Wolfgang v. Kocher Coal Co.

63 F. App'x 68
CourtCourt of Appeals for the Third Circuit
DecidedMarch 31, 2003
DocketNo. 02-2574
StatusPublished

This text of 63 F. App'x 68 (Wolfgang v. Kocher Coal Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wolfgang v. Kocher Coal Co., 63 F. App'x 68 (3d Cir. 2003).

Opinion

OPINION OF THE COURT

PER CURIAM.

Lester Wolfgang, a retired coal miner, petitions for review of an order of the Benefits Review Board of the U.S. Department of Labor (“the Board”) refusing reconsideration of its decision affirming the denial by an administrative law judge (“ALJ”) of Wolfgang’s claim for benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. (“the Act”). The Board’s order ended 19 years of administrative proceedings.1 The sole issue on appeal is whether Wolfgang met his burden of proving, on the basis of “a physician’s documented and reasoned medical report,”2 that pneumoconiosis was a “substantial contributor” to his total disability, as required under the Act and Department of Labor regulations.3

The reports of five physicians are relevant to this appeal. Wolfgang relies on the testimony of Drs. Matthew and Raymond Kraynak, his treating physicians, and a report written by Dr. John Simelaro, a specialist in pulmonary medicine who opined on the possible effects of Wolfgang’s smoking history. Wolfgang’s employer, the Kocher Coal Company, relies on reports from Dr. Thomas H. Dittman, a specialist in respiratory medicine who conducted a physical examination of Wolfgang on September 18, 1998, and Dr. Sander H. Levinson, a specialist in pulmonary medicine who reviewed a pulmonary function test (“PFT”) that had been performed by Dr. R. Kraynak on January 8,1998.

Dr. M. Kraynak has practiced family medicine since 1998 and is Board Certified in that area. Id. at 46. On February 10, 1999, Dr. Kraynak wrote that Wolfgang had complained to him of shortness of breath, among other symptoms, and that [70]*70physical examination had revealed wheezing and cyanotic lips. Id. 43. Dr. M. Kraynak noted Wolfgang’s work and smoking histories and provided PFT data from November 11, 1998. Id. His single page report concludes, without intervening explanation, with his opinion that Wolfgang is “permanently disabled due to coal workers [sic] pneumoconiosis.” Id. at 43. On March 31, 1999, Dr. M. Kraynak wrote a one and one-quarter page letter addressing the causal link between Wolfgang’s smoking history and his pulmonary disability. Id. at 44-45. Dr. M. Kraynak opines: “[ajssuming that the greatest smoking history was accurate, that [a] 25 pack year history could possibly give rise to mild obstructive pulmonary disease^] [i]t would not give rise to severe obstructive components noted on the pulmonary function. Smoking would not give rise to the opacities noted in the x-ray.” Id. at 44. He concludes, without further explanation, that “[i]t is clear that Mr. Wolfgang suffers from coal workers [sic] pneumoconio-sis contracted during his employment in the anthracite coal industry and is totally and permanently disabled do [sic] to coal workers [sic] pneumoconiosis.” Id.

Dr. R. Kraynak has practiced family medicine since 1984, though he is not Board Certified in that or any other area of medicine. Id. at 13. In a one-page letter, dated January 12, 1998, he writes that Wolfgang’s condition had worsened diming the time that he had been under his care. Id. at 12. He also reports the results of a PFT that he conducted on January 8, 1998. He concludes, without any explanation, that “Mr. Wolfgang is totally and permanently disabled due to his black lung disease. The smoking history would not give rise to the severe restrictive defect noted in the pulmonary function.” Id. Dr. R. Kraynak also testified before the ALJ on March 12, 1999. Under direct examination, he stated that he disagreed with Dr. Levinson’s interpretation of the PFT that he had performed on January 8, 1998. Id. at 83. Dr. R. Kraynak further opined that he disagreed with the interpretation of PFT and blood gas studies offered by Dr. Dittman in his report of October 1, 1998. Id. at 85-86. Dr. R. Kraynak reiterated his opinion that “Wolfgang is totally and permanently disabled due to coal worker’s pneumoconiosis contracted during his employment in the anthracite coal industry.” Id. at 86.

Dr. Simelaro is the Chairman of the Department of Internal Medicine at the Philadelphia College of Osteopathic Medicine. Id. at 48. In his one and one-half page report of February 23, 1999, he lists Wolfgang’s variously reported smoking histories. Id. at 47. He opines that a smoking history of 25 pack years would have caused obstruction, but “would not explain the heavy profusion of nodules in his lungs, only anthracosilocosis causes this.” Id. at 48. He then concludes that Wolfgang’s “anthracosilocosis played a more significant part in his disease than his cigarette smoking.” Id. Dr. Simelaro did not conduct a physical examination.

Dr. Dittman is the Medical Director of the Respiratory Therapy Department of the Hazelton State General Hospital. Id. at 35. In his report of October, 1, 1998, which comprises four and one-half pages of text and eight pages of figures, Dr. Ditt-man presents the results of a comprehensive physical examination of Wolfgang that he conducted on September 18, 1998, which included PFTs and arterial blood tests. Id. at 20-32. Dr. Dittman also surveys Wolfgang’s medical and work histories. Id. He concludes that ‘Wolfgang does not have coalworker’s pneumoconiosis and is not physically impaired nor disabled on the basis of coalworker’s pneumoconio-sis.” Id. at 23-24. On October 12, 1998, Dr. Dittman submitted another report in [71]*71which he discussed the etiology of Wolfgang’s disability. Id. at 33-34. Dr. Ditt-man notes discrepancies between the results of different x-ray studies and the inconsistency and apparent unreliability of Wolfgang’s PFT results. Id. at 33. Based on his assessment of Wolfgang’s self-reported medical history, Dr. Dittman stated that “[i]t would be highly, highly unusual for someone with simple coalworker’s pneumoconiosis to have symptoms arising and worsening approximately 7 years after his last employment in the anthracite mining industry.” Id. at 34. Dr. Dittman concludes that the most likely origin of Mr. Wolfgang’s physical impairment was bronchial asthma or emphysema. Id.

Dr. Sander L. Levinson is the Director of Pulmonary Laboratory and Respiratory Therapy at the Moses Taylor Hospital. Id. at 17. On March 31, 1998, he submitted, on a standard Department of Labor form, an assessment of the PFT studies conducted by Dr. R. Kraynak on January 8, 1998. Id. at 14-16. Dr. Levinson noted “excessive variability” and “poor effort.” Id. at 16.

In his decision and order issued on July 21,1999, the ALJ noted that Dr. Dittman’s medical report of October 12, 1998, was “detañed, comprehensive! ] and considered] the Claimant’s full medical history as it relates to the cause of his total disability!,]” that Dr. M. Kraynak’s report contained “virtually no underlying objective evidence,” and that Dr. Simelaro, though a “weU qualified expert, did not address Dittman’s rationale.” Id. at 124-25. The ALJ denied Wolfgang’s claim on the ground that he had fañed to show that pneumoconiosis was the cause of his disability, and the ALJ explained that he had attached great weight to Dr. Dittman’s opinion and that “Dr. Dittman’s reasoning remains unrefuted in its logic.” Id. at 124-25.

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