Appeal from the United States Department of Labor Benefits Review Board.
Cudahy, Posner, and Ripple, Circuit Judges.
This is a petition for review of an order of the Benefits Review Board of the United States Department of Labor (the "Board"). The Board reversed an award by an administrative law judge (the "ALJ") granting benefits to the petitioner*fn1 under the Black Lung Benefits Act, 30 U.S.C. §§ 901, et seq. (the "Act"). The decision of the Board must be reversed.
We turn first to the decision of the ALJ. As determined by the ALJ, claimant Juanita V. Smith is the widow of William F. Smith. William Smith worked in various coal mines from 1941 to 1971. Smith last worked at respondent Parke Coal Company, from 1966 to 1971. He retired in 1971. On February 20, 1976, Smith died at the age of 62.
Based on these facts, claimant Smith was the beneficiary of a presumption that she was entitled to the payment of benefits under the Act. See 30 U.S.C. § 921(c)(5).*fn2 To defeat entitlement to benefits, that presumption must be rebutted by a showing (1) that the miner did not suffer from pneumoconiosis;*fn3 or (2) that the miner was not totally or partially disabled; or (3) that any partial or total disability which the miner may have suffered was not due to pneumoconiosis See id.; Bishop v. Peabody Coal Co., 690 F.2d 131, 134 (7th Cir. 1982). Before the ALJ Parke Coal attempted to rebut the presumption by a showing under alternative (3)--that any partial or total disability which the miner may have suffered was not due to pneumoconiosis. To this end, Parke Coal introduced the deposition of Kenneth Wilhelmus, M.D.
Dr. Wilhelmus examined only Smith's medical and employment records. He never examined Smith alive or dead. Dr. Wilhelmus acknowledged that Smith was disabled and that he had pneumoconiosis. According to Dr. Wilhelmus, however, Smith's disability was due to his heart problems, not pneumoconiosis:
After examining all of the protocol, I came to an opinion that Mr. Smith was ill, but his disability and illness was due to his heart and cardiovascular system, and no place in the record did I find any mention of pneumoconiosis, and various X-rays and reports of X-rays, histories, hospital summaries, both locally and at Indiana University, but except in one X-ray interpretation by Dr. Charles D. Smith, who is a qualified radiologist and a B reader,*fn4 and he stated that in his opinion the X-ray showed Q-type opacities, small, rounded, and profusion of 1/0 in all six zones of the chest. This profusion is the smallest possible and still have a diagnosis of pneumocomosis. I do not, in my opinion, think that his disability or illness was due to pneumoconiosis, although it's on his chest X-ray film.
In my opinion, the extent of the pneumoconiosis would not prevent him from doing his usual, customary job description at the above-ground coal mine where he worked. His disability was due to heart condition.
I would be of the opinion that he would be asymptomatic had he had a normal heart and cardiovascular system because of the minuteness of the pneumoconiosis.
For three reasons, the ALJ discounted Dr. Wilhelmus' opinion and, thus, found that Parke Coal failed to rebut Juanita Smith's presumed entitlement to benefits. First, Dr. Wilhelmus had never examined the decedent, undertaking only a review of medical and employment records. Second, Dr. Wilhelmus did not know of Smith's history of breathing problems. Three witnesses, Juanita Smith the decedent's son and a neighbor testified to Smith's respiratory problems: shortness of breath upon exertion, coughing spasms and sleeping difficulties.*fn5 All of these symptoms are consistent with pneumoconiosis. The ALJ, before whom the witnesses testified, found their accounts credible.
The third reason the ALJ discounted Dr. Wilhelmus' analysis was because that analysis was, in part, based upon incorrect facts. Questioned about Smith's respiratory problems, Dr. Wilhelmus responded, "He had respiratory problems from tobacco abuse." Dr. Wilhelmus stated that Smith's tobacco abuse consisted of smoking two to three packs of cigarettes per day for thirty years. Actually, according to the medical report Dr. Wilhelmus reviewed, Smith had smoked, variously, cigarettes, cigars, and pipes for thirty years.*fn6 Nowhere in the records reviewed by Dr. Wilhelmus is there an indication that Smith had smoked two or three packs of cigarettes per day. In fact the records did not indicate the amount of tobacco Smith used daily. Confronted with this discrepancy, Dr. Wilhelmus stated, "I've just completed reviewing twelve other [miners' case] histories and one of them right before I read this had two or three packs. That's where I got that."
In conjunction with the Wilhelmus review, Parke Coal relied upon Smith's death certificate. That certificate listed the causes of death as cardiopulmonary arrest and myocardial infarction. The certificate did not mention pneumoconiosis. Having found the analysis of Dr. Wilhelmus flawed, the ALJ determined that Parke Coal, relying ...