Phillips v. Jewell Ridge Coal Co.
| Decision Date | 24 July 1987 |
| Docket Number | No. 86-2596,86-2596 |
| Citation | 825 F.2d 408 |
| Parties | Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Jack R. PHILLIPS, Petitioner, v. JEWELL RIDGE COAL COMPANY, Respondent, Director, Office of Workers' Compensation Programs, United States Department of Labor, Party-in-interest. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Lawrence Lee Moise, III (Robert Austin Vinyard, on brief), for petitioner.
Michael Francis Blare (Penn, Stuart, Eskridge & Jones, on brief), for appellees.
Before HALL and WILKINS, Circuit Judges, and HOFFMAN, Senior United States District Judge for the Eastern District of Virginia, sitting by designation
On October 26, 1976, Jack R. Phillips applied for black lung benefits under the Federal Coal Mine Health and Safety Act, as amended, 30 U.S.C. Sec. 901 et seq. The Deputy Commissioner approved Phillips's claim by a Notice of Initial Finding on October 25, 1979, at which time Phillips was placed on interim benefits payment status. Jewell Ridge Coal Company (Jewell) filed a Notice of Controversion on November 29, 1979. The Deputy Commissioner affirmed the initial finding of eligibility after reviewing both parties' evidence. Jewell refused to begin payments. Consequently, the case was forwarded to the Office of Administrative Law Judges for a formal hearing. Administrative Law Judge Charles P. Rippey conducted the hearing in Princeton, West Virginia, on June 17, 1983. Judge Rippey issued his Decision and Order denying benefits on October 25, 1983. Thereafter, Phillips noted an appeal with the Benefits Review Board (BRB), which affirmed Judge Rippey's decision in a Decision and Order dated June 26, 1986. Phillips then filed a Petition for Review of that decision on August 25, 1986. We AFFIRM the decision of the BRB.
Jack R. Phillips was born July 24, 1934. He completed four years of elementary school. Because he actually began working in coal mines before the legal age to do so, according to Phillips's testimony at his hearing, he had worked longer than the Social Security records indicated. Those records show that from 1952 until 1976 Phillips was continuously employed as a coal miner. The record shows that Phillips's last day at Jewell was January 26, 1976, at which time he quit working because of a disabling mine injury to his back.
The record includes voluminous medical studies, test results, and readings. There are 42 separate X-ray readings, three ventilatory studies, and three blood gas studies. Additionally five doctors have rendered their opinions on these studies, tests, and X-rays. The significance of the various medical records is that they are used by Phillips to establish his claim for benefits under 20 C.F.R. Sec. 727.203, and by Jewell to rebut the claimant's interim presumption of pneumoconiosis.
The Fourth Circuit has held that the scope of appellate review of the Benefits Review Board is set forth in the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 921(b)(3), incorporated by 30 U.S.C. Sec. 932(a). That Act provides that findings of fact in the decision under review by the Board shall be conclusive if supported by substantial evidence in the record considered as a whole. Beavan v. Bethlehem Mines Corporation, 741 F.2d 689, 691 (4th Cir. 1984). This Court should review the Board's decision for errors of law and for its adherence to the statutory standards governing the Board's review of the Administrative Law Judge's (ALJ's) factual findings. Bumble Bee Seafoods v. Director, Office of Workers' Compensation Programs, 629 F.2d 1327 (9th Cir. 1980). The BRB described as limited the scope of its own review of the ALJ's decision. (Appendix 3). When the BRB reviews an administrative decision, the findings of fact are binding upon the BRB and may not be disturbed if the findings of fact are supported by substantial evidence, are rational, and are consistent with applicable law. O'Keefe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
As to mixed questions of law and fact such as the application of a statutory standard to particular fact findings, the court must sustain the Board's conclusions if they are reasonable. Gray v. Powell, 314 U.S. 402 (1941); Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055 (1st Cir. 1981). See also B. Schwartz, Administrative Law, 655-56 (2nd Ed. 1984). Whether a finding is viewed as one of fact or as one on a mixed question of law and fact, the agency determination is entitled to deference. Florida Steel Corp. v. NLRB, 601 F.2d 125, 129 (4th Cir. 1979). This panel has carefully reviewed the administrative record as well as the factual findings made by the ALJ and affirmed by the BRB. The findings are carefully documented and are reasonable.
The Black Lung Benefits Reform Act of 1979 established criteria for determining whether a miner is or was totally disabled by pneumoconiosis. Rules promulgated under the Act provide the standards by which a claimant can take advantage of a presumption of total disability due to pneumoconiosis arising out of coal mine employment. 20 C.F.R. Sec. 727.200. For the purpose of the Act, pneumoconiosis is a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairment, arising out of coal mine employment. 20 C.F.R. Sec. 727.202. A miner who engaged in coal mine employment for at least ten years will be presumed to be totally disabled due to pneumoconiosis arising out of that employment if one of the following medical requirements is met.
(1) A chest roentgenogram (X-ray), biopsy, or autopsy establishes the existence of pneumoconiosis (see Sec. 410.428 of this title);
(2) Ventilatory studies establish the presence of a chronic respiratory or pulmonary disease (which meets the
requirements for duration in Sec. 410.412(a)(2) of this title) as demonstrated by values which are equal to or less than the values specified in the following table:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
(3) Blood gas studies which demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood as indicated by values which are equal to or less than the values specified in the following table:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
(4) Other medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establishes the presence of a totally disabling respiratory or pulmonary impairment;
(5) In the case of a deceased miner where no medical evidence is available, the affidavit of the survivor of such miner or other persons with knowledge of the miner's physical condition, demonstrates the presence of a totally disabling respiratory or pulmonary impairment.
20 C.F.R. Sec. 727.203(a)(1)-(5).
After a claimant comes forward with evidence of one of the above enumerated requirements, the employer may attempt to rebut the claimant's initial presumption of total disability. In the present case, Jewell elected to use for rebuttal purposes 20 C.F.R. Sec. 727.203(b)(3) which states:
(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; . . .
The ALJ correctly found that Phillips's 26 years of mining experience met the requirement of ten or more years of employment as a miner in the nation's coal mines found in 20 C.F.R. Sec. 722.203(a).
Judge Rippey then turned his attention to the medical evidence. This court has carefully reviewed the same evidence in order to determine whether the ALJ's decision, as affirmed by the BRB, is reasonable and is supported by substantial evidence.
One of the means by which a claimant can raise an interim presumption of total disability is by presentation of a chest X-ray which establishes the existence of pneumoconiosis. Of the 42 X-ray readings presented in this case, only three were positive for the existence of pneumoconiosis. (Appendix 10, 188-208, 242-247). Several of the readers reported that the films were of less than ideal technical quality. However, a persuasive majority of the 'B' readers, i.e., those most highly qualified, reported no evidence of pneumoconiosis. Consequently, this court finds that the decisions of the ALJ and BRB that the claimant did not meet the requirement of 20 C.F.R. Sec. 727.203(a)(1) are both reasonable and supported by substantial evidence.
In an attempt to satisfy the requirement of 20 C.F.R. Sec. 727.203(a)(2) Phillips has presented three ventilatory studies. The first was conducted in December 1976 and did meet the requirement established in 20 C.F.R. Sec. 727.203(a)(2). However a board-certified specialist in pulmonary medicine, Dr....
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