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

• Decision Date: 18 July 1989
• Docket Number: No. 87-2408,87-2408
• Citation: 880 F.2d 265
• Parties: Jack J. MITCHELSON, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents, and Kemmerer Coal Company and Bituminous Casualty Corporation, Real Parties in Interest and Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 265

880 F.2d 265

Jack J. MITCHELSON, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents and Kemmerer Coal Company and Bituminous Casualty Corporation Real Parties in Interest and Respondents.

No. 87-2408.

United States Court of Appeals Tenth Circuit.

July 18, 1989.

Thomas E. Cahill, Cheyenne, Wyo., for petitioner.

Ronald E. Gilbertson of Kilcullen, Wilson and Kilcullen, Washington, D.C., for Kemmerer Coal Co. and Bituminous Cas. Corp., real parties in interest and respondents.

George R. Salem, Sol. of Labor, Donald S. Shire, Associate Sol., Sylvia T. Kaser, counsel for appellate litigation, and Roscoe C. Bryant, III, Atty., U.S. Dept. of Labor, Office of the Solicitor, Washington, D.C., for the Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, respondents.

Before LOGAN, BRORBY and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

This is a black lung case where the Benefits Review Board affirmed the Administrative Law Judge's Decision and Order denying benefits. Pursuant to section 21(c) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 921(c), as incorporated by subsection 422(a) of the Black Lung Benefits Act, 30 U.S.C. Sec. 932(a), claimant has filed a petition to review the Benefits Review Board's Decision and Order. On review, we affirm.

On September 28, 1979, Jack Mitchelson filed an application for benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901-945. Mitchelson had started work in a coal mine in 1941, at the age of eighteen. He worked underground until 1960, when he was moved to surface work in a shop where mining machinery was repaired, in which capacity he remained until 1972, when he quit. During that twelve-year period, that is, 1960-1972, Mitchelson occasionally went down into the mine proper. As indicated, in 1972, he quit his employment with the coal company to go into business for himself. He bought a back hoe and later a dump truck and did "free-lance" ditch digging from 1972 until 1980.

In 1980, Mitchelson developed a heart blockage which required triple bypass surgery. He has done no work since that date. In 1981, Mitchelson had a cancerous lymphoma removed from his cecum.

In 1979, Mitchelson's claim for black lung benefits was reviewed by the Department of Labor, resulting in an initial finding of entitlement, and Kemmerer Coal Company was notified of its potential liability as the responsible operator. Kemmerer Coal Company controverted the Department of Labor's initial finding and a formal hearing was held in Green River, Wyoming, Administrative Law Judge George P. Morin presiding. At that hearing Mitchelson, represented by counsel, testified at length. Kemmerer Coal Company, through counsel, participated in this hearing and called one witness, a Dr. Lawrence Repsher, an expert in the field of pulmonary medicine, who was a licensed physician in Colorado and was practicing at Lutheran Hospital, Denver, Colorado. Numerous documents, including medical and hospital reports, were also received into evidence.

The Administrative Law Judge found that Kemmerer Coal Company was the last employer of Mitchelson for at least one year and, therefore, was the properly designated "responsible coal mine operator" under the Black Lung Benefits Act. In denying benefits the Administrative Law Judge first held that Mitchelson, having engaged in coal mining for more than ten years, was, under 20 C.F.R. Sec. 727.203(a), entitled to an "interim presumption" that he was "totally disabled due to pneumoconiosis." ¹ Under that regulation, when a miner has more than ten years employment in coal mines, a presumption of total disability due to pneumoconiosis arises, if any one of four "medical requirements" provided in the regulation is met. ² Specifically, the Administrative Law Judge found that the medical requirements set out in subsections 727.203(a)(1) and (4) were not met by Mitchelson, but that the medical requirements set out in 20 C.F.R. Sec. 727.203(a)(2) were met, to the end that Mitchelson was entitled to the presumption of total disability due to pneumoconiosis.

20 C.F.R. Sec. 727.203(b) lists four ways a coal mine operator may rebut the interim presumption. Section 727.203(b) states that the presumption created in section 727.203(a) shall be rebutted if:

(1) The evidence establishes that the individual is, in fact, doing his usual coal mine work or comparable and gainful work (see Sec. 410.412(a)(1) of this title); or

(2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work (see Sec. 410.412(a)(1) of this title); or

(3) 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; or

(4) The evidence establishes that the miner does not, or did not, have pneumoconiosis.

As concerns Kemmerer's "rebuttal" under this section, the Administrative Law Judge held that Mitchelson's interim presumption of total disability due to pneumoconiosis had been rebutted by Kemmerer under subsections 727.203(b)(2) and (b)(4). In support of such determination, the Administrative Law Judge reviewed, in detail, the evidence, both testimonial and documentary, and gave his reasons for believing certain testimony and reports over others.

In an unpublished decision, the Benefits Review Board affirmed the Administrative Law Judge's finding that Kemmerer had rebutted Mitchelson's interim presumption under the provisions of subsection 727.203(b)(2), and on that basis affirmed the Administrative Law Judge's denial of benefits. The Benefits Review Board did not consider the additional finding of the Administrative Law Judge that Kemmerer had also rebutted Mitchelson's interim presumption under subsection 727.203(b)(4). It is from the Benefits Review Board's Decision and Order that Mitchelson has filed his petition for review.

Our scope of review of the Decision and Order of the Benefits Review Board is a limited one. In reviewing a decision of the Benefits Review Board, we must determine if the Board correctly found that the Administrative Law Judge's decision was supported by substantial evidence and was in accord with the statutory and regulatory law. American Coal Co. v. Benefits Review Board, United States Dept. of Labor, 738 F.2d 387, 391 (10th Cir.1984) (citing Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797, 799 (7th Cir.1977)). ³

At the outset we note that the purpose of the Black Lung Benefits Act is to provide benefits to coal miners who are "totally disabled due to pneumoconiosis arising out of employment in one or more of the Nation's coal mines...." 30 U.S.C. Sec. 901. So, to establish entitlement to black lung benefits a coal miner must prove: (1) total disability due to; (2) pneumoconiosis; and (3) arising out of coal mine employment. A miner must prove all three requirements; two out of three are not enough to entitle one to black lung benefits.

As stated above, the Administrative Law Judge held that Mitchelson was entitled to an interim presumption that he was totally disabled due to pneumoconiosis arising out of coal mine employment by meeting the medical requirements set forth in subsections 727.203(a)(2) and (3), "ventilatory studies" and "blood gas studies," respectively. The Administrative Law Judge specifically found that Mitchelson had failed to meet the medical requirements contained in subsections 727.203(a)(1) and (4), x-rays and "other medical evidence," respectively.

Under 20 C.F.R. Sec. 727.203(b), the interim presumption is not a conclusive presumption and may be rebutted by the employer in any one of four ways: (b)(1) showing that the miner is in fact doing his usual coal mine work, or comparable work; (b)(2) showing that the miner could do his usual coal mine work, or comparable work; (b)(3) showing that the total disability of the miner did not arise, either in whole or in part, out of coal mine employment; or (b)(4) showing that the miner does not even have pneumoconiosis.

Mitchelson, at the time of the hearing in 1984, was not performing any work and had not been gainfully employed since 1980, therefore, the Administrative Law Judge found that (b)(1) was inapplicable. The Administrative Law Judge found that the operator had met the requirements of (b)(2) and (b)(4) and that it was therefore unnecessary to consider the rebuttal provided in (b)(3). As stated, the Benefits Review Board upheld the Administrative Law Judge's finding that the interim presumption had been rebutted under (b)(2), and did not address (b)(4). Hence, we shall focus on (b)(2).

Subsection (b)(2) provides that the interim presumption shall be rebutted if:

(2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work (see Sec. 410.412(a)(1) of this title).

Further, 20 C.F.R. Sec. 410.412(a)(1), referred to in subsection (b)(2), reads as follows:

Sec. 410.412 "Total disability" defined.

(a) A miner shall be considered totally disabled due to pneumoconiosis if:

(1) His pneumoconiosis prevents him from engaging in gainful work in the immediate area of his residence requiring the skills and abilities comparable to those of any work in a mine or mines in which he previously engaged with some regularity and over a substantial period of time (that is, "comparable and gainful work": see Secs. 410.424 through 410.426).

20 C.F.R. Sec. 410.426(d), included by reference in 20 C.F.R. Sec. 410.412(a)(1), reads as follows:

(3) Where a ventilatory study and/or a physical performance test is medically contraindicated, or cannot be obtained, or where evidence obtained as a result of such tests does not establish that the miner is totally disabled, pneumoconiosis may nevertheless be found totally disabling if other relevant evidence...