Peabody Coal Co. v. Vigna
| Decision Date | 18 April 1994 |
| Docket Number | No. 93-2346,93-2346 |
| Citation | 22 F.3d 1388 |
| Parties | PEABODY COAL COMPANY and Old Republic Insurance Company, Petitioners, v. Joseph VIGNA and Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Respondents. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Mark E. Solomons, Mark J. Botti (argued), Arter & Hadden, Washington, DC, for petitioners.
Eileen M. McCarthy (argued), Appellate Litigation, Donald S. Shire, Sol. Gen., Marta Kusic, Department of Labor, Office of the Sol., Lisa L. Lahrman, Benefits Review Bd., Executive Counsel, Clerk of the Bd., Washington, DC, for Office of Workers' Compensation Programs, Benefits Review Bd.
Thomas E. Johnson, Leslie A. Jones, Johnson, Jones & Snelling, Chicago, IL, for Joseph Vigna.
Before POSNER, Chief Judge, BAUER, Circuit Judge, and NORGLE, District Judge. *
This is a petition for review of an order of the Benefits Review Board of the United States Department of Labor ("Review Board"), which affirmed an administrative law judge's ("ALJ") decision to grant benefits to Joseph Vigna ("Vigna") under the Black Lung Benefits Act ("BLBA"), 30 U.S.C. Sec. 901, et seq. Petitioners Peabody Coal Company ("Peabody") and its insurance carrier Old Republic Insurance Company ("Old Republic") (collectively "petitioners"), oppose the award of BLBA benefits to Vigna. For the following reasons, we grant the petition and reverse the decision of the ALJ.
Vigna worked as a miner for forty years. Thirty-three of those years were spent working for Peabody. He began his employment with Peabody on September 1, 1938, at the age of twenty-three. Vigna continuously worked in various open pits and strip mines of Peabody until he suffered a stroke at work on June 2, 1971. After the stroke, Vigna was unable to return to work. At the time of Vigna's debilitating stroke, he had been smoking one carton of cigarettes per week for approximately thirty-six years. 1
On July 18, 1973, two years after Vigna suffered a stroke, he filed a claim for benefits under BLBA. During those two years, Vigna never returned to work for Peabody or engaged in comparable work. In Vigna's claim for benefits, he admitted that he was unable to work since the date of his stroke. In processing Vigna's claim, the United States Department of Labor ("Department of Labor") submitted a form to Vigna's primary treating physician, Dr. John M. Tierney ("Dr. Tierney") requesting a "history of symptoms At the request of the Department of Labor, Drs. Francisco J. Tejada ("Dr. Tejada"), N.R. Zenarosa ("Dr. Zenarosa"), and Rodney K. Odgers ("Dr. Odgers") examined Vigna and performed pulmonary function studies ("PFS"). On June 7, 1974, Dr. Tejada examined Vigna with a focus on his pulmonary capacity. The examination and tests resulted in the finding that Vigna's respiratory system functioned normally. 6
such as dyspnea, and the clinical course of any cardiopulmonary disease(s), with therapy and response." Pet.App. 44. The form also requested the treating physician to identify "all findings ... pertinent to the respiratory and cardiovascular systems." Id. Dr. Tierney complied with the requests and responded that, with respect to the medical history of Vigna, he had been hospitalized and had been receiving follow-up care for cerebral thrombosis 2 with right hemiparesis 3 and total aphasia, 4 diabetes mellitus, 5 and high blood pressure. With respect to findings pertaining to the respiratory and cardiovascular system, Dr. Tierney identified findings of total right hemiparesis and aphasia since Vigna's cardiovascular accident in June of 1971
On September 28, 1976, Dr. Zenarosa examined Vigna and observed that Vigna's chest was clear to percussion 7 and auscultation 8 with a slightly slower than normal exhalation. Dr. Zenarosa did not provide any opinion to the Department of Labor as to whether Vigna's impaired physical conditions were related to his employment as a miner.
On April 3, 1979, Dr. Odgers tested Vigna's arterial blood gases and performed a PFS. Dr. Odger's physical examination of Vigna revealed no abnormal auscultatory sound from the carotid and his lungs exhibited few rhonchi. 9 Dr. Odgers concluded from his diagnosis of Vigna that his physical condition and impairment were not caused by the coal dust exposure, but by the cardiovascular accident in 1971.
In addition to the physical examinations and various tests, Vigna has had four different readings of three chest x-rays. All of the x-ray readings, performed in compliance with the Department of Labor standard for reading x-rays in connection with BLBA benefit claims, revealed no evidence of clinical pneumoconiosis.
Nonetheless, on September 12, 1979, the Department of Labor approved Vigna's claim for benefits under BLBA. Subsequently, the Department of Labor notified Peabody and Old Republic of their liability to compensate Vigna for benefits. Peabody and Old Republic contested the decision to award benefits to Vigna and requested a hearing on the matter.
At the request of Peabody, on November 14, 1979, Dr. James J. Burke ("Dr. Burke") conducted an additional examination of Vigna. Dr. Burke took a comprehensive history and conducted a physical examination, an arterial-blood-gas test, and a PFS. After the studies, Dr. Burke concluded that Vigna was suffering from probable pulmonary insufficiency, post-stroke with right hemiparesis, and diabetes mellitus. Dr. Burke, however, did not provide a conclusion as to whether the probable pulmonary insufficiency was caused by coal-dust exposure.
On February 25, 1981, an administrative hearing was held before ALJ V.M. McElroy on the issue of Vigna's claim for BLBA benefits. On May 14, 1982, the ALJ issued a decision and order finding that Vigna was entitled to benefits from January 1, 1974. In reaching that conclusion, the ALJ held that Vigna was entitled to the legal presumption under 20 C.F.R. Sec. 727.203(a)(2). Under Sec. 727.203, "[a] miner who engaged in coal mine employment for at least 10 years will be presumed to be totally disabled due to pneumoconiosis ... if ... [v]entilatory studies establish the presence of a chronic respiratory or pulmonary disease...." 20 C.F.R. Sec. 727.203(a)(2). The ALJ found that two of the results from the three PFS were low enough to invoke the legal presumption. The ALJ further determined that Peabody and Old Republic failed to rebut that legal presumption.
Peabody and Old Republic appealed the decision of the ALJ to the Review Board. On February 13, 1986, the Review Board affirmed the ALJ's decision to invoke the interim presumption created under Sec. 727.203(a)(2), but remanded the case because the standard for determining whether the presumption was rebutted under Sec. 727.203(b)(3) changed since the decision of the ALJ in 1982. The Review Board instructed the ALJ to follow the prevailing standard for evaluating rebuttal pursuant to Sec. 727.203(b)(3), which was whether "the employer can show that there is no significant relationship between a miner's total disability and his occupational exposure." Pet.App. 15.
On remand, the ALJ applied the prevailing standard as instructed by the Review Board. Despite the new standard, the ALJ again decided that Vigna was entitled to benefits under BLBA. Furthermore, the ALJ determined that Peabody and Old Republic failed to adduce sufficient evidence to satisfy their burden of demonstrating the absence of a significant causal relationship between Vigna's disability and coal-dust related disease. The ALJ found that Vigna's "pulmonary problems form a significant contribution to [his] disability," Pet.App. 11, and that his pulmonary problems must have been caused by working for Peabody as a miner because there is "no evidence of any other employment." Id.
Peabody and Old Republic again challenged the decision of the ALJ before the Review Board. On August 30, 1989, the Review Board affirmed the decision and order of the ALJ awarding BLBA benefits to Vigna. Peabody and Old Republic subsequently filed motions for reconsideration requesting the Review Board to change its prior position and to reverse the decision of the ALJ, but to no avail. Peabody and Old Republic received notice of the Review Board's denial of their motion for reconsideration on April 27, 1993. On June 3, 1993, Peabody and Old Republic timely filed the instant petition for review with this Court, and the Court has proper jurisdiction. 10
Although this petition is an appeal from the decision of the Review Board, we review the decision of the ALJ, rather than the decision of the Review Board. Freeman United Coal Mining Co. v. Director, Office of Workers' Comp. Programs, 988 F.2d 706, 709 (7th Cir.1993). This case requires us to address and resolve two primary issues. The first issue is whether the ALJ properly invoked the legal presumption under 20 C.F.R. Sec. 727.203(a)(2) in presuming that Vigna's total disability was due to coal-dust exposure induced pneumoconiosis. The second issue is whether the ALJ erred in determining that Peabody and Old Republic failed to adduce In reviewing the decision of the ALJ, we must evaluate whether the ALJ's decision is "rational, supported by substantial evidence, and consistent with applicable law." Zettler v. Director, Office of Workers' Comp. Programs, 886 F.2d 831, 834 (7th Cir.1989). The ALJ's findings of fact will be affirmed only if they are supported by "such relevant evidence as a rational mind might accept as adequate to support a decision." Amax Coal Co. v. Beasley, 957 F.2d 324, 327 (7th Cir.1992). We cannot reweigh the evidence or make credibility determinations. Summers v. Freeman United Coal Mining Co., Director, Office of Workers' Comp. Programs, 14 F.3d 1220, 1223 (7th Cir.1994). Those powers are within the exclusive domain of the ALJ. Id. The ALJ, however, does not have plenary discretionary power in evaluating...
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