Staton v. Norfolk & Western Ry. Co.

• Decision Date: 06 September 1995
• Docket Number: No. 94-3189,94-3189
• Citation: 65 F.3d 55
• Parties: Glen E. STATON, Petitioner, v. NORFOLK & WESTERN RAILWAY COMPANY, Respondent, Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Party-in-Interest.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 55

65 F.3d 55

Glen E. STATON, Petitioner, v. NORFOLK & WESTERN RAILWAY COMPANY, Respondent Director, Office of Workers' Compensation Programs, U.S Department of Labor, Party-in-Interest.

No. 94-3189.

United States Court of Appeals Sixth Circuit.

Argued May 18, 1995.

Decided Sept. 6, 1995.

Glen E. Staton (briefed), Merritt Island, FL, pro se.

Patricia Nece, Christian P. Barber, Gary K. Stearman (argued and briefed), U.S. Department of Labor, Office of Solicitor, Washington, DC, for Director, Office of Workers' Compensation Programs, U.S. Department of Labor.

Douglas A. Smoot (briefed), Jackson & Kelly, Charleston WV, James S. Whitehead (argued), Chicago, IL, for Norfolk and Western Ry. Co.

Before: NELSON and NORRIS, Circuit Judges; BELL, District Judge. ^*

DAVID A. NELSON, Circuit Judge.

This is a black lung case in which the Benefits Review Board affirmed the decision of an administrative law judge denying a claim for benefits. The ALJ determined initially that the claimant qualified under 20 C.F.R. Sec. 727.203(a) as "[a] miner who engaged in coal mine employment for at least 10 years ..." If this determination was correct, it meant that the claimant would be entitled to a presumption of total disability due to pneumoconiosis (black lung disease) if any of the five medical requirements specified in Sec. 727.203(a) were met. But the ALJ rejected a contention that the claimant's chest x-rays established the existence of pneumoconiosis (see Sec. 727.203(a)(1), under which the establishment of pneumoconiosis by x-ray evidence triggers the presumption), and the ALJ found that the presumption had not been triggered under any of the subsections following (a)(1) either.

Until this case reached us--as it did on an informal petition for review filed by the claimant pro se--the Director of the Office of Workers' Compensation Programs consistently took the position that the presumption under Part 727 of the regulations did not apply because the claimant did not have the requisite ten years of qualifying coal mine employment and because he met none of the medical requirements. The Director has now changed his position. In a brief filed in this court, the Director contends (a) that the claimant did have ten years of covered employment and (b) that the ALJ "misweighed" the x-ray evidence.

Assuming, solely for purposes of analysis, that the claimant was entitled to have his claim evaluated under Part 727 of the regulations, we conclude that the ALJ did not commit legal error in his handling of the x-ray evidence. We further conclude that, taking the record as a whole, the denial of benefits was supported by substantial evidence. We shall therefore deny the petition for review without reaching the question whether the claimant had ten years of qualifying coal mine employment.

I

The claimant, Glen E. Staton, testified at a hearing before the ALJ that he was born on June 5, 1933. (His written claim for benefits, however, showed his date of birth as May 5, 1931.) Mr. Staton said he worked in an underground coal mine for "maybe, four years," but his social security records showed only one and three-quarters years of employment by a coal mining company. After the mine was shut down, Mr. Staton went to work for the respondent in these proceedings, the Norfolk & Western Railway Company. He was employed by the railroad from 1951 to 1976, at which point he took disability retirement because of a back injury.

During the last 15 years of his tenure with the railroad, Mr. Staton testified, he worked on locomotives that pulled railroad cars to and from West Virginia coal mines. Sometimes he would pick up railroad cars that had been loaded by a coal company, and sometimes he would help load cars himself, pulling the cars through a loading tipple at the mine site. Mr. Staton also engaged in switching operations at or near mine sites, moving cars from one track to another.

In March of 1978 Mr. Staton filed an administrative claim for black lung benefits under the Federal Coal Mine Health & Safety Act of 1969, as amended. (See Mullins Coal Co., Inc. v. Director OWCP, 484 U.S. 135, 138 n. 1, 108 S.Ct. 427, 429 n. 1, 98 L.Ed.2d 450 (1987), for the pertinent statutory citations.) A claims examiner denied the claim in July of 1979. Mr. Staton then engaged legal counsel, and his lawyer submitted additional supporting evidence. The claim was denied again in October of 1980, after which, through counsel, Mr. Staton requested a formal hearing before an administrative law judge. The Norfolk & Western was notified of the claim as the putative "responsible operator," whereupon the railroad sought dismissal on the grounds that (a) the company was not a coal mine operator within the contemplation of the statute and (b) Mr. Staton had not been a coal miner while employed by the railroad. The railroad also controverted liability on the ground that the claimant had not been shown to be totally disabled due to pneumoconiosis.

A claims examiner denied the railroad's request for dismissal in December of 1983. In February of 1985 the case was referred for a formal hearing. The chief administrative law judge was advised at that time that both the railroad and the Director challenged a number of the claimant's assertions, including these: that he had worked as a miner after the statute became effective in 1969; that he had worked at least ten years in or around one or more coal mines; that he suffered from pneumoconiosis; and that he was disabled due to pneumoconiosis.

The requested hearing was held before an ALJ in November of 1987. Mr. Staton appeared and testified, and he was represented by counsel throughout the hearing.

Among the documents received in evidence were reports on two x-rays of Mr. Staton's chest. One of the x-rays had been taken on September 24, 1976, and the other on April 3, 1980.

The sole report interpreting the 1976 x-ray was contained in a brief letter from a Dr. Varney, whose qualifications to interpret x-rays were not disclosed. Dr. Varney classified the x-ray as "1/1q," which would be positive for pneumoconiosis. ¹

Reports from eight different doctors were received on the 1980 x-ray. One of the reports, prepared on a Department of Labor form by a Dr. Baney, suggested radiographic findings of pneumoconiosis. Although the form contained a box in which the physician was asked to indicate whether he was a board-certified radiologist (i.e., a diplomate of the American Board of Radiology) and whether he was a "B-Reader" (a radiologist who has demonstrated proficiency in assessing and classifying x-ray evidence of pneumoconiosis by successful completion of a government examination, see Mullins, 484 U.S. at 145 n. 16, 108 S.Ct. at 433 n. 16), Dr. Baney did not indicate that he was either board-certified or a B-Reader.

The remaining seven reports were all prepared by doctors who were not only certified by the American Board of Radiology ² but were B-Readers as well. Six of these seven experts--all six of whom were retained by the railroad--read the x-ray as failing to establish the existence of pneumoconiosis. Only one--a Dr. Cole, who was retained by the claimant--read the x-ray as positive for pneumoconiosis.

Rejecting the contention that railroad employees cannot be coal miners, and concluding that Mr. Staton's last 15 years of employment by the Norfolk & Western qualified as coal mine work covered by the statute, the ALJ credited Staton with more than 16 years as a coal miner. The timing of the claim was not such as to require evaluation under another part of the regulations, and the ALJ applied Part 727. As indicated above, the ALJ found that the medical evidence was not sufficient to invoke the assumption of disability under Sec. 727.203(a)(1), and Mr. Staton was held not to be entitled to benefits.

The Benefits Review Board did not disagree with the ALJ's assessment of the x-ray evidence. The Board declared itself dissatisfied with the ALJ's treatment of the question whether the particular railroad work described by Mr. Staton constituted qualifying employment, however, and the case was remanded for further proceedings.

On remand, the ALJ decided that Mr. Staton did not in fact have ten years of coal mine employment and was not entitled to have his claim considered under Part 727 of the regulations. Proceeding to analyze the claim under Part 718 instead, the ALJ concluded that Staton was not entitled to benefits under that part. The decision was affirmed by the Board on December 30, 1993, and the petition to this court followed. Mr. Staton is no longer represented by counsel, and his pro se brief does not address the issue we find dispositive, but the arguments in his favor have been ably articulated by the Director.

II

Whether the black lung legislation can apply to railroad workers employed in the vicinity of coal mines is an open question in our circuit. In Louisville & Nashville Railroad Co. v. Donovan, 713 F.2d 1243 (6th Cir.1983), cert. denied, 466 U.S. 936, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984), we refrained from "making any definitive construction" of the legislation in this regard. Id. at 1249. We likewise find it unnecessary to reach the question here. Assuming arguendo that Mr. Staton was working as a "miner" during his last years of employment by the Norfolk & Western--an assumption that would give him the benefit of the Sec. 727.203(a) presumption if one of the specified medical requirements were met--we cannot fault the agency's determination that none of the medical requirements was met.

The only such requirement as to which there can be any serious question is that set forth in Sec. 727.203(a)(1): "A chest roentgenogram (x-ray),...