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Consolidation Coal Company v. Director

June 25, 2002


Petition for Review from the Benefits Review Board of the United States Department of Labor BRB No. 00-954 BLA

Before Flaum, Chief Judge, and Coffey and Kanne, Circuit Judges.

The opinion of the court was delivered by: Coffey, Circuit Judge.


Petitioner Consolidation Coal Company ("Consol") appeals an order of the Benefits Review Board of the United States Department of Labor ("DOL") granting Respondent James E. Stein's ("Stein") claim for relief under the Black Lung Benefits Act. We enforce the decision of the Board.


This is the second time that Stein's claim for benefits, originally filed in July 1994, has come before the court. Stein worked as a mechanic at Consol's Burning Star mine in DeSoto, Ill., from 1978 to 1989, when the mine was closed and abandoned, and he filed for black lung benefits after his respiratory ailments became so debilitating that he was unable to continue working as a carpenter. Administrative Law Judge ("ALJ") Mollie W. Neal took Stein's claim under submission and, after review, issued an order awarding benefits in March 1997.

Consol appealed, and we granted the petition and remanded this case in March 1999, noting that "the ALJ found the existence of pneumoconiosis but failed to discuss a CT scan that was taken of Stein's thorax" and interpreted by the coal company's physician, Dr. Robert M. Bruce, as negative for black lung disease. *fn1 In remanding the case, we stated that a CT scan plays "an increasing role in the radiologic evaluation of occupational lung disease" and is a "valuable part of the evaluation process." We added: "Without a written discussion of the relevant medical evidence, including the CT scan, we cannot determine whether the ALJ discharged her duty under the law before determining Stein suffered from pneumoconiosis. We, therefore, cannot determine whether her decision was rational and supported by substantial evidence." Thus, this case was remanded for reconsideration and an explanation of whether Stein could invoke the presumption that he has black lung disease despite Dr. Bruce's opinion that the CT scan ruled out such a possibility.

On remand, Judge Neal found that Dr. Bruce's negative reading of the CT scan was unreliable and unconvincing, as the record is bereft of any evidence reflecting that Dr. Bruce has any specialized knowledge, training, or experience in the field of radiology. In the penultimate sentence of her opinion, the judge stated: "I have now considered the CT scan evidence of record, as instructed by the Court of Appeals, and find that the outcome remains unchanged. . . . Claimant has established the existence of pneumoconiosis." The coal company once again appeals, now alleging that the ALJ erred in: (1) invoking the statutory presumption that Stein has pneumoconiosis; and (2) failing to find that the coal company rebutted this presumption by proffering evidence that Stein's disability is unrelated to mining and instead is wholly attributable to asthma, bronchitis, or smoking.


Stein suffered daily exposure to coal dust during his eleven years of employment at Consol, where he worked from 1978-89 in a dilapidated garage with conditions that were unhealthful, to say the least. The garage was located but an eighth of a mile from the tipple of the mine--a notoriously dusty area where coal is crushed for shipment to customers. Dust would regularly fall in Stein's face as he performed his assigned task of repairing and maintaining the bulldozers and trucks used throughout the mine. Stein's job duties required that he get on his back and wriggle under the vehicles in order to disassemble machine parts and drag them to other areas of the shop for refurbishing. The parts frequently weighed as much as forty pounds and were "packed full of coal dust, all the way to the top of the frame." Yet it is unclear from the record whether the company provided its mechanics with face masks, despite the fact that the wind often blew coal dust into their workstations and they were in daily contact with soot-covered machinery. *fn2

The medical record introduced into evidence included a CT scan, two x-rays, numerous medical reports and test results, several depositions, and a transcript of testimony taken at a hearing in Carbondale, Ill. While the parties agree that Stein is suffering from obstructive bronchitis and asthma, they disagree as to whether he has black lung disease or whether his exposure to coal dust aggravated his asthmatic bronchitis. The petitioner relies partly on the opinion of Dr. Locke, a physician who opined that Stein's x-ray was negative for pneumoconiosis. *fn3 Consol also relies heavily on the opinion of Dr. Robert M. Bruce, who testified that neither the x-ray nor the CT scan of Stein's thorax established the presence of black lung disease. *fn4 Based on his examination of the CT scan and review of Stein's medical history, Dr. Bruce concluded that Stein's disability is unrelated to his work as a coal miner and cannot be attributed to pneumoconiosis. Stein, on the other hand, bolsters his claim with the testimony of two B-readers, *fn5 one of whom also is a board certified radiologist, who concluded that the x-ray was positive for black lung. *fn6 Stein also relies on the testimony of Dr. Robert A.C. Cohen, who determined that Stein suffers from black lung disease and that his additional pulmonary problems were substantially aggravated by exposure to coal dust. *fn7

After a review of the record, ALJ Neal relied upon and adopted the opinions of those medical experts who found that Stein's spirometry, blood gas, pulmonary function and x-ray tests established the existence of pneumoconiosis. *fn8 The judge explicitly found that Dr. Bruce's negative reading of the CT scan was unreliable, for the judge was of the opinion that the record failed to establish that he has sufficient knowledge, training, or expertise in reading and interpreting a CT scan for the diagnosis of legal pneumoconiosis. Judge Neal also determined that the coal company failed to rebut the inference that Stein's eleven years of employment at the Burning Star coal mine was the legal cause of his disability. Based upon all of the medical information and in view of Stein's eleven years of coal mine employment, the judge again ruled that Stein is entitled to benefits, and the Board affirmed.


The issue before us is whether the ALJ's award of benefits under the Black Lung Benefits Act was lawful, rational, and supported by substantial evidence. The governing regulations provide that "[a] finding of pneumoconiosis may be made," and the claimant will thereafter be presumptively entitled to benefits, if he: (1) establishes that he worked in the coal mines for ten years or more; and (2) produces an x-ray test that, in the opinion of a qualified physician, discloses the presence of black lung disease. 20 C.F.R. § 718.202(a)(1). This is referred to as the "10-year presumption." Crowe v. Director, 226 F.3d 609, 614 n.7 (7th Cir. 2000). Once the miner is entitled to such a presumption, the burden shifts to the employer to demonstrate that: (1) ...

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