Peabody Coal Co. v. Office of Workers' Compensation Programs

Citation116 F.3d 207
Decision Date09 June 1997
Docket Number96-1594,Nos. 96-1534,s. 96-1534
PartiesPEABODY COAL COMPANY and Old Republic Insurance Company, Petitioners, v. OFFICE OF WORKERS' COMPENSATION PROGRAMS, Estate of J.T. Goodloe, Larry Goodloe, Personal Representative, et al., Respondents. ESTATE OF J.T. GOODLOE, Larry Goodloe, Personal Representative, Jack N. Vanstone, Attorney, Petitioners, v. OFFICE OF WORKERS' COMPENSATION PROGRAMS, Peabody Coal Company and Old Republic Insurance Company, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

W.C. Blanton (argued), Oppenheimer, Wolff & Donnelly, Minneapolis, MN, for Peabody Coal Company, Old Republic Insurance Company.

Ida Castro, Department of Labor, Appellate Litigation, Washington, DC, for Office of Workers' Compensation Programs in No. 96-1534.

Jack N. Vanstone (argued), Evansville, IN, for Estate of J.T. Goodloe, Larry Goodloe.

Jack N. Vanstone, Evansville, IN, pro se.

Thomas O. Shepherd, Jr., Benefits Review Board, Donald S. Shire, Department of Labor, Office of the Solicitor, Washington, DC, for Benefits Review Board.

Ida Castro, Department of Labor, Appellate Litigation, Jeffrey S. Goldberg (argued), Christian P. Barber, Rodger Pitcairn, Department of Labor, Office of the Solicitor, Washington, DC, for Office of Workers' Compensation Programs in No. 96-1594.

Before POSNER, Chief Judge, and FLAUM and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

J.T. Goodloe filed a claim for black lung benefits in 1978. Nineteen years later, and more than eight years after Goodloe's death, the parties continue to grapple over Goodloe's entitlement to benefits, and Goodloe's attorney's entitlement to fees. Unfortunately, we are unable to lend closure to this protracted case, but instead must remand because the administrative law judge applied an incorrect legal standard some twelve years ago.

BACKGROUND

An administrative law judge ("ALJ") conducted a formal hearing on Goodloe's claim on May 21, 1984, and denied the claim for benefits in a decision issued on May 6, 1985. The ALJ found that because Goodloe worked in coal mines for at least thirty-three years, he would be entitled to an interim presumption of total disability due to pneumoconiosis if he could meet any of the criteria set forth in 20 C.F.R. 727.203(a): (1) a chest x-ray, biopsy or autopsy established the existence of pneumoconiosis; (2) ventilatory studies established the presence of a chronic respiratory or pulmonary disease as demonstrated by certain values specified in the regulation; (3) blood gas studies demonstrated the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood as indicated by certain values specified in the regulation; or (4) other medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, established the presence of a totally disabling respiratory or pulmonary impairment. After finding that Goodloe did not meet the criteria set out in sections (a)(1) or (a)(2) because neither his chest x-rays nor his pulmonary function studies satisfied the requirements for the interim presumption, the ALJ determined that Goodloe did meet the standard set out in section (a)(3). Goodloe's then-recent blood gas study produced qualifying values of PCO2 equal to 37 and PO2 equal to 45. That is, Goodloe's blood contained so little oxygen that federal regulations presumed, because of his lengthy service in the mines, that he had developed pneumoconiosis.

This blood gas study, conducted in 1984, differed so dramatically from a 1979 study of Goodloe's blood that Peabody Coal Company, Goodloe's employer, questioned its validity. Two doctors testified for Peabody and one testified for Goodloe, and all three viewed the 1984 blood gas results with suspicion. Goodloe's doctor, Henry Peters, who ordered the 1984 blood test, testified that he considered the numbers odd. "I didn't believe them myself when I first saw them, and so I had it double checked." Deposition of Henry A. Peters, D.O., at 22-23. He called the hospital Defense expert Dr. David W. Howard testified that, given Goodloe's normal blood gas readings five years earlier, he would not accept a reading of PO2 equal to 45 at face value, but would have the test repeated. Deposition of David W. Howard, M.D. at p. 6. He speculated that Goodloe's blood had been drawn from a vein instead of an artery as it should be for a blood gas test, and that this error could account for the low reading. Id. at pp. 6-7. He further testified that his practice for patients with a verifiable PO2 equal to 45 would be to put those patients on oxygen because this number indicated respiratory failure. Id. at p. 21.

laboratory where the test was conducted to verify the results, and the laboratory confirmed to Dr. Peter's satisfaction that this was in fact Goodloe's blood gas reading. Although Dr. Peters could not remember how the laboratory verified the results--whether the lab repeated the test or verified the results in some other way--he repeatedly urged Peabody's counsel to call the lab to check for himself. The record does not reflect whether Peabody's counsel ever took Dr. Peters up on this suggestion.

The other defense expert, Dr. J. Frank Stewart, had examined Goodloe in 1979 when his blood gas readings were normal. Dr. Stewart testified that he thought he would ask for a repeat of the test if confronted with the "extremely unusually low" value of PO2 equal to 45. "If I were treating that patient and got a report like that, compared to 91% at rest in 1979, five years ago, I would think there was an error somewhere." Deposition of J. Frank Stewart, M.D. at p. 13. None of the medical experts testified that the blood gas results were invalid, only that each suspected error upon first viewing the results.

The ALJ, in analyzing whether Goodloe satisfied the section 727.203(a)(3) criteria, noted that the 1984 test, on its face, produced qualifying values for the presumption to be invoked. The ALJ also noted that Peabody challenged the validity of the 1984 blood gas study given that Goodloe was alive and ambulatory rather than receiving oxygen for respiratory failure, as would be indicated by such values. But the ALJ was not convinced:

Even though Drs. Stewart and Howard did, in fact, question the accuracy of the 1984 blood gas study, they each failed to state unequivocally that the listed PO2 of 45 could not have been correct. When deposed, Dr. Stewart ... testified that the PO2 reading of 45 indicated to him that there might have been an error in conducting the 1984 study, but that such [a] low reading could have been correct if Claimant continued to be a heavy smoker and did not remain physically active through 1984.... Dr. Howard specifically stated that a person would not necessarily have to be on oxygen therapy to have a PO2 value of 45. I find that Employer has failed to invalidate the 1984 study. Accordingly, this study producing qualifying values, I find the presumption to be invoked under this subsection of the Regulations.

See Decision and Order Denying Benefits, May 6, 1985 at p. 4 (emphasis in original).

Finding the presumption invoked, the ALJ then analyzed whether Peabody could rebut the presumption pursuant to section 727.203(b). Peabody could rebut the presumption of pneumoconiosis in one of four ways: (1) by showing that Goodloe was doing his usual coal mine work or comparable, gainful work; (2) by showing that Goodloe was capable of doing his usual coal mine work or comparable, gainful work; (3) by showing that the disability Goodloe suffered did not arise in whole or in part out of coal mine employment; or (4) by showing that Goodloe did not have pneumoconiosis. Because Goodloe had not worked in the coal mines for five years, the ALJ found no rebuttal under section (b)(1). However, the ALJ did find rebuttal under section (b)(2), accepting the opinion of Dr. Stewart that Goodloe had no pulmonary impairment sufficient to prevent him from performing his usual coal mine employment. The ALJ expressly accepted the opinion of Dr. Stewart over both Drs. Howard and Peters. Dr. Howard offered his opinion only after being directed to exclude the 1984 blood gas study from his analysis, and thus had not considered all the relevant medical evidence in forming his opinion. Dr. Peters, an osteopath, had made The ALJ also found rebuttal under section (b)(3), again giving more weight to the opinion of Dr. Stewart, who indicated that Goodloe's disability, to the extent he had one, was not related to dust exposure in coal mine employment. Because the weight of the x-ray evidence was negative for pneumoconiosis, and because Dr. Stewart indicated that Goodloe's condition was not caused by coal dust exposure, the ALJ further found that Goodloe did not have pneumoconiosis, and thus the presumption was also rebutted under section (b)(4). The ALJ therefore denied Goodloe's claim for benefits.

several inaccurate statements about fundamental concepts of pulmonary medicine.

Goodloe appealed to the Benefits Review Board (the "BRB"), which issued its Decision and Order on August 31, 1989. The BRB affirmed the ALJ's invocation of the interim presumption, stating that the ALJ was entitled to credit the 1984 blood gas study because Drs. Howard and Stewart were equivocal concerning its accuracy. But the BRB reversed each of the ALJ's findings that Peabody had rebutted the presumption, finding that our intervening decision Wetherill v. Director, Office of Workers' Compensation Programs, 812 F.2d 376 (7th Cir.1987), required reversal of the (b)(2) rebuttal finding. Under Wetherill, the BRB stated, the ALJ

must consider the issue of total disability without regard to cause in concluding whether claimant is able to perform his usual coal mine work or comparable and gainful work. In the instant case, the administrative law judge relied on the opinion of Dr. Stewart that clai...

To continue reading

Request your trial
7 cases
  • Old Ben Coal Co. v. Director, Owcp
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 31 Mayo 2002
    ...the ALJ's decision if it is rational, supported by substantial evidence and consistent with governing law. See Peabody Coal Co. v. OWCP, 116 F.3d 207, 211 (7th Cir.1997). However, a failure by the ALJ to apply the correct legal standard presents a question of law which we review de novo. Id......
  • McSurdy v. Beltrami Enterprises, Inc.
    • United States
    • Court of Appeals of Black Lung Complaints
    • 26 Septiembre 2003
    ... ... Employer/Carrier- Petitioners DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES ... IV of the Federal Coal Mine Health and Safety Act of 1969, as ... 1993); see also ... Peabody Coal Co. v. OWCP [ Goodloe ], 116 F.3d ... ...
  • Lemon v. Zeigler Coal Co.
    • United States
    • Court of Appeals of Black Lung Complaints
    • 27 Septiembre 2004
    ... ... ZEIGLER COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT ... Id. ; Dotson v. Peabody Coal Co. , 846 F.2d ... 1134 (7th Cir. 1988)(citing ... ...
  • Mitchell v. Old Ben Coal Co.
    • United States
    • Court of Appeals of Black Lung Complaints
    • 31 Julio 2003
    ... ... OLD BEN COAL COMPANY Employer-Petitioner DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT ... Peabody Coal Co. v. McCandless, 255 F.3d 465, 21 BLR ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT