                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2002

Consolidation Coal v. Kushak
Precedential or Non-Precedential:

Docket 1-2854




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                                                   NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                          ___________

                          No. 01-2854
                          ___________

                       IN THE MATTER OF:

                  CONSOLIDATION COAL COMPANY,

                           Responsible Operator/Petitioner

                                    v.

                         GEORGE KUSHAK,

                                   Claimant/Respondent


                             and

      DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
               United States Department of Labor,

                                  Party-In-Interest
                           ___________

       On Petition for Review of Decision and Order of the
             Benefits Review Board dated May 16, 2001
         entered in Agency Nos. 0090-1 and 00-0830 BLA
                           ___________

           Submitted Under Third Circuit L.A.R. 34.1(a)
                          March 1, 2002

Before ROTH and FUENTES, Circuit Judges, and KATZ, District Judge.

                (Opinion Filed: March 26, 2002)
                    ________________________

                       OPINION OF THE COURT
                     ________________________



FUENTES, Circuit Judge:
     This is a petition for review sought by the Consolidation Coal
Company
("CONSOL") of the Decision and Order of the Benefits Review Board (the
"Board")
which affirmed the order of the Administrative Law Judge ("ALJ") awarding
black lung
benefits to claimant George Kushak.
     Because we agree that the findings of the ALJ were supported by
substantial
evidence, we will deny the petition for review.

                               I.
     We state the facts and extensive procedural history of this case only
in summary.
George Kushak, who worked over 34 years in and about the coal mines of
Pennsylvania,
first filed for Black Lung benefits on January 15, 1980. Since then, his
case has been
before the Board four times.
     In his initial Decision and Order, the ALJ found that Kushak failed
to establish that
his work at a repair shop for CONSOL constituted the work of a coal miner.
Accordingly, the ALJ dismissed CONSOL as the responsible operator. The
Board,
however, later vacated the ALJ's finding with respect to Kushak's status
as a coal miner
and instructed the ALJ to reconsider Kushak's eligibility for benefits.
On remand, the
ALJ found that Kushak qualified as a coal miner with CONSOL and that
CONSOL was
the responsible operator. Further, the ALJ credited Kushak with 34 years
of coal mine
employment and found that he established invocation of the interim
presumption of total
disability due to pneumoconiosis pursuant to 20 C.F.R.   727.203(a)(4) and
that
CONSOL failed to establish rebuttal pursuant to 20 C.F.R.   727.203(b).
Based on these
findings, the ALJ awarded benefits to Kushak.
     After several subsequent appeals to the Board and remands to the ALJ,
the ALJ
affirmed the award of benefits again on April 28, 2000. CONSOL then
appealed that
decision to the Board, contending that the ALJ erred in finding that the
evidence was
sufficient to establish invocation of the interim presumption pursuant to
  727.203(a)(4)
and in finding that the evidence was insufficient to establish rebuttal of
the interim
presumption pursuant to   727.203(b)(3) and (b)(4). More specifically,
CONSOL argued
that the ALJ failed to state an adequate rationale for finding the opinion
of one doctor,
who diagnosed total disability due to pneumoconiosis, more persuasive than
the contrary
opinions of four other doctors, who found no respiratory impairment.
     In its Decision and Order dated March 16, 2001, the Board found that
the ALJ
weighed all of the medical opinions and rationally concluded that the
preponderance of
the evidence established the existence of a totally disabling respiratory
or pulmonary
impairment due to pneumoconiosis. Accordingly, it affirmed the ALJ's
Decision and
Order on Remand denying modification and awarding benefits. On July 12,
2001,
CONSOL filed a notice of appeal with this Court. It maintains that the
ALJ failed to rely
on substantial evidence in finding that the opinion of Kushak's treating
physician
established the presence of a totally disabling pulmonary disease.

                              II.
     We have appellate jurisdiction over this matter pursuant to Section
21(c) of the
Longshore and Harbor Workers' Compensation Act, 33 U.S.C.   921(c), as
incorporated
by Section 422(a) of Title IV of the Federal Coal Mine Health and Safety
Act of 1969, as
amended, 30 U.S.C.    932(a). We review decisions of the Benefits Review
Board for
errors of law and adherence to the Board's statutory scope of review. See
Nelson v.
American Dredging Co., 143 F.3d 789, 792 (3d Cir. 1998).
     When factual findings are at issue, "we make an independent factual
review to
determine whether the administrative law judge's findings were supported
by substantial
evidence." Sea-Land Service, Inc. v. Rock, 953 F.2d 56, 59 (3d Cir. 1992)
(citing
Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 677 F.2d 286, 290 (3d
Cir.1982)).
"Substantial evidence" is defined as "such relevant evidence as a
reasonable mind might
accept as adequate to support a conclusion." Richardson v. Perales, 402
U.S. 389, 401,
91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (citing Consolidated Edison Co.
v. NLRB,
305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)).

                              III.
     To be entitled to the interim presumption of total disability due to
pneumoconiosis,
an individual with over ten years of coal mine employment must produce
evidence in
accordance with 20 C.F.R.   727.203(a), which provides:
     A miner who engaged in mine employment for at least 10 years will be
     presumed to be totally disabled due to pneumoconiosis . . . arising
out of
     that employment if one of the following medical requirements is met:
               (1) x-ray, biopsy, or autopsy established existence of
          pneumoconiosis . . . or
               (2) ventilatory studies which demonstrate the presence of
an
          impairment in the transfer of oxygen from the lung . . . or
               (3) blood gas studies which demonstrate the presence of an
          impairment in the transfer of oxygen from the lung . . . or
               (4) other medical evidence, including the documented
opinion of a
          physician exercising reasoned medical judgment, establishes the
          presence of a totally disabling respiratory or pulmonary
impairment.

The ALJ found that Kushak is entitled to the presumption of total
disability under
727.203(a)(4) based upon the documented opinion of Dr. Naresh Bhatt, who
diagnosed
Kushak with pneumoconiosis after treating and examining him several times.
In making
his diagnosis, Dr. Bhatt stated that he relied upon Kushak's coal mine
employment
history, his complaints of shortness of breath, wheezes in the lungs, and
x-ray
interpretations showing the presence of fibrosis in the lungs.
     Because we conclude that a reasonable mind could accept Dr. Bhatt's
medical
report as adequate to support a conclusion that Kushak has been suffering
from
pneumoconiosis, we find that the ALJ's finding that Kushak is entitled to
the presumption
of total disability under   727.203(a)(4) is supported by substantial
evidence.
     Once an individual invokes the interim presumption under
727.203(a), the
presumption can be rebutted pursuant to 727.203(b) if:
     (1) the evidence establishes that the individual is doing his usual
coal mine
     work . . . or
     (2) in light of all relevant evidence it is established that the
individual is
     able to do his usual coal mine work . . . or
     (3) the evidence establishes that the total disability . . . did not
arise in
     whole or in part from coal mine employment . . . or
     (4) evidence establishes that the miner does not or did not have
     pneumoconiosis.

CONSOL contends that several laboratory test results and the opinions of
Drs. Fino,
Morgan, Renn, and Packovich, who all found no signs of disabling pulmonary
disease,
are sufficient to establish rebuttal of the interim presumption under
subsections (b)(3) and
(b)(4).
     The ALJ cited several reasons for rejecting CONSOL's argument with
respect to
subsection (b)(3). He observed that Drs. Fino and Morgan could not
provide an
alternative cause for Kushak's symptoms. He dismissed Dr. Renn's opinion,
which
attributed Kushak's symptoms to depression, because it was not documented
elsewhere in
the record and because none of the other examining physicians had made
that diagnosis.
After weighing the evidence, the ALJ finally concluded that Dr. Bhatt's
opinion is the
most persuasive on the causation issue.
     The ALJ also found that the preponderance of the evidence does not
support
rebuttal under subsection (b)(4). He explained that negative chest x-ray
evidence alone
does not establish rebuttal and, again, that he found the opinion of Dr.
Bhatt more
persuasive than those of Drs. Renn, Morgan, Fino and Packovich. He noted
that Drs.
Fino and Morgan had never actually examined Kushak and that Drs. Renn and
Packovich
only examined Kushak once. Dr. Bhatt, in contrast, had examined Kushak on
several
occasions over a three year period. Further, the ALJ found that Dr. Bhatt
provided a
reasoned opinion supporting his conclusion that a causal nexus exists
between Kushak's
respiratory or pulmonary impairment and his coal mine dust exposure.
     Because we agree with the Board's finding that the ALJ weighed all of
the medical
opinions and test results and reasonably concluded that the evidence was
insufficient to
establish rebuttal of the interim presumption pursuant to subsections
(b)(3) and (b)(4), we
find that his decision was supported by substantial evidence. We have
also carefully
considered CONSOL's remaining arguments in this appeal and conclude that
they lack
merit.

                              IV.
     For the reasons stated above and in the Benefits Review Board's well-
reasoned
opinion, we will deny CONSOL's petition for review of the Board's
decision.

_____________________________
TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.
/s/ Julio M. Fuentes
Circuit Judge
