Stapleton v. Westmoreland Coal Co.

• Decision Date: 26 February 1986
• Docket Number: Nos. 83-2193,s. 83-2193
• Citation: 785 F.2d 424
• Parties: Gerald STAPLETON, Petitioner, v. WESTMORELAND COAL COMPANY, Respondent, Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Benefits Review Board, Intervenor. Luke R. RAY, Petitioner, v. JEWELL RIDGE COAL CORPORATION and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. Director, Office of Workers' Compensation Programs, Intervenor. MULLINS COAL COMPANY, INC. OF VIRGINIA, and Old Republic Industries, Petitioners, v. Glenn CORNETT and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents. (L), 84-1520 and 84-1528.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 424

785 F.2d 424

Gerald STAPLETON, Petitioner, v. WESTMORELAND COAL COMPANY, Respondent,

Director, Office of Workers' Compensation Programs, U.S.

Department of Labor, Benefits Review Board, Intervenor.

Luke R. RAY, Petitioner, v. JEWELL RIDGE COAL CORPORATION and Director, Office of

Workers' Compensation Programs, United States

Department of Labor, Respondents.

Director, Office of Workers' Compensation Programs, Intervenor.

MULLINS COAL COMPANY, INC. OF VIRGINIA, and Old Republic

Industries, Petitioners, v. Glenn CORNETT and Director, Office of Workers' Compensation

Programs, United States Department of Labor, Respondents.

Nos. 83-2193(L), 84-1520 and 84-1528.

United States Court of Appeals Fourth Circuit.

Argued April 2, 1985.

Decided Feb. 26, 1986.

Mark E. Solomons, C. Randall Lowe, S. Strother Smith (Yeary & Tate, P.C. on brief), for petitioner.

Hugh P. Cline, David A. Barnett, J. Michael O'Neill (Michael F. Blair on brief), for respondent.

Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN, CHAPMAN, WILKINSON, and SNEEDEN, Circuit Judges.

PER CURIAM:

Gerald L. Stapleton and Luke R. Ray appeal decisions by the Benefits Review Board (BRB) denying black lung benefits. Mullins Coal Company appeals a decision of the BRB granting black lung benefits to Glenn Cornett. These cases each involved the interim presumption and its rebuttal under 20 C.F.R. Sec. 727.203 and were consolidated for the purpose of appeal.

For the reasons variously expressed in the opinions of Judges Hall, Sprouse, and Widener (which opinions, one or others, are joined by Chief Judge Winter and Judges Chapman, Wilkinson and Sneeden), we hold that the interim presumption under Sec. 727.203(a)(1), (2), or (3) is established when there is credible evidence that a qualifying X-ray indicates the presence of pneumoconiosis, a single qualifying set of ventilatory studies indicates, pursuant to the regulatory standard, a chronic respiratory or pulmonary disease, or a single qualifying set of blood gas studies indicates, pursuant to the regulatory standard, an impairment in the transfer of oxygen from the lungs to the blood.

For the reasons variously expressed in the opinions of Judges Hall, Sprouse, and Widener (which opinions, one or others, are joined by Chief Judge Winter and Judges Chapman, Wilkinson and Sneeden), we hold that the interim presumption under Sec. (a)(4) is established by one qualifying physician's opinion, i.e., one which meets the regulations' requirements.

For reasons variously expressed in the opinions of Judges Phillips and Widener (which opinions, one or the other, are joined by Judges Russell, Murnaghan, Ervin, Chapman, and Wilkinson), we hold that, absent a qualifying physician's opinion, the interim presumption under (a)(4) is established by weighing, under the customary rules of evidence (which require the facts upon which a presumption is based to be proven by a preponderance of the evidence), the "other medical evidence," i.e., medical evidence other than X-rays, ventilatory studies, and blood gas studies.

For the reasons variously expressed in the opinions of Judges Phillips and Widener (which opinions, one or the other, are joined by Judges Russell, Murnaghan, Ervin, Chapman, and Wilkinson), we hold that, when considering under 20 C.F.R. Sec. 727.203(b) the rebuttal of a presumption established under Sec. (a), all relevant medical evidence must be considered and weighed, including, but not exclusively, nonqualifying X-rays, test results, and opinions, regardless of the section under which the presumption was invoked. This consideration is limited only by the single X-ray statute, 30 U.S.C. Sec. 923(b) (a claim may not be denied solely on the basis of one negative chest X-ray).

For the reasons variously expressed in the opinions of Judges Hall, Sprouse, and Widener (which opinions, one or others, are joined by Chief Judge Winter and Judges Chapman, Wilkinson and Sneeden), Consolidated Coal Company v. Sanati, 713 F.2d 480 (4th Cir.1983), is overruled insofar as it holds that one qualifying physician's opinion does not necessarily invoke the presumption, but, for the reasons expressed in the opinions of Judges Phillips and Widener (which opinions, one or the other, are joined by Judges Russell, Murnaghan, Ervin, Chapman, and Wilkinson), its reasoning remains the law in this circuit in considering whether or not the presumption is established under (a)(4) in the absence of a qualifying physician's opinion.

For the reasons variously expressed in the opinions of Judges Phillips and Widener (which opinions, one or the other, are joined by Judges Russell, Murnaghan, Ervin, Chapman, and Wilkinson), we hold that Whicker v. United States Department of Labor Benefits Review Board, 733 F.2d 346 (4th Cir.1984), and Hampton v. United States Department of Labor Benefits Review Board, 678 F.2d 506 (4th. Cir.1982) (per curiam), are overruled.

For the reasons expressed in part IIIB of Judge Hall's opinion (which is joined by all of the judges), we hold that interest on an award of black lung benefits shall accrue only from thirty days after the first agency decision awarding benefits.

Accordingly, our decision in each of the three consolidated cases is as follows:

Gerald L. Stapleton: The ALJ properly invoked the interim presumption and correctly found it rebutted. Stapleton's claim for benefits was properly denied. We affirm.

Luke R. Ray: The ALJ should have invoked the interim presumption. The BRB's decision is vacated, and Ray's claim is remanded for a determination of whether or not the presumption is rebutted.

Mullins Coal Company: The ALJ properly invoked the interim presumption and found it unrebutted. We affirm the award of benefits to Glenn Cornett. We remand, however, for a calculation of interest on his benefits in accordance with this opinion.

K.K. HALL, Circuit Judge:

I.

Introduction

These three black lung cases were consolidated for en banc review, because they each involve a common legal issue, concerning the type and quantum of proof necessary to trigger and rebut the interim presumption of pneumoconiosis under 20 C.F.R. Sec. 727.203, and because our past panel decisions in this area have been contradictory and confusing. ¹ The regulation at issue states in pertinent part as follows Sec. 727.203 Interim presumption

(a) Establishing interim presumption. A miner who engaged in coal mine employment for at least 10 years will be presumed to be totally disabled due to pneumoconiosis, or to have been totally disabled due to pneumoconiosis at the time of death, or death will be presumed to be 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 ...;

(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 tables];

(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; ...

(b) Rebuttal of interim presumption. In adjudicating a claim under this subpart, all relevant medical evidence shall be considered. The presumption in paragraph (a) of this section shall be rebutted if:

(1) The evidence establishes that the individual is, in fact, doing his usual coal mine work or comparable and gainful work ...; or

(2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work ...; or

(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; or

(4) The evidence establishes that the miner does not, or did not, have pneumoconiosis.

II.

Factual Background

A. Stapleton

Stapleton was forty-three years old in 1980 when his claim for black lung benefits was heard by an Administrative Law Judge ("ALJ"). Stapleton had worked in coal mines for at least fifteen to sixteen years and was last employed by respondent, Westmoreland Coal Company ("Westmoreland"), from May, 1969, until June, 1972. At that time, he stopped working as a result of breathing difficulties and heart problems.

A 1973 x-ray noted minimal pneumonitis but otherwise clear lungs. An x-ray read by Dr. Shiv Navani, a B reader, ² on November 30, 1976, indicated an increase in small nodular and linear densities throughout the lungs consistent with changes of coal worker's pneumoconiosis. Another x-ray dated January 21, 1980, was read by Dr. John G. Byers, a B reader, who concluded there was "essentially" no evidence of pneumoconiosis. This x-ray was re-read by Dr. Paul Francke, also a B reader, on July 24, 1980. Dr. Francke found no x-ray evidence of pneumoconiosis.

There were two pulmonary function studies received into the record. A 1976 study showed qualifying values, i.e. values below the maximum values specified in the regulation, but noted poor effort on the part of Stapleton. A 1980 study reflected non-qualifying values, i.e. values above the maximum, and likewise indicated poor effort and cooperation.

Also introduced into the record were two arterial blood gas studies, one performed in 1976 and another conducted in 1980. The results of both studies were above the regulation's maximum values and were, therefore, non-qualifying.

In addition, the evidence included medical reports of various...