Saginaw Min. Co. v. Ferda

• Decision Date: 07 July 1989
• Docket Number: No. 88-3636,88-3636
• Citation: 879 F.2d 198
• Parties: SAGINAW MINING COMPANY, Petitioner, v. George L. FERDA, et al., Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 198

879 F.2d 198

SAGINAW MINING COMPANY, Petitioner, v. George L. FERDA, et al., Respondents.

No. 88-3636.

United States Court of Appeals Sixth Circuit.

Argued May 26, 1989.

Decided July 7, 1989.

John G. Paleudis (argued), Hanlon, Duff & Paleudis, St. Clairsville, Ohio, for Saginaw Mining Co.

Jennifer L. Sargus (argued), Volk, Frankovitch, Anetakis, Recht, Robertson & Hellerstedt, Wheeling, W.Va., for George L. Ferda.

Patricia Nece, Michael J. Denney, Donald S. Shire, Assoc., Sol., U.S. Dept. of Labor, Office of the Sol., Washington, D.C., for Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor.

Before MILBURN, Circuit Judge; CELEBREZZE, Senior Circuit Judge; and BERTELSMAN, District Judge ^*.

MILBURN, Circuit Judge.

Petitioner Saginaw Mining Company ("Saginaw") seeks review of the final order of the Benefits Review Board ("BRB") affirming an award of benefits for claimant-respondent George Ferda under the Black Lung Benefits Act ("Act"), 30 U.S.C. Secs. 901 et seq. For the reasons that follow, the petition is denied, and the award of benefits is affirmed.

I.

Claimant Ferda filed for benefits on June 21, 1979. At the time of filing, Ferda was still employed by Saginaw, although he had changed jobs and moved away from the surface of the mine in the hope of alleviating breathing difficulties. Ferda indicated in his application that he desired to continue working as long as his health would permit.

On September 4, 1979, Saginaw was provided with a "Notice of Initial Finding" stating that the Department of Labor found Ferda eligible for benefits based upon medical evidence demonstrating total disability due to a respiratory condition arising in the course of coal mine employment. Saginaw subsequently filed a timely controversion, sending the litigation into motion and rendering the finding of eligibility subject to redetermination.

A conference was held on March 20, 1980. A memorandum of the conference indicates that although Ferda was still working, he intended to quit work in 1980. The memorandum also notes that X-rays of both the Department of Labor and Saginaw's medical consultant revealed simple pneumoconiosis. A finding in Ferda's favor was entered, with payments to begin at the time he stopped work.

Ferda terminated his employment with Saginaw on August 1, 1980, at which time he alleged that he was unable to perform the types of jobs Saginaw informed him were available. Pursuant to the earlier conference finding, temporary interim benefits were instituted. Ferda retired thirty-five hours short of receiving a complete pension.

At the hearing before an Administrative Law Judge ("ALJ") held on September 29, 1983, Saginaw relied upon the deposition of its medical consultant, Dr. George Kress. However, because Ferda's counsel had been unable to attend Dr. Kress' deposition which was scheduled by Saginaw, the ALJ permitted Ferda's counsel thirty days within which to respond to Dr. Kress' testimony.

At the administrative hearing, Ferda denied making certain statements regarding his ability to work that were attributed to him by Saginaw at the earlier conference. Although Saginaw made no request at the hearing, it subsequently requested that it be permitted to submit post-hearing evidence regarding Ferda's statements at the conference.

When Ferda attempted to submit interrogatories to Dr. Kress concerning the subject matter upon which his counsel wished to cross-examine him, Saginaw objected and submitted an affidavit of an individual attending the conference which allegedly contradicted Ferda's testimony at the hearing. On November 16, 1983, the ALJ issued an order requiring Dr. Kress to answer the interrogatories and otherwise submit to cross-examination at Saginaw's expense because Saginaw scheduled Dr. Kress' deposition at a time during which, through no fault of her own, Ferda's counsel could not be present. Further, the ALJ declined to allow Saginaw to submit the affidavit in question because it was inadmissible hearsay. Additionally, the ALJ extended the time during which Ferda could submit post-hearing evidence.

On March 19, 1984, the ALJ issued a decision and order awarding benefits. On May 31, 1988, the BRB issued a decision and order affirming the ALJ's award of benefits. This timely petition for review followed.

Ferda was born on March 5, 1919, and completed the tenth grade in school. His wife and son are his only dependents. He was employed in the nation's underground coal mines from 1938 until July 31, 1980. Ferda's employment with Saginaw began in 1973. His job duties included recovering timbers, running the continuous miner, hauling supplies, and for a brief period of time, operating a coal blender. He also performed the job of supply man for a year to a year and one-half.

A supply man brings into the mine cement slabs, thirty gallon oil drums, cinder blocks, posts, machine parts, and rock dust. These supplies are loaded on the car by high-lift but have to be rearranged on the car manually. The oil drums weigh in excess of fifty pounds, and the posts weigh fifty to sixty pounds. The supplies are unloaded manually. After working as a supply man, Ferda blended coal for approximately six months before retiring. That job required him to occasionally do maintenance work in the tipple. When he was informed that his current position was being abolished and that he would have to return to shoveling coal, a task which takes place solely underground, Ferda informed his employer that his breathing difficulties would not permit him to perform that position and voluntarily terminated his employment.

At the administrative hearing, Ferda's son testified that his father breathes hard if he does any walking or exerts himself. He also testified that Ferda's breathing has become noticeably worse since his retirement in 1980.

One of Ferda's coworkers, Mike Funari, stated in an affidavit submitted at the hearing that he had worked as a supply man with Ferda, and that the job required a great deal of lifting. He stated that Ferda's breathing was labored when he performed his task as a supply man, that on many occasions he would have to tell Ferda to stop, and that he would perform Ferda's work while he stopped to catch his breath. Ferda indicated at his hearing that his breathing was restricted, that his energy was low, and that his overall health was not very good. He sleeps in the downstairs of his home, his family performs tasks such as mowing the lawn, and he takes daily medication, Slo-Phyllin, to help his breathing.

The medical evidence of record begins with an examination on August 7, 1979. A chest X-ray was read as positive by an "A" reader and reread as positive by a "B" reader. ¹ Dr. J. Kuziak performed ventilatory and blood gas studies. Ferda was found to be sixty-nine inches tall, his FEV was 2.22, and his MVV was 93.6, which values qualify under 20 C.F.R. Sec. 727.203(a)(2). A pulmonary specialist retained by the United States Department of Labor reviewed the ventilatory study and certified its validity. Dr. Kuziak also performed blood gas studies while Ferda was resting and during exercise. Both tests produced results which were nonqualifying under section 727.203(a)(3).

Ferda was then examined by his treating physician, Dr. M. Michelena, who reviewed the studies, completed the Department of Labor's questionnaire concerning work ability, and performed a physical examination of Ferda. Dr. Michelena noted no difficulty in walking, that Ferda could climb ten stairs without difficulty, shortness of breath after lifting more than fifty pounds, which Ferda could not carry more than 100 feet, and diagnosed Ferda as suffering from a moderate degree of chronic obstructive lung disease due to coal mine employment.

Saginaw had Ferda examined by its consulting physician, Dr. Kress, ² on September 4, 1979. X-rays taken that day were read by Dr. Kress, a "B" reader, as positive for simple pneumoconiosis. The X-ray was subsequently reread by another "B" reader and found negative for pneumoconiosis.

Dr. Kress performed a ventilatory study on Ferda which produced nonconforming values. Blood gas studies were also taken. While resting, the test resulted in a pCO2 of 33 and pO2 of 64, which is a qualifying result under section 727.203(a)(3). After exercise, blood was drawn and a pCO2 of 29 and a pO2 of 88 were reported, which are nonqualifying values. ³ As a result of the studies and the physical examination, Dr. Kress opined that Ferda had very simple early coal workers' pneumoconiosis that was a result of his coal mining experience, but that he did not have any disability.

Several years later, Dr. Kress was made aware of the nonqualifying blood gas studies that were taken by Dr. Kuziak one month prior to Dr. Kress' initial examination. Dr. Kress then concluded that the qualifying resting blood gas study he performed could not possibly be accurate in light of the earlier nonqualifying blood gas studies and the blood gas study taken after exercise which provided nonqualifying values.

On March 16, 1981, Dr. Kress examined another X-ray of Ferda and again found it positive for simple pneumoconiosis. On January 18, 1982, another chest X-ray was taken. It was initially read by an "A" reader as negative, but Dr. Kress and an additional "B" reader reread the X-ray as positive.

Ferda was given a physical examination by Dr. J. Tipton ⁴ on the same date, and ventilatory studies were performed. The ventilatory study produced an FEV of 1.94 and an MVV of 65, which are qualifying results. As a result of his physical examination and ventilatory studies, Dr. Tipton opined that Ferda was totally disabled as a result of his prolonged coal mine exposure.

Dr. Kress subsequently reviewed Dr. Tipton's ventilatory studies and opined that they were invalid because there were indications that Ferda was attempting to manipulate the result. Dr. Kress further opined that the test was...