U.S. Pipe and Foundry Co. v. Webb

• Decision Date: 18 May 1979
• Docket Number: No. 77-2713,77-2713
• Parties: U. S. PIPE AND FOUNDRY COMPANY, Petitioner, v. Charles WEBB and Corda Webb, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 264

595 F.2d 264

U. S. PIPE AND FOUNDRY COMPANY, Petitioner, v. Charles WEBB and Corda Webb, and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 77-2713.

United States Court of Appeals Fifth Circuit.

May 18, 1979.

John H. Morrow, W. L. Green, Linda A. Bunsey, Birmingham, Ala., for petitioner.

Walter W. Furner, Bessemer, Ala., Laurie M. Streeter, Assoc. Sol., U. S. Dept. of Labor, N.D.O.L., Carin Ann Clauss, Sol. of Labor, Dept. of Labor, Christopher Giuliana, Atty., John S. Lopatto, III, Atty., Dept. of Labor, Washington, D.C., for respondents.

Petition for Review of an Order of the Benefits Review Board.

Before RONEY, RUBIN and VANCE, Circuit Judges.

VANCE, Circuit Judge:

On April 19, 1974, Charles Webb, employed for twenty-nine years as a coal miner by U.S. Pipe and Foundry Company, submitted a claim for black lung benefits under the Federal Coal Mine Health and Safety Act of 1969 (the FCMHSA), as amended. Webb died on March 12, 1975. His widow, Corda Webb, claimed widow's benefits under the FCMHSA on March 27, 1975. The claims were consolidated, and the hearing officer concluded that Charles Webb was totally disabled by pneumoconiosis when he died and that pneumoconiosis caused his death. U.S. Pipe was ordered to pay black lung benefits to Charles Webb's estate and to Corda Webb. The Benefits Review Board affirmed the hearing officer's decision and order. U.S. Pipe appeals the Benefits Review Board's affirmance, claiming that the hearing officer's decision is not supported by substantial evidence, that the admission of ex parte doctors' reports deprived it of its right to cross-examination, and that a delay in notifying it of the Webbs' claims denied it due process of law. We affirm.

The legislative morass with which we must again struggle in deciding this case was originally enacted as the Federal Coal Mines Health and Safety Act of 1969, Pub.L.No. 91-173, Title IV, 83 Stat. 792 (1969), was amended by the Black Lung Benefits Act of 1972, Pub.L.No. 92-303, 86 Stat. 153, 154 (1972), and is now codified at 30 U.S.C. § 901 Et seq. See Director v. Alabama By-Products Corp., 560 F.2d 710 (5th Cir. 1977). Recently the FCMHSA was again amended by the Black Lung Benefits Reform Act of 1977, Pub.L.No. 95-239, 92 Stat. 95 (1978). ¹ FCMHSA is also cross-referenced to sections of the Longshoremen's and Harbor Workers' Compensation Act (the LHWCA), 33 U.S.C. § 901 Et seq. and the Social Security Act, 42 U.S.C. § 401 Et seq. See 30 U.S.C. §§ 922, 932.

Congress enacted the black lung benefit section of the FCMHSA for the following purposes It is . . . to provide benefits, in cooperation with the States, to coal miners who are totally disabled due to pneumoconiosis and to the surviving dependents of miners whose death was due to such disease or who were totally disabled by this disease at the time of their deaths; and to ensure that in the future adequate benefits are provided to coal miners and their dependents in the event of their death or total disability due to pneumoconiosis.

30 U.S.C. § 901. In the FCMHSA, pneumoconiosis is defined as "a chronic dust disease of the lung arising out of employment in an underground coal mine." ² 30 U.S.C. § 902. Title IV of the FCMHSA, portions of which were found constitutional in Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), is divided into three parts. Part A of Title IV, §§ 401, 402, 30 U.S.C. §§ 901, 902, contains the purpose of the Act and necessary definitions. Part B of Title IV, §§ 411-414, 30 U.S.C. §§ 921-924, provides that claims submitted between December 30, 1969, and June 30, 1973, are to be paid by the United States and processed by the Secretary of Health, Education and Welfare. According to Part C of Title IV, §§ 421-431, 30 U.S.C. §§ 931-941, claims submitted after December 31, 1973, are adjudicated under the applicable state workmen's compensation statute if one has been approved by the Secretary of Labor. To be approved, a state workmen's compensation program must satisfy the standards set out in § 421, 30 U.S.C. § 931. If no state workmen's compensation law has been approved, claims filed under Part C are paid by the mine operators and processed by the Secretary of Labor. 30 U.S.C. § 932. If no operator is required "to secure the payment of such benefits, the Secretary shall pay (the claimant) the benefits to which he or she is so entitled." 30 U.S.C. § 934. Claims filed between July 1 and December 31, 1973, a transition period, are adjudicated by the Secretary of Labor and paid by the United States. 30 U.S.C. § 925. The Webbs' claims were filed under Part C of the FCMHSA.

I.

The hearing officer's findings must be upheld if they are supported by substantial evidence. Banks v. Chicago Grain Trimmers Association, Inc., 390 U.S. 459, 467, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1968); United States Steel Corp. v. Bridges, 582 F.2d 7 (5th Cir. 1978); Felthager v. Weinberger, 529 F.2d 130 (10th Cir. 1976). U.S. Pipe contends that the hearing officer's decision and order are arbitrary, irrational, and not supported by substantial evidence. We disagree.

The hearing officer has the responsibility of determining the credibility of witnesses and resolving inconsistencies in the evidence. United States Steel Corp. v. Bridges, supra; Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797 (7th Cir. 1977). He or she need not accept the opinions or theories of a particular medical expert, but may weigh the evidence and draw his or her own inferences from it. Peabody Coal Co. v. Benefits Review Board, 560 F.2d at 802; Todd Shipyards Corp. v. Donovan, 300 F.2d 741, 742 (5th Cir. 1962). A reviewing court may not overturn a hearing officer's inference supported by substantial evidence simply because it considers the opposite inference more reasonable or because it finds the inference factually questionable. Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 477-78, 67 S.Ct. 801, 91 L.Ed. 1028 (1947); Peabody Coal Co. v. Benefits Review Board, 560 F.2d at 802.

Charles Webb worked at Flat Top Coal Mine, owned by U.S. Pipe, from August 28, 1945, until March 26, 1974. He was a machinist in an above-ground machine shop and made infrequent trips underground to perform maintenance duties. Before 1969 the machine shop was approximately forty to fifty feet from the mine exit, but since that time, it has been six hundred to one thousand feet from the exit. On the basis of air samples taken after 1971 in the breathing zones of workers closer to the mine exit than the old machine shop and of machinists in the new machine shop, U.S. Pipe's corporate safety director testified that concentrations of respirable dust in Charles Webb's work area were well below safety limits set by the United States Bureau of Mines and the Occupational Safety and Health Administration. Webb's two daughters, however, testified that, when they had visited their father's work site, they had observed coal dust flying from coal cars as the cars left the mine and collecting in the area around the machine shop. They also stated that their father sometimes returned from work covered with dust:

Q. Now, on occasions when your father would come home from his shift, did you observe his clothing?

A. Yes.

Q. Did you ever observe any black soot on it?

A. Completely. You could only see the whites of his eyes. He walked home, you know, to the house. You could distinguish his walk from the other men he walked with because this hand (indicating) moved a little bit faster than this hand (indicating) did. Other than that, you couldn't tell him from the rest of the men.

Q. Is it your testimony then, that even his face, except for his white eyes was covered in a black soot?

A. Right, as well as his clothes.

Webb managed a small ornamental iron business in his spare time and smoked cigarettes.

In 1972 Webb underwent surgery to remove cancer of the tongue. The cancer was not arrested, and in 1974 neck resection and cobalt therapy were required. Webb did not return to his job at Flat Top Mine after the 1974 operation. Since 1971, Webb had also been afflicted with pleurisy, pneumonia, and lung lesions. His daughters testified that during his last years he was short of breath, that he coughed so frequently that his wife was forced to sleep in a separate room, that he slept with his head elevated approximately twelve inches from his bed, that he tired easily, and that he could no longer perform physical activities like hunting or cutting grass. He died in March 1975 at the age of fifty-seven. In Webb's death certificate, Dr. Maddox, who had treated Webb for cancer, listed pulmonary insufficiency due to emphysema as the immediate cause of his death and prior carcinoma of the tongue as a contributing condition.

After his claim was filed, x-rays of Webb's chest were made on April 26, 1974, ³ on November 25, 1974, and again on March 4, 1975. Large and small opacities in Webb's lungs were revealed in at least the March 1975 x-ray. Several physicians examined Webb or read his x-rays, but they did not agree on the cause of his lung condition. In a report written after reading the November 1974 x-ray, Dr. Terrell Bird indicated that Webb's lung fields were clear of active infiltrates and that pneumoconiosis was not present. Dr. Juan Gonzales, a radiologist, read the March 1975 x-ray as showing category 2 simple pneumoconiosis, large opacities "compatible with complicated pneumoconiosis category B," and a pleural effusion that suggested a malignancy in Webb's right lung. Dr. Jack C. Whites, a general practitioner who does not read his own x-rays, examined Webb on March 4, 1975, the date of his last x-ray, and made a diagnosis of metastic carcinoma of the tongue and pulmonary metastasis with pleural effusion. Based on Webb's prior medical history, he concluded that Dr. Gonzales' findings of simple and complicated pneumoconiosis...