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Rag American Coal Co. v. Office of Workers' Compensation Programs

August 5, 2009


Petition for Review of an Order of the Benefits Review Board. No. 06-BLA-0967.

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


Before CUDAHY, KANNE, and TINDER, Circuit Judges.

Jimmie D. Buchanan worked in Indiana coal strip mines for 20 years, enduring the constant exposure to dust customary for that line of work. He now suffers from substantial pulmonary/respiratory problems. He filed two claims for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945. His first claim was denied. On his second claim, he was awarded benefits. RAG American Coal Company (RAG) petitions for review of the order of the Benefits Review Board (Board), affirming the award. RAG contends that res judicata bars his second claim. We affirm.

I. Background

In 1993, Jimmie D. Buchanan filed an application for black lung benefits. He claimed that he had lung disease caused by inhalation of coal dust. He had worked in coal mines for 20 years. He also smoked cigarettes for 36 years, averaging about one pack per day until cutting back during his last year as a miner, quitting entirely in 1994. In defending the claim, the employer contested that Buchanan had pneumoconiosis, that he was totally disabled, and that his disability was due to pneumoconiosis.*fn1

On July 27, 1996, Administrative Law Judge (ALJ) J. Michael O'Neill issued his decision and order, denying benefits. He concluded that the record established that Buchanan stopped working because of his back condition and he was totally disabled due to his back injury. He also found that Buchanan had a pulmonary impairment which precluded him from working. The ALJ determined that Buchanan did not have pneumoconiosis, however. In so doing, he gave greater weight to the opinions of Drs. Peter Tuteur and Frank Taylor that Buchanan's emphysema and bronchitis were caused by cigarette smoking than to the opinions of Drs. Dan Combs and William Houser that exposure to coal mine dust was a significant factor in Buchanan's lung impairment. ALJ O'Neill found that "[e]xposure to coal mine dust was neither a sufficient nor necessary cause of [Buchanan's] pulmonary disability" and that "pneumoconiosis is not a necessary cause of his disability." He concluded: "[E]ven if the claimant had never worked in surface coal mines . . . , he would be disabled today because of cigarette-smoke-induced emphysema and bronchitis, together with chronic back pain and somewhat limited range of motion." The ALJ thus determined that Buchanan failed to establish that he was totally disabled due to pneumoconiosis. On July 18, 1997, the Board affirmed the ALJ's decision. Buchanan took no further action on his first claim.

In August 1998, Buchanan filed a second claim for benefits. In defending the claim, RAG argued that Buchanan was not totally disabled by pneumoconiosis. On May 20, 2002, ALJ Rudolf L. Jansen issued his decision and order, awarding benefits. He considered the evidence developed after the Board's decision on Buchanan's first claim to determine whether Buchanan had shown that his condition had substantially worsened so as to entitle him to benefits. This included ten additional x-rays with numerous interpretations, two of which were positive for pneumoconiosis; five additional pulmonary function studies; and four additional arterial blood gas studies. It also included a report of an examination of Buchanan by internist Dr. Reynoldo Carandang from December 2, 1998; a consulting report and supplement by Dr. Robert Cohen, dated April 28, 1999, and November 6, 2000, respectively; a June 17, 1999 examination and opinion by Dr. Jeff W. Selby; progress notes from Dr. Stephen Shoemaker, Buchanan's family physician; hospital records from 2000; several progress reports dated from 1999 to October 2000, from Dr. Houser, Buchanan's treating pulmonologist; and consulting reports completed by Drs. Gregory Fino and Tuteur, board-certified pulmonologists, Dr. Joseph Renn, a pulmonary specialist, and Dr. David Hinkamp, board-certified in preventative medicine and occupational disease. Both Drs. Carandang and Houser opined that Buchanan suffered from a pulmonary disease that had arisen, in part, from his past coal dust exposure. In contrast, Drs. Selby, Fino, Tuteur, and Renn concluded that Buchanan's disabling pulmonary impairment was unrelated to his coal mine employment.

Giving greater weight to the opinions of Drs. Houser, Carandang, and Cohen and less weight to the opinions of Drs. Renn, Tuteur and Fino, ALJ Jansen found that Buchanan had established the existence of pneumoconiosis, thus showing a material change in his condition. The ALJ assigned the greatest weight to Dr. Houser's opinion based on his specialty in pulmonology, his familiarity with Buchanan's pulmonary condition due to his treatment of Buchanan since 1992, and the recency of his examination and report. In addition, he explained that Dr. Houser's reports and Dr. Cohen's opinions were well-documented and well-reasoned. The ALJ weighed Dr. Carandang's opinion favorably, in part, because he had examined Buchanan since the denial of his earlier claim, and the ALJ found the opinions of Drs. Cohen, Shoemaker, and Hinkamp supportive of Dr. Houser's diagnosis and conclusions.

The reports and opinions of Drs. Fino, Tuteur, and Renn were assigned less weight for two reasons. First, they relied on medical studies and literature which indicated that pneumoconiosis seldom arose in an obstructive disease and that in miners who were long-term smokers, any obstructive disease resulted from only tobacco smoke, not coal dust exposure. The ALJ found that this view had been rejected by this court as contrary to the prevailing view of the medical community and substantial weight of the medical and scientific literature, citing Freeman United Coal Mining Co. v. Summers, 272 F.3d 473, 483 n.7 (7th Cir. 2001). The second reason for giving these consultants' opinions less weight was that they were less familiar with Buchanan's pulmonary condition than Dr. Houser.

ALJ Jansen determined, based on Dr. Shoemaker's reports and opinions and Dr. Houser's and Dr. Cohen's opinions, that Buchanan's pulmonary condition had progressively and substantially worsened over the last four or five years. The ALJ relied, in part, on Dr. Shoemaker's notations of Buchanan's frequent, recent hospitalizations, which showed he had several "acute" exacerbations of his chronic pulmonary disease. ALJ Jansen found that Buchanan had established total disability due to pneumoconiosis and thus awarded him benefits commencing August 1, 1998.

RAG petitioned the Board for review, and the Board affirmed in part, vacated in part, and remanded. On July 22, 2004, ALJ Jansen again issued an order awarding benefits. RAG sought reconsideration. On reconsideration, ALJ Jansen reiterated that ALJ O'Neill had deter-mined that the evidence failed to establish pneumoconiosis and that Buchanan had demonstrated a material change in condition by showing that he had pneumoconiosis. ALJ Jansen also found a material change in Buchanan's proof of total disability, indicating that Buchanan's respiratory impairment had worsened in recent years. RAG appealed. The Board affirmed in part, reversed in part, and remanded so the ALJ could reassess the medical opinions of Drs. Fino and Tuteur.

On August 25, 2006, ALJ Jansen issued his decision and order on remand, again awarding benefits. The ALJ weighed the medical opinions, assigning less weight to the opinions of Drs. Fino and Tuteur because he found them not well-reasoned and in tension with the Department of Labors's (DOL) findings regarding coal dust exposure and obstructive lung disease. ALJ Jansen found that Buchanan had pneumoconiosis and had established a material change in conditions. The ALJ also found that Buchanan demonstrated ...

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