                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-9-1997

Barren Creek Coal Co v. Witmer
Precedential or Non-Precedential:

Docket 96-3273




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Recommended Citation
"Barren Creek Coal Co v. Witmer" (1997). 1997 Decisions. Paper 79.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/79


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Filed April 9, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3273

BARREN CREEK COAL COMPANY; and its carrier,
AMERICAN BUSINESS & MERCANTILE
INSURANCE MUTUAL, INC.,
       Petitioners,

v.

BENJAMIN WITMER,

and

DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
       Respondents.

On Petition for Review from the Order
of the Benefits Review Board

Argued January 9, 1997

Before: COWEN, ALITO, and ROSENN, Circuit Judges.

(Opinion Filed April 9, 1997)

       Mark E. Solomons
       Thomas H. Odom (argued)
       Arter & Hadden
       Suite 400K
       1801 K Street, N.W.
       Washington, D.C. 20006
       Counsel for Petitioners
       Maureen Hogan Kreuger (argued)
       1342 Lindsay Lane
       Jenkintown, PA 19046
       Counsel for Respondents

OPINION OF THE COURT

ROSENN, Circuit Judge.

This petition for review of a decision of the Benefits
Review Board in a black lung disease case by the employer,
Barren Creek Coal Company ("Barren Creek"), and its
carrier, American Business & Mercantile Insurance Mutual,
Inc., comes to us in an unusual posture. Generally, such
petitions raise questions as to whether substantial evidence
supports the decision of the Board. This petition, however,
raises only questions of law as to whether the
Administrative Law Judge ("ALJ") complied with the
requirements of the Administrative Procedures Act, 5 U.S.C.
S 557(c)(3)(A), by providing an adequate explanation for his
conclusion finding disability causation from
pneumoconiosis.

Petitioner Barren Creek employed Respondent Benjamin
Witmer as an equipment operator in its surface coal
stripping operation for 19 years. In October 1984, at age 52
and while still employed, Witmer filed a claim for benefits
under the Black Lung Benefits Act, 30 U.S.C. SS 901-945.
The District Director of the Office of Compensation
Programs of the Department of Labor denied the claim in
March 1985. Witmer requested reconsideration and a
hearing in a letter dated July 1985. In October 1988, the
ALJ held a hearing. He heard testimony from Witmer and
from the owner of Barren Creek, received depositions from
two physicians, and reviewed various medical reports. In
September 1989, the ALJ issued a Decision and Order
awarding benefits commencing May 1986. Barren Creek
and its insurance carrier appealed to the Benefits Review
Board of the Department of Labor (the "Board"), and the
Board affirmed the award in April 1993. Barren Creek and
its carrier then filed Motions for Reconsideration which

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ultimately were denied in January and March of 1996. 1
They timely petitioned this court for review. We vacate the
Board's decision and remand.2

I.

This court reviews Board decisions for errors of law and
for adherence to its own standard of review. Director, Office
of Workers Comp. Programs v. Barnes & Tucker Co., 969
F.2d 1524, 1526-27 (3d Cir. 1992). The Board must accept
an ALJ's findings of fact if they are supported by
substantial evidence in the record considered as a whole.
Oravitz v. Director, Office of Workers Comp. Programs, 843
F.2d 738, 739 (3d Cir. 1988). Matters of law are subject to
plenary review by this court. United States v. Jefferson, 88
F.3d 240 (3d Cir. 1996).

While employed by Barren Creek, Witmer operated a
backhoe for two or three years and then a grader for the
remaining period of his employment. In the performance of
his duties, he operated the equipment from a glass-
enclosed cab except at the end of the day when he stepped
_________________________________________________________________

1. Recently, in an opinion authored by the Chief Judge of this court,
Lango v. Director, Office of Workers' Comp. Programs, 104 F.3d 573 (3d
Cir. 1997), she commented on the series of black lung cases in this
circuit, where administrative proceedings languished for many years
while waiting for an ALJ or the Benefits Review Board to hear them. She
also noted that Chief Judge Posner expressed dismay several years ago
about black lung cases reviewed by the Seventh Circuit Court of
Appeals. See Amax Coal Co. v. Franklin, 957 F.2d 355, 356 (7th Cir.
1992). We must note that in this proceeding too there has been
inexplicable delay. Witmer first filed his claim for federal black lung
benefits on October 5, 1984. Although his counsel made several requests
for formal hearing, the claim did not reach the Office of the ALJ until
October 31, 1986. A hearing was not held until almost two years later,
on October 13, 1988. The ALJ issued his decision on September 5, 1989,
but the Board did not issue its brief per curiam opinion until April 28,
1993. We reiterate the extreme concern expressed by the panel of this
court in Lango.

2. The Benefits Review Board had jurisdiction over the appeal from the
ALJ's award pursuant to 33 U.S.C. S 921(b)(3), incorporated by reference
into 30 U.S.C. S 932(a). We are granted appellate jurisdiction by 33
U.S.C. S 921(c), also incorporated by reference into 30 U.S.C. S 932(a).

                               3
down, when necessary, to grease the moving parts of the
machine.

Witmer testified at his hearing before the ALJ in October
1988 that his only medical problem was in breathing,
which he said he first noticed in the early 1980s. He
claimed it has worsened and now he can only walk 200-300
feet on the level. He has had no heart attack and he has no
high blood pressure. He had never been informed that he
had any heart disease until presumably after his physical
examination by Dr. Dittman in May, 1988. He also stated
that he had never been hospitalized for shortness of breath
or any kind of lung problem. He had made no pulmonary
complaints to his employer and had never consulted a
doctor for a lung problem until after he had engaged an
attorney to pursue this claim. Witmer's attorney referred
him to Dr. Raymond Kraynak who, at the time of the
hearing, was his treating physician. He had not taken any
medications other than a Proventil inhalator prescribed by
Dr. Kraynak.

This petition for review primarily challenges the ALJ's
determination that Witmer is totally disabled due to
pneumoconiosis.3 20 C.F.R. S 718.204 provides that "[i]n
the absence of contrary probative evidence," total disability
may be established by any one of several routes: pulmonary
function tests, arterial blood-gas tests, the presence of cor
pulmonale, or the report of a physician exercising reasoned
medical judgment. Petitioners claim both that none of these
criteria were met, and that the ALJ ignored contrary
probative evidence or improperly discounted it.

The absence of explanation in certain portions of the
ALJ's Decision and Order renders meaningful review
_________________________________________________________________

3. Pursuant to Department of Labor regulations, in order to award
benefits, the ALJ had to make three determinations: that Witmer suffers
from pneumoconiosis, that the pneumoconiosis is related to Witmer's
coal mine employment, and that Witmer is totally disabled due to
pneumoconiosis. The ALJ relied upon X-ray evidence to find the first
condition fulfilled, as per 20 C.F.R. S 718.202, and upon the
presumption afforded by 20 C.F.R. S 718.203(b) (relating to miners with
ten or more years employment) to find that the disease is employment-
related. Petitioners do not challenge either of these findings on appeal.

                               4
impossible by this court, as we are unable to determine the
analytic process behind the result. Although we are free to
examine, and indeed have examined, the underlying record,
this does not permit us sufficiently to review the ALJ's
reasoning at the time he reached his decision. We therefore
must vacate and remand for a decision which, in
compliance with the Administrative Procedures Act ("APA"),
adequately sets forth the reasons or bases for the ALJ's
findings and conclusions.

For the ALJ's guidance on remand, we note several areas
in which we conclude that the Decision and Order was
deficient. We begin with the pulmonary function tests
(PFTs) which serve as the primary basis for the ALJ's
disability determination. The ALJ discusses three valid
PFTs which were qualifying, but fails to mention a fourth
valid PFT which was not. We do not know whether the ALJ
overlooked this study, considered it unimportant, or
perhaps believed it to be outweighed by the other studies.
He makes no reference whatever to the four PFTs which did
not qualify because of the "poor effort" of the claimant.
Similarly, we do not know what role, if any, the arterial
blood-gas tests (which were within normal limits) played in
his decision.

The ALJ based his determination, at least in part, upon
his weighing and crediting of conflicting medical evidence,
including the testimony of two doctors who were deposed,
Dr. Raymond Kraynak and Dr. Thomas H. Dittman. Several
other physicians to whom Witmer had been referred for
tests submitted written reports. The ALJ provides virtually
no explanation for his acceptance of some opinions and his
rejection of others. Even a brief look at the credentials of
each doctor, and at the circumstances under which each
formed his opinion, demonstrates that the APA demands a
substantially longer and more explanatory discussion on
the part of the ALJ for the basis of his decision and the
rejection of substantial probative evidence to the contrary.

Dr. Raymond Kraynak, Witmer's treating physician, had
practiced medicine for four years prior to the hearing and
devoted approximately 50% of his practice to the treatment
of coal workers' pneumoconiosis. He is on the staff of the
Shamokin and Ashland state hospitals. He is neither board

                                5
certified in internal medicine nor does he specialize in the
field of pulmonary medicines. He has not performed a
residency or had specific training in either of these fields,
but has attended several post-graduate courses sponsored
by the Philadelphia College of Osteopathy dealing with
general pulmonary medicine and a seminar specifically
dealing with black lung disease. Based upon physical
examinations and medical testing, including two x-rays
interpreted as showing pneumoconiosis, Dr. Kraynak
concluded that Witmer is permanently and totally disabled
as a result of his coal dust exposure.

Dr. Thomas Dittman is a board-certified internist
specializing in internal medicine and pulmonary disease.
He graduated from medical school in 1973, and performed
an internship and a two-year residency in internal medicine
followed by a two-year fellowship in pulmonary disease. At
the time of the hearing, he was the medical director of the
Respiratory Therapy Department at the Hazleton State
General Hospital and is a member of a number of
professional societies, including the American College of
Chest Physicians and the Pennsylvania Thoracic Society.
He examined and evaluated Witmer in May 1988 and
reviewed an x-ray taken by Hazleton Radiology Associates
and interpreted by Dr. Stanley Laucks as showing no
pneumoconiosis. Dr. Laucks is a board certified radiologist
certified as a Niosh "B" reader. This same x-ray was
interpreted by two other certified "B" readers as positive for
pneumoconiosis.

Dr. Dittman determined that Witmer does not suffer from
pneumoconiosis, but he does suffer from heart disease.
Although Dr. Dittman is undoubtedly the most highly
qualified practitioner involved in this matter, he did not
have the benefit of reviewing any valid PFTs. He reviewed a
number of PFTs including one performed in his office, but
they were nonqualifying because of the claimant's"poor
and inconsistent effort." After giving Witmer a complete
physical examination in May 1988, Dittman evaluated him
and found his condition normal and unremarkable except
for an extra heart beat and some findings of atherosclerotic
disease and indications of a fairly significant vascular
disease, including angina pectoris. He found the arterial

                               6
blood gas studies "normal in all respects." It was Dr.
Dittman's opinion that Witmer's pulmonary system was
normal and that he was capable of performing his usual
work as described with Barren Creek.

Dr. Stephen Kruk, who is board-certified in internal
medicine, examined Witmer at Dr. Kraynak's request to
ascertain if there was any cardiac etiology in October 1987.
Based upon a physical examination and a review of various
medical tests, Dr. Kruk determined that Witmer was
disabled secondary to pneumoconiosis. Dr. Joseph Mariglio
examined Witmer in 1984 at the request of the Department
of Labor and diagnosed pneumoconiosis, although the
ventilatory study showed "patient effort very poor and
inconsistent." Given the amount and variety of medical
information in the record, the one paragraph which the ALJ
devotes to explaining his choices among the evidence is
completely inadequate.

II.

As then Judge Sloviter has observed,

       There are cogent reasons why an administrative
       decision should be accompanied by a clear and
       satisfactory explication of the basis on which it rests.
       Chief among them is the need for the appellate court to
       perform its statutory function of judicial review. A
       statement of reasons or findings also helps avoid
       judicial usurpation of administrative functions, assures
       more careful administrative consideration, and helps
       the parties plan their cases for judicial review.

Cotter v. Harris, 642 F.2d 700, 704-05 (3d Cir. 1981).

Administrative agencies when engaged in factfinding and
law-applying are required to proceed in accordance with the
elementary principles of rational truth-seeking, and the
adjudication of black lung cases is not exempt from this
requirement. In the absence of a satisfactory explanation
from the ALJ as to the degree of consideration given
probative evidence countering the evidence in support of
the claimant, a reviewing court cannot judge whether the
ALJ simply disregarded significant probative evidence or
reasonably failed to credit it.

                               7
We are most reluctant to protract this already unduly
prolonged litigation. We may not, however, affirm an
administrative decision unless we can be certain that it is
reasoned. Accordingly, the petition for review will be
granted and the matter will be remanded to the Board with
instructions to remand it to the ALJ to reexamine the
record and evidence. In his new Decision and Order, the
ALJ shall discuss all relevant evidence and provide an
adequate statement of his reasons for whatever decision he
reaches in a manner not inconsistent with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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