Big Horn Coal Company v. Edward Temple and Director, Office of Workers' Compensation Programs, United States Department of Labor, 793 F.2d 1165, 10th Cir. (1986)

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Filed: 1986-06-16 Precedential Status: Precedential Citations: 793 F.2d 1165 Docket: 85-1232
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  793 F.2d 1165 BIG HORN COAL COMPANY, Petitioner,v.Edward TEMPLE and Director, Office of Workers'CompensationPrograms, United States Department of Labor, Respondents.  No. 85-1232. United States Court of Appeals,Tenth Circuit.  June 16, 1986. John S. Lopatto, III, of Freedman, Levy, Kroll & Simonds, Washington,D.C., for petitioner.Diane Hodes, of U.S. Dept. of Labor, Office of the Solicitor, (J. MichaelO'Neill, Francis X. Lilly and Donald S. Shire, with her on brief),Washington, D.C., Edward J. Scheunemann, Denver, Colo., and Bruce P.Badley (Badley and Rasmussen) of Sheridan, Wyo., for respondents.Before BARRETT, McKAY and TACHA, Circuit Judges.PER CURIAM.1Big Horn Coal Company (Big Horn) petitions this court to review a final order of a Department of Labor Benefits Review Board (Board) affirming an Order of an administrative law judge (ALJ) awarding disability benefits to EdwardTemple (Temple), an employee of Big Horn, under the Black Lung BenefitsAct, 30 U.S.C. Secs. 901-945 (the Act). Jurisdiction of this court to review theBoard's Order arises under 33 U.S.C. Sec. 921(c) as incorporated into the Act by 30 U.S.C. Sec. 932(a).2Temple was employed as a surface coal miner by Big Horn Coal Company of Sheridan, Wyoming, from 1940 until his retirement on January 1, 1978. Beforehis retirement, Temple filed a claim for benefits under the Act on May 28,1976. On June 2, 1977, the Department of Labor's Claims Examiner informally  * * ** * *denied Temple's claim because neither the X-ray report nor the ventilatorystudy showed pneumoconiosis under the applicable regulations. (Dir. Exh. 12.)3On March 1, 1978, the Act was amended. The Department of Labor (DOL) re-opened and reviewed Temple's srcinal application under new regulationsimplementing the 1978 amendments. (Dir. Exh. 3.) On February 8, 1979, theDOL reversed its informal denial and ruled that Temple was entitled to benefitsunder the Act. (Dir. Exh. 14.) By letter dated February 13, 1979, Big Horngenerally controverted Temple's claim and requested a hearing. (Dir. Exh. 16.)4A hearing was held in Sheridan, Wyoming, before an ALJ on July 23, 1980.On January 20, 1981, the ALJ issued a Decision and Order finding that Templehad pneumoconiosis under the interim presumption in 20 C.F.R. Sec.727.203(a)(3), which provides:5(a) Establishing interim presumption. A miner who engaged in coal mineemployment for at least 10 years will be presumed to be totally disabled due to pneumonconiosis, or to have been totally disabled due to pneumoconiosis at thetime of death, or death will be presumed to be due to pneumoconiosis, arisingout of that employment, if one of the following medical requirements is met:678(3) Blood gas studies which demonstrate the presence of an impairment in thetransfer of oxygen from the lung alveoli to the blood as indicated by valueswhich are equal to or less than the values specified in the following table....9The ALJ specifically found that a P.C.O.2 of 31 and a P.O.2 of 57 at rest and aP.C.O.2 of 32 and a P.O.2 of 67 upon exercise satisfies the applicable criterianecessary to invoke the presumption contemplated by Sec. 727.203. (R. Vol. I, p. 82).10After finding the interim presumption triggered, the ALJ determined whether or not Big Horn had rebutted the presumption under section 727.203(b):11(b) Rebuttal of interim presumption. In adjudicating a claim under this subpart,all relevant medical evidence shall be considered. The presumption in paragraph [20 CFR Sec. 727.203(a) ] shall be rebutted if:  12(1) The evidence establishes that the individual is, in fact, doing his usual coalmine work or comparable and gainful work ...; or 13(2) In light of all relevant evidence it is established that the individual is able todo his usual coal mine work or comparable and gainful work ...; or 14(3) The evidence establishes that the total disability or the death of the miner did not arise in whole or in part out of coal mine employment; or 15(4) The evidence establishes that the miner does not, or did not, have pneumoconiosis.1620 C.F.R. Sec. 727.203(b). The ALJ ruled that Big Horn failed to rebut theinterim presumption under any of these methods. He specifically found asfollows:17There can be no question but that this 68-year old retired miner with a long termrecord of exposure to dust in his many years of coal mine employment has pneumoconiosis as that term is defined by Sec. 727.202. Dr. Seymour Thickman testified that Mr. Temple had pneumoconiosis. Dr. James J. Battystated that he had chronic bronchitis. Dr. Frederick A. Mathews, a specialistin Radiology, testified that the films of Mr. Temple's lungs were compatiblewith pneumoconiosis. There was no medical evidence that would allow me tofind that Mr. Temple did not have any chronic pulmonary disease resulting inrespiratory or pulmonous impairment significantly related, or aggravated bydust exposure in coal mine employment. (Sec. 727.202.)18The only serious defense to this claim is the employer's contention to the effectthat Mr. Temple can still do his usual coal mine work. This only remainingelement of an attempted rebuttal of the presumption in claimant's favor was putto rest by the testimony of George Nugent, the General Manager for Peter Kiewit Son's, Inc. (the operator of Big Horn) from 1943 until 1975. Mr. Nugenttestified that Mr. Temple was a working foreman who could no longer  continue the physical exertion that a person would have being a minesuperintendent where you really have to put in a lot of time and a lot of physicaleffort (Tr. 81).19(R., Vol. I, p. 83.) The ALJ therefore awarded benefits to Temple and orderedBig Horn to pay them. On February 12, 1981, Big Horn appealed the ALJ'sDecision and Order to the DOL's Benefits Review Board. On December 13,  1984, the Board entered its Decision and Order affirming the ALJ.20Big Horn raises several issues in its petition to review the Board's Decision andOrder. We need to address, however, only the following dispositive issue:whether the Board erred in approving the ALJ's evaluation of the arterial bloodgas tests without considering the effect of altitude, age, and weight.21Big Horn argues that even if the interim presumption is valid, the ALJ failed toconsider the rebuttal evidence it offered concerning altitude, age, and weight.Specifically, the ALJ ignored testimony by Dr. Hoyer, a physician whoreviewed and commented on Temple's 1979 ABG test results, and whosetestimony Big Horn contends rebutted the section 727.203(a)(3) interim presumption. The Director of the Office of Workers' Compensation Programs,DOL (Director) maintains that while the table values in section 727.203(a)(3)are not adjusted for altitude and age, These factors are, instead, considered onrebuttal, together with all other medical evidence relating to the cause or interpretation of the blood gas test results. (Director's Response Brief, p. 8.)22The Director concedes that the ALJ erred in failing to consider Dr. Hoyer'sanalysis on rebuttal: Dr. Hoyer found that the test did not establish a pulmonary abnormality in light of the post-exercise results, the age of theminer, and the altitude at which the test was performed; Dr. Thickman, incontrast, found that the arterial blood gas test results reflected a significantabnormality. While the Administrative Law Judge erred in failing to consider these conflicting opinions on rebuttal, this error is harmless. (Director'sResponse Brief, p. 17 (footnote omitted).) The Director concludes that thiserror was harmless because even had the ALJ considered Dr. Hoyer's analysis,his analysis could not legally establish rebuttal. Id. Relying on the BenefitsReview Board's decision in Martino v. United States Fuel Co., 6 Black LungRep. 1-33 (1983), Big Horn argues that the ALJ's failure to consider Dr.Hoyer's testimony as rebuttal evidence is reversible error.23In Martino, as in this case, the Board rejected a challenge to the validity andconstitutionality of the section 727.203(a)(3) interim presumption because thetable standards were not adjusted for altitude. The Board held: If a blood gasstudy meets the table standards, then it is qualifying regardless of the altitude atwhich it was conducted. Id. at 1-42. The Board, however, went on to explainthat the ALJ must consider rebuttal evidence regarding the effect of altitude andother factors on the ABG test results:24Although altitude may not be considered for invocation of the presumption, it is
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