Old Ben Coal Co. v. Luker

Decision Date04 November 1987
Docket NumberNo. 86-1420,86-1420
Citation826 F.2d 688
PartiesOLD BEN COAL COMPANY, Petitioner, v. Elmer H. LUKER and the Director, Office of Workers' Compensation Programs, and United States Department of Labor, Respondents.
CourtU.S. Court of Appeals — Seventh Circuit

Bronius K. Taoras, Old Ben Coal Co., Legal Dept., Cleveland, Ohio, for petitioner.

Edward D. Sieger, U.S. Dept. of Labor, Washington, D.C., for respondents.

Before WOOD, CUDAHY and RIPPLE, Circuit Judges.

CUDAHY, Circuit Judge.

This is a petition for review of a final order of the Benefits Review Board (the "Board"), United States Department of Labor, awarding benefits under the Black Lung Benefits Act (the "Act"), 30 U.S.C. Sec. 901 et seq. The Board affirmed the decision of the Administrative Law Judge (the "ALJ") awarding benefits to Elmer Luker. The Board also denied a motion of Old Ben Coal Company ("Old Ben") seeking dismissal as the operator responsible for paying Luker's benefit and a shift in responsibility for payment to the Black Lung Disability Trust Fund (the "Trust Fund"). Old Ben appeals the determination that benefits are payable and the denial of the motion to transfer responsibility to the Trust Fund. We affirm the determination that Luker is entitled to benefits. We vacate the determination that liability does not transfer and remand the matter to the Board for a redetermination of transfer responsibility.

I.

Elmer Luker began working for Old Ben as a coal miner in 1932, working as a truck driver, tractor driver, driller, shooter and stripper. His employment exposed him to substantial amounts of coal mine dust. Luker testified that as a truck driver he made from nine to twelve round trips a day from the mine to the tipple where the loaded truck was emptied, over haulage roads made of "gob" (refuse from the coal, consisting of coal and impurities, such as sulphur balls). Although Raymond Wools, an Old Ben manager, asserted that the "gob" had been replaced by crushed rock earlier than 1969 (the date claimed by Luker), Wools admitted that the roads presented a continuing dust problem requiring two water trucks to hose them down. Even after 1969 there was a serious dust problem on the roads.

At the tipple, where the coal was dropped considerable distances in unloading, more dust was generated, and continued to be generated even after a change which allowed the truck driver to move over the hopper while unloading. Dust was also generated by loading coal onto the trucks and by blasting to remove coal. Luker drove trucks that may not have had windows or trucks that had no air conditioning so the windows were kept open. At the end of the work day his face and other exposed parts of his body were occasionally "as black as the coal."

Luker testified that he began seeing a doctor about his lungs in 1961 or 1962. In 1970 or 1971, a doctor told him he had to get out of the coal dust. However, he continued working past his sixty-fifth birthday, finally quitting in October 1973. He stated then that he could no longer climb the three flights of "stairs" on his truck because he was out of breath when he got to the top. Several doctors examined Luker. A 1973 pulmonary function study, administered by Dr. Getty, showed "moderately severe obstructive pulmonary disease." An examination by Dr. Connerey in the same year showed that Luker's "diaphragms moved poorly," and his ventilatory capacity was "29% of normal." Dr. Connerey concluded that Luker was 71% permanently disabled due to pneumoconiosis and obstructive emphysema. Dr. Stewart reported that Luker had a vital pulmonary function capacity of 47.4% of normal and agreed that Luker "definitely has chronic obstructive lung disease," "more than likely" caused by Luker's years of coal mining. Dr. Stewart concluded that Luker was "totally and permanently disabled from doing any gainful employment in which he is trained." Dr. Peters found an x-ray "highly suggestive of findings consistent with pneumoconiosis" and concluded that Luker "would be unable to perform any type of gainful employment in a coal mine."

Dr. Nay, retained by Old Ben, opined that Luker had "no evidence of pneumoconiosis" but agreed that Luker had "emphysema." Dr. Nay said that "no evidence" established that Luker's coal mine employment contributed to his pulmonary disease. X-ray evidence was interpreted variously as positive and negative by doctors. The most recent x-ray, dated October 22, 1974, was interpreted by Dr. Breitweiser to contain "calcification in small opacities" but no pneumoconiosis.

The ALJ credited medical reports interpreting a pulmonary function study and a chest x-ray. The ALJ also credited the reports of Drs. Connerey and Stewart. He specifically discredited the report of Dr. Nay and said: "The overwhelming weight of the evidence establishes the fact that Claimant does have pneumoconiosis and that Claimant does have a chronic obstructive lung disease with considerable emphysema."

The ALJ applied the law as it stood in 1977 when he rendered his original November 1977 decision and concluded that Luker was totally disabled from pneumoconiosis that arose out of his coal mine employment. The ALJ therefore awarded benefits under "Part C" of the Act. 1 The ALJ noted that the relevant regulation, 20 C.F.R. Sec. 410.414, provided that pneumoconiosis may be established not only by x-ray, id. Sec. 410.414(a), but also by evidence of "a totally disabling chronic respiratory or pulmonary impairment," coupled with employment for fifteen years or more in a surface mine "where environmental conditions were substantially similar" to underground mines, id. Sec. 410.414(b); 30 U.S.C. Sec. 921(c)(4). The ALJ also noted that a third way to establish pneumoconiosis was by other relevant evidence establishing both that the miner has "a totally disabling chronic respiratory or pulmonary impairment and that such impairment arose out of employment in a coal mine." 20 C.F.R. Sec. 410.414(c). The ALJ also concluded that Luker's disability was "a result of his many years of coal mining employment" and rejected Old Ben's argument that Luker was not totally disabled under 20 C.F.R. Sec. 410.412.

The Board in its original March 1979 decision found substantial evidence to support the ALJ's finding that Luker had a totally disabling pulmonary impairment. It relied on four pulmonary function studies, reports by Drs. Stewart, Rucker and Peters, and Luker's testimony. The Board also approved the ALJ's finding that Luker's total disability arose out of coal mine employment, based on the presumption, contained in 30 U.S.C. Sec. 921(c)(1) and 20 C.F.R. Sec. 410.416(a), that where a miner suffering from pneumoconiosis establishes ten years of coal mine employment (in a surface or underground mine) the pneumoconiosis is presumed to have arisen from the coal mine employment. Nevertheless, the Board vacated the ALJ's award of benefits because it believed that the x-rays of record were insufficient to establish that Luker's totally disabling respiratory or pulmonary impairment was pneumoconiosis. The Board found that the ALJ had to rely on the presumption at 30 U.S.C. Sec. 921(c)(4), and 20 C.F.R. Sec. 411(c)(4), providing that where a miner with fifteen or more years of employment in underground coal mines or in conditions "substantially similar to conditions in an underground mine," demonstrates the existence of a totally disabling chronic respiratory or pulmonary impairment, "there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis." 30 U.S.C. Sec. 921(c)(4); 20 C.F.R. Sec. 411(c)(4). A majority of the Board held that in order to rely on this presumption the ALJ must make a specific finding that the environmental conditions during Luker's strip mine employment were comparable to conditions in an underground mine.

On remand, the ALJ considered testimony that the roads over which Luker drove were dusty enough to require the services of two water trucks to water down the dust. An absence of watering equipment contributed to high dust levels when coal was loaded and unloaded, and at the end of the day truck drivers' clothes were dirty and uncovered portions of their body were "just about as black as the coal." The ALJ concluded, in May, 1979, that conditions at the strip mine where Luker worked while loading, driving and unloading coal were occasionally intensely dusty and substantially similar to the conditions of dust exposure in underground mines. Therefore Luker "spent more than fifteen years performing jobs that exposed him to a heavy concentration of coal dust ... substantially similar to conditions in an underground mine" and Luker was entitled to the presumption that his totally disabling respiratory disease was pneumoconiosis. See 30 U.S.C. Sec. 921(c)(4); 20 C.F.R. Sec. 411(c)(4).

The Board in a second decision in February 1986 affirmed the supplemental ALJ findings, noting that the ALJ "gave a detailed description of the working conditions that he found to exist." The Board held that since the ALJ "provided [a] sufficient rationale to support his findings," it was unnecessary for the ALJ to resolve the alleged conflicts in Wool's and Luker's testimonies. The Board also held that Old Ben was "effectively precluded on this appeal from arguing the non-existence of statutory pneumoconiosis."

While the ALJ's supplemental decision and order was pending before the Board, Old Ben filed a motion to be dismissed as the responsible operator on the ground that liability for Luker's claim should transfer from Old Ben to the Trust Fund under a provision in the 1981 Amendments to the Act (the "1981 Amendments"). See Pub.L. No. 97-119, Sec. 205(a), 95 Stat. 1645 (1981) (codified at 30 U.S.C. Sec. 932(c)(2), (j)(3)). This provision transfers liability for benefits from individual operators to the Trust Fund in cases in which there was "a claim denied...

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