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Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor v. Siwiec

filed: January 26, 1990.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR, PETITIONER
v.
WILLIAM SIWIEC, RESPONDENT



On Petition for Review of a Decision and Order of the Benefits Review Board, BRB Case No. 87-1434 BLA.

Hutchinson, Cowen and Rosenn, Circuit Judges.

Author: Cowen

Opinion OF THE COURT

COWEN, Circuit Judge.

The Director of the Office of Workers' Compensation Programs, United States Department of Labor ("Director") petitions for review of a final order of the Benefits Review Board ("Board") granting an award of black lung benefits to William Siwiec ("Siwiec") under the Black Lung Benefits Act, 30 U.S.C. §§ 901-45 (1982). The Board affirmed an Administrative Law Judge's ("ALJ") order granting benefits. We hold that because the Board failed to properly exercise its scope of review function when affirming the ALJ's finding that total disability was established, we will grant the Director's petition for review and reverse the decision of the Board.

I.

William Siwiec worked as a coal miner for eight years. His duties as a miner consisted of operating a jackhammer, air compressor, grease gun and shoveling coal ending in 1952. After working as a coal miner, Siwiec went to work for U.S. Steel Corporation. Siwiec then worked for U.S. Steel Corporation for thirty-two years until his retirement in 1985. After retiring, Siwiec filed a claim for benefits pursuant to the Black Lung Benefits Act (the "Act") 30 U.S.C. §§ 901-45 (1982), claiming that as a result of his coal mining experience he is suffering from pneumoconiosis. His claim for benefits was denied by the Department of Labor's Office of Workers' Compensation Programs and Siwiec thereafter requested a formal hearing. His case was referred to the Office of Administrative Law Judges and a formal hearing was held.

Benefits under the Act are awarded to persons who are totally disabled due to pneumoconiosis arising out of coal mine employment. 30 U.S.C. § 901(a) (1982). Under Part 718 of the black lung regulations, a miner must prove that he has pneumoconiosis, that he contracted it through coal mine employment, and that his disability arose out of such employment. See 20 C.F.R. §§ 718.201-.203 (1987). Section 718.204 sets out the specific criteria for determining whether a miner is totally disabled.*fn1 Section 718.204(c) provides that evidence which meets the standards of either paragraphs (c)(1), (2), (3), (4) or (5) establishes total disability in the absence of contrary probative evidence. Section 718.204(c)(1) provides for total disability when pulmonary function tests show values equal to or less than listed in the applicable Table in Appendix B. Paragraph 718.204(c)(4) specifies that an ALJ may find total disability if a physician "exercising reasoned medical judgment, based on medically acceptable clinical and laboratory diagnostic techniques concludes that a miner's respiratory or pulmonary conditions prevents or prevented the miner from engaging in employment" as defined by subsection (b).

In addition, Subpart B of the black lung regulations, 20 C.F.R. §§ 718.101-.107 (1987) sets out quality standards for different kinds of medical evidence, including x-rays, pulmonary function studies, arterial blood gas studies, autopsies and biopsies that may be used to establish total disability. These quality standards were established to insure that any medical evidence in regard to a black lung claim could be independently reviewed by a physician to determine whether they were properly performed and were thus reliable. See Zeigler Coal Co. v. Sieberg, 839 F.2d 1280, 1283 (7th Cir. 1988) ("the black lung regulations require tracings of each pft [pulmonary function test] for the very purpose of permitting independent verification of the test results"). Section 718.103 provides the standard for pulmonary function tests.*fn2 It requires that a pulmonary function study must contain a statement as to a claimant's ability to follow directions and his degree of cooperation in performing the test. 20 C.F.R. § 718.103(b)(5). All such studies must also be accompanied by three tracings of each pulmonary function test performed.*fn3 20 C.F.R. § 718.103(b).*fn4

At the hearing, the ALJ determined that Siwiec established both the existence of pneumoconiosis and the causal relationship between the pneumoconiosis and his coal mine employment. The ALJ further found that Siwiec was totally disabled pursuant to Section 718.204(c)(1) and (c)(4) and awarded him benefits. The medical evidence consisted of six pulmonary function studies and three medical reports. In reaching his decision, the ALJ relied on four of the pulmonary evidence studies combined with the medical report of Dr. Marcella Frank, Siwiec's treating physician.

Two pulmonary function studies were performed by Dr. Alan T. Levitt on July 29, 1985 and on August 4, 1985. These studies resulted in qualifying values,*fn5 but did not include a statement on Siwiec's comprehension and cooperation nor were they accompanied with tracings. App. at 39-41. Two studies were also prepared by Dr. Frank on June 24, 1986 and on November 19, 1986. These tests also resulted in qualifying values, but included neither a statement as to Siwiec's comprehension and cooperation, nor the accompanying tracings. App. at 44-50. The other pulmonary function studies were performed by Drs. Snyder and Obaray and resulted in non-qualifying values. App. at 22-28, 32, 42-43. Dr. Frank's medical report of June 20, 1986 evaluated the pulmonary function study results, and stated that "[these] numbers are strongly suggestive of severe restrictive abnormality in the lungs." App. at 34. Dr. Frank also stated that Siwiec "meets [the] disability criteria in that his pulmonary function studies are severely abnormal." Id. The results of the pulmonary function studies were again discussed in a supplemental medical report on December 1, 1986. App. at 37-38.

Although neither a statement of Siwiec's comprehension and cooperation nor tracings were attached to the pulmonary function studies prepared by Drs. Levitt and Frank, the ALJ nevertheless held that "the pulmonary function study evidence combined with the opinion of the claimant's treating physician, Dr. Frank, that the claimant is totally disabled is sufficient to outweigh the contrary evidence in the record." App. at 15. The ALJ credited Dr. Frank's medical opinion because she was Siwiec's treating physician and because the medical evidence submitted by Dr. Frank to the ALJ was the most recent evidence of record. Id.

The Director appealed to the Board pursuant to 20 C.F.R. §§ 802.205, 802.211 (1987). The Board affirmed the ALJ's award of benefits. Siwiec v. Director, OWCP, No. 87-1434 BLA (Ben.Rev.Bd. March 22, 1989). In affirming Siwiec's claim for benefits, the Board held that the ALJ's decision complied with this Court's holding in Director, OWCP v. Mangifest, 826 F.2d 1318 (3d Cir. 1987), that an "administrative law judge must consider whether a pulmonary function study is in substantial compliance with the quality standards of 20 C.F.R. § 718.103 in order to find total disability demonstrated pursuant to Section 718.204(c)(1)." App. at 6. The Board held specifically that:

[The] administrative law judge did consider the quality standards of Section 718.103. The administrative law judge specifically determined that "the tracings were not attached and the claimant's comprehension and cooperation were not noted for a number of the pulmonary function studies," but nevertheless concluded that these studies would not be precluded from consideration because, the administrative law judge stated, while an administrative law judge may consider the quality standards found in Section 718.103, the standards are not mandatory and pulmonary function studies cannot be precluded from consideration by the administrative law judge under Section 718.204(c)(1) simply because the evidence fails to comply with those standards. Decision and Order at 6. The administrative law judge cited Gorman v. Hawk Contracting, Inc., 9 Bankr. L. Rep. (CCH) 1-76, 1-78 (1986) in support of this conclusion. Decision and Order at 6. Contrary to the Director's contention that Mangifest, supra, directly overrules Gorman, supra, by holding that compliance with the quality standards is mandatory in order for a pulmonary function study to be considered by the administrative law judge, Mangifest simply requires the administrative law judge to expressly consider the quality standards. ...


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