Twin Pines Coal Co. v. U.S. Dept. of Labor

• Decision Date: 16 August 1988
• Docket Number: No. 86-1888,86-1888
• Citation: 854 F.2d 1212
• Parties: In the Matter of TWIN PINES COAL COMPANY, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent, and Charles L. White, Real Party in Interest.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1212

854 F.2d 1212

In the Matter of TWIN PINES COAL COMPANY, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent and Charles L. White, Real Party in Interest.

No. 86-1888.

United States Court of Appeals Tenth Circuit.

Aug. 16, 1988.

Ronald E. Gilbertson, Kilcullen, Wilson and Kilcullen, Washington, D.C., for petitioner.

William E. Kenworthy, Denver, Colo., for respondent Charles L. White.

Nicholas J. Levintow (George R. Salem, Solicitor of Labor, Donald S. Shire, Associate Solicitor, J. Michael O'Neill, for Appellate Litigation, Thomas L. Holzman, Asst. Counsel for Appellate Litigation, Diane Hodes, Atty., on the brief), U.S. Dept. of Labor, Washington, D.C., for respondent U.S. Dept. of Labor.

Before MOORE, ANDERSON and BRORBY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

In this appeal the Twin Pines Coal Company ("Twin Pines") challenges the Benefits Review Board's decision affirming the grant of Black Lung Benefits to Charles L. White. The administrative law judge originally awarded the benefits because she found sufficient evidence to invoke the presumption that White had pneumoconiosis (black lung disease) according to the interim criteria at 20 C.F.R. Sec. 727.203(a) and she did not find the presumption rebutted by any of the evidence or opinions offered at the hearing. The Benefits Review Board found that the ALJ's invocation of the presumption was based on substantial evidence and thus affirmed the award.

I.

Subsection IV of The Federal Coal Mine Health and Safety Act, 30 U.S.C. Secs. 901 to 945, provides a program of black lung benefits for qualifying miners. Part C of subsection IV, 30 U.S.C. Sec. 931 to 945, specifies that in states which do not have worker's compensation benefits at qualifying levels for those suffering from pneumoconiosis who file for benefits after December 31, 1973, the black lung benefit will be paid by the claimant's employer. Twin Pines, as White's employer from 1958 to 1970 was assessed liability by the Department of Labor. It contested that determination before an ALJ and the Benefits Review Board. It seeks further review here.

This appeal revolves around the following facts. In July 1970, White, who had been in coal-related employment for approximately fifteen years prior to 1970, was involved in a mine accident which resulted in his total disability and for which he receives state worker's compensation benefits and Social Security disability payments.

Seven to nine years after this accident, White began to experience respiratory difficulties and in October 1979 he made application for federal black lung benefits. In connection with this application, White was examined by Dr. Charles F. Salerno, the consulting physician for the Department of Labor. During the course of this examination, White received a blood gas study, a chest x-ray, and a pulmonary ventilatory study. The blood gas study and the chest x-ray showed no signs of pneumoconiosis. The ventilatory study produced results which were sufficient to qualify White for the application of the interim presumption of total disability contained in the regulations by which the black lung benefits program is administered. Nonetheless, Dr. Salerno, in interpreting the test, gave his opinion that White's "restrictive ventilatory abnormalities [were] probably secondary to [his] previous traumatic injury to chest and back." He further indicated that this diagnosed condition was not related to "dust exposure in the patient's coal mine employment." R.Vol. III. Director's Exh. 7 at 4.

White was subsequently examined in May 1980 by Dr. Lawrence Repsher, who examined him at the request of Twin Pines. Dr. Repsher also took a chest x-ray and conducted ventilatory pulmonary tests and blood gas studies. Again, the chest x-ray and the blood gas study showed no indication of pneumoconiosis. Although Dr. Repsher testified that White did not sufficiently cooperate in the ventilatory study to make it valid for purposes of invoking the interim presumption, Repsher did interpret it to show that White suffered from "mild COPD" (chronic obstructive pulmonary disease) which he attributed to White's forty-two year history of cigarette smoking. As a result Dr. Repsher concluded that White did not suffer from pneumoconiosis. R.Vol. III. Director's Exh. 15 at 2-3; R.Vol. II at 83.

Finally, just before the hearing, Dr. John G. Buglewicz, a family practitioner who had treated White in the past for other ailments, learned in preparing to testify for other black lung claimants, that White was scheduled for a black lung benefits hearing. He contacted White and learned that he had not obtained counsel nor was he otherwise prepared to present his case. Buglewicz recommended counsel to White and, without examination, had White take another ventilatory study and a blood gas study one week before the hearing. The results of the ventilatory study indicated, at least through a computer diagnosis, "severe restrictive lung disease," although Dr. Repsher testified after reviewing the tracings that White did not cooperate sufficiently in the course of the test to render it valid for diagnostic purposes.

The principal issue at the hearing was whether or not White established the applicability of one of the interim presumptions codified at 20 C.F.R. Sec. 727.203. Under these regulations promulgated by the Secretary of Labor, "[a] miner who engaged in coal mine employment for at least 10 years will be presumed to be totally disabled due to pneumoconiosis if ... (2) Ventilatory studies establish the presence of a chronic respiratory or pulmonary disease...." The same section further provides that "[i]n adjudicating a claim under this subpart, all relevant medical evidence shall be considered." At the hearing, all of the test results and physicians reports were admitted into evidence. Twin Pines objected to the admission of the ventilatory test conducted by Dr. Salerno, and the ventilatory test conducted at the instruction of Dr. Buglewicz, arguing that the tests did not qualify under the requirements of 20 C.F.R. Sec. 410.430 because they did not contain a statement of the claimant's ability to understand directions and cooperate in performing the tests. The evidence was nonetheless admitted over Twin Pines' objection. In her findings of fact and conclusions of law, the ALJ invoked the interim presumption based on the ventilatory study which White completed for Dr. Salerno in October 1979. ¹ Despite the report's failure to reflect the patient's cooperation and understanding in taking the test as is required by Sec. 410.430 the judge found that the test's subsequent validation by Drs. Kennedy and Mitchell was sufficient to satisfy the requirements of the regulations. The ALJ, however, refused to invoke the presumption based on either of the other two ventilatory studies.

On appeal the Benefits Review Board determined that there was substantial evidence upon which the ALJ invoked the presumption due to the qualifying ventilatory study taken for Dr. Salerno. Accordingly, it affirmed the grant of benefits.

Twin Pines challenges the award on four grounds. First, it argues that because White already receives total disability benefits from the Social Security Administration and the State of Colorado, he cannot now also receive total disability benefits under the black lung benefits program. Next, Twin Pines argues that the interim regulations containing the presumption under which White was awarded benefits had expired and were thus improperly invoked by the ALJ. Third, Twin Pines argues that the interim presumption was improperly invoked on the basis of the Salerno study because the ALJ did not adequately consider the opinion of Dr. Salerno that the study qualified due to a cause other than pulmonary disease. And, finally, Twin Pines argues that the ALJ's determination that White is totally disabled due to pneumoconiosis is not supported by "substantial evidence," and that even if it was, it was adequately rebutted at the hearing. Because we accept Twin Pines argument that the ALJ failed to adequately consider the opinion of Dr. Salerno, we do not reach the question of whether "substantial evidence" supported the invocation of the presumption. Rather, we remand to the Benefits Review Board for action consistent with this opinion.

II.

The initial argument made by Twin Pines stems from the mine accident in 1970 which ended White's mine employment. Twin Pines argues that because White was already completely disabled by the 1970 accident he cannot now be considered disabled as a result of pneumoconiosis; that is, a person can only be completely disabled once.

Despite some authority from the Sixth Circuit which apparently supports this proposition, see Gastineau v. Mathews, 577 F.2d 356, 360 (6th Cir.1978); but see Singleton v. Califano, 591 F.2d 383, 385 n. 2 (6th Cir.1979), a review of the cases, the statute, its legislative history, and its interpretation by the benefits review board, see Olszewski v. The Youghiogheny and Ohio Coal Co., 6 BLR 1-521, 1-524 (1983) ("A claimant may be totally disabled due to a non-respiratory condition and at the same time be totally disabled as a result of a respiratory or a pulmonary impairment."), shows that the statute is intended to confer special benefits on miners who are disabled due to pneumoconiosis whether or not they are disabled from a different cause. Even when other causes are themselves independently disabling "[t]he concurrence of two sufficient disabling medical causes one within the ambit of the Act, and the other not, will in no way prevent a miner from claiming benefits under the Act." Peabody Coal Co. v. Director, OWCP, 778 F.2d 358, 363 (7th Cir.1985); see also Singleton, 591 F.2d at 385 n. 2 ("It is thus entirely possible that a miner will be eligible for one, the other, or both kinds of benefits. In the instant case, plaintiff's lay testimony and medical evidence indicated...