Kline v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 16 June 1989
• Docket Number: No. 88-3658,88-3658
• Citation: 877 F.2d 1175
• Parties: Effie KLINE, Widow of William Kline, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 1175

877 F.2d 1175

Effie KLINE, Widow of William Kline, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.

No. 88-3658.

United States Court of Appeals Third Circuit.

Argued March 10, 1989.

Decided June 16, 1989.

Maureen Hogan Krueger (argued), Meadowbrook, Pa., for petitioner, effie kline.

Jeffrey J. Bernstein (argued), U.S. Dept. of Labor, Office of the Sol., Washington, D.C., for respondent, Director, Office of Workers' Compensation Programs.

Before SLOVITER and BECKER, Circuit Judges, and POLLAK, District Judge. ^*

OPINION OF THE COURT

LOUIS H. POLLAK, District Judge.

Petitioner appeals from a decision of the Department of Labor's Benefits Review Board ("BRB") that affirmed an administrative law judge's denial of her claim under the Black Lung Benefits Act (the "Act"), 30 U.S.C. Secs. 901 et seq. Petitioner seeks benefits for the disability and death of her husband, William Glenn Kline. Under the Act's regulations, petitioner is entitled to benefits if her husband "died due to or while totally ... disabled by pneumoconiosis," a disease related to exposure to coal dust. 20 C.F.R. Sec. 727.201. The regulations create a rebuttable presumption that the disability and death of a miner were due to pneumoconiosis in cases in which the miner was employed in coal mining for at least ten years and had a totally disabling respiratory or pulmonary ailment. 20 C.F.R. Sec. 727.203. ¹ Petitioner's husband worked as a coal miner for over ten years and suffered from, and later died of, a totally disabling pulmonary ailment. Hence, petitioner was entitled to the presumption set forth in 20 C.F.R. Sec. 727.203(a). The issue raised on appeal is whether there is substantial evidence in the record to support the administrative law judge's finding that this legal presumption was rebutted.

I

William Glenn Kline began working in the mines in 1932. Despite a diagnosis of pulmonary tuberculosis in 1948, he continued to work intermittently in the mines until he became completely disabled a decade later. He died in 1965 at the age of forty-eight. According to his death certificate, Mr. Kline died of a "Pulmonary Hemorrhage due to Bronchiectasis due to Pulmonary TB, far advanced, quiescent." App. at 35. The sparse medical record of Mr. Kline's illness consists of: (1) the six pages of records from Mr. Kline's approximately eight (non-continuous) years of hospitalization at the Martinsburg, West Virginia, Veterans Administration Hospital; and (2) the opinions of two non-treating physicians, William V. Dzurek, M.D., who testified at petitioner's 1974 administrative hearing, and Bernard P. McQuillan, M.D., a Medical Consultant to the Department of Labor who wrote a one-page opinion letter on petitioner's claim dated May 19, 1980.

Petitioner filed her claim for benefits in 1970 under the Black Lung Benefits Act. The Social Security Administration reviewed and denied the claim, and petitioner requested a hearing. Pursuant to that hearing--the transcript of which is not available--Administrative Law Judge Alan Neff entered a Hearing Decision denying benefits on December 10, 1974. Judge Neff's decision rested in part on the finding that Mr. Kline was employed "less than ten years in coal mine employment as defined in the Act," with the result that his death did not give rise to the presumption of pneumoconiosis. 1974 ALJ Opinion, App. at 20.

Subsequent amendments to the Act permitted reconsideration of petitioner's claim under an expanded definition of the type of work that qualifies a worker as a "miner" for the purposes of the Act. ² Under these amendments, Mr. Kline had more than ten years employment as a "miner," and thus petitioner was eligible for the legal presumption of pneumoconiosis established by 20 C.F.R. Sec. 727.203(a). Nonetheless, after additional review under the amended Act, ³ the Social Security Administration and the Department of Labor again denied petitioner's claim. The Department of Labor subsequently referred the claim to the Office of Administrative Law Judges in 1984.

Administrative Law Judge Steven Halpern held a hearing and issued a Decision and Order Denying Benefits on July 11, 1986. Judge Halpern acknowledged that Mr. Kline had over ten years of qualifying employment in coal mining. ⁴ On the basis of that finding, as well as evidence that Mr. Kline suffered from a totally disabling pulmonary ailment, ⁵ Judge Halpern determined that petitioner was entitled to the presumption that pneumoconiosis caused Mr. Kline's disability and death.

However, Judge Halpern identified two evidentiary bases in the record to support rebuttal of the presumption pursuant to both 20 C.F.R. Secs. 727.203(b)(3) and (4). ⁶ First, Judge Halpern inferred that Mr. Kline did not have any disease related to his coal mine employment. Judge Halpern drew this inference from the alleged absence of any diagnosis in the medical records explicitly linking Mr. Kline's condition to his years in the mines. Second, Judge Halpern found that Dr. McQuillan's 1980 opinion letter established that Mr. Kline did not have pneumoconiosis.

The Benefits Review Board ("BRB") affirmed Judge Halpern's decision, finding that the judge had "properly credited the opinion of Dr. McQuillen [sic]." BRB Opinion, App. at 6. Based on this evidence, the BRB concluded that the presumption of disability and death due to pneumoconiosis was rebutted under subsection 727.203(b)(3). ⁷ Petitioner then filed this application for review of the BRB's decision pursuant to 30 U.S.C. Sec. 932(a) (incorporating 33 U.S.C. Sec. 921(c)).

II

On reviewing a decision of the BRB, we are (1) to defer to those factual findings determined by us to be supported by substantial evidence, and (2) to exercise plenary review over the BRB's conclusions of law. See Gonzales v. Director, Office of Workers' Compensation Programs, 869 F.2d 776, 778-79 (3d Cir.1989); Hillibush v. United States Department of Labor, 853 F.2d 197, 202 (3d Cir.1988). Petitioner contends that there is not substantial evidence to support the finding that the presumption of disability and death from pneumoconiosis was rebutted. In addition, petitioner contends that Judge Halpern and the BRB erred as a matter of law in failing to apply the legal--as opposed to the narrower medical--definition of pneumoconiosis, and in failing to consider her possible entitlement to benefits under 20 C.F.R. Sec. 718.303. ⁸

There is no disagreement that, because Mr. Kline worked for over ten years in qualifying coal mining and suffered from a totally disabling respiratory and pulmonary impairment, petitioner is entitled to the presumption under 20 C.F.R. Sec. 727.203(a). The issue on appeal is the adequacy of the rebuttal of that presumption, specifically the sufficiency of Dr. McQuillan's letter and any negative inference reasonably arising from the record.

A. The McQuillan letter

Both Judge Halpern and the BRB relied on Dr. McQuillan's letter to support their determinations that Mr. Kline did not suffer from pneumoconiosis and that Mr. Kline's disability and death were therefore unrelated to his coal mine employment. The letter begins with a summary of Mr. Kline's treatment records and then sets forth Dr. McQuillan's conclusions as follows:

His chest xray showed no radiologic evidence of pneumoconiosis. At one point he had nodulation but it cleared following anti-tuberculous therapy. There was no conglomeration. His cavitation was felt to represent active pulmonary tuberculosis cavities rather than cavities of pneumoconiosis. Positive sputums were encountered. This man's fibrosis, emphysema, bronchitis and bronchiectasis can easily be accounted for on the basis of his far advanced active cavitary tuberculosis. Upon review of his chart I find no radiologic nor clinical evidence of pneumoconiosis. His death certificate reads pulmonary hemorrhage as the immediate cause of death secondary to bronchiectasis secondary to far advanced pulmonary tuberculosis. I am unable to substantiate a disabling diagnosis of pneumoconiosis in this case.

App. at 27.

This letter is insufficient to support rebuttal under either subsection 727.203(b)(3) or (4) for two reasons. The first inadequacy of the letter stems from the ambiguity surrounding Dr. McQuillan's use of the term "pneumoconiosis." It is unclear whether Dr. McQuillan used "pneumoconiosis" to refer to the legal definition of the disease, as specified in the regulations, or to refer to the narrower medical definition of the disease. The regulatory standard defines pneumoconiosis as "any chronic pulmonary disease resulting in respiratory or pulmonary impairment significantly related to, or aggravated by, dust exposure in coal mine employment." 20 C.F.R. Sec. 727.202. ⁹ This legal definition encompasses a wider range of afflictions than does the more restrictive medical definition of coal workers' pneumoconiosis. ¹⁰

Recognizing that the legal definition of pneumoconiosis is broader than the medical definition, this court, in Pavesi v. Director, Office of Workers' Compensation Programs, 758 F.2d 956, 965 (3d Cir.1985), held that a physician's conclusion that a worker did not have "coal workers' pneumoconiosis" was not sufficient rebuttal evidence under 20 C.F.R. Sec. 727.203(b)(4) in that it did not establish, within the terms of the regulation, "that the miner does not, or did not, have pneumoconiosis." We held that, in order to support a subsection 727.203(b)(4) rebuttal finding that a miner did not have pneumoconiosis, "the party opposing an award of benefits must point to persuasive evidence which establishes that the claimant does not suffer from pneumoconiosis as defined by the statute and regulations." Id.

The McQuillan letter fails to meet the specificity required for rebuttal under Pavesi. Despite respondent's assertion at oral argument that Dr. McQuillan addressed his letter to the legal, rather than to the...