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Dotson v. Peabody Coal Co.

decided: May 20, 1988.

VERNON DOTSON, PETITIONER,
v.
PEABODY COAL COMPANY, ET AL., RESPONDENTS



Petition for Review of an Order of the United States Department of Labor.

Bauer, Chief Judge, Manion, Circuit Judge, and Will, Senior Circuit Judge.*fn*

Author: Bauer

BAUER, Chief Judge.

Vernon Dotson filed a claim for black lung benefits in February 1977. An administrative law judge (ALJ) ruled that Mr. Dotson was entitled to benefits, but the Benefits Review Board (the Board) reversed that decision, concluding that Peabody Coal had rebutted the presumption of pneumoconiosis. We reverse the decision of the Board and remand Mr. Dotson's claim to the ALJ for rehearing.

I

Facts

Mr. Dotson worked in coal mine employment from 1933 to 1954 and from 1969 to 1977. He worked above ground in a preparation plant watching and repairing machinery, pushing buttons, and occasionally lifting heavy objects. After retiring in 1977, Mr. Dotson immediately filed for black lung benefits.

As is common in black lung cases that come before this court, Mr. Dotson's record contains medical evidence both suggesting and negating pneumoconiosis. The evidence recommending pneumoconiosis includes a single reading of a chest x-ray taken in 1977, and a pulmonary function test (PFT) from November 1980 that produced sufficiently low values to invoke the interim presumption of pneumoconiosis under 20 C.F.R. § 727.203(a)(2).*fn1 Dr. Roger Mitchell, whose qualifications are not in the record, reviewed the PFT, remeasured certain values, and concluded that the PFT was "acceptable." Dr. Mitchell reviewed the tracings that accompanied the PFT and commented that "2 of three tracings look OK." Dr. Mitchell offered no other interpretation of the PFT, nor did he assess Mr. Dotson's physical condition.

Evidence offered by Peabody contradicting Mr. Dotson's proof includes three negative readings of the 1977 chest x-ray and two uncontradicted negative readings of a 1979 chest x-ray. Dr. Joseph J. Renn, Dr. James V. Vest, and Dr. E.J. Morgan reviewed the November 1980 PFT and all three concluded that it was invalid for several reasons, most notably Mr. Dotson's suboptimal effort and cooperation during the test. Two other physicians, Dr. Owen Taylor and Dr. Martin W. Davis, personally examined Mr. Dotson. In April 1977, Dr. Taylor diagnosed that Mr. Dotson suffered from "myocardial ischemia," but he found no evidence of pneumoconiosis. Dr. Davis conducted a thorough examination of Mr. Dotson in February 1979 and concluded that there was no evidence of pneumoconiosis nor of a permanent disability. He also found that Mr. Dotson was capable of performing his previous coal one employment. Finally, Dr. Peter Tuteur reviewed Mr. Dotson's entire medical file in October 1982. Included in Dr. Tuteur's review was a deposition of Mr. Dotson taken in August 1982. Dr. Tuteur concluded that there was no evidence in the record to support a diagnosis of pneumoconiosis.

A formal hearing on Mr. Dotson's case was held before ALJ Frederick Neusner on March 15, 1983. On June 17, 1983, the ALJ concluded that Mr. Dotson was entitled to benefits because Mr. Dotson had invoked the presumption of pneumoconiosis by virtue of the November 1980 PFT, and because Peabody had not rebutted that presumption. The ALJ found Dr. Mitchell's*fn2 appraisal of the PFT more credible than the evaluations by Drs. Vest, Morgan and Kenn. Among the reasons offered by the ALJ for disregarding the opinions of Drs. Vest, Morgan and Renn were: (1) Dr. Mitchell's qualifications to analyze the PFT were as good as Drs. Vest's, Morgan's and Renn's; (2) the conclusions of Dr. Morgan and Dr. Vest had focused on the FVC reading of the PFT, and not on the more pertinent FEV reading; and (3) Dr. Renn had only concluded that several things were wrong with the PFT, but he had not alleged that the quality standards found in the regulations were not met. Accordingly, the ALJ determined that the results of the PFT should be accepted and Mr. Dotson was entitled to the presumption of pneumoconiosis.

With respect to Peabody's attempt to rebut the interim presumption, the ALJ determined that the physical examinations conducted by Dr. Davis in 1979 and Dr. Taylor in 1977 were persuasive, and that the presumption of pneumoconiosis was rebutted for the time period until November 1980. However, the ALJ determined that Peabody had not offered any evidence to rebut the presumption triggered by the qualifying PFT score. The ALJ concluded that Peabody had offered no evidence to suggest that Mr. Dotson did not have pneumoconiosis after November 1980 or that Mr. Dotson could do his usual coal mine work or comparable or gainful work after that date.

The Board reversed the judgment of the ALJ on the ground that Peabody had established rebuttal as a matter of law under 20 C.F.R. § 727.203(b)(2).*fn3 The Board noted that the ALJ had accepted as valid the medical opinions of Drs. Davis and Taylor that Mr. Dotson did not have pneumoconiosis and that he could perform his usual coal mine work. The Board then said that the ALJ's reason for rejecting that evidence for the post-1980 period was invalid. That is, the Board reasoned that the November 1980 qualifying PFT did not contradict the opinions of Drs. Davis and Taylor because the PFT was not probative of whether Mr. Dotson had pneumoconiosis or could perform coal mine work.

II

Discussi ...


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