On Petition for Review of an Order of the Benfits Review Board. BRB No. 87-563-BLA.
Gibbons, Chief Judge, Scirica, Circuit Judge and Waldman, District Judge.*fn*
Peter Kowalchick petitions for review of a final decision of the Benefits Review Board of the United States Department of Labor, denying him benefits under the Black Lung Benefits Act, 30 U.S.C.A. § 932(a) (West 1986). We will reverse the decision of the Benefits Review Board and direct that benefits be awarded.
This case has a lengthy procedural history. Kowalchick filed for disability benefits pursuant to the Black Lung Benefits Act, 30 U.S.C.A. §§ 901-945 (West 1986) ("the Act") on May 30, 1973. The Social Security Administration ("SSA") denied his claim in January 1974, and again upon re-examination in February 21, 1974. Kowalchick requested review of his claim by filing an election card pursuant to 30 U.S.C.A. § 945(a)(1)(A), but was again denied benefits. The claim was then referred to the Department of Labor ("DOL") pursuant to 30 U.S.C.A. 945(a)(2)(B)(i).
Kowalchick filed a second application for benefits in December 1981, which merged with his prior application pursuant to 20 C.F.R. § 725.309(d). The DOL denied the claim in November 1982, and Kowalchick subsequently requested a preliminary conference and formal hearing in December 1982. The preliminary conference was held in February 1983; benefits were again denied. A formal hearing was held in October 1986. In February 1987, the Administrative Law Judge ("ALJ") who heard the case issued a Decision and Order denying benefits once again.
Kowalchick filed a timely appeal to the Benefits Review Board ("the Board"). The respondent, the Director of the Office of Workers' Compensation Programs, United States Department of Labor ("the Director"; in case citations, "Director, OWCP") conceded that the ALJ erred in considering certain x-ray evidence and moved before the Board for a remand so that the ALJ could reconsider the evidence minus the inadmissible x-rays. The Board denied that motion and affirmed the ALJ's decision in May 1989. Kowalchick petitioned this court for review, pursuant to 30 U.S.C.A. § 931(a), arguing that he should be awarded benefits.
The Director concedes that the Board erred in affirming the ALJ's denial of benefits "in light of clear ALJ error", (Brief for Respondent at 11), but argues that the case should be remanded for the ALJ to make further factual findings.
It is not disputed that Kowalchick's claim should be considered under the interim presumption of disability set forth in 20 C.F.R. § 727.203 ("section 727.203"), which provides that a miner who engaged in at least ten years of coal mine employment is presumed to be totally disabled due to pneumoconiosis if he can demonstrate that he meets one of four medical requirements. 20 C.F.R. § 727.203(a) (1989). It is also undisputed that Kowalchick did have at least ten years of coal mine employment.
The three medical requirements relevant to this case are:
(1) A chest roentgenogram (X-ray), biopsy, or autopsy [which] establishes that existence of pneumoconiosis (see § 410.428 of this title);
(2) Ventilatory studies [which] establish the presence of a chronic respiratory or pulmonary disease (which meets the requirements for duration in § 410.412(a)(2) of this title) as demonstrated by values which are equal to or less than . . . . [for an individual of Kowalchick's height, 69 inches, an FEV1 (forced expiratory volume in one second) value of 2.4 or less, and an MVV (maximum voluntary ventilation) value of 96 or less];
(4) Other medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, [which] establishes the presence of a totally disabling respiratory or pulmonary impairment.
20 C.F.R. § 727.203(a) (1989).*fn1
Section 410.428 specifies various classifications of x-rays which qualify to show the existence of pneumoconiosis. Section 410.412(a)(2) provides that a miner will be considered totally disabled by pneumoconiosis if "his impairment can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 410.412(a)(2) (1989).
The presumption of disability may be rebutted if it can be shown that the individual is, or is capable of, performing his usual coal mine work, that the individual's disability is not in any way related to coal mine employment, or that the individual does not have pneumoconiosis.*fn2
The medical tests introduced into evidence have varied results. Two x-rays in 1982 were read by Dr. J.E. Conrad, a board certified radiologist, to reveal lung opacities indicative of pneumoconiosis, with a profusion level of 1/0, the third highest of four possible classifications: one in August 1986 was read by Dr. K.N. Mathur, a "B-reader"*fn3, to reveal opacities with a level of 2/1, the second highest of the four classifications. It seems undisputed that these three positive x-rays meet the requirements of section 410.128 and so qualify to invoke the presumption of disability under section 707.203(a)(1). One x-ray in 1973, one in 1979 which was read by two ...