Charles G. Grigg v. Director, Office of Workers' Compensation Programs, United States Department of Labor, Charles G. Grigg v. Director, Office of Workers' Compensation Programs, United States Department of Labor
Docket: 92-1591
Court: Court of Appeals for the Fourth Circuit; July 1, 1994; Federal Appellate Court
Charles Grigg petitioned the United States Court of Appeals for the Fourth Circuit for review of the Benefits Review Board's (BRB) affirmation of an administrative law judge's (ALJ) decision denying his claim for black lung benefits. Grigg, who worked in coal mines from 1937 until 1975, initially filed his claim in 1975. After a lengthy process, the ALJ found that Grigg had invoked the interim presumption of entitlement to benefits based on x-ray evidence but concluded that the presumption was rebutted.
The BRB later discovered that the hearing transcript was lost, remanding the case for a new hearing. During this new hearing in 1990, the ALJ ruled that the presumption had not been invoked despite the Director’s concession. The ALJ also found that even if the presumption had been invoked, it would have been rebutted under two specific regulatory provisions, ultimately affirming the decision based on one of those provisions.
Grigg filed two petitions for review following the BRB's decision and a request for reconsideration, which was denied. The Director of the Office of Workers' Compensation Programs (DOWCP) moved to dismiss one of the petitions as interlocutory, but the court denied the motion as moot since jurisdiction was established through the filing of the new petition.
In its appellate brief, DOWCP acknowledged that the ALJ erred by not invoking the presumption and incorrectly finding rebuttal under one of the regulatory provisions. They requested a remand to reconsider the case, highlighting that the ALJ failed to consider a report from Grigg's treating physician, Dr. Wurst. The court ordered a remand for expedited reconsideration of the claim.
DOWCP concedes that the interim presumption of pneumoconiosis, as established under 20 C.F.R. Sec. 727.203(a)(1), was correctly invoked based on various x-ray readings from 1960 to 1984, which indicated a steady progression of the disease. However, a second ALJ later deemed four positive x-ray readings as unreliable, stating that the disease's progression shown occurred ten years after the miner, Grigg, left the coal mines. Judicial notice was taken of predominant medical opinion suggesting that pneumoconiosis is not progressive within five years of leaving the mines, yet this opinion is not a fact for which judicial notice is appropriate. Additionally, the stipulations of fact presented were binding.
DOWCP also acknowledged the ALJ's finding under 727.203(b)(2) was flawed, as it failed to establish that Grigg was capable of performing his usual coal mine work, which was undisputed given his Social Security disability status. The Board's reasoning for affirming the ALJ did not rely on this point.
The central issue concerns the rebuttal of the interim presumption under 20 C.F.R. Sec. 727.203(b)(3), which requires evidence to demonstrate that the miner's total disability or death did not arise from coal mine employment. DOWCP's reliance on opinions from Doctors Zaldivar and Daniel, which stated Grigg has no pulmonary impairment, is under scrutiny. While these opinions do not directly address causation, DOWCP argues they could suffice to rebut the presumption based on the BRB's decision in Marcum v. DOWCP, which posits that a lack of pulmonary impairment implies no connection to coal mine employment.
The document clarifies that while the reasoning in Marcum is logically sound, it must be applied cautiously to ensure compliance with Massey, which remains the authoritative standard in this circuit. The inquiry in future cases will focus on whether the criteria set forth in Massey are met, rather than solely relying on citations to Marcum.
Massey's standard can only be satisfied by medical opinions unequivocally stating that a miner has no respiratory or pulmonary impairment. Opinions are more credible when identifying the actual causes of the miner's disability. Opinions that merely assert an impairment is not disabling are not permissible as rebuttal under (b)(3), nor are those questioning whole-person disability, which should be assessed under (b)(1) or (b)(2). DOWCP contends that Marcum applies primarily to (a)(1) invocation of the interim presumption and should not apply to (a)(4), as the latter presupposes evidence of total disability. A rebuttal opinion denying impairment would contradict findings from the presumption phase. DOWCP's argument that a 'no impairment' opinion can rebut (a)(1) invocation, even if based on an erroneous pneumoconiosis finding, is disputed. Opinions based on a misdiagnosis of pneumoconiosis have diminished probative value. In this case, Dr. Zaldivar and Dr. Daniel found no pulmonary dysfunction, attributing Grigg's total disability to age and hypertension, with Dr. Daniel acknowledging the presence of pneumoconiosis. Conversely, three other physicians confirmed the presence of pneumoconiosis and its impact on Grigg's pulmonary function. While Dr. Wurst, the treating physician, is less qualified, his opinion holds significant weight. The ALJ's failure to consider Dr. Wurst's opinion leads DOWCP to request a remand, avoiding the need to determine if the ALJ improperly favored Dr. Zaldivar's opinion.
The claim in question has been pending for nineteen years, significantly impacting Mr. Grigg's life. While benefits would be warranted for mere perseverance, they are only granted for total disability due to pneumoconiosis. The counsel for DOWCP indicated uncertainty regarding the promptness of remand proceedings. As a result, there is an appeal for the BRB to expedite the reconsideration of this claim, which has been remanded for immediate action.
The excerpt references legal principles related to evaluating pneumoconiosis claims, particularly the "later evidence is better" doctrine, which acknowledges the progressive nature of the disease. It emphasizes that later evidence indicating health deterioration is not inherently inconsistent with earlier findings. The document also discusses the implications of the Marcum rule and its application to prevent relitigation of a miner's overall disability, stipulating that rebuttal evidence must directly address the miner's pulmonary impairment and its connection to coal dust exposure.
Additionally, the opinions of doctors claiming Grigg was not disabled from a pulmonary standpoint have been deemed non-probative for rebuttal questions. Grigg contends that the lengthy delay and lost transcript infringe on his due process rights; however, the document concludes that there is insufficient evidence of a constitutional violation, nor would an undeserved award of benefits be an appropriate remedy.
