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In re Kertesz

April 14, 1986

IN THE MATTER OF FRANK KERTESZ, PETITIONER
v.
CRESCENT HILLS COAL CO., AND OLD REPUBLIC COMPANIES, AND DIRECTOR, OFFICE OR WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS



Appeal from the Benefits Review Board BRB No. 82-778 BLA.

Author: Rosenn

Before: GIBBONS, BECKER, and ROSENN, Circuit Judges

Opinion OF THE COURT

ROSENN, Circuit Judge

Frank Kertesz petitions for review of a Benefits Review Board (BRB) decision denying him benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-960 (1982) (the Act).*fn1 The BRB reversed an Administrative Law Judge (ALJ) order granting benefits, holding that the ALJ erred in discrediting a doctor's uncontradicted expert opinion by substituting his own medical judgment. We agree and affirm.

I.

Kertesz applied for benefits in 1976, when after two heart attacks he retired from coal mining. At the time he was 54 years old and had worked in the mines approximately 22 years. He had held a wide variety of mining jobs, and had been employed by at least 14 different coal mining companies. He worked steadily as a miner until 1954, but except for a brief stint in 1957, he did not work in mines again until 1973. From 1973 until his retirement in 1976 he worked for Crescent Hills Coal Company (Crescent Coal), which as the responsible operator under 20 C.F.R. § 725.493 (1985), is a respondent in this action. Old Republic Insurance Company is a respondent as Crescent Coal's insurer.

Shortly after Kertesz filed his claim, Dr. Francisco F. Bruno examined him for the United States Department of Labor.*fn2 Dr. Bruno concluded that x-rays of Kertesz's lungs "could be indicative of very early pneumoconiosis," that the examination showed "probable chronic restrictive and obstructive lung disease, and that he had heart disease. The parties agree that Dr. Bruno's report is inconclusive as to Kertesz's respiratory condition.

Pursuant to statute, 30 U.S.C. § 921 (1982), the Department of Labor has promulgated regulations establishing an interim presumption of total disability. Under the regulations, a person who worked at least 10 years as a coal miner is presumed to be totally disabled by pneumoconiosis and entitled to benefits under the Act if any of four conditions are met: (1) an x-ray reading establishes the condition: (2) ventilatory study measurements establish the presence of a chronic respiratory disease as numerically defined; (3) blood gas studies reveal impairment of the flow of oxygen, again as numerically defined; or (4) the documented reasoned opinion of a doctor established the presence of a total impairment. 20 C.F.R. § 727.203(a)(1985). It is undisputed that Dr. Bruno's reading of the x-rays is sufficient to invoke the interim presumption of disability under 20 C.F.R. § 727.203(a)(1)(1985).*fn3

Dr. C. Baughn Strimlan examined Kertesz on behalf of Crescent Coal in 1979. Board certified in internal medicine, his major area of practice was pulmonary disease and he was the director of pulmonary disease at Mercy Hospital and St. Clair Memorial Hospital, both in Pittsburgh. He was also a federal "A" reader of chest x-rays for pneumoconiosis. He found that Kertesz had a significant cardiovascular history and that, in addition to nitroglycerine tablets, he was taking a number of other medications including a diuretic and another heart pill. He was not taking any pulmonary medicine and his pulmonary function study was essentially within normal limits. In his report and his subsequent deposition, Dr. Strimlan asserted repeatedly that although Kertesz's severe heart problems rendered him totally disabled, respiratory problems rendered him totally disabled, respiratory problems attributable to his mine work played no significant role in his disability. He concluded:

I think the whole man is totally impaired and disabled. I think the primary disability is because of his heart disease . . . [T]he pulmonary functions are essentially normal. He doesn't have any significant degree of respiratory impairment. He does have the disease [pneumoconiosis], but I don't think it is really a major factor in contributing to his disability. And that is my best opinion.

Dr. Strimlan administered a blood gas test to Kertesz in 1979 and found reduced pO2 (plasma concentration of oxygen) with values that qualified Kertesz for the interim presumption of disability under 20 C.F.R. § 727.203(a)(3).*fn4 Dr. Strimlan concluded that the blood gas test showed "moderately severe arterial hypoxemia." During a hospital stay in 1977, Kertesz registered a higher pO2 on a blood gas test, 69.7 mm. Hg., although the pCO2 (plasma concentration of carbon dioxide) of 32.9 mm. Hg. was similar to the 1979 value. The 1977 blood gas test results do not qualify for the interim presumption. They were provided to the ALJ as an unmarked exhibit, without any expert medical interpretation.

At his deposition, Dr. Strimlan stated that he considered blood gas tests unreliable indicators of respiratory condition because the results "can be affected by so many different factors," including "all cardiopulmonary problems -- both ventilation in the lungs, profusion in the lungs with blood, circulation of the blood, . . . all affected by the heart and medication." In his written report Dr. Strimlan also discredited Kertesz's blood gas test and concluded: "I think the patient's smoking history and the use of Isordil and nitroglycerine tablets probably accounted for his reduction in his pO2."

The Department of Labor, as part of its regulatory scheme of interim presumptions, provides four means of rebuttal. Two of ...


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