Shelton v. Director, Office of Workers' Compensation Programs, 89-2232

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before CUMMINGS, POSNER and EASTERBROOK; POSNER
• Citation: 899 F.2d 690
• Parties: Carl SHELTON, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, et al., Respondents.
• Docket Number: No. 89-2232,89-2232
• Decision Date: 13 April 1990

Page 690

899 F.2d 690 Carl SHELTON, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, et al.,
Respondents. No. 89-2232. United States Court of Appeals,
Seventh Circuit. Argued March 2, 1990.
Decided April 13, 1990.

Page 691

Harold B. Culley, Jr., Raleigh, Ill., for Carl Shelton.

Cathryn C. Helm, Appellate Litigation, Donald S. Shire, Sol. Gen., Michael J. Denney, Carla Chapman, Benefits Review Bd., Dept. of Labor, John H. Secaras, Sol. Gen., Dept. of Labor, Washington, D.C., for Inland Steel Co., Office of Workers' Compensation Programs and Benefits Review Bd.

Louis R. Hegeman, Jay D. Stein, Gould & Ratner, Chicago, Ill., for Consolidation Coal Co.

Before CUMMINGS, POSNER and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

Carl Shelton, a former coal miner, seeks disability benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901 et seq. He is conceded to be totally disabled as a result of respiratory disease, and to have black lung disease (pneumoconiosis). The question is the causal relationship between his black lung disease and his total disability, and is not adequately illuminated by the pertinent regulation: "benefits are provided under the Act for or on behalf of miners who are totally disabled due to pneumoconiosis." 20 C.F.R. Sec. 718.204(a) (emphasis added). In finding that Shelton had shown total disability due to pneumoconiosis, the administrative law judge relied primarily on a report by a Dr. Partridge, who had examined Shelton in 1980 (while he was still working), found that he had chronic obstructive lung disease "related to" Shelton's exposure to coal dust in mines--Shelton

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had been working underground in coal mines for 27 years--but noted that Shelton continued to work daily with little difficulty and also that he had been smoking a pack of cigarettes a day for 40 years. The administrative law judge discounted testimony by a Dr. Getty, who, examining Shelton four years after Partridge, concluded that Shelton had simple miner's pneumoconiosis and chronic obstructive lung disease, the latter being due, in Getty's opinion, to Shelton's smoking. Getty also testified that he did not think that simple pneumoconiosis was totally disabling.

The Benefits Review Board reversed the administrative law judge's award of benefits. The Board invoked a doctrine that it had announced in Wilburn v. Director, 11 Black Lung Rep. 1-135 (Benefits Rev.Bd.1988): the claimant must show that his pneumoconiosis is, "in and of itself, totally disabling." Dr. Partridge's report did not show that.

A number of courts have rejected, implicitly or explicitly, the Board's "in and of itself" standard, and have held that all the claimant need show is that his pneumoconiosis was a "contributing cause" or "substantial contributing cause" of his total disability. Lollar v. Alabama By-Products Corp., 893 F.2d 1258, 1265 (11th Cir.1990); Adams v. Director, 886 F.2d 818 (6th Cir.1989); Bonessa v. United States Steel Corp., 884 F.2d 726, 732-34 (3d Cir.1989); Mangus v. Director, 882 F.2d 1527, 1531 (10th Cir.1989) (per curiam). Our court has not spoken to the issue directly, but has endorsed the "contributing cause" formulation in cases interpreting a related black-lung regulation. Wetherill v. Director, 812 F.2d 376, 380 (7th Cir.1987); Pancake v. AMAX Coal Co., 858 F.2d 1250, 1257 (7th Cir.1988). Shelton's main brief in this court did not cite Wilburn or even mention the "in and of itself" standard, let alone...