Clyde M. Collins v. Director, Office of Workers' Compensation Programs, United States Department of Labor, and Benefits Review Board

932 F.2d 1191, 1991 U.S. App. LEXIS 10248, 1991 WL 82412

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 21, 1991
• Docket: 89-3441
• Status: Published

Opinions

CUMMINGS, Circuit Judge.

In March 1981 petitioner Clyde M. Collins filed an application for Black Lung Benefits under 30 U.S.C. §§ 901-904. He sought benefits on the ground that he has a totally disabling respiratory impairment due to pneumoconiosis. In June 1986 Administrative Law Judge Gray determined that Collins was entitled to benefits. However, the Director of the Office of Workers' Compensation Programs in the Department of Labor appealed the decision to the Benefits Review Board, which reversed the AU’s decision in October 1989. Petitioner thereupon sought review in this Court. We vacate the Board’s decision and remand the case to the AU.

The AU found that Collins had six years of coal mine employment and that the Director conceded that he had pneumoconio-sis. He also found that Collins’ pneumoco-niosis arose in part out of coal mine employment and concluded as follows:

Having found that Claimant is totally disabled within the meaning of the Act from pneumoconiosis deriving from coal mine employment, I find that he is entitled to benefits under the Act.

App. A-8.

In his appearance before the Benefits Review Board, the Director contended that the AU had erred in finding that Collins’ pneumoconiosis arose out of coal mine employment and that he was totally disabled due to pneumoconiosis. In reversing the AU, the Benefits Review Board observed that the record contained no medical evidence providing any causal nexus between petitioner’s total disability and his pneumo-coniosis. As the Board stated, the only medical report indicated that Collins has difficulty walking and climbing stairs due to shortness of breath, with the doctor diagnosing only congestive heart failure unrelated to coal mine employment. The AU had relied solely on a pulmonary study showing Collins had total disability. However, he did not advert to any evidence to support his conclusion that the total disability was due to pneumoconiosis. The Board first noted that the record was “devoid of medical evidence,” but went on to make the broader statement that petitioner had failed to provide “any competent evidence of disability due to pneumoconiosis” to support his claim (App. A-2). “Competent evidence” does not necessarily mean “medical evidence” and could reasonably include other offers of proof by the petitioner in support of his claim. The AU’s decision was reversed on the ground that Collins had not shown his disability was due to pneumoco-niosis.

The Director has asked us to affirm the Board’s decision due to Collins’ failure to establish any relationship between his disability and pneumoconiosis. In Hawkins v. Director, OWCP, 907 F.2d 697, 706 (7th Cir.1990), we held that in order to recover benefits, a miner must show that pneumoconiosis was at least a contributing cause of his total disability. We recently reaffirmed our adherence to this standard in Compton v. Inland Steel Co., 933 F.2d 477 (7th Cir.1991). The Board has now adopted the contributing cause standard. Scott v. Mason Coal Co., 14 BLR 1-37 (1990) (en banc). We agree with the Board that the record is devoid of medical or other evidence showing any causal nexus between Collins’ total disability and his pneumoconiosis. The Director insists that there must be medical evidence of such linkage. Neither in his brief nor at oral argument has he referred us to any judicial or administrative cases so holding. The applicable regulation, 20 C.F.R. § 204, contains no such requirement. At oral argument, the Director’s attorney cited Poniansky v. Director, 7 BLR 1-171 (1984), as such an authority, but it is not. Ponian-sky merely held that the pulmonary studies and medical evidence there failed to show the requisite causal relationship.

In the absence of any such statutory or regulatory requirement, we refuse to hold that a claimant must always produce a physician’s report of a causal relationship between the pneumoconiosis and the total disability, particularly in view of the Board’s recognition, noted above, that “competent evidence” would suffice to prove causation. The Board acted without any supporting authority in so holding. The concurrence charges this Court with ignoring the directive contained in a miscellaneous provision of the Act in our conclusion that a claimant need not produce medical evidence that his total disability is due to pneumoconiosis. The concurrence directs our attention to 20 C.F.R. § 718.402, providing that: “An individual shall not be determined entitled to benefits unless he or she furnishes such medical evidence as is reasonably required to establish his or her claim.”

The concurrence believes that this provision imposes a blanket requirement on claimants to produce medical evidence as to each facet of their claim, including a claimant’s burden to show that total disability was due to pneumoconiosis. However, such an argument as to § 718.402 lacks credibility for several reasons. First, the briefs contain no mention of the provision and it was not mentioned or relied upon by the Director’s attorney at oral argument or the AU and Benefits Review Board in their respective decisions. In addition, even if § 718.402 may properly be considered by this Court, that provision nowhere mentions § 718.204, the section mandating that total disability be due to pneu-moconiosis. Therefore we cannot agree with the concurrence that § 718.402 imposes a requirement that medical evidence be produced under § 718.204. Finally, upon complete examination, § 718.402 addresses the claimant’s obligation to provide either medical history when it is available, § 718.402(a), or to submit to a medical test or examination if requested by the deputy commissioner, § 718.402(b). Therefore this provision governs the appropriate disclosure of medical evidence by a claimant; it imposes no legal requirement that a claimant provide medical evidence specifically proving that total disability was due to pneumoconiosis.

The concurrence suggests that it would be difficult if not impossible to support a legal conclusion that a miner’s total disability is due to pneumoconiosis without providing medical evidence to document the causal relationship. We can envision, however, a case in which a miner, who has pneumoconiosis, is found to be totally disabled, and does not suffer from any other ailments (and is a non-smoker and nondrinker), would claim an entitlement to benefits. In that case, no medical evidence would be necessary specifically showing that the total disability was due to pneumo-coniosis. Even though the AU did not refer to any medical evidence to determine whether Collins’ pneumoconiosis was a contributing cause of his disability, this would not preclude claimant from recovering benefits if he introduced other competent evidence of causation.

Dr. Sanjabi’s medical report, after Collins reported that he had no respiratory problems, diagnosed his condition as congestive heart failure. This could have caused Collins’ disability and yet Sanjabi’s report was not even mentioned by the ALJ. 20 C.F.R. § 718.204(b) states that benefits are due miners “who are totally disabled due to pneumoconiosis.”

* The AU cites no evidence that Collins’ total disability was caused at least in part by pneumoconiosis rather than congestive heart failure or some other condition. This failure cannot be excused.

To avoid further delays in resolving this matter, the Board’s decision is vacated and the case is remanded to the AU to consider whether any evidence in the record (or adduced by Collins if he so desires) shows Collins’ pneumoconiosis is a contributing cause of his total disability. If so, he is entitled to compensation under the Black Lung Benefits Act.

§ 718.204(c)(1) to (c)(4) provides that in the absence of contrary probative evidence, a miner’s total disability may be established through certain specified medical evidence.