Thorn v. Itmann Coal Co., No. 92-1555

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before WIDENER and HALL, Circuit Judges, and CHAPMAN; K.K. HALL
• Citation: 3 F.3d 713
• Parties: Carl C. THORN, Petitioner, v. ITMANN COAL COMPANY; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Docket Number: No. 92-1555
• Decision Date: 24 August 1993

Page 713

3 F.3d 713 Carl C. THORN, Petitioner,
v.
ITMANN COAL COMPANY; Director, Office of Workers'
Compensation Programs, United States Department of
Labor, Respondents. No. 92-1555. United States Court of Appeals,
Fourth Circuit. Argued March 31, 1993.
Decided Aug. 24, 1993.

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S.F. Raymond Smith, Rundle & Rundle, L.C., Pineville, WV, argued for petitioner.

Edward Waldman, U.S. Dept. of Labor, Washington, DC, argued (Marshall J. Breger, Sol. of Labor, Donald S. Shire, Associate Sol., Barbara J. Johnson, Counsel for Appellate Litigation, Cathryn Celeste Helm, U.S. Dept. of Labor, on brief), for respondent Director.

William Steele Mattingly, Jackson & Kelly, Morgantown, WV, argued for respondent Itmann Coal.

Before WIDENER and HALL, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

OPINION

K.K. HALL, Circuit Judge:

Carl C. Thorn appeals an order of the Benefits Review Board (BRB) affirming the denial of his claim for black lung benefits. We remand for reconsideration.

I.

Carl Thorn worked in the coal mines for over twenty years. His last jobs were very heavy labor--laying track and loading coal--and his last employer was the respondent, Itmann Coal Company.

Thorn's final day in the mines was July 27, 1978. He filed this claim for black lung benefits on November 14, 1979. Itmann Coal, the responsible operator, contested an initial finding of eligibility. Eight years later the claim was heard by an administrative law judge (ALJ).

The record before the ALJ was primarily a contest of physicians' opinions. There were no valid pulmonary function studies, and no blood gas tests conducted after exercise. ¹ Every physician agrees that Thorn suffers from at least simple pneumoconiosis. Thorn had a heart attack in 1978 and suffers from coronary artery disease. He is also mildly mentally retarded and has only a fourth-grade education. Though he has never smoked, Thorn suffers from a chronic cough, dyspnea, and shortness of breath on exertion. No one disputes that Thorn is totally disabled from performing his past work.

Dr. Gary Craft examined Thorn on March 13, 1979. He found that Thorn suffered from simple pneumoconiosis, but that "he had good breathing capacity and does not have any major disabilities secondary to his chronic Lung disease." These findings were based on both a physical examination and an invalid pulmonary function study: "... the patient made no effort at all. However, what results we could obtain indicate that he had good breathing capacity at rest."

On June 13, 1980, Dr. A.R. Piracha examined Thorn. He found that Thorn "does not

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show evidence of any significant pulmonary insufficiency."

Dr. Shawn Chillag examined Thorn on January 21, 1981. He attempted to perform pulmonary function tests, but Thorn could not be made to understand how to perform the test. Chillag concluded that Thorn does have simple pneumoconiosis, but could not venture an opinion whether Thorn had any pulmonary impairment.

On May 6, 1981, Dr. George O. Kress issued a consultative report based on the examinations and testing performed to date. He lamented that all pulmonary function tests had been invalid. Though a blood gas study performed by Dr. Chillag showed a "mild degree of resting hypoxemia," Dr. Kress postulated that "this might well be explained on the basis of hypoventilation." Dr. Kress concluded:

It is my opinion that there is no objective evidence available to indicate that this man has any pulmonary or respiratory impairment. It is unfortunate that this gentleman has not been able to cooperate on the attempted ventilatory studies to gain additional objective evidence for evaluating his pulmonary function. There certainly is no evidence to indicate that he is permanently and totally disabled as the result of pulmonary or respiratory problems, either pneumoconiosis or any other respiratory condition. He is probably disabled, however, as the result of his arteriosclerotic cardiovascular disease but this, of course, has no relationship to pneumoconiosis or to any primary respiratory condition. There simply is no objective evidence available to indicate that any disability he has is caused either in whole or in part by pneumoconiosis. As has been pointed out simple coal workers' pneumoconiosis does not as a rule produce total disability.

On September 28, 1983, surgery was performed to repair an eventration of Thorn's left hemidiaphragm. In July, 1985, Thorn spent three days in the hospital because of chest pain. His attending physician, Dr. Barit, diagnosed and treated Thorn for chronic obstructive pulmonary disease, pleuritis, and acute coronary insufficiency.

In the fall of 1986, there was a flurry of examinations and reports relating to Thorn's long-dormant black lung claim. On September 24, 1986, Thorn was examined by Dr. Jose Floresca. In conjunction with this examination, an x-ray was taken, and blood gas and pulmonary function tests were performed. Dr. Maurice Bassali read the x-ray as showing arteriosclerotic heart disease and "diffuse interstitial lung disease compatible with complicated pneumoconiosis category A superimposed upon pneumoconiosis type q/t with profusion of 1/2 affecting all lung zones." Dr. Bassali also noted surgical clips in the left hilum and a small density in the upper left lung that could represent progressive massive fibrosis or malignancy. Without earlier x-ray films for comparison and a complete history, Dr. Bassali would not give a definite opinion concerning the nature of the left lung density.

The resting blood gas test conducted by Dr. Floresca showed acidosis and moderate to severe hypoxemia (pH of 7.34, p02 of 63.2, and oxygen saturation of 90%). A pulmonary function test (considered invalid by all reviewers) performed that same day yielded qualifying values. Based on his examination of Thorn and the laboratory results, Dr. Floresca diagnosed severe chronic obstructive pulmonary disease, "far advanced" coal worker's pneumoconiosis, and hypertension. He opined that, as a result of coal dust exposure, Thorn was totally and permanently disabled.

A week later, on October 2, 1986, Thorn was seen by Dr. Naeem Qazi. Dr. Qazi noted decreased breath sounds and rhonchi, and his clinical impression was chronic obstructive pulmonary disease possibly secondary to pneumoconiosis. Dr. Qazi then examined the laboratory results obtained by Dr. Floresca and concluded that Thorn has moderate chronic obstructive pulmonary disease. In a supplemental report, Dr. Qazi noted that Thorn's pulmonary function studies and x-rays were "compatible with complicated pneumoconiosis," and he opined that Thorn was "markedly impaired" and should not be employed in coal mining or any other comparable job, because any such exertion "would further increase his bronchospasm[s] and

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cause more shortness of breath and dyspnea and [could] cause further injury to his lungs."

A few weeks later, on October 20, 1986, Dr. Mario Cardona examined Thorn, obtained another x-ray, and attempted to perform a pulmonary function study. Thorn became confused and was unable to perform the FVC part of the test, though he completed the MVV satisfactorily. The x-ray was read by Dr. DeRamos as pneumoconiosis, type q/q, with profusion 2/2. DeRamos also noted surgical clips and a "rounded density" in the left lower lung. Like Dr. Bassali before him, DeRamos thought attention should be paid to this density, but he felt that it could represent post-surgical changes.

In reliance on his examination and DeRamos' report, Dr. Cardona diagnosed chronic obstructive pulmonary disease secondary to pneumoconiosis, and he opined that Thorn was totally and permanently disabled because of the effects of occupational exposure to coal dust.

On December 17, 1986, Dr. Kress supplemented his 1981 consultative report in light of the new medical evidence. He reiterated that simple pneumoconiosis "does not, as a rule, produce total disability," and he summarized his 1981 opinion: "the information available did not indicate that this man would be considered impaired to a degree from a strictly respiratory standpoint that he would be unable to do his former coal mine work." Dr. Kress again noted that there were no valid pulmonary function tests, though he assembled a composite result from the "best results of his multiple function studies," from which he thought "it is possible to conclude that these function studies do not demonstrate evidence of any significant ventilatory impairment." Though conceding that Thorn "has the symptoms and signs of obstructive lung disease," Kress concluded, "I still do not believe the available objective evidence indicates that this man has a significant pulmonary impairment. Certainly, these objective test results, where valid, would indicate that from a respiratory standpoint, he really retains the capacity for his former coal mine work."

Dr. Joseph Renn reviewed the medical evidence developed from 1978 through Dr. Cardona's examination, and offered a consultative report...