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George Pancake v. AMAX Coal Co.

decided: September 27, 1988.

GEORGE PANCAKE, PLAINTIFF-APPELLANT,
v.
AMAX COAL COMPANY AND DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, DEFENDANTS-APPELLEES



1 Petition for Review of an Order of the Benefits Review Board, United States Department of Labor. No. 85-314 BLA.

Flaum, Manion and Kanne, Circuit Judges.

Author: Kanne

KANNE, Circuit Judge.

In 1984, an Administrative Law Judge awarded "black lung" benefits to George Pancake under the Black Lung Benefits Act of 1977. The Benefits Review Board of the United States Department of Labor reversed that award. George Pancake now seeks review of the Board's decision and order. We grant the petition for review and direct remand to the Administrative Law Judge for further proceedings.

I. BACKGROUND

George Pancake worked as a coal miner for well over twenty-five years. All but one week of his entire career was spent working in surface mines where he was exposed continually to coal dust. He worked for Blackfoot Coal and Land Corporation from the 1930's until the 1960's. Later, he worked for AMAX Coal Co. from April 18, 1968, until his retirement on November 12, 1974.

Prior to his retirement, George Pancake began to experience a tightness in his chest and difficulty in breathing, and he developed a persistent cough. Because of these problems, he retired at age 62. His condition has worsened 2 since then and he now is unable to perform even simple household activities or hobbies. He regularly uses a medicated breathing aid and is plagued by shortness of breath.

On June 9, 1978, George Pancake filed a claim for benefits under the Black Lung Benefits Act of 1977, 30 U.S.C. §§ 901-945. On February 20, 1980, the deputy commissioner of the Department of Labor's Office of Workers' Compensation Programs ("OWCP") initially determined that George Pancake was entitled to receive benefits under 20 C.F.R. § 727.203 et seq. AMAX*fn1 contested this determination and requested a hearing before an administrative law judge.

Because George Pancake's claim was filed before April 1, 1980, it is governed by the "interim regulations" of Part C of the Act. See 30 U.S.C. § 931 et seq. Under the regulations, a miner who is engaged in coal mining employment for at least ten years is presumed to be totally disabled due to pneumoconiosis ("black lung") if one of five medical requirements is met: (1) a chest x-ray, 3 biopsy, or autopsy establishes the existence of the disease; (2) ventilatory studies establish the presence of a chronic respiratory or pulmonary disease; (3) blood gas studies demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood; (4) other medical evidence establishes the presence of a totally disabling respiratory or pulmonary impairment; and a fifth requirement which is irrelevant to this case.*fn2 If such evidence is introduced, a presumption arises that the claimant is entitled to black lung benefits. However, this presumption may be rebutted by evidence that: (1) the claimant is still working in the coal mine or performing comparable work; (2) the claimant is able to perform his usual coal mine work or similar work; (3) the miner's disability was not caused by his coal mine employment; or (4) the miner actually does not have pneumoconiosis. See 20 C.F.R. § 727.203(b)(1)-(4).*fn3

4

On July 25, 1984, an Administrative Law Judge ("ALJ") conducted a hearing on George Pancake's claim for benefits. The ALJ approved that claim on December 27, 1984. In his decision and order, the ALJ first noted that George Pancake had worked as a coal miner for over ten years. The ALJ then found that ventilatory studies established the presence of a chronic respiratory or pulmonary disease (20 C.F.R. § 727.203(a)(2)) and that "other medical evidence" established the presence of a disabling respiratory or pulmonary impairment (20 C.F.R. § 727.203(a)(4)).*fn4 These findings created a presumption that George Pancake was totally disabled due to pneumoconiosis and thus was entitled to benefits under the Act. The 5 ALJ then discussed the rebuttal evidence offered at the hearing.

As the "responsible operator," AMAX had offered evidence to rebut that presumption, arguing that George Pancake's disability did not arise out of coal mine employment (20 C.F.R. § 727.203(b)(3)) and that he in fact does not have pneumoconiosis (20 C.F.R. § 727.203(b)(4)). AMAX sought to prove that George Pancake's disability was the result of many years of cigarette smoking which had resulted in chronic pulmonary and respiratory impairments.

At the hearing, AMAX first relied upon the deposition and written medical report of Dr. Kenneth Wilhelmus, who examined George Pancake on September 17, 1980.*fn5 Dr. Wilhelmus administered several medical tests, including a chest x-ray, pulmonary function tests, an electrocardiogram, and arterial blood gas studies. Based upon the results of the tests and a complete physical examination of George Pancake, Dr. Wilhelmus concluded that George Pancake did not have pneumoconiosis. Instead, George Pancake had a chronic obstructive 6 pulmonary disease, pulmonary emphysema, and mild chronic bronchitis.*fn6 Dr. Wilhelmus opined that the respiratory problems were caused by George Pancake's extensive history of smoking cigarettes, rather than exposure to coal dust.*fn7

AMAX also introduced the written medical report of Dr. William H. Getty, who had examined George Pancake on January 4, 1979. Like Dr. Wilhelmus, Dr. Getty reviewed chest x-rays and pulmonary study results. Dr. Getty concluded that George Pancake suffered from "possible arteriosclerotic heart disease" and "chronic bronchitis." He opined that the bronchitis was "probably ...


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