Ollie M. Taft, Petitioner, Cross-respondent, v. Alabama By-products Corporation, Respondent, Cross-petitioner,director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Respondent, 733 F.2d 1518 (11th Cir. 1984)

Ollie M. Taft, a former employee of Alabama By-Products Corporation ("ABC"), petitions for review of the Benefits Review Board's (the "Board") decision denying him benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended¹  (the "Act"), 30 U.S.C. § 901 et seq. We affirm the denial of benefits.² I. BACKGROUND

Taft worked in and around coal mines for approximately thirty-six years until his retirement in 1976, at age sixty-two. On February 19, 1976, at which time he was still employed by ABC as a miner, Taft filed a claim for benefits under the Act for alleged total disability due to pneumoconiosis. Pneumoconiosis, which is commonly known as "black lung," is a dust disease of the lungs arising from coal mine employment. The Department of Labor approved the claim, holding the coal miner operator, ABC, liable. ABC contested its potential liability and a formal hearing was held on August 8, 1980 before an Administrative Law Judge ("ALJ"), who denied benefits to Taft.

The medical evidence presented to the ALJ was as follows. Dr. Gorge C. Risman interpreted a chest x-ray taken on May 4, 1976 as negative for pneumoconiosis (Category 0/1).³  The x-ray was reread by Dr. R.H. Morgan as completely negative for pneumoconiosis. In his medical report dated May 4, 1976, Dr. Risman stated that considering the clinical history, physical examination, and laboratory data, he found minimal evidence of bronchopulmonary disease. He concluded that whatever symptoms existed were not attributable to exposure to industrial coal dust. During his deposition, Dr. Risman stated that he could not find any significant medical problems that would "contraindicate [Taft's] ability to perform any work." Another doctor, Daniel M. Scarbrough, submitted a one line note dated June 7, 1977 stating that Taft had "definite black lung (pneumoconiosis) as shown by a chest x-ray and clinical history." Next, Dr. Ben Branscomb, who was a "B" reader,⁴  interpreted an x-ray dated December 12, 1974 as showing simple pneumoconiosis (Category 1/2). This same x-ray was reread by Dr. Thomas J. Payne, also a "B" reader, as completely negative for pneumoconiosis. In a December 16, 1974 medical report, Dr. Branscomb stated that Taft was 25% disabled. During his deposition, however, Dr. Branscomb explained that although he labeled Taft 25% disabled because of an altered lung, from a functional standpoint Taft's pulmonary function was normal and he was capable of continuing his previous coal mine job.

Under the Act, the Secretary of Labor has promulgated regulations that provide that a miner who engaged in coal mine employment for at least ten years is presumed to be totally disabled due to pneumoconiosis arising out of that employment if certain medical criteria are met, such as a chest x-ray establishing the existence of pneumoconiosis. 20 C.F.R. Sec. 727.203(a) (1). Once the claimant has satisfied the requirements of the interim presumption, he has established a prima facie case of total disability. See Director v. Beatrice Pocahontas Co., 698 F.2d 680, 682 (4th Cir. 1983). The regulations then provide that the operator may rebut the interim presumption:

(b) Rebuttal of interim presumption.

In adjudicating a claim under this subpart, all relevant medical evidence shall be considered. The presumption in paragraph (a) of this section shall be rebutted if: ...

(2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work (see Sec. 410.412(a) (1) of this title) ....

20 C.F.R. Sec. 727.203(b).

The ALJ found that Taft had established the interim presumption of total disability due to pneumoconiosis. In determining whether ABC had rebutted the presumption under section 727.203(b) (2), the ALJ accepted the opinions of Dr. Branscomb and Dr. Risman, but discounted the report of Dr. Scarbrough because Dr. Scarbrough did not indicate the type and quality of x-ray relied on, any other objective tests used, or his conclusion as to disability. The ALJ also noted that Taft testified that at the time of the hearing, he could walk a half mile at a time and Taft acknowledged that when he had seen Dr. Risman, he had stated that he could possibly walk two miles. Thus, the ALJ concluded that ABC had rebutted the interim presumption.

On appeal, Taft contends that the ALJ erred in finding that ABC rebutted the presumption under section 727.203(b) (2) by medical evidence that Taft is able to do his usual coal mine work. Taft claims that medical evidence alone is not sufficient to rebut the interim presumption, but that the employer must also present vocational evidence that coal mine jobs are available that he could perform.⁵  In other words, according to Taft, miners should be compensated not only for medical disability, but also for the lack of jobs for which they could compete. We find Taft's argument to be without merit.

The ALJ ruled in ABC's favor on the basis of subsection (b) (2), which provides that the presumption is rebutted if the evidence establishes that 1) the miner is able to do his usual coal mine work; or 2) the miner is able to do comparable and gainful work. ABC chose to rebut the presumption under the first clause of (b) (2), that the miner can do his usual coal mine work. Because subsection (b) (2) is disjunctive, ABC need not also prove that Taft can do comparable and gainful work.

Taft argues that under either clause, the employer must show vocational evidence. Although the employer may need to introduce vocational evidence to show that the miner is able to do comparable and gainful work,⁶  Taft is incorrect in asserting that the employer must introduce vocational evidence to show that the miner is able to do his usual coal mine work. Under section 727.203(b) (2), the phrase "comparable and gainful work" is followed by a specific reference to 20 C.F.R. Sec. 410.412(a) (1). Section 410.412(a) (1) defines "comparable and gainful work" in terms of vocational evidence.⁷  The phrase, "usual coal mine work," however, is not followed by a reference to section 410.412(a) (1) for its definition. Unless otherwise specified, the Act should provide payment for medical disability and should not be a form of unemployment compensation. Director v. Beatrice Pocahontas Co., 698 F.2d 680, 683 (4th Cir. 1983). Thus, we hold that the employer need not introduce vocational evidence to establish that the claimant is able to do his usual coal mine work. The employer need only prove by medical evidence that the claimant is physically able to do his usual coal mine employment. Accord Sherry v. Tesone Coal Co., 4 BLR 1-377, aff'd without published opinion, 696 F.2d 981 and 985 (3d Cir. 1982); Johnson v. Cannelton Industries, Inc., 2 BLR 1-1081 (1980); Blankenship v. Beatrice Pocahontas Co., 3 BLR 1-773 (1981); aff'd sub nom. Director v. Beatrice Pocahontas Co., 698 F.2d 680 (4th Cir. 1983).

Taft cites Fletcher v. Appalachian Coal Co., 1 BLR 1-980 (1978), aff'd, 679 F.2d 1086 (4th Cir. 1982), to support his argument. In Fletcher, the claim was brought under section 402(f) of the Act and its implementing regulations at 20 C.F.R. Sec. 410.412.⁸  The Board held that under these regulations, once the miner has shown that he is physically unable to perform his usual coal mine work, the burden of proof shifts to the employer to show that the claimant is able to engage in gainful work available in the immediate area of his residence requiring the skills and abilities comparable to his former coal mine work. In this case, however, ABC has shown that Taft is physically able to perform his usual coal mine work and, therefore, it need not also prove that claimant is able to do comparable and gainful work. The Fourth Circuit has not applied Fletcher to a 20 C.F.R. Sec. 727.203(b) (2) rebuttal case in which physical ability to engage in coal mine employment has been established. See Director v. Beatrice Pocahontas Co., 698 F.2d 680, 682 (4th Cir. 1983) (medical evidence alone is sufficient to establish that the claimant is not totally disabled by a physical impairment from performing his usual work in the coal mines).

We also find that Haywood v. Secretary of Health and Human Services, 699 F.2d 277 (6th Cir. 1983), which Taft cites to support his position, is inapposite. In Haywood, the court held that the relevant inquiry for determining total disability is whether the claimant is vocationally disabled, not physically disabled. Id. at 285. Haywood can be distinguished because there the miner brought his claim under Part B of the Act and thus relied on the rebuttal requirements of 20 C.F.R. Sec. 410.490(c). In comparison, Taft brought this claim under Part C of the Act. See Crider v. Island Creek Coal Co., 723 F.2d 908 (6th Cir. 1983) (Haywood is not controlling under a Part C claim). Furthermore, although the language of 20 C.F.R. Sec. 410.490(c) is similar to that of 20 C.F.R. Sec. 727.203(b),⁹  Haywood can be distinguished on its facts. In Haywood, two doctors stated that the claimant's pneumoconiosis would prevent him from passing the requisite pre-employment physical for employment in a coal mine. In this case, the evidence established that Taft was physically able to return to the mines.¹⁰ 

Taft also contends on appeal that Dr. Branscomb's opinion and report should be discredited because he is hostile to the Act, that Dr. Branscomb's findings are insufficient to rebut the presumption of total disability, and that the ALJ failed to consider all relevant evidence. ABC contends that Taft has waived these objections by failing to raise them below. The Board did not address these issues because it found that on appeal, claimant did "not argue that the record evidence fails to support a finding that claimant is physically capable of performing his usual coal mine work."¹¹ 

Under general rules of appellate review, an appellate court should not overrule an administrative decision unless the administrative body erred against objections presented to it. United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S. Ct. 67, 69, 97 L. Ed. 54 (1952); Board v. Finch, 414 F.2d 1068, 1072 (5th Cir. 1968). Although the rule is not inflexible, this is not a case of exceptional circumstances that would warrant such a review.

Accordingly, the judgment is AFFIRMED.