Mitchell v. Office of Workers Compensation Programs

• Decision Date: 26 May 1994
• Docket Number: No. 93-1923,93-1923
• Citation: 25 F.3d 500
• Parties: Rita J. MITCHELL, Petitioner, v. OFFICE OF WORKERS COMPENSATION PROGRAMS, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 500

25 F.3d 500

Rita J. MITCHELL, Petitioner, v. OFFICE OF WORKERS COMPENSATION PROGRAMS, Respondent.

No. 93-1923.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 3, 1993.

Decided May 26, 1994.

Theresa Chmara (argued), David W. DeBruin, Jenner & Block, Washington, DC, for petitioner.

Marta Kusic, Jeffrey S. Goldberg, Office of the Sol., Louis W. Rogers, Dept. of Labor, Office of Workers' Compensation Program, Washington, DC, for Office of Workers Compensation Programs.

Wayne Reynolds (argued), Belleville, IL, for Old Ben Coal Co.

Steven D. Breeskin, Dept. of Labor, Office of the Sol., Lisa L. Lahrman, Benefits Review Bd., Executive Counsel, Clerk of the Bd., Washington, DC, for Benefits Review Bd.

Before LAY, ^* RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

Coal miner Charles Mitchell applied for black lung benefits on June 26, 1980, shortly before his death in August of that year. Petitioner Rita Mitchell, his widow, timely filed a claim for survivor's benefits. That consolidated claim has been before the Department of Labor and the courts ever since. Mrs. Mitchell now appeals the ruling of the Benefits Review Board ("the Board") affirming the decision of the Administrative Law Judge ("the ALJ") denying benefits on the basis that the statutory presumption was not invoked. For the reasons that follow, we reverse the decision of the Board and remand with the direction that the Board order that benefits be paid.

I BACKGROUND

A. Facts

Charles Mitchell worked for the CB & Q Railroad for 23 years, between 1942 and 1968. He cleaned railroad cars at the site of the Old Ben Coal Company ("Old Ben") coal mine. In performing this work, he was supervised by Old Ben. He worked directly for Old Ben from 1971 until 1980 in its underground coal mines. In February 1979, an x-ray of Mr. Mitchell's chest was sent to the National Institute for Occupational Safety and Health ("NIOSH") for analysis. NIOSH notified Department of Labor's Chief of the Health Division of the Coal Mine Safety and Health Administration that "[t]he interpretation of the X-ray by a physician qualified under the Act indicates evidence of Category I Simple Pneumoconiosis (ILO-U/C Classification)." ¹ Director's Ex. 15 at 1. In November 1979, Old Ben transferred Mr. Mitchell to the position of bottom cager in the mines, a job with less exposure to coal dust. However, health difficulties caused him to stop working on January 18, 1980. Shortly thereafter, he underwent surgery for cancer of the colon and pelvis. Mr. Mitchell died on August 1, 1980; the death certificate stated that the cause of death was cancer.

B. Medical Evidence

1. RADIOGRAPHY. Three x-rays of Mr. Mitchell's chest were taken and read for evidence of black lung disease. The first, taken February 14, 1979, was described above. Dr. J.S. Gordonson, a Board-certified radiologist and B-reader for NIOSH, ² reported that the x-ray revealed "evidence of Category 1 Simple Pneumoconiosis." Director's Ex. 15 at 1. Five radiologists retained by Old Ben later read the x-ray as negative for pneumoconiosis. Old Ben Ex. 1, 2 (reports of B-readers Renn and Morgan).

The January 26, 1980 x-ray was taken when Mr. Mitchell was in the hospital for cancer. Six radiologists, five of whom were retained by Old Ben, read that x-ray. None of the readings was positive for pneumoconiosis; however, three of the Old Ben readers found evidence of "granulomata." ³ Old Ben Ex. 3-7. Also, Board-certified radiologist Dr. T.A. Minetree found "evidence of old inflammatory disease." Director's Ex. 10 at 5.

The February 6, 1980 x-ray, taken during Mr. Mitchell's hospitalization, resulted in the same reading: Dr. Minetree reported evidence of an old inflammatory disease, Director's Ex. 10 at 4, and three of the five Old Ben readers found evidence of granulomata. Old Ben Ex. 8-12.

2. MEDICAL OPINIONS. The record contained the reports of only two physicians. Dr. Fox, Mr. Mitchell's treating physician during his hospitalization for cancer, submitted a report on May 27, 1981, at the Department of Labor's request. He stated that Mr. Mitchell died of cancer of the bowel. Although the doctor believed that he was "not Dr. Barkdull, Mr. Mitchell's treating family physician for more than 25 years, also submitted for the ALJ's review Dr. Gordonson's reading of the February 1979 X-ray, the NIOSH notification letter, and the form signed by Mr. Mitchell exercising his option to transfer to a less dusty area of the mine. Dr. Barkdull's report of August 13, 1984 stated: "As you will notice [Mr. Mitchell] was diagnosed as having definite pneumoconiosis verified by x-ray. It is my medical opinion that Mr. Mitchell was totally disabled due to this condition." Claimant's Ex. 1 at 2.

                in a position to have firm knowledge as to the extent of his black lung disease if he had this," he reported that Mr. Mitchell "certainly had pulmonary compromise."   Director's Ex. 10 at 1.  Dr. Fox had also stated in an earlier report that Mr. Mitchell suffered from "chronic obstructive pulmonary disease" in addition to cancer.  Director's Ex. 10 at 2
                

3. LAY OPINIONS. Mrs. Mitchell testified that her husband's breathing difficulties began around 1974, shortly after he began working underground in the mines, and that the problem became progressively worse until he needed a breathing mask in the mines. Tr. 15. She described his shortness of breath and his frequent spitting, coughing and choking. Id. Mr. Mitchell's supervisor Tom McKie also testified that Mr. Mitchell would "violently cough, oh, for forty seconds or so, and when he would turn around he would be flushed." Tr. 34. He also mentioned that Mr. Mitchell smoked. Tr. 37.

C. Procedural History

The initial determination of Mr. Mitchell's application and Mrs. Mitchell's claim for survivor's benefits was a denial of eligibility--first by the Director of the Office of Workers' Compensation Programs ("OWCP") of the Department of Labor, and then by the ALJ and the Board. However, we reversed the Board's first affirmance of the ALJ's determination that Mrs. Mitchell was not entitled to benefits because Mr. Mitchell had not been a "miner" for at least fifteen years as the statute required. Mitchell v. Director, O.W.C.P., 855 F.2d 485 (7th Cir.1988). After reviewing the statutory and regulatory definitions of "miner" ⁴ and the caselaw interpretations, we concluded that the ALJ had erred in that determination. We held that Mr. Mitchell was in fact a "miner" under the applicable regulations and therefore that Mrs. Mitchell was entitled to the opportunity to establish the rebuttable presumption for pneumoconiosis. We remanded the case to the ALJ for further factfinding on the question whether Mr. Mitchell suffered from a totally disabling respiratory or pulmonary impairment.

On remand, the ALJ again concluded that benefits should be denied on the ground that the existence of pneumoconiosis was not established by x-rays or by well-reasoned medical opinions. Order of June 8, 1989, R.145-49. With respect to the X-rays, the ALJ noted that one x-ray had been read as positive by a B-reader, but that several other radiologists had read that x-ray and the others as negative for pneumoconiosis. The ALJ concluded that "the existence of pneumoconiosis was not established by radiography." R.147. The ALJ accorded no weight to the two available medical reports. He discounted Dr. Fox's report because the physician was not certain that Mr. Mitchell had black lung disease and did not describe the tests indicating Mr. Mitchell's pulmonary compromise. An earlier report by Dr. Fox, which had diagnosed chronic pulmonary disease, was also given no weight. The ALJ was of the view that the record contained no evidence of the basis of the diagnosis, the severity of the disability, or the causal relationship of the disease to coal mine employment rather than to Mr. Mitchell's "significant history of smoking." R.148. Dr. Barkdull's letter was also discounted by the ALJ. He noted that Dr. Barkdull had relied on one positive x-ray reading, but recited no knowledge that this x-ray had been read as negative by two B-readers and that the other x-rays had been read as negative by "well-qualified" readers. The ALJ found that the death certificate listed the cause of death as cancer, with no indication of another disabling impairment. Moreover, the lay witness' testimony described respiratory difficulties that could have been attributable to the cancer. R.148.

Before the Board, Mrs. Mitchell submitted that the ALJ had committed error in requiring that she prove the existence of pneumoconiosis and causality as part of her invocation of the presumption permitted by Sec. 718.305. The Board held that, in cases such as this, Sec. 718.305 provides a rebuttable presumption that a miner is totally disabled by pneumoconiosis if he was employed in a mine or comparable surface activity for fifteen years and establishes, under the criteria set forth in Sec. 718.204(c), the existence of a totally disabling respiratory impairment. "As claimant contends," wrote the Board, "if the Section 718.305 presumption is invoked, she need not establish the existence of pneumonoconiosis separately and may avail herself of the Section 718.203(b) presumption." ⁵ Board Dec. of Mar. 19, 1993, R.5.

Nevertheless, the Board determined that the ALJ's error did not alter the result because he "made affirmable findings that claimant failed to establish a total disability respiratory impairment pursuant to Section 718.204." Id. In the Board's view, the ALJ gave a proper reason for rejecting the two doctors' medical opinions, and, therefore, "any error in his weighing of the medical evidence is harmless." Id. It also noted that the only cause of Mr. Mitchell's death on the death certificate was cancer and that, in the absence of another cause, the ALJ properly inferred that the miner did not suffer from a totally disabling ailment. R.7.

II ANALYS...