Mabel W. Turner, Widow of Bill Turner v. Director, Office of Workers Compensation Programs, United States Department of Labor

927 F.2d 778, 1991 U.S. App. LEXIS 3525, 1991 WL 29847

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 6, 1991
• Docket: 89-2175
• Status: Published

Opinions

WIDENER, Circuit Judge:

Mabel W. Turner, widow of Bill Turner, petitions for review of the Benefits Review Board’s affirmance of the Administrative Law Judge’s (AU) decision denying both a live miner’s and a survivor’s claim under the Black Lung Benefits Act. Being of opinion that the Board erroneously found to have been rebutted the presumption that Bill Turner had pneumoconiosis, we vacate and remand for the award of benefits.

Bill Turner filed his live miner’s claim on October 27, 1981.¹ Turner died on June 24, 1982, and Mrs. Turner filed a survivor’s claim on September 14, 1982. The AU found that Turner was entitled to a rebut-table presumption under 20 C.F.R. § 718.305(a), that he was totally disabled due to pneumoconiosis and that his death was due to pneumoconiosis, based on the number of years of coal mine employment and Dr. R.K. Stupar’s pulmonary function study.²

The AU next found that the presumption was rebutted by two factors. First was the treating physician’s, Dr. Carl L. Anderson’s, silence as to the cause of Turner’s acknowledged pulmonary disease which was separate and distinct from Turner’s lung cancer.³ Second was a non-examining physician’s, Dr. Michael E. Wald’s, opinion that all of Turner’s pulmonary problems were not due to his 28 years of coal mine employment but were the result of cigarette smoking. Once he found the presumption was rebutted, the AU found that Turner had failed to prove he was totally disabled due to pneumoconiosis. Accordingly, the AU denied both the live miner’s claim and the survivor’s claim.

The sole issue presented by this case which we need to consider is whether the AU properly found that the presumption that Turner was totally disabled due to pneumoconiosis and that his death was due to pneumoconiosis was rebutted. The solution requires a review of the evidence as given by the physicians in the record. Dr. Miklos Paal examined Turner on November 29, 1979 and noted a slight barrel chest and wheezing, etc., but did not express an opinion on pneumoconiosis or disability. Dr. Anderson, who had treated Turner over the years, noted that Turner had lung cancer and a separate and distinct chronic obstructive lung disease which was far advanced when the cancer was discovered and which prevented surgery for the lung cancer. Dr. Anderson expressed no opinion as to the cause of the chronic obstructive lung disease. Dr. Wald, a non-examining physician, concluded after reviewing the record that both Turner’s lung cancer and his separate chronic lung disease were caused by cigarette smoking.

We first address the action of the AU in relying on Dr. Wald’s opinion that Turner’s chronic obstructive lung disease was caused by cigarette smoking. In Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 125 (4th Cir.1984), we addressed the precise issue presented here. In Bethlehem Mines a non-examining physician’s report attributed the pulmonary problems of the claimant to cigarette smoking. We stated that the doctor “relied exclusively on the medical reports prepared by the other physicians, none of whom addressed the possibility that cigarette smoking caused the miner’s disabling condition. A non-examining physician’s opinion on matters not addressed by examining physicians is insufficient as a matter of law to rebut an interim presumption under 20 C.F.R. § 727.203.” Bethlehem Mines, 736 F.2d at 125 (emphasis in original). Since there is no difference of consequence here between § 727.203 and § 718.305, Bethlehem Mines controls, and we hold that it was an error of law for the AU to rely on such an opinion to rebut the presumption in this case.⁴

The only other evidence cited by the ALJ to rebut the presumption was the silence of Dr. Anderson as to the cause of Turner’s separate chronic lung disease. That silence is the same as the “medical reports prepared by other physicians” in Bethlehem Mines, “none of whom addressed the possibility that cigarette smoking caused the miner’s 'disabling condition.” Bethlehem Mines, 736 F.2d at 125,

Because the rebuttal of the presumption that Turner was totally disabled due to pneumoconiosis fails, we vacate the order which is subject to the petition for review, and remand for the award of benefits.⁵

VACATED AND REMANDED WITH INSTRUCTIONS.

1 . The date of filing determines that the claim is governed by the regulations found in 20 C.F.R. § 718. The claim under consideration here is a second claim; the first was filed May 15, 1979.

2 . The ALJ credited Turner with 28 years of coal mine employment. Section 718.305 provides for a rebuttable presumption of total disability due to pneumoconiosis if the miner was employed in underground coal mines for 15 or more years and the evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment. Dr. Stupar's tests resulted in values which the tables in Appendix B to § 718.204 provide will prove a total pulmonary disability.

3 .It is undisputed that Turner suffered from two distinct pulmonary impairments. See JA 30, where even the employer’s physician notes Turner’s “underlying chronic obstructive lung disease.” Turner suffered from lung cancer and a separate and distinct chronic obstructive lung disease. Turner’s chronic obstructive lung disease negated the chance for surgery as a form of treatment of the lung cancer. Dr. Anderson stated no opinion as to the cause of the chronic obstructive lung disease, but that it did, in fact, exist is at once apparent from the records of the series of Dr. Anderson's treatments.

4 . We reject the Director’s argument that there should be an exception to the rule in Bethlehem Mines for situations where the miner has died. The limitation on the opinion of a non-examining physician as developed by Bethlehem Mines is a limit on the value of the testimony of a witness who has no first hand knowledge. The physician's lack of first hand knowledge is a problem whether or not the miner is alive. Although it is true that the death of the miner prevents the Director and the employer from obtaining new examinations and studies, that unavailability is also a similar disadvantage to the claimant. We see no reason to, and do not, create an exception to Bethlehem Mines because of the death of the miner.

Section 727.203 establishes a presumption of total disability due to pneumoconiosis for ten years' coal mine employment if the medical evidence meets the regulatory standard.

5 . The ALJ and the Board denied live miner's and survivor’s benefits for the same erroneous reason, that the presumption was rebutted. So any discussion of difference in awards of live miner’s and survivor’s benefits would be abstract. Nothing appears to us from the record at this time which would prevent the award of both of such kinds of benefits. If either is not awarded after remand, that is a question for another day. In line with this discussion, we have no occasion at this time to comment on the applicability of any presumption under 20 C.F.R. § 718.303.