might be entitled to receive benefits, and thus issued a Notice of Initial Finding of Eligibility.

On December 9, 1980, Keeling's employer, Peabody Coal Company, controverted Keeling's claim and submitted evidence in support of its position that Keeling was not totally disabled due to pneumoconiosis. Upon considering Peabody's evidence, the Department reversed its initial finding on July 20, 1981, thus adopting its original stance that Keeling was ineligible for benefits.

C. The ALJ's Initial Decision

Three years after first applying to the Department of Labor for benefits, Keeling requested a formal hearing before an Administrative Law Judge ("ALJ"). Several hearing dates were scheduled, but then continued at the request of both parties, and the hearing did not occur until March 26, 1985--six-and-a-half years after Keeling initially filed for benefits.

On November 5, 1985, the ALJ issued his Decision and Order awarding benefits to Keeling. The ALJ initially found Keeling was a coal miner with at least twenty years of qualifying coal mine employment. The ALJ then considered whether Keeling met any of the four medical conditions enumerated in 20 C.F.R. section 727.203(a)(1)-(4) that would entitle him to the presumption of disability. The ALJ found that numerous X-rays taken over a six-year period did not reveal evidence of pneumoconiosis, thus Keeling was not entitled to the presumption under section (a)(1). Nor was Keeling entitled to the presumption based on blood gas studies under section (a)(3). Keeling, however, was entitled to the presumption of disability based on ventilatory studies pursuant to section (a)(2). The ALJ also found Keeling entitled to the presumption under the authority of section (a)(4).

That section, as previously indicated, allows a presumption of disability to be found when "[o]ther medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establishes the presence of a totally disabling respiratory or pulmonary impairment." 20 C.F.R. § 727.203(a)(4). In finding Keeling to be disabled under this section, the ALJ gave great weight to the opinion of Keeling's treating physician, Dr. Pramote Anantachai. Dr. Anantachai, who is board-certified in internal medicine, had treated Keeling since 1978 and consistently found Keeling to be totally disabled due to chronic obstructive lung disease from coal dust exposure. The ALJ found that Dr. Anantachai based his opinion "on frequent physical examinations, X-rays, blood gas studies, and pulmonary function studies."

The doctor's opinion conflicted, though, with that of Drs. Peter G. Tuteur and William H. Anderson. At Peabody's request, Dr. Tuteur had examined Keeling once and reviewed his record several times. Each time, Dr. Tuteur concluded that Keeling showed no evidence of coal workers' pneumoconiosis. The ALJ found Dr. Tuteur's opinion less credible than Dr. Anantachai as Dr. Tuteur had only examined Keeling once, was no more qualified than Dr. Anantachai, and had rendered an "equivocal" opinion as to Keeling's disability. The ALJ also dismissed Dr. Anderson's opinion that Keeling was not disabled and could perform coal employment or similar work. Dr. Anderson, noted the ALJ, based his conclusion on the result of a single pulmonary function study and had never examined Keeling.

In examining the possibility of rebuttal, the ALJ found that section (b)(1) was not available, as no one contested the fact that Keeling was not in fact doing his usual coal mine work or comparable and gainful work. Whether section (b)(2) was applicable was contested. That section provides a rebuttal to the presumption of disability if the claimant is able to perform his usual coal mine work or comparable and gainful work. In discussing this section, the ALJ noted that Drs. Tuteur, Anderson, and Anantachai differed as to the extent or existence of Keeling's disability. Here again the ALJ gave greater weight to Dr. Anantachai's opinion that Keeling was totally disabled. The ALJ also noted that Peabody presented no evidence to the contrary. Thus the ALJ found there to be no rebuttal under section (b)(2).

With little discussion, the ALJ also found there was no rebuttal under sections (b)(3) or (b)(4). The first of those sections provides rebuttal if 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." 20 C.F.R. § 727.203(b)(3). The ALJ found that Dr. Anantachai unequivocally stated that pneumoconiosis was the cause of Keeling's disability while Dr. Tuteur "said in effect that it was possible for this miner, given his work history, to have contracted pneumoconiosis."

Regarding section (b)(4), which allows rebuttal if "[t]he evidence establishes that the miner does not, or did not, have pneumoconiosis," the ALJ found this also to be inapplicable. The ALJ noted that "the weight of the medical opinions ... establishes the presence of a totally disabling respiratory impairment." The ALJ, therefore, found none of the four rebuttal provisions to be applicable and ordered Peabody Coal Company to pay Keeling disability benefits.

D. First Appeal to the Benefits Review Board

Peabody Coal Company appealed the decision to the Benefits Review Board ("Board"), alleging the ALJ erred in finding the evidence insufficient to establish rebuttal under sections 727.203(b)(2)-(4). On March 31, 1988, the Board affirmed the ALJ regarding section (b)(2), but vacated the ALJ's findings on the availability of rebuttal under sections (b)(3) and (b)(4).

In respect to section (b)(3), which deals with the causation of the miner's disability, the Board found the ALJ erred in characterizing Dr. Tuteur's opinion as equivocal. The Board noted that in his deposition, Dr. Tuteur specifically stated that Keeling did not have pneumoconiosis. The ALJ was also mistaken as to Dr. Tuteur's qualifications. Like Dr. Anantachai, Dr. Tuteur is board-certified in internal medicine. Unlike Dr. Anantachai, Dr. Tuteur is also board-certified in pulmonary medicine. In fact, the transcript of Dr. Tuteur's deposition included a copy of his curriculum vitae; this document reflected Dr. Tuteur's board certifications and his position as an...