Tussey v. Island Creek Coal Co.

• Decision Date: 13 January 1993
• Docket Number: No. 92-3032,92-3032
• Citation: 982 F.2d 1036
• Parties: Curtis B. TUSSEY, Sr., Petitioner, v. ISLAND CREEK COAL COMPANY and Old Republic Insurance Company, Respondents, Director, Office of Workers' Compensation Programs, United States Department of Labor, Party-in-Interest.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1036

982 F.2d 1036

Curtis B. TUSSEY, Sr., Petitioner, v. ISLAND CREEK COAL COMPANY and Old Republic Insurance Company, Respondents Director, Office of Workers' Compensation Programs, United States Department of Labor, Party-in-Interest.

No. 92-3032.

United States Court of Appeals Sixth Circuit.

Submitted Dec. 4, 1992.

Decided Jan. 13, 1993.

Curtis Tussey (briefed), pro se.

Ann B. Rembrandt, Douglas A. Smoot (briefed), Jackson & Kelly, Charleston, WV, for Island Creek Coal Co., Old Republic Ins. Co.

Roscoe C. Bryant, III (briefed), U.S. Dept. of Labor, Office of the Sol., Washington, DC, for Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor.

Before: MILBURN and BATCHELDER, Circuit Judges; and LIVELY, Senior Circuit Judge.

LIVELY, Senior Circuit Judge.

This is an appeal from a final decision of the Benefits Review Board (BRB) under the Black Lung Benefits Act, as amended, 30 U.S.C. §§ 901-945 (1988), and regulations of the Secretary of Labor promulgated pursuant to the Act. An administrative law judge (ALJ) found that a 68 year old former coal miner who had more than 39 years of qualifying coal mine employment, who had pneumoconiosis and was totally disabled, was not entitled to benefits because the claimant had failed to establish that the disability is of respiratory or pulmonary origin or is due to pneumoconiosis. The Benefits Review Board upheld the denial. We reverse and remand for an award of benefits.

I.

Curtis Tussey was born in 1918 and completed the ninth grade in school. At age nineteen he began working in underground coal mines. Between 1937 and 1974, he worked a total of more than 30 years in various mines. Before he quit mining in 1974 and became a federal mine inspector, he began experiencing breathing problems. At about that time, he suffered a heart attack for which he was hospitalized. He experienced no further problems with his heart, taking daily medication as prescribed. After recovering fully from the heart attack, Tussey returned to his inspector's job and continued in that work until 1983, when he retired.

In 1983 Tussey consulted a family physician, Dr. Arnett, because he was "smothering to death." After considering a lung x-ray, the doctor prescribed medication and directed Tussey to have oxygen and a "breathing machine" installed in his home. Since that time he has used the machine and the oxygen daily. Tussey testified that he has so little breath that he hires a boy to cut his small lawn. He can walk a half block before he must stop to rest, cannot help with the housework, and spends most of his time "sitting in a chair, watching television, if there's something on I want to watch." Tussey was hospitalized in 1983 for breathing problems, and Dr. Sundaram, a pulmonary specialist, began treating him.

Tussey's work as a mine inspector required no lifting or carrying, and little standing or walking. He had a four-wheel drive vehicle that he could take right to a surface mine that he was inspecting. As a mine inspector, Tussey had frequent physical exams and was found fit to continue in that job until he took sick leave just before retiring in 1983. One of the examining doctors told him, "There's something on the lungs," but that "it could be a misprint." Tussey quit his one-pack a day cigarette habit in 1983.

II.

A.

Tussey filed his first application for black lung benefits in 1980. That application was denied and he filed the present application in 1983. The matter was referred for a hearing on June 15, 1984. The ALJ held the hearing on September 30, 1986, and issued his decision on March 2, 1987. The ALJ specifically found that Tussey was a credible witness. He ruled that Tussey's work as a mine inspector qualified as coal mine employment. Thus, he credited Tussey with a total of more than 39 years of coal mine work.

No witnesses other than Tussey testified at the hearing, but the ALJ considered a profusion of medical evidence, consisting of x-ray readings, pulmonary function studies, arterial blood gas tests, and physicians' reports. The x-ray evidence demonstrated that Tussey has coal workers' pneumoconiosis, and the ALJ so found. Several pulmonary function studies were "qualifying," that is, they produced readings which indicated that Tussey is totally disabled within the meaning of the Black Lung Benefits Act. Accordingly, the ALJ found that this evidence established a lung impairment that is totally disabling. Only one of several arterial blood gas tests produced a reading that established total disability, but the ALJ accepted two consulting physicians' opinions that this test, though apparently "qualifying," was unreliable for several reasons. On this basis, the ALJ made the following finding:

The reliable arterial blood gas evidence is non-qualifying and therefore does not support the conclusion that the miner is totally disabled. The arterial blood gas evidence is probative evidence contrary to the pulmonary function evidence. Thus, the pulmonary function evidence does not in and of itself establish the miner's total disability due to pneumoconiosis.

B.

At this point the ALJ had determined that Tussey has coal workers' pneumoconiosis and that one measurement of his lungs' operation indicated that he is totally disabled while the other indicated that he is not. The ALJ then turned to the doctors' opinions as a "tie-breaker." The medical reports evidence a wide divergence of opinion both as to whether Tussey has pneumoconiosis and whether or not he is disabled. The ALJ acknowledged that he is required to give greater weight to the opinion of a treating physician than to that of a mere examining or consulting physician. Thus, he stated in his decision, that the opinion of Dr. Sundaram, the pulmonary specialist who treated Tussey, was deserving of great weight.

Dr. Sundaram submitted two medical reports in regard to Tussey, one in 1983 and one in 1986. In one report, he found four conditions: (1) Coal workers' pneumoconiosis; (2) Chronic obstructive pulmonary disease; (3) Angina; and (4) Cardiac arrhythmia from history. He found significant limitations in movement involving reaching heights and exposure to high temperature or humidity. He observed that Tussey could "hardly" walk a distance of two blocks, could not lift any weight and could "hardly" go up two to three steps. Noting that Tussey had experienced significant exposure to coal dust, Dr. Sundaram stated his conclusion:

Physical examination, pulmonary function tests and radiological examination suggestive of CWP [coal workers' pneumoconiosis], has significant functional limitations as mentioned above. Believe he is unable to indulge himself in any gainful employment and as such he is disabled.

In a separate consultation report in response to a request from a Dr. Hieronymus, Dr. Sundaram stated:

Patient did deep mining for nearly 35 years and subsequently worked as a mining inspector and has functional limitations as mentioned above. He has radiological and clinical evidence for coal worker's pneumoconiosis. In view of the fact that the patient has no other vocational skills or training, and in view of the significant functional limitations mentioned above, believe the patient is totally disabled and not in position to engage himself in any gainful employment.

In both reports, Dr. Sundaram noted the old heart attack, but did not relate it to Tussey's disability. In the second report referred to above, his only reference to the patient's heart was: "Did not show any gallop. No significant abnormal murmurs could be appreciated at this time." Nevertheless, the ALJ found Dr. Sundaram "did not attribute the disability to any one or more diseases or indicate whether respiratory or cardiac condition is its cause. Thus, his opinion is relevant only to the question of whether claimant is totally disabled, but, not to the question of whether he is disabled by pneumoconiosis." The ALJ then referred to a report by Dr. Dahhan, a non-treating physician who concluded following a physical exam that Tussey had "the respiratory physiological capacity" to do the work of a federal mine inspector, but, that the cardiac problems might interfere with his employment. This report was made one month after Dr. Sundaram's second report.

The ALJ discussed other medical evidence, but appeared to base his decision principally upon the medical reports of Dr. Sundaram and Dr. Dahhan, and on that of a non-treating, non-examining physician, Dr. Kress.

The ALJ's ultimate conclusion was that although the relevant evidence does show by its preponderance that Tussey is totally disabled, "it does not establish either that the disability is respiratory or pulmonary in nature or that it is due to pneumoconiosis."

III.

Since Tussey's claim was filed after March 31, 1980, the ALJ properly considered it under the Secretary of Labor's permanent regulations found at 20 C.F.R. Part 718. Adams v. Director, OWCP, 886 F.2d 818, 820 (6th Cir.1989). To establish eligibility for benefits under Part 718, a claimant must prove: (1) that he suffers from pneumoconiosis; (2) that his pneumoconiosis arose at least in part out of his coal mine employment; and (3) that he is totally disabled by pneumoconiosis. Id.; 20 C.F.R. §§ 718.2, 718.202-718.205.

A.

The ALJ determined that the x-ray evidence established that Tussey has pneumoconiosis as defined in § 718.202(a)(1). The ALJ also found that Tussey had established 39 years of coal mine employment. This entitled Tussey to the presumption contained in § 718.203 that if a miner has pneumoconiosis and was employed for ten or more years in the coal mines, there is a rebuttable presumption that the pneumoconiosis arose out of coal mine employment. Thus the ALJ found that the first and second requirements of Part 718 were met. There is no dispute as to either of these requirements. The ALJ concluded, however, that the third requirement was not met. In reaching this conclusion he...