Peabody Coal Co. v. Shonk

• Decision Date: 29 June 1990
• Docket Number: No. 88-2519,88-2519
• Citation: 906 F.2d 264
• Parties: PEABODY COAL COMPANY and Old Republic Insurance Company, Petitioners, v. Verna L. SHONK (Widow of Lewis Shonk) and Director, Office of Workers' Compensation Programs, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 264

906 F.2d 264

PEABODY COAL COMPANY and Old Republic Insurance Company, Petitioners, v. Verna L. SHONK (Widow of Lewis Shonk) and Director, Office of Workers' Compensation Programs, Respondents.

No. 88-2519.

United States Court of Appeals Seventh Circuit.

Argued Dec. 19, 1989.

Decided June 29, 1990.

W.C. Blanton, Ice, Miller, Donadio & Ryan, Indianapolis, Ind., for petitioners.

Robert C. Price, Price & Runnels, Bloomington, Ind., for Verna L. Shonk.

Carla Chapman, Benefits Review Bd., Dept. of Labor, Sylvia T. Kaser, Marta

Kusic, Dept. of Labor, Black Lung Div., Washington, D.C., for Office of Workers' Compensation Programs.

Before CUDAHY, FLAUM and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Peabody Coal Company and Old Republic Insurance Company (collectively, "Peabody") petition this court for review of a final decision of the Department of Labor's Benefits Review Board ("Board"), affirming an award of black lung benefits to the widow of a miner once employed by Peabody. 30 U.S.C. Secs. 901-45; 20 C.F.R. Secs. 727.200-.206. We grant the petition for review and affirm the Board's decision.

I BACKGROUND

Mr. Shonk (whose widow, Verna L. Shonk, is a respondent in this case) worked in a strip coal mine pit for seventeen years, loading coal onto trucks for shipment. The miner later worked for Peabody for nine years, retiring from his last job as a laborer in the coal mine's garage when he reached the age of sixty-five on March 31, 1977.

Mr. Shonk applied for black lung benefits on May 19, 1977. His claim apparently was denied preliminarily on November 28, 1978. Mr. Shonk died on August 19, 1980 from a rupture of an aneurysm in his abdominal aorta. The autopsy report disclosed anthracosis in the miner's lungs. ¹ Thereafter, Mrs. Shonk applied for survivor's benefits. A claims examiner informed Peabody on November 12, 1980 that she initially found Peabody liable to pay Mrs. Shonk black lung benefits based on Mr. Shonk's claim. Peabody timely controverted the initial finding.

In July of 1981, a deputy commissioner in the Office of Workers' Compensation Programs ("OWCP," the second respondent in this case) determined that Mrs. Shonk was entitled to benefits based on her husband's claim. Peabody timely requested a de novo review by an administrative law judge (ALJ). ALJ Robert L. Hillyard examined the autopsy report and deposition testimony of Dr. Anil Sarkar; Mrs. Shonk's deposition testimony; the deposition of Dr. R. Joe Noble, a cardiologist who had examined Mr. Shonk while he was alive; the deposition testimony of two physicians--Dr. Richard M. Nay, a cardiologist, and Dr. Edwin E. Pontius, a board-certified pathologist--both retained by Peabody; and Mr. Shonk's medical records.

ALJ Hillyard invoked the interim presumption of total disability due to pneumoconiosis pursuant to 20 C.F.R. Sec. 727.203(a)(1) on the basis of the autopsy performed by Dr. Sarkar, which revealed anthracosis. The ALJ determined that Peabody had not rebutted the presumption under 20 C.F.R. Sec. 727.203(b)(1)-(4) and therefore awarded Mrs. Shonk benefits. He specifically found that: "[t]o rebut under [20 C.F.R.] Sec. 727.203(b)(2), the Employer must present evidence that the miner either had no respiratory or pulmonary impairment or that the impairment which he did have did not prevent him from performing his usual coal mine work." ALJ Hillyard further stated that rebuttal under 20 C.F.R. Sec. 727.203(b)(3) required that the employer prove "that the total disability of the miner did not, in whole or in part, arise out of coal mine employment." Peabody timely appealed the ALJ's decision to the Board pursuant to 33 U.S.C. Sec. 921(b), specifically alleging that: the ALJ's decision was irrational, contrary to law, and not supported by substantial evidence; the ALJ improperly invoked the interim presumption; and the ALJ erred in finding that Peabody had not rebutted the presumption under 20 C.F.R. Sec. 727.203(b)(2). ²

By the time the Board reviewed the claim, this court had decided Wetherill v. Director, OWCP, 812 F.2d 376 (7th Cir.1987), where, in dicta, the court noted that the Board's previous interpretation of (b)(2) rebuttal "seems contrary to [the regulation's] plain language and therefore erroneous." Id. at 379. The Board followed this reasoning and determined that "the evidence must demonstrate the absence of any impairment" to rebut under (b)(2). The Board affirmed the ALJ's finding that the evidence was equivocal as to total disability and also held that Peabody had waived rebuttal under 20 C.F.R. Sec. 727.203(b)(3).

Peabody then requested an en banc hearing before the Board pursuant to 33 U.S.C. Sec. 921(b)(5) on the issue of whether "the Board erred by affirming, as unchallenged on appeal, the [ALJ's] finding that rebuttal [was] not established pursuant to 20 C.F.R. Sec. 727.203(b)(3)." The en banc panel determined that the ALJ had applied the correct legal standard in analyzing rebuttal under paragraph (b)(3); that "no opinion of record concluded that [Mr. Shonk's] disability did not arise out of coal mine employment;" and that Peabody "fail[ed] to allege any error by the [ALJ] in his consideration of the evidence" under paragraph (b)(3). Peabody petitioned this court for review pursuant to 33 U.S.C. Sec. 921(c).

II ANALYSIS

Although Peabody seeks review of the Board's decision, "our task is to review the judgment of the ALJ, which was upheld by the Board." Collins v. Old Ben Coal Co., 861 F.2d 481, 486 (7th Cir.1988) (citing Dotson v. Peabody Coal Co., 846 F.2d 1134, 1137 (7th Cir.1988)). Our initial inquiry is whether the ALJ's decision was rational, supported by substantial evidence, and not contrary to law. See 33 U.S.C. Sec. 921(b)(3), as incorporated by 30 U.S.C. Sec. 932(a); Pancake v. Amax Coal Co., 858 F.2d 1250, 1255 (7th Cir.1988) (citing Amax Coal Co. v. Burns, 855 F.2d 499, 501 (7th Cir.1988)). If the ALJ's decision passes muster, then the decision of the Board affirming the ALJ's determination likewise will be affirmed by this court.

A. Invocation of the Interim Presumption

First, Peabody contends that the ALJ improperly invoked the interim presumption of total disability pursuant to 20 C.F.R. Sec. 727.203(a)(1) based on the autopsy report that revealed anthracosis. Peabody claims that the ALJ incorrectly invoked the presumption because anthracosis is merely black pigment in the lungs and not a disease. The coal company produced testimony of two physicians, Drs. Nay and Pontius, to support the contention that Mr. Shonk's lungs contained black pigment, but were not diseased. ³ Peabody also alleges that the pathologist who performed the autopsy, Dr. Sarkar, "unquestionably" found only black pigmentation, not disease, by autopsy.

Peabody argues that "as a matter of law, there is no autopsy evidence of record that Mr. Shonk had pneumoconiosis," and that the ALJ should not have invoked the presumption because, despite what 20 C.F.R. Sec. 727.202 states, anthracosis is not really a disease. It is not for this court to say whether or not anthracosis is a disease. The Department of Labor considered this issue before it promulgated 20 C.F.R. Sec. 727.202. As the Fourth Circuit recently noted in Daugherty v. Dean Jones Coal Co.:

The employer on appeal in this court cites medical testimony presented in hearings conducted preliminarily to the promulgation of Department of Labor rules to the effect that anthracosis consists only of a discoloring pigmentation of the lung and is not an impairment. The regulatory definition of pneumoconiosis, however, is not so restricted.

895 F.2d 130, 132 (4th Cir.1989). ⁴

The statute broadly defines "pneumoconiosis" as "a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment." 30 U.S.C. Sec. 902(b). The HEW and Labor regulations fleshing out this definition all include anthracosis within the definition of pneumoconiosis. 20 C.F.R. Secs. 410.401(b)(1), 718.201, 727.202; ⁵ see Daugherty, 895 F.2d at 132 ("Section 727.202 ... specifically includes anthracosis within its definition."); Youghiogheny & Ohio Coal Co. v. Milliken, 866 F.2d 195, 197 (6th Cir.1989) (anthrasocis falls within the definition of pneumoconiosis); Consolidation Coal Co. v. Smith, 837 F.2d 321, 322 n. 2 (8th Cir.1988) (anthracosis is included, though apparently misspelled, in 20 C.F.R. Sec. 727.202); Bueno v. Director, OWCP, 7 BLR 1-337, 1-340 (Ben.Rev.Bd.1984). Section 727.202 does not distinguish between anthracosis, the merely descriptive term, and anthracosis, the diagnosis, and the Board has accepted anthracosis as a finding of pneumoconiosis. Bueno, 7 BLR at 1-340. Quite simply, as a matter of law, anthracosis is pneumoconiosis.

Peabody next argues that the interim presumption should not have been invoked because Dr. Sarkar's autopsy and deposition testimony indicate that he used the term only to describe pigmentation in Mr. Shonk's lungs. Peabody attempts to establish that Mr. Shonk only had black pigmentation and no disease in his lungs. The legitimacy of this argument is questionable. ⁶ Nonetheless, we disagree with Peabody's characterization of Dr. Sarkar's report and deposition. The pathologist included anthracosis in the section of his autopsy report labeled "Final Pathological Diagnosis." A diagnosis is more than a description; it is the identification of a disease or injury. Moreover, in deposing Dr. Sarkar, Peabody's attorney asked the physician three times whether he meant "more than" simply black pigment when he used the term "anthracosis." The physician responded twice by describing a disease process by which anthracotic pigment causes a reaction which in turn causes fibrosis ⁷ and destruction of the miner's useful lung tissue. ⁸ Dr. Sarkar opined that the lungs were, indeed, diseased, and that the disease was caused by the miner's exposure to coal dust. The physician observed that the level...