Revak v. National Mines Corp.

• Decision Date: 03 April 1987
• Docket Number: No. 86-3211,86-3211
• Citation: 808 F.2d 996
• Parties: Michael REVAK, Petitioner, v. NATIONAL MINES CORPORATION and Old Republic Companies, Respondent, and Director, Office of Workers' Compensation Programs, Party-in-Interest.
• Court: U.S. Court of Appeals — Third Circuit

Page 996

808 F.2d 996

55 USLW 2360

Michael REVAK, Petitioner, v. NATIONAL MINES CORPORATION and Old Republic Companies, Respondent and Director, Office of Workers' Compensation Programs, Party-in-Interest.

No. 86-3211.

United States Court of Appeals Third Circuit.

Argued Oct. 16, 1986.

Decided Dec. 29, 1986.

Opinion on Rehearing March 6, 1987.

Rehearing and Rehearing En Banc Denied April 3, 1987.

John P. Gismondi (argued), Gilardi, Cooper and Gismondi, Pittsburgh, Pa., for petitioner.

John Eric Jones, Jr. (argued), Christopher L. Wildfire, Tillman and Thompson, Pittsburgh, Pa., for National Mines Corp.

Kenneth S. Sollars (argued), George R. Salem, Donald S. Shire, J. Michael O'Neill, Thomas L. Holzman, U.S. Dept. of Labor, Office of the Solicitor, Washington, D.C., for Director, Office of Workers' Compensation Programs.

Before GIBBONS, BECKER, Circuit Judges, and FULLAM, District Judge. ^*

OPINION OF THE COURT

BECKER, Circuit Judge.

This petition for review of a decision and order of the Benefits Review Board of the U.S. Department of Labor denying the claim of petitioner Michael Revak for benefits under the Black Lung Benefits Act as amended, 30 U.S.C. Secs. 901 et seq., requires us to answer a question that has divided the Circuits: may an Administrative Law Judge balance conflicting evidence in deciding whether to invoke the interim presumption of total disability due to pneumoconiosis disease pursuant to 20 C.F.R. 727.203(a), or must the ALJ find the presumption triggered so long as the claimant adduces a single piece of qualifying evidence establishing disability. For the reasons that follow, we conclude that the balancing procedure applied by the ALJ in this case was improper and that Revak was entitled to a presumption of disability on the basis either of his qualifying ventilatory function study or of his qualifying medical report. Because Revak's claim was dismissed by the ALJ on the basis of a balancing procedure, and the BRB affirmed, we will reverse the order of the BRB and remand the case for reconsideration.

I.

Revak, who worked for 35 years in underground mining, is currently 67 years of age. In 1960 he began to have coughing spells, particularly when digging near the mine-face. His symptoms became progressively worse. During the mid-1970's he often had to leave the mine after only a few hours because of coughing attacks. In 1979, Revak was placed on disability by his employer because of shortness of breath, and he has not returned to mining since that time. From 1975 to 1981, Revak was hospitalized periodically at the West Virginia University Medical Center and at Allegheny General Hospital in Pittsburgh. During each of these hospitalizations he was diagnosed variously as having chronic bronchitis and/or bronchial asthma.

In May 1978, Revak filed this claim seeking benefits for total disability resulting from pneumoconiosis under the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. Secs. 801 et seq. National Mines Corporation, his most immediate former employer, disputed his claim, and the parties proceeded to gather medical information for a hearing before an ALJ. That hearing took place on April 18, 1983.

At the hearing, Revak presented a report of one of his treating physicians, Dr. Peter Kaplan. In that report, Dr. Kaplan expressed his view that Revak suffered not from pneumoconiosis but from bronchial asthma. Dr. Kaplan stated, however, that the condition was related to Revak's exposure in his coal mine employment. He also stated that Revak's "working in coal mines may exacerbate his illness and produce an acute attack." In addition, Revak presented the report and deposition of Dr. Naresh I. Bhatt. Dr. Bhatt found Revak to be totally and permanently disabled as a result of pneumoconiosis due to coal mining employment.

Countering this evidence, National Mines presented the report and deposition of Dr. Ludwig Anderson. Dr. Anderson opined that Revak's respiratory condition was not pneumoconiosis but bronchial asthma. Dr. Anderson also stated that Revak was not disabled by a respiratory impairment. He agreed, however, that when Revak was exposed to coal dust his condition was exacerbated or aggravated, and he also agreed that it might not be medically advisable for Revak to return to an environment in which he would be exposed to coal dust.

Additionally, National Mines presented a number of medical studies performed on Revak. All the x-ray evidence presented was negative for pneumoconiosis, and none of the arterial blood gas studies yielded values low enough to demonstrate pulmonary impairment in accordance with the standards provided by the Labor Department's applicable regulation. However, one and perhaps two ventilatory function studies yielded results that did meet the requirements for respiratory or pulmonary disease as provided in the regulations. ¹

II.

An ALJ must decide a claim for total disability pursuant to 20 C.F.R. Sec. 727.203, which permits a claimant an "interim" presumption of total disability arising out of coal mine employment, thereby shifting the burden of proving ineligibility for payments to the employer. According to Sec. 727.203(a), the ALJ must accord this presumption of disability to any miner "who engaged in coal mine employment for at least 10 years" ² and who meets one of four medical requirements:

(1) A chest roentgenogram (x-ray), biopsy, or autopsy establishes the existence of pneumoconiosis ...;

(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 [certain values specified in the regulation's table];

(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 [certain values specified in the regulation's tables];

(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; ....

In this case, notwithstanding the qualifying ventilatory study or studies and the medical reports introduced by Revak, the ALJ refused to invoke the interim presumption. He found that Revak had failed to satisfy subsections (a)(1) and (a)(3) because all of the x-ray evidence was negative and the arterial blood gas studies did not meet the values specified in the regulations. He refused to invoke the presumption under subsection (a)(2) even though at least one set of ventilatory function studies yielded qualifying values, because the majority of studies, including the two most recent, did not. Finally, the ALJ refused to invoke the presumption under (a)(4) because he found that Dr. Bhatt's report was not well reasoned in that it "relie[d] primarily upon a negative x-ray, non-qualifying blood gas study and [did] not consider claimant's history of bronchial asthma." In contrast, the ALJ found Dr. Anderson's report well reasoned and Dr. Anderson more qualified than Dr. Bhatt in addition. Crediting Dr. Anderson's opinion, the ALJ refused to invoke the presumption and determined that Revak neither has pneumoconiosis nor is totally disabled by a respiratory impairment. The BRB affirmed.

In his petition for review, Revak claims that the BRB erred in affirming the judgment of the ALJ. He claims that the ALJ erred by denying the interim presumption on the basis of a balancing of the evidence; Revak contends that the qualifying ventilatory study or studies and Dr. Bhatt's report mandate invocation of the presumption as a matter of law. Revak also points in this regard to evidence in the record undermining the ALJ's finding that Dr. Bhatt's report was unreliable. Appellees, National Mines and the Director of the Office of Workers' Compensation Programs, respond that the ALJ quite properly balanced the evidence in deciding not to invoke the presumption. Appellees also contend that the evidence supports the ALJ's determination that Dr. Bhatt's report was not credible. ³

III.

In refusing to invoke the interim presumption, the ALJ weighed all of the evidence in each of the relevant categories: x-rays, ventilatory function studies, blood gas studies, and medical reports. The decision to weigh all the evidence in each category rather than to invoke the presumption on the basis of a single favorable item regardless of the import of the other evidence, accords with the approach taken in Engle v. Director, Office of Workers' Compensation, 792 F.2d 63, 64 n. 1 (6th Cir.1986). The Engle court provided no reasoning for this position, however.

Sitting in banc, the Fourth Circuit adopted the contrary position in Stapleton v. Westmoreland Coal Co., 785 F.2d 424 (4th Cir.1986). Accord Amax Coal Co. v. Director, Office of Workers' Compensation Program, 801 F.2d 958, 962 (7th Cir.1986). Although the Stapleton court divided on a number of issues, a majority held that a single credible x-ray, a single qualifying ventilatory function study, one qualifying blood gas study, or a qualifying physician's opinion would suffice to invoke the presumption regardless of conflicting evidence that may be present in the record. Id. at 426 (per curiam opinion). We agree. Additionally, the Stapleton court held that on rebuttal all relevant medical evidence must be considered and weighed regardless of the type of evidence forming the basis for the presumption. Id. at 427. We also agree.

The four lengthy opinions in Stapleton have explored the ramifications of the question before us in enormous depth ⁴ and we see no point to engaging in such extensive analysis here. We will, however, explain the salient reasons for our endorsement of the position so forcefully stated in the opinions of Judges Hall, Sprouse, and Widener that a single qualifying test...