Kennellis Energies, Inc. v. Hallmark

333 F.3d 822, 2003 WL 21464596
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 25, 2003
Docket02-1758
StatusPublished
Cited by10 cases

This text of 333 F.3d 822 (Kennellis Energies, Inc. v. Hallmark) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kennellis Energies, Inc. v. Hallmark, 333 F.3d 822, 2003 WL 21464596 (7th Cir. 2003).

Opinion

BAUER, Circuit Judge.

After a tortuous procedural journey, including multiple decisions by an Administrative Law Judge and the Benefits Review Board of the Office of Workers’ Compensation Programs, Petitioners Ken-nellis Energies, Inc., and Royal & Sun Alliance USA (collectively, “Kennellis”) seek review of an award of benefits to Respondent Robert Ray after a finding of his total disability due to coal miners’ pneumoconiosis. We affirm the decision of the Benefits Review Board.

BACKGROUND

Ray began working in the coal mines at the age of twenty in 1948, and until 1952 he worked as a trapper, bottom laborer, and shuttle car operator for Old Ben Coal Company. From 1957 to 1969, Ray worked for Peabody Coal Company as a haulage truck driver, drill helper and operator, and fire shooter in a strip mine. Between 1969 and 1980, Ray returned to Old Ben Coal, where he served as a continuous mine operator and deputy mine inspector. Finally, from 1984 to 1985, Ray worked for Kennellis at the Bushy Creek Mine as an underground roof bolter. In that capacity, he worked in low coal, with a roof height of four to six feet, where he was required to constantly lift, carry, and install fifteen-pound roof bolts into the mine ceiling. In a typical day, he would install 150-200 bolts.

Beginning in 1977 or 1978, Ray experienced episodes of shortness of breath and weakness, which prevented him from keeping pace with fellow workers. In 1984, Ray injured both of his knees in separate incidents, the first of which required surgical repair and time-off from work for recovery; he continued to work after the second injury and did not have it repaired until after retiring from the coal mines. Ray also suffers from hypertension and arthritis and smoked approximately three-fourths of a pack of cigarettes per day for nearly forty years, quitting in approximately 1982 or 1983. He retired from mine employment in October 1985.

Ray filed his original claim for federal black lung benefits with the Office of Workers’ Compensation Programs (OWCP) on September 29, 1980, but that claim was administratively denied on March 9, 1981, because, although sufficient proof of pneumoconiosis existed, there was insufficient evidence to support a finding of total disability. After he retired, however, Ray filed a second claim for benefits in April 1986. In order to prevail on this claim, Ray was required to show that a “material change” had occurred in his condition since his original claim was denied in 1981. After reviewing the evidence, a district director for OWCP recommended that Ray’s claim be denied again. Ray then requested a formal hearing before an Administrative Law Judge (ALJ).

Ray’s hearing was scheduled for June 1988 but was delayed for three years as the proper procedure for reviewing the district director’s denial was debated within the Department of Labor. Ray’s hearing was eventually held on March 2, 1991, before ALJ Robert S. Amery, who issued a decision awarding benefits to Ray in October 1991. Judge Amery concluded that a material change had occurred in Ray’s condition between the filing of his two claims and that the evidence showed Ray suffered from pneumoconiosis resulting in a total disability.

*825 Kennellis appealed that ruling to the Benefits Review Board of OWCP (“Board”), which remanded the claim for reconsideration of several issues in September 1993. The Board determined that Ray had been employed for at least twenty-five years in coal mines but remanded Judge Amery’s finding of material change in light of this Circuit’s decision in Sahara Coal Co. v. Office of Workers’ Comp., United States Dept. Of Labor, 946 F.2d 554 (7th Cir.1991) [hereinafter McNew ]. The Board also directed the ALJ to review the finding of pneumoconiosis because the ALJ’s opinion suggested a preference for the treating physician’s opinion, which had been rejected by this Circuit in Peabody v. Helms, 901 F.2d 571 (7th Cir.1990), and Amax Coal Co. v. Beasley, 957 F.2d 324 (7th Cir.1992). Further, the Board directed the ALJ to review the finding of total disability due to pneumoconiosis.

Accordingly, Judge Amery reviewed the ease and issued a second decision on March 3, 1994, reinstating the award of benefits. The ALJ specifically found that Ray’s pneumoconiosis met the McNew standard and that the majority of medical opinions established total disability due to pneumoconiosis. Kennellis appealed the findings to the Board again. Just as before, the Board remanded the claim for further findings in May 1995 and ordered review of the material change finding because the ALJ did not consider all medical opinions that addressed the issue of total disability. Review was also ordered of the findings of pneumoconiosis and total disability because this Circuit, in Sahara Coal Co. v. Fitts, 39 F.3d 781 (7th Cir.1994), decided in the interim, had rejected reliance solely on numerical superiority in weighing medical opinion evidence. Further, the Board sought additional explanation from the ALJ as to how he weighed the physicians’ opinions to determine causation.

When the case was remanded the second time, Judge Amery was no longer available, so the case was assigned to ALJ Ellen M. O’Shea. Judge O’Shea issued her findings on October 3, 1997, awarding benefits to Ray once again. As Judge Amery had concluded before, Judge O’Shea found a material change in Ray’s condition that established total disability due to pneumoconiosis. In an all too familiar pattern (some seventeen years into this litigation), an appeal was taken and the Board remanded the case again for further findings. The Board affirmed Judge O’Shea’s findings of material change and pneumoconiosis but required additional discussion of the medical opinions relating to the findings of total disability and causation as well as the onset date of Ray’s pneumoconiosis.

On June 21, 2000, Judge O’Shea issued the fourth (her second) and final decision awarding benefits to Ray. Her opinion further explained, as requested, how she weighed the medical opinion evidence to determine total disability due to pneumo-coniosis and thus a material change in Ray’s condition. With respect to the onset date of Ray’s disability, Judge O’Shea noted that the evidence did not establish a specific date, so that benefits would become payable as of the month Ray filed his claim. Kennellis initiated a fourth appeal, but the Board affirmed the ALJ’s findings in their entirety on July 27, 2001. Kennel-lis then filed this appeal.

Between September 1980 and July 1989, Ray underwent ten different physical examinations by eight physicians. 1 Each physician administered a battery of tests to assess Ray’s cardiovascular and pulmonary health. On the whole, their, reports *826 indicated that Ray complained of shortness of breath and fatigue after walking only one to two blocks, climbing a flight of ten to twelve steps, or lifting and carrying approximately fifty pounds twenty to fifty feet.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
333 F.3d 822, 2003 WL 21464596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennellis-energies-inc-v-hallmark-ca7-2003.