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

• Decision Date: 09 June 1988
• Docket Number: No. 87-3443,87-3443
• Citation: 843 F.2d 738
• Parties: Joseph ORAVITZ, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 738

843 F.2d 738

Joseph ORAVITZ, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.

No. 87-3443.

United States Court of Appeals Third Circuit.

Argued Jan. 7, 1988.

Decided March 31, 1988.

Rehearing Denied June 9, 1988.

Sandor Yelen, Ronald P. Sweeda (argued), Wilkes-Barre, Pa., for petitioner.

George R. Salem, Donald S. Shire, Barbara J. Johnson (argued), Thomas L. Holzman, Roscoe C. Bryant, III, U.S. Dept. of Labor, Office of the Solicitor, Washington, D.C., for respondent.

Before SEITZ, HUTCHINSON and GARTH, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Joseph Oravitz petitions for review of a Benefits Review Board (BRB) decision denying him benefits under the Black Lung Benefits Act, 30 U.S.C.A. Secs. 901-960 (West 1986). ¹ The BRB affirmed an Administrative Law Judge's (ALJ's) order denying benefits. After affording Oravitz the benefit of an interim presumption of total disability on x-ray evidence of pneumoconiosis coupled with more than ten years exposure in coal mine employment, the ALJ held that the Director had rebutted this presumption. In support of rebuttal, the ALJ cited physicians' and test evidence purportedly demonstrating that Oravitz did not suffer from any respiratory impairment and that he is not totally disabled from pneumoconiosis as sufficient to show that Oravitz was able to perform as a miner. The governing regulations do not contemplate rebuttal by this means. We will therefore reverse the BRB's order.

From October 1946 to May 1960, Oravitz worked for the Hudson Coal Company (Hudson) as a slate picker, repairman, timberman and mason. At the ALJ hearing, he testified to exposure to a significant amount of coal dust during the years spent in Hudson's employ. Unfortunately, as was so often the case, he was not given any protective breathing equipment. After the close of the Hudson operation, Oravitz worked as a maintenance man for a bank. He filed a claim for benefits on December 6, 1977.

The medical evidence pertaining to Oravitz's claim consists of the following. The record contains three qualifying x-ray interpretations and two qualifying physicians' opinions. ² However the record includes three non-qualifying ventilating studies, three non-qualifying blood gas studies and two non-qualifying physicians' opinions. Citing the x-ray evidence and the fact that Oravitz had worked as a miner for more than ten years, the ALJ held that Oravitz was entitled to rely upon the interim presumption of total disability. However, relying upon the evidence which failed to demonstrate significant impairment, the ALJ concluded that the Director had successfully rebutted the interim presumption of total disability. The BRB affirmed. This petition for review followed.

The Department of Labor has, pursuant to statute, 30 U.S.C.A. Sec. 921(b), (c), promulgated regulations establishing an interim presumption of total disability. A miner who has worked in coal mine employment for at least ten years will be presumed to be totally disabled due to pneumoconiosis if one of the following requirements is met: (1) an x-ray reading indicates the presence of the disease; (2) ventilatory studies establish the presence of chronic respiratory or pulmonary disease; (3) blood gas studies demonstrate impairment in the transfer of oxygen; or (4) the documented opinion of a physician establishes total impairment. 20 C.F.R. Sec. 727.203(a) (1987). Here, the Director does not dispute the ALJ's invocation of the interim presumption based upon the x-rays revealing the presence of pneumoconiosis. Cf. Mullins Coal Co. of Va. v. Director, Office of Workers' Compensation Programs, --- U.S. ----, 108 S.Ct. 427, 98 L.Ed.2d 450 (1987) (one item of qualifying evidence not always sufficient to invoke interim presumption).

After the interim presumption arises, it may be rebutted should one of four criteria be established:

(b) Rebuttal of interim presumption. In adjudicating a claim under this subpart, all relevant medical evidence shall be considered. The presumption in paragraph (a) of this section 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.

20 C.F.R. Sec. 727.203(b) (1987) (emphasis in original). Since Mr. Oravitz is not employed in any capacity, subsection (b)(1) is not germane to this discussion.

In the instant case, the ALJ found the interim presumption rebutted. Without specifying which rebuttal provision controls, the ALJ concluded, "I find that the interim presumption has been rebutted, and further that Claimant is not totally disabled because of pneumoconiosis." App. at 8. In so holding, the ALJ relied upon the non-qualifying evidence which indicates that Oravitz may not be totally impaired. Despite the fact that the ALJ had invoked the interim presumption of total disability he concluded, employing the same evidence available when he determined the presumption, that the miner was not totally disabled due to pneumoconiosis.

The ALJ's findings of fact are conclusive upon the BRB if they are supported by substantial evidence. Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 162 (3d Cir.1986). Our review of decisions of the BRB is limited to a determination as to whether an error of law has been committed and whether the BRB has adhered to its scope of review. Id.; Old Ben Coal Co. v. Prewitt, 755 F.2d 588, 589-90 (7th Cir.1985).

Oravitz argues that the ALJ erred in disallowing his benefits claim by finding an absence of total disability after invoking the interim presumption. He contends that the governing regulatory scheme does not contemplate rebuttal in this fashion. The Director, on the other hand, asserts that rebuttal subsection (b)(2) can accommodate a finding that the miner is not totally disabled due to pneumoconiosis. ³ Because the language of subsection (b)(2) does not provide for rebuttal by this means, we disagree.

Subsection (b)(2) allows rebuttal of the interim presumption when "it is established that the individual is able to do his usual mine work or comparable and gainful work." 20 C.F.R. Sec. 727.203(b)(2). This provision is limited to proof demonstrating that the miner is suited for employment in the mines or a comparable position. The ALJ's examination of non-qualifying medical evidence to support a subsection (b)(2) rebuttal was error. This evidence is not probative on the issue of whether the miner can perform the heavy labor of a coal miner. The Director did not rebut Oravitz's presumed entitlement to benefits.

Insistence upon compliance with the regulations is consistent with the decisions of other Courts of Appeals which have addressed this problem. See, e.g., Sykes v. Director, Office of Workers' Compensation Programs, 812 F.2d 890, 893 (4th Cir.1987) (plain language of subsection (b)(2) requires consideration of miner's ability to perform work, medical evidence demonstrating no impairment cannot be equated with such ability); York v. Benefits Review Bd., 819 F.2d 134, 137 (6th Cir.1987) (pulmonary function tests, blood gas studies and physician's opinion that claimant not totally disabled not relevant when considering miner's ability to do mining or comparable work). See also Wright v. Island Creek Coal Co., 824 F.2d 505, 508 (6th Cir.1987) (interim presumption may not be rebutted under subsection (b)(2) on evidence miner not totally disabled); Adkins v. United States Dep't of Labor, 824 F.2d 287, 289 (4th Cir.1987) (subsection (b)(2) limited to consideration of whether miner able to do usual coal mine or comparable work); Wetherill v. Director, Office of Worker's Compensation Programs, 812 F.2d 376, 379 (7th Cir.1987) (dictum) (plain language of subsection (b)(2) limits rebuttal consideration to ability to do work).

The Director is correct in arguing that we should give deference to his interpretation of the regulations proffered by the Secretary of Labor. See, e.g., Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945); Disabled in Action of Pa. v. Sykes, 833 F.2d 1113, 1117 (3d Cir.1987). However, such deference does not afford the Director the opportunity to rewrite the regulations through interpretation. Until an agency either rewrites or rescinds its...