Poole v. Freeman United Coal Min. Co.

• Decision Date: 12 March 1990
• Docket Number: Nos. 89-1155,89-1681,s. 89-1155
• Citation: 897 F.2d 888
• Parties: George POOLE, Claimant-Petitioner, v. FREEMAN UNITED COAL MINING COMPANY, Employer-Respondent, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondent. FREEMAN UNITED COAL MINING COMPANY, Petitioner, v. BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR, Andrew J. Summers and Director, Office of Workers' Compensation Programs, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 888

897 F.2d 888

George POOLE, Claimant-Petitioner, v. FREEMAN UNITED COAL MINING COMPANY, Employer-Respondent, and Director, Office of Workers' Compensation Programs, United

States Department of Labor, Respondent.

FREEMAN UNITED COAL MINING COMPANY, Petitioner, v. BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR, Andrew J. Summers and Director, Office of Workers'

Compensation Programs, Respondents.

Nos. 89-1155, 89-1681.

United States Court of Appeals Seventh Circuit.

Argued Dec. 19, 1989.

Decided March 12, 1990.

As Amended March 12, 1990.

Howard B. Eisenberg, Carbondale, Ill., for George Poole.

Donald S. Shire, Sol. Gen., Michael J. Denney, Steven D. Breeskin, Dept. of Labor, Office of the Sol., Paul Frieden, U.S. Dept. of Labor, SOL/BL, Washington, D.C., for Office of Workers' Compensation Programs in No. 89-1155.

Carla Chapman, Linda M. Meekins, Benefits Review Bd., Dept. of Labor, Washington, D.C., for Benefits Review Bd.

Louis R. Hegeman, Barry S. Hyman, Louis D. Bernstein, Gould & Ratner, Chicago, Ill., Robert W. Lewis, Benton, Ill., for Freeman United Coal Min. Co.

Cathryn C. Helm, Dept. of Labor, Appellate Litigation, Donald S. Shire, Sol. Gen., Linda M. Meekins, Benefits Review Bd., Dept. of Labor, Washington, D.C., John H. Secaras, Sol. Gen., Dept. of Labor, Chicago, Ill., Rae Ellen Frank James, Sylvia T. Kaser, Dept. of Labor, Black Lung Div., Washington, D.C., for Office of Workers' Compensation Programs in No. 89-1681.

Harold B. Culley, Jr., Raleigh, Ill., for Andrew J. Summers.

Before CUDAHY, FLAUM and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

These two unrelated cases, involving claims for benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901 et seq., present two common issues and involve conflicting medical evidence and reports by the same doctors--Dr. Rao, who examines the miners, George Poole and Andrew Summers, on behalf of the Department of Labor (DOL) and concludes that the miners have pneumoconiosis, and Dr. Sugar, who examines the miners on behalf of Freeman United Coal Mining Company (Freeman) and concludes that the miners do not have pneumoconiosis. In each case, Dr. Rao submits a DOL form report which provides a minimum of information, and Dr. Sugar writes a detailed report sensitive to the legal requirements of proving entitlement to black lung benefits. ALJ Robert Cox decided both cases in favor of the miners and relied on Dr. Rao's report. The Benefits Review Board (Board) affirmed the award of benefits in Summers's case and reversed in Poole's case.

Freeman and Poole appeal respectively from the final orders of the Board. The common issues are (1) whether Dr. Rao's report provides a "documented and reasoned" medical judgment; and (2) whether, by listing the miners' physical limitations, Dr. Rao's report adequately addressed the severity of the miners' impairment so that the ALJ could infer that they were totally disabled. In Poole's case, we reverse the decision of the Board, and in Summers's case, we remand the cause for additional consideration.

I.

A.

George Poole filed a black lung benefits claim on August 6, 1981. ¹ On June 4, 1987, ALJ Robert Cox determined that Poole had established that he was totally disabled by pneumoconiosis which arose out of coal mine employment and awarded benefits. In deciding whether Poole had met his burden of establishing the existence of pneumoconiosis, the ALJ considered a number of medical reports, x-rays, pulmonary function tests, arterial blood gas studies and Poole's testimony. The x-ray evidence was conflicting, but the ALJ reasoned that since pneumoconiosis is a progressive disease and the positive x-rays were the most recent ones, he would resolve the "true doubt" in favor of Poole. Thus, he concluded that Poole had established the existence of pneumoconiosis under Sec. 718.202(a)(1). ²

The ALJ determined that Poole had also established the existence of pneumoconiosis under Sec. 718.305, ³ which incorporates the criteria in Sec. 718.204(c)(1)-(4) for determining total disability. Applying these criteria, the ALJ concluded that the pulmonary function test and arterial blood gas studies were insufficient to satisfy Sec. 718.204(c)(1) and (2) respectively and that there was no evidence relevant to subsection (c)(3). The ALJ considered the medical reports of Drs. Parks, Sugar and Rao and found that Poole had established the existence of pneumoconiosis under subsection 718.204(c)(4). ⁴

Dr. Parks, Poole's treating physician, prepared a brief report on January 7, 1987, in which he diagnosed chronic obstructive pulmonary disease caused by cigarette smoking and industrial exposure to coal dust. The ALJ found this report to be of little evidentiary value because it did not express an opinion as to whether Poole was totally disabled.

Dr. Sugar examined Poole on August 2, 1985. He reviewed Poole's employment, smoking and medical histories and conducted a physical examination including a chest x-ray, pulmonary function test and arterial blood gas study. He diagnosed hypertension (controlled), obstructive pulmonary disease and atypical chest pain. He concluded that there was no evidence of pneumoconiosis or any pulmonary abnormality related to working in the coal mines. Dr. Sugar further opined that Poole was not totally disabled. Because there was no evidence that Dr. Sugar was aware of the physical nature of Poole's coal mine employment, the ALJ discounted his report.

Dr. Rao's September 1981 report consists of a completed DOL physical examination form. He diagnosed pneumoconiosis (mild), ⁵ indicated that the pneumoconiosis was related to dust exposure in Poole's coal mine employment and recorded Poole's physical limitations, relative to his ability to perform various tasks in a normal work day, that may have been due to pulmonary disease. Dr. Rao did not expressly state that Poole was totally disabled; however, the ALJ concluded:

Upon review of the Claimant's usual coal mine employment and accompanying exertional requirements, and the medical assessment completed by Dr. Rao, I find that an inference of total disability can be drawn. Thus, Dr. Rao's medical opinion constitutes probative evidence of a total and disabling pulmonary impairment.

The ALJ then invoked the presumption that Poole's pneumoconiosis arose out of his coal mine employment under Sec. 718.203 because Poole was employed for more than twenty years in coal mines. Weighing the x-ray evidence and the medical opinions of Drs. Rao, Parks and Sugar, the ALJ concluded that Freeman had failed to rebut the presumptions of the existence of pneumoconiosis and causation.

Finally, the ALJ concluded that Poole had met his burden of proving that he was totally disabled due to pneumoconiosis. Because the criteria of Sec. 718.204(c) apply both in the analysis of whether a miner is totally disabled and in the analysis of the presumption of pneumoconiosis under Sec. 718.305, the ALJ referred to his earlier analysis and concluded that Poole had established total disability.

On appeal, the Board held that the ALJ's finding of total disability was not supported by substantial evidence and reversed the award of benefits. The Board reasoned that Dr. Rao's report could not constitute probative evidence of total disability because it "neither terms Claimant totally disabled nor addresses the severity of the impairment." Nor did the Board consider the other medical opinions or test results supportive of a finding of total disability.

Poole appeals arguing that the ALJ properly relied on Dr. Rao's report which was a documented and reasoned medical judgment. Poole also argues that although Dr. Rao's report does not use the words "total disability," it adequately described the severity of Poole's impairment so that in conjunction with evidence of the exertional requirements of Poole's usual coal mine work, the ALJ could properly infer that Poole was totally disabled. Thus, Poole concludes that the Board improperly reweighed the evidence when there was substantial evidence to support the ALJ's grant of benefits.

B.

Andrew Summers filed a black lung benefits claim on September 18, 1984. On March 5, 1987, ALJ Robert Cox determined that Summers had established that he was totally disabled by pneumoconiosis which arose out of coal mine employment and awarded benefits. The ALJ considered Summers's testimony, the results of a biopsy, and numerous x-rays, pulmonary function tests, arterial blood gas studies and physicians' reports.

The ALJ found that Summers had established the existence of pneumoconiosis under Sec. 718.202(a) which provides that a biopsy may be the basis of a finding of pneumoconiosis. The ALJ invoked the rebuttable presumption of causation of Sec. 718.203 and concluded that Summers's pneumoconiosis arose out of his coal mine employment because Summers was employed for more than thirty years in coal mines. The ALJ concluded that Freeman had failed to rebut the presumption of causation because, upon consideration of all the evidence of record, he found that the opinion of Dr. Sugar did not outweigh the affirmative findings of Drs. Rao and Sanjabi who opined that his pneumoconiosis arose out of his coal mine employment.

The ALJ found that Summers had established total disability under Sec. 718.204(c)(1) since the most recent pulmonary function study resulted in qualifying values. Three earlier studies did not. Freeman challenges the qualifying study arguing that there is evidence that Summers was suffering from a respiratory infection at the time the study was done which could explain why it resulted in qualifying values. Freeman also challenges the study as not conforming with the quality standards contained in Sec. 718.103 ⁶ and as such is not a proper basis for a finding of total disability. In the first two studies, Summers's results were evaluated for a person who was five-feet five-inches tall. The results of the last two studies were...