2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-26-2002

Consolidation Coal v. Kushak

Precedential or Non-Precedential:

Docket 1-2854

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Recommended Citation

"Consolidation Coal v. Kushak" (2002). 2002 Decisions. Paper 209.

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 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 

 No. 01-2854 

 ___________ 

 

 IN THE MATTER OF: 

 CONSOLIDATION COAL COMPANY, 

 Responsible Operator/Petitioner 

 v. 

 GEORGE KUSHAK, 

 Claimant/Respondent 

 and 

 DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, 

 United States Department of Labor, 

 

 Party-In-Interest

 ___________ 

 On Petition for Review of Decision and Order of the 

 Benefits Review Board dated May 16, 2001 

 entered in Agency Nos. 0090-1 and 00-0830 BLA 

 ___________ 

 Submitted Under Third Circuit L.A.R. 34.1(a) 

 March 1, 2002 

Before ROTH and FUENTES, Circuit Judges, and KATZ, District Judge. 

 (Opinion Filed: March 26, 2002) 

 ________________________ 

 OPINION OF THE COURT 

 ________________________ 

FUENTES, Circuit Judge: 

 This is a petition for review sought by the Consolidation Coal 

Company 

("CONSOL") of the Decision and Order of the Benefits Review Board (the 

"Board") 
which affirmed the order of the Administrative Law Judge ("ALJ") awarding 

black lung 

benefits to claimant George Kushak. 

 Because we agree that the findings of the ALJ were supported by 

substantial 

evidence, we will deny the petition for review. 

 I. 

 We state the facts and extensive procedural history of this case only 

in summary. 

George Kushak, who worked over 34 years in and about the coal mines of 

Pennsylvania, 

first filed for Black Lung benefits on January 15, 1980. Since then, his 

case has been 

before the Board four times. 

 In his initial Decision and Order, the ALJ found that Kushak failed 

to establish that 

his work at a repair shop for CONSOL constituted the work of a coal miner. 

Accordingly, the ALJ dismissed CONSOL as the responsible operator. The 

Board, 

however, later vacated the ALJ's finding with respect to Kushak's status 

as a coal miner 

and instructed the ALJ to reconsider Kushak's eligibility for benefits. 

On remand, the 

ALJ found that Kushak qualified as a coal miner with CONSOL and that 

CONSOL was 

the responsible operator. Further, the ALJ credited Kushak with 34 years 

of coal mine 

employment and found that he established invocation of the interim 

presumption of total 

disability due to pneumoconiosis pursuant to 20 C.F.R.  727.203(a)(4) and 

that 

CONSOL failed to establish rebuttal pursuant to 20 C.F.R.  727.203(b). 

Based on these 

findings, the ALJ awarded benefits to Kushak. 

 After several subsequent appeals to the Board and remands to the ALJ, 

the ALJ 

affirmed the award of benefits again on April 28, 2000. CONSOL then 

appealed that 

decision to the Board, contending that the ALJ erred in finding that the 

evidence was 

sufficient to establish invocation of the interim presumption pursuant to 

 727.203(a)(4) 

and in finding that the evidence was insufficient to establish rebuttal of 

the interim 

presumption pursuant to  727.203(b)(3) and (b)(4). More specifically, 

CONSOL argued 

that the ALJ failed to state an adequate rationale for finding the opinion 

of one doctor, 

who diagnosed total disability due to pneumoconiosis, more persuasive than 

the contrary 

opinions of four other doctors, who found no respiratory impairment. 

 In its Decision and Order dated March 16, 2001, the Board found that 

the ALJ 
weighed all of the medical opinions and rationally concluded that the 

preponderance of 

the evidence established the existence of a totally disabling respiratory 

or pulmonary 

impairment due to pneumoconiosis. Accordingly, it affirmed the ALJ's 

Decision and 

Order on Remand denying modification and awarding benefits. On July 12, 

2001, 

CONSOL filed a notice of appeal with this Court. It maintains that the 

ALJ failed to rely 

on substantial evidence in finding that the opinion of Kushak's treating 

physician 

established the presence of a totally disabling pulmonary disease. 

 II. 

 We have appellate jurisdiction over this matter pursuant to Section 

21(c) of the 

Longshore and Harbor Workers' Compensation Act, 33 U.S.C.  921(c), as 

incorporated 

by Section 422(a) of Title IV of the Federal Coal Mine Health and Safety 

Act of 1969, as 

amended, 30 U.S.C.  932(a). We review decisions of the Benefits Review 

Board for 

errors of law and adherence to the Board's statutory scope of review. See 

Nelson v. 

American Dredging Co., 143 F.3d 789, 792 (3d Cir. 1998). 

 When factual findings are at issue, "we make an independent factual 

review to 

determine whether the administrative law judge's findings were supported 

by substantial 

evidence." Sea-Land Service, Inc. v. Rock, 953 F.2d 56, 59 (3d Cir. 1992) 

(citing 

Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 677 F.2d 286, 290 (3d 

Cir.1982)). 

"Substantial evidence" is defined as "such relevant evidence as a 

reasonable mind might 

accept as adequate to support a conclusion." Richardson v. Perales, 402 

U.S. 389, 401, 

91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (citing Consolidated Edison Co. 

v. NLRB, 

305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). 

 III. 

 To be entitled to the interim presumption of total disability due to 

pneumoconiosis, 

an individual with over ten years of coal mine employment must produce 

evidence in 

accordance with 20 C.F.R.  727.203(a), which provides: 

 A miner who engaged in mine employment for at least 10 years will be 

 presumed to be totally disabled due to pneumoconiosis . . . arising 

out of 

 that employment if one of the following medical requirements is met: 

 (1) x-ray, biopsy, or autopsy established existence of 

 pneumoconiosis . . . or 
 (2) ventilatory studies which demonstrate the presence of 

an 

 impairment in the transfer of oxygen from the lung . . . or 

 (3) blood gas studies which demonstrate the presence of an 

 impairment in the transfer of oxygen from the lung . . . or 

 (4) other medical evidence, including the documented 

opinion of a 

 physician exercising reasoned medical judgment, establishes the 

 presence of a totally disabling respiratory or pulmonary 

impairment. 

 

The ALJ found that Kushak is entitled to the presumption of total 

disability under 

727.203(a)(4) based upon the documented opinion of Dr. Naresh Bhatt, who 

diagnosed 

Kushak with pneumoconiosis after treating and examining him several times. 

In making 

his diagnosis, Dr. Bhatt stated that he relied upon Kushak's coal mine 

employment 

history, his complaints of shortness of breath, wheezes in the lungs, and 

x-ray 

interpretations showing the presence of fibrosis in the lungs. 

 Because we conclude that a reasonable mind could accept Dr. Bhatt's 

medical 

report as adequate to support a conclusion that Kushak has been suffering 

from 

pneumoconiosis, we find that the ALJ's finding that Kushak is entitled to 

the presumption 

of total disability under  727.203(a)(4) is supported by substantial 

evidence. 

 Once an individual invokes the interim presumption under 

727.203(a), the 

presumption can be rebutted pursuant to 727.203(b) if: 

 (1) the evidence establishes that the individual is doing his usual 

coal mine 

 work . . . or 

 (2) in light of all relevant evidence it is established that the 

individual is 

 able to do his usual coal mine work . . . or 

 (3) the evidence establishes that the total disability . . . did not 

arise in 

 whole or in part from coal mine employment . . . or 

 (4) evidence establishes that the miner does not or did not have 

 pneumoconiosis. 

 

CONSOL contends that several laboratory test results and the opinions of 

Drs. Fino, 

Morgan, Renn, and Packovich, who all found no signs of disabling pulmonary 

disease, 

are sufficient to establish rebuttal of the interim presumption under 

subsections (b)(3) and 

(b)(4). 

 The ALJ cited several reasons for rejecting CONSOL's argument with 

respect to 
subsection (b)(3). He observed that Drs. Fino and Morgan could not 

provide an 

alternative cause for Kushak's symptoms. He dismissed Dr. Renn's opinion, 

which 

attributed Kushak's symptoms to depression, because it was not documented 

elsewhere in 

the record and because none of the other examining physicians had made 

that diagnosis. 

After weighing the evidence, the ALJ finally concluded that Dr. Bhatt's 

opinion is the 

most persuasive on the causation issue. 

 The ALJ also found that the preponderance of the evidence does not 

support 

rebuttal under subsection (b)(4). He explained that negative chest x-ray 

evidence alone 

does not establish rebuttal and, again, that he found the opinion of Dr. 

Bhatt more 

persuasive than those of Drs. Renn, Morgan, Fino and Packovich. He noted 

that Drs. 

Fino and Morgan had never actually examined Kushak and that Drs. Renn and 

Packovich 

only examined Kushak once. Dr. Bhatt, in contrast, had examined Kushak on 

several 

occasions over a three year period. Further, the ALJ found that Dr. Bhatt 

provided a 

reasoned opinion supporting his conclusion that a causal nexus exists 

between Kushak's 

respiratory or pulmonary impairment and his coal mine dust exposure. 

 Because we agree with the Board's finding that the ALJ weighed all of 

the medical 

opinions and test results and reasonably concluded that the evidence was 

insufficient to 

establish rebuttal of the interim presumption pursuant to subsections 

(b)(3) and (b)(4), we 

find that his decision was supported by substantial evidence. We have 

also carefully 

considered CONSOL's remaining arguments in this appeal and conclude that 

they lack 

merit. 

 IV. 

 For the reasons stated above and in the Benefits Review Board's wellreasoned 

opinion, we will deny CONSOL's petition for review of the Board's 

decision. 

_____________________________ 

TO THE CLERK OF THE COURT: 

Kindly file the foregoing Opinion. 
 /s/ Julio M. Fuentes 

 Circuit Judge