Zbosnik v. Badger Coal Co.

• Citation: 759 F.2d 1187
• Decision Date: 25 April 1985
• Docket Number: No. 84-1524,84-1524
• Parties: Tony ZBOSNIK, Petitioner, v. BADGER COAL COMPANY and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1187

759 F.2d 1187

Tony ZBOSNIK, Petitioner, v. BADGER COAL COMPANY and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 84-1524.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 7, 1985.

Decided April 25, 1985.

C. Patrick Carrick, for petitioner.

David Allen Barnette, Charleston, W.Va. (Jackson, Kelly, Holt & O'Farrell, Charleston, W.Va., on brief) for respondents.

Before WIDENER and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

WIDENER, Circuit Judge:

Tony Zbosnik, a former coal miner, petitions for review of a decision of the Benefits Review Board denying his claim for black lung disability payments under the Federal Coal Mine and Safety Act of 1969, as amended, 30 U.S.C. Secs. 901 et seq. (Black Lung Act). The Board reversed a decision of the Administrative Law Judge granting the benefits. On appeal, the issue is whether the decision of the ALJ was supported by substantial evidence. Finding that it was, we reverse and direct an award of benefits.

Tony Zbosnik worked as a coal miner for 44 years, retiring in January 1977. At the time of his retirement, Zbosnik worked as a roof bolter for defendant Badger Coal Company. The duties of this job included the frequent carrying of 50-60 pounds of material over several hundred feet, while working in a tunnel 4 1/2 to 5 1/2 feet high. After finding himself no longer able to carry out these duties because of breathing difficulties, Zbosnik filed a claim for total disability benefits under the Black Lung Act on December 3, 1976, and retired one month later. The defendant disputed the claim, and a hearing was held before an ALJ in July 1980.

At the hearing, four sets of chest x-rays, which were relied upon by the ALJ, taken between April 1972 and October 1979, were presented as evidence that Zbosnik was suffering from occupational pneumoconiosis, as defined by the Act. 30 U.S.C. Sec. 902(b). The x-rays established that Zbosnik had contracted pneumoconiosis. Counsel for the defendant also stipulated that Zbosnik suffered from the disease as a result of his coal mine employment.

Under 20 C.F.R. Sec. 727.203(a), a black lung claimant who engaged in coal mine employment at least ten years is entitled to a rebuttable presumption of total disability due to pneumoconiosis if one of four medical requirements is met. Included among these alternative requirements is a chest x-ray which establishes the presence of pneumoconiosis. 20 C.F.R. Sec. 727.203(a)(1). Here, the defendant acknowledged the fact that Zbosnik satisfied both the work tenure and medical requirements. As a result, the ALJ invoked the interim presumption that Zbosnik was totally disabled from occupational pneumoconiosis and was entitled to benefits.

While admitting that Zbosnik had pneumoconiosis, the defendant argued that the disease did not impair Zbosnik's ability to perform his job. In support of this argument, the results of four pulmonary (ventilatory) function studies and two blood gas studies Zbosnik had undergone were presented. These examinations produced values which were not equal to or less than the regulatory criteria required for a finding of impaired respiration. 20 C.F.R. Sec. 727.203(a)(2) and (3). Dr. Matragano, who examined Zbosnik for the defendant, relied on these findings to conclude that despite his pneumoconiosis, Zbosnik "should be able to perform his regular coal mining job." Two other examining physicians, Dr. Jones and Dr. Hayes, also concluded that the pneumoconiosis did not result in an "impairment of capacity to work."

However, the physicians who examined Zbosnik were not unanimous in assessing the state of his health. Dr. Matragano, for example, found that Zbosnik suffered from chronic bronchitis due to exposure to coal dust. Another physician, Dr. Pravin, also found Zbosnik to have cardio-pulmonary disease related to dust exposure, and as a result he experienced dypsnea while walking.

The ALJ also heard the testimony of Zbosnik, a co-worker named Denzil Mayle, and Zbosnik's brother, Albin. The claimant testified that he retired as a result of his inability to adequately perform his duties as roof bolter. He stated that he found himself unable to carry supplies or walk required distances due to shortness of breath. Zbosnik also testified he had not worked in any other job since retirement, that his breathing difficulties had forced him to limit his activities to walking around the house and light household duties, and that his brother Albin provided his meals.

The testimony of Mayle, who had worked with Zbosnik since 1965, confirmed the difficulties Zbosnik faced in his work. Mayle reported that Zbosnik had been unable to carry the 50-60 pounds of material or walk the distances demanded by the job without frequent stops for resting. Mayle also testified that Zbosnik would often not move at all while in the coal mine, and that he was repeatedly out of breath.

Albin Zbosnik testified that since retirement his brother had experienced shortness of breath and was restricted...