Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Consolidation Coal Co. v. Director

United States Court of Appeals, Seventh Circuit

December 21, 2018

Consolidation Coal Company, Petitioner,
v.
Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondent.

          Argued November 29, 2018

          Petition for Review of an Order of the Benefits Review Board. No. 17-BLA-0351.

          Before Flaum, Ripple, and Manion, Circuit Judges.

          Flaum, Circuit Judge.

         Ralph Ross worked as a coal miner for approximately thirty years. He smoked cigarettes for almost as long but was able to quit after his first heart attack. Ross continued to work as a coal miner even though he suffered another heart attack and had difficulty breathing at work. Approximately six years after Ross stopped working in the coal mines, his breathing problems became severe.

         On January 19, 2012, Ross filed a claim for benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. At first, the administrative law judge ("ALJ") denied Ross's claim. Ross petitioned the United States Department of Labor's Benefits Review Board (the "Board") for review, and the Board vacated and remanded the ALJ's decision for further consideration. On remand, the ALJ granted Ross's claim. Ross's former employer, petitioner Consolidation Coal Company (the "Employer"), petitioned the Board for review, and the Board affirmed the ALJ's subsequent decision. Then the Employer filed this appeal. We enforce the decision of the Board.

         I. Background

         A. Statutory and Regulatory Framework

         Congress passed the Black Lung Benefits Act (the "Act") in light of the "significant number" of coal miners who became "totally disabled" from working in coal mines. 30 U.S.C. § 901(a). Under the Act, coal miners may receive modest monetary and medical benefits to treat their pulmonary impairments. See id. To establish eligibility for such benefits, a coal miner must show: (1) he has pneumoconiosis, (2) the pneumoconiosis arose out of coal mine employment, (3) he is totally disabled, and (4) the pneumoconiosis contributes to the total disability. 20 C.F.R. § 725.202(d).

         The Act and its implementing regulations define pneumoconiosis as "a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment." 30 U.S.C. § 902(b); 20 C.F.R. § 718.201(a). And the regulations define two subcategories of pneumoconiosis: "Clinical pneumoconiosis" refers to "those diseases recognized by the medical community as pneumoconioses, i.e., the conditions characterized by permanent deposition of substantial amounts of particulate matter in the lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust exposure in coal mine employment." 20 C.F.R. § 718.201(a)(1). "Legal pneumoconiosis" refers to "any chronic lung disease or impairment and its sequelae arising out of coal mine employment. This definition includes, but is not limited to, any chronic restrictive or obstructive pulmonary disease arising out of coal mine employment." Id. § 718.201(a)(2).

         To establish a respiratory or pulmonary impairment that is "totally disabl[ing]" and qualifies him for benefits under the Act, a miner must show that the impairment prevents him from performing his usual coal mine work and from engaging in gainful employment that requires similar skills to his coal mining job and that is near his home. Id. § 718.204(b)(1)(i)-(ii). Additionally, the coal miner must satisfy certain medical criteria. Id. § 718.204(b)(2). "In absence of contrary probative evidence," evidence that meets any of the standards outlined in § 718.204(b)(2)(i)-(iv) "shall establish a miner's total disability." Id. Under subparagraph (i), pulmonary function tests "showing values equal to or less than those listed in [certain tables in] Appendix B to this part for ... the FEVi test" qualify "if, in addition, such tests also reveal the values ... equal to or less than those listed in ... Appendix B for this part, for ... the FVC test, or ... the MVV test, or ... [a] percentage of 55 or less when the results of the FEVi test are divided by the results of the FVC test (FEVi/FVC equal to or less than 55%)." Under subparagraph (ii), arterial blood gas tests that "show the values listed in Appendix C to this part" qualify. Under subparagraph (iii), medical evidence showing the miner suffers from "cor pulmonale with right-sided congestive heart failure" qualifies. And subparagraph (iv) provides:

Where total disability cannot be shown under paragraphs (b)(2)(i), (ii), or (iii) of this section, or where pulmonary function tests and/or blood gas studies are medically contraindicated, total disability may nevertheless be found if a physician exercising reasoned medical judgment, based on medically acceptable clinical and laboratory diagnostic techniques, concludes that a miner's respiratory or pulmonary condition prevents or prevented the miner from engaging in employment as described in paragraph (b)(1) of this section.

         Congress intended for the Act to serve a remedial purpose and for doubts "[i]n the absence of definitive medical conclusion[s]" to be resolved in the miner's favor. S. Rep. No. 92-743, at 2315. Accordingly, the Act includes a rebuttable presumption that a miner may invoke if the miner can establish that he has spent at least fifteen years working in a coal mine and establish pursuant to § 718.204 that he suffers from a totally disabling respiratory or pulmonary impairment.[1] See 30 U.S.C. § 921(c)(4); 20 C.F.R. § 718.305. If the miner can make that showing, the miner is presumed to be totally disabled by pneumoconiosis. 20 C.F.R. § 718.305(c)(1). The miner's employer may rebut that presumption either by disproving the existence of legal and clinical pneumoconiosis, or by ruling out pneumoconiosis as a partial cause of the miner's disability. Id. § 718.305(d)(1).

         B. Factual Background

         Ross spent thirteen years working underground in the mine and at least seventeen years working on the surface of the mine. Throughout his career, the dust from the mine was inescapable. After a day's work, his clothes were "too nasty" to take inside his home, so he would shower at work, change into different clothes, and leave his work clothes hanging in his garage. Cleaning his work clothes required using the laundromat's special washer for coal miner's clothes, and even then, it took two wash cycles to remove the dust and grease from the coal mine.

         Starting at the age of twenty and for approximately the next thirty years, Ross smoked between one-half to two packs of cigarettes per day, though sometimes he would begin smoking a cigarette, but would be too busy with work to finish it, so he'd extinguish it and go back to work. He quit smoking in 1989 after suffering his first heart attack. Unfortunately, Ross had another serious heart attack in 1995, and he suspects he had a third heart attack in 1998.

         Ross had breathing problems while working in the coal mines. He struggled to carry his tools while climbing the stairs and he often had to take breaks to catch his breath. And yet, Ross kept working. That is, he kept working until his employer "let [him] go" in 2000 because he "got blinded in the right eye." At that time, Ross said he felt he could still do his job from a cardiac standpoint and that from a pulmonary standpoint, he "was trying." Since his coal mining career ended, Ross has not held steady employment. To stay busy, Ross volunteered by cutting firewood with a chainsaw, mowing lawns with a riding lawnmower, and putting up hay with a square baler.

         Ross said his breathing problems became severe in 2006 or 2007. He has testified that since that time, he cannot walk around his house and yard like he used to, and it takes him longer to complete daily tasks, namely feeding his animals and mowing the lawn. Although he takes medication for his breathing problems, he can only perform fifteen to twenty minutes of work before he has to sit down to take a break for thirty-five to forty minutes. Ross uses an oxygen monitor to make sure his oxygen does not fall so low as to risk stroke or death. When his oxygen levels get too low, Ross uses supplemental oxygen.

         C. Procedural Background

         1. The ALJ's Firs t Decision

         On January 19, 2012, Ross filed a claim for benefits under the Act. The District Director awarded Ross benefits in October 2012; the Employer requested a hearing before the Office of Administrative Law Judges. In preparation for that hearing, the Director of the Office of Workers' Compensation Programs in the United States Department of Labor (the "Director"), Ross, and the Employer gathered medical evidence to present to the ALJ. The hearing occurred on October 23, 2013; Ross and his wife both testified. After the hearing, Ross and the Employer submitted briefs and the ALJ issued a decision denying benefits on September 8, 2014.

         The ALJ determined that Ross had over fifteen years of qualifying coal mine employment, and in turn, focused on whether Ross was entitled to invoke the fifteen-year presumption by establishing a totally disabling respiratory or pulmonary impairment using qualifying medical evidence. Beginning with the pulmonary function tests, the ALJ noted that the parties submitted three such exams for Ross. Dr. Taz-baz, on behalf of the Department of Labor, performed the first exam on Ross on February 13, 2012, and that exam produced qualifying values prebronchodilator. Dr. Tuteur, on behalf of the Employer, performed two more exams on Ross on June 28, 2012, and those exams produced nonqualifying values prebronchodilator and postbronchodilator. Since the ALJ found the more recent results to be the best indicator of Ross's pulmonary condition, the ALJ concluded that the pulmonary function testing, standing alone, did not support a finding of total disability under 20 C.F.R. § 718.204(b)(2)(i).

         Then, the ALJ discussed the blood gas studies: Ross underwent four such studies, two at rest and two after exercise. In both "after exercise" studies, Ross's PCCh increased and his PO2 decreased, thereby producing qualifying values. The ALJ noted that Dr. Tazbaz concluded that these studies showed that Ross had a "pulmonary limitation to exercise with hypoxemia that requires oxygen," and that Dr. Tuteur indicated that the "after exercise" qualifying result was abnormal, but a reflection of a development of oxygen gas exchange impairment after exercise. The ALJ found that the blood gas studies, standing alone, supported a finding of total disability under § 718.204(b)(2)(ii).

         Next, the ALJ briefly noted that there was no evidence that Ross had cor pulmonale with right-sided congestive heart failure, so total disability could not be supported on that basis. See id. § 718.204(b)(2)(iii).

         Finally, the ALJ considered the medical opinion evidence of three doctors. First, Dr. Tazbaz opined that Ross was "severely impaired with desaturation on exercise test" and "cannot do his activities in last year of employment." He diagnosed Ross with chronic obstructive pulmonary disease, coal workers' pneumoconiosis, coronary artery disease, and hypoxemia with exercise. He opined that the cause of these conditions was exposure to coal mine dust and cigarette smoke. Second, Dr. Tuteur indicated that Ross had a "minimal obstructive abnormality and some air trapping," but he opined that this was "not clinically meaningful and ... is [in] no way associated with any disability or reduced function." Dr. Tuteur explained that Ross's hypoxemia and blood gas results were "most likely ... due to a right to left intracardiac shunt unrelated to the inhalation of coal mine dust, but consistent with complications of the coronary artery disease, myocardial infarctions, surgical treatment and their sequelae."[2] And Dr. Tuteur opined that there was no evidence to support legal or clinical coal workers' pneumoconiosis or any coal-mine-dust-related pulmonary process. Finally, Dr. Selby reviewed Ross's medical records and submitted a report of his findings. In that report, dated March 18, 2013, Dr. Selby opined that Ross was not totally disabled from a pulmonary or respiratory standpoint. Dr. Selby also testified at a deposition on September 10, 2013: In his opinion, Ross's minor pulmonary impairment was due to his extensive cigarette smoking and prior history of histoplasmosis or tuberculosis. He explained that Ross's post-exercise levels demonstrated serious hypoxia, which "might cause some limitation." But Dr. Selby testified that the cause of Ross's drop in oxygen was not pulmonary in nature because his pulmonary function tests were normal, which "is virtually 100 percent predictive of no lung disease." He testified that the evidence is "exactly to the contrary" of a finding of total disability due to a pulmonary condition.

         The ALJ summarized the medical opinion evidence, in relevant part, as follows:

All three physicians are board-certified in pulmonary and internal medicine, and only one physician, Dr. Tazbaz, opined that [Ross] was totally disabled from a pulmonary standpoint. Dr. Tuteur opined that [Ross] was totally disabled from a cardiac standpoint, and Dr. Selby did not find that [Ross] was totally disabled at all. With regard to the issue of total disability, Drs. Selby and Tuteur's opinions were well reasoned, documented, and supported by the totality of the medical evidence. Dr. Tazbaz's very minimal opinion did not consider [Ross's] other testing and medical evidence, or [Ross's] severe cardiac issues as ... potential causes of his impairment. Greater weight may be accorded an opinion supported by more extensive documentation over an opinion supported by limited medical data.... Accordingly, I find Dr. Tazbaz's opinion is entitled to less weight and it is not sufficiently documented. A doctor's opinion that is both reasoned and documented and is supported by objective medical tests and consistent with all the documentation in the record, is entitled to greater probative weight.... Therefore, based on the abovementioned discussion, I find that the medical opinion evidence, standing alone, does not support a finding of total disability. [See id. § 718.204(b)(2)(iv).]

         Then, the ALJ considered all the probative evidence and found that the preponderance of the evidence did not establish that Ross had a totally disabling respiratory or pulmonary impairment. As a result, the ALJ concluded that Ross was not entitled to invoke the fifteen-year presumption. Ultimately, the ALJ denied Ross's claim for benefits.[3]

         2. The First Petition for Review

         Ross petitioned the Board to review the ALJ's decision. The Director filed a response, asking the Board to vacate the denial of benefits and to remand the case for further consideration. The Employer also filed a response, and it moved to strike the Director's brief as violating 20 C.F.R. § 802.212(b), which limits the Board's consideration of arguments in response briefs to those that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.