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Evosevich v. Consolidation Coal Co.

May 5, 1986

MICHAEL EVOSEVICH, PETITIONER
v.
CONSOLIDATION COAL COMPANY AND DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS



Appeal from the Benefits Review Board BRB No. 82-2060 BLA

Author: Rosenn

Before: GIBBONS, BECKER, and ROSENN, Circuit Judges

ROSENN, Circuit Judge.

This petition for review of a decision denying black lung benefits*fn1 presents two questions, the first of which is whether the report of a non-examining physician based solely on a review of medical records is admissible over a hearsay objection in an administrative hearing. The second, and more difficult, question is whether the Administrative Law Judge (ALJ) erred in the weight he accorded the medical opinion of the non-examining physician hired by an adverse party. The ALJ denied Michael Evosevich's claim for benefits, concluding that the opinion of two doctors hired by the Consolidation Coal Company (the Company), which opposed awarding benefits, had greater probative worth than the opinions of Evosevich's treating physician and a labor department doctor. Only one of the Company's doctors examined Evosevich. The Benefit Review board (BRB) affirmed the ALJ's decision.

We disagree with Evosevich's contention that the report of a non-examining physician is inadmissible hearsay. After reviewing the record as a whole, we conclude that substantial evidence supports the ALJ's decision, and deny Evosevich's petition for review.

I.

Evosevich worked in coal mines for 47 years before retiring at age 63. All his jobs were underground. For the last 10 years of his career he worked for the Company, which as the responsible operator under 20 C.F.R. § 725.493 (1985) is the respondent in this action. He had an excellent employment record, often working six or seven days a week with few absences. Following his retirement, which he attributes in part to shortness of breath, Evosevich filed a claim under the Black Lung Benefits Act, 30 U.S.C. §§ 901-960 (1982) (the Act).

Evosevich previously had been examined by several doctors in connection with various medical problems, including a congenital chest deformity (pectus excavatum), a hernia repair, and bladder cancer. Reports of these examinations, as well as of examinations performed to evaluate the merit of Evosevich's claim under the Act, were submitted for consideration to an ALJ. The ALJ also heard testimony from Evosevich, but none of the doctors testified.

Pursuant to statute, 30 U.S.C. § 921 (1982), the Department of Labor has promulgated regulations establishing interim rebuttable presumptions of total disability. A miner who worked at least 10 years in a coal mine is presumed to be totally disable by pneumoconiosis and entitled to benefits under the Act if one of four requirements are met: (1) a chest x-ray, biopsy, or autopsy establishes the condition; (2) ventilatory studies 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) other medical evidence, including the documented reasoned opinion of a doctor, establishes the presence of a totally disabling respiratory impairment. 20 C.F.R. § 727.203(a)(1)-(4) (1985).

After reviewing the evidence, the ALJ concluded and on appeal the Company concedes that Evosevich qualified for the interim presumption on the basis of the ventilatory studies and reasoned doctors' opinions concluding that he suffered a totally disabling respiratory impairment. Evosevich submitted to four ventilatory studies. For man his height, an FEV-1 under 2.4 and a MVV under 96 qualify for the ventilatory presumption. In three recorded tests, Evosevich's FEV-1 ranged from 1.75 to 1.86 and his MVV from 45 to 72, all qualifying values. Although the values of a fourth test are not reported, the ALJ found they also qualified. Despite conflicting medical opinions,*fn2 the ALJ found that two doctors' reasoned medical opinions supported invoking the interim presumption. Evosevich did not qualify for the interim presumption on the basis of chest x-rays because the readings were conflicting, with negative readings of the most recent x-rays by the most qualified doctors. Evosevich was tested twice for the blood gas presumption and did not qualify either time.

Two experts hired by the Company, Dr. C.L. Anderson and Dr. George O. Kress, submitted reports concluding that Evosevich had chronic bronchitis and mild obstructive lung disease, caused by his congenital chest deformity and his former pack-a-day cigarette habit, that he had at most mild pneumoconiosis, and that he was not disabled from performing his usual work. Dr. Anderson based his report on his personal examination of Evosevich and on negative readings of x-rays apparently performed and read by Dr. Paul Francke, also retained by the Company. Dr. Kress did not examine Evosevich, and based his conclusions on the hospital and other medical records, Dr. Anderson's report, previous x-ray readings, and his own reading of the latest x-rays of record, Dr. Francke and Dr. Kress are both certified "B" readers.*fn3

Dr. Thomas E. Morgan submitted a report detailing Evosevich's medical history. Dr. Morgan, a general practitioner who has been Evosevich's family physician for more than 25 years, stated that in the 10 years preceding his retirement Evosevich "began to develop a progressive shortness of breach [breath] and a chronic cough," and that breathing problems prevented him from climbing stairs, walking up an incline, or walking further than 100 yards. He also reported that Evosevich's performance on a pulmonary function study and chest x-rays supported his diagnosis. The results of these studies qualify for the interim presumption of pneumoconiosis disability. He concluded that "this patient is totally and permanently disable for any further employment. .. [as] the result of his exposure to heavy concentrations of coal dust as an underground coal miner for over 45 years.

Dr. John Martin examined Evosevich on behalf of the United States Department of Labor and also concluded that hi is totally disabled due to pneumoconiosis. Dr. Martin's reasoning was consistent with Dr. Morgan's. He found that Evosevich's breathing problem limited him to walking no more than 50 feet or one flight of steps each day and prevented him from lifting or carrying anything. He stated that "part of [Evosevich's] dyspnea could be due to cigarette smoking as well, but in may estimation less than 50%." Dr. Martin also relied on ventilatory study results, which, like those performed by Dr. Morgan, were qualifying for the interim presumption of pneumoconiosis. In interpreting the ventilatory study, however, he stated that Evosevich's reduced FVC was "compatible with mild restrictive impairment" and his markedly reduced MVV "could be due to either pulmonary or non-pulmonary causes." (Emphasis added.)

Dr. Morgan and three board-certified radiologist, all of whom are not "B" readers, read various x-rays of Evosevich with values that qualify for the interim presumption and pneumoconiosis disability. Dr. McMahon, a "B" reader, also concluded that one of two x-rays register values that qualify for the interim presumption. See supra note 3. Two ventilatory studies were performed after Dr. Morgan and Dr. Martin wrote their reports, and both qualify for the interim presumption of pneumoconiosis and are consistent with the earlier studies. The evidence on which ...


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