F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 24 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL SVETICH,
Petitioner,
v. No. 01-9505
(No. 00-0363-BLA)
DIRECTOR, OFFICE OF WORKERS’ (Petition for Review)
COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT
OF LABOR,
Respondent.
_____________________________
U.S. STEEL MINING COMPANY,
INC.,
Intervenor.
ORDER AND JUDGMENT *
Before EBEL , KELLY , and BRISCOE , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Petitioner Mike Svetich seeks review of the decision of the Benefits
Review Board (“Board”) affirming the administrative law judge’s (“ALJ”) denial
of benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-45 (the “Act”).
U.S. Steel Mining Company is the responsible operator (“Operator”). See
20 C.F.R. §§ 725.491-725.493. Our jurisdiction arises pursuant to 33 U.S.C.
§ 921(c), and we affirm.
I.
Benefits are provided under the Act for a miner who establishes total
disability from performing his usual coal mine work or from engaging in other
work requiring comparable skills or abilities when that disability is due to
pneumoconiosis that developed in part out of coal mine employment. 20 C.F.R.
§§ 718.203-.204. The governing regulations also provide medical criteria which,
if satisfied, establish a rebuttable presumption of such total disability. Under
those regulations, total disability may be demonstrated by qualifying pulmonary
function tests, by qualifying arterial blood-gas tests, or by a showing of
pneumoconiosis combined with medical evidence of cor pulmonale. Id.
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§ 718.204(b)(2). If total disability is not established by one of these medical
criteria, it may alternatively be established by a physician who concludes that the
miner’s respiratory or pulmonary impairment prevents him from engaging in his
prior work or other similar employment. See id.
II.
It is uncontroverted that Mr. Svetich had forty-three and one-half years of
coal-mine employment at his retirement in 1983. The district director of the
Offices of Workers’ Compensation Programs of the Department of Labor denied
Mr. Svetich’s prior claims for benefits in 1983 and 1995. In 1995 the director
found that, although Mr. Svetich had established the existence of pneumoconiosis,
the medical evidence did not support a finding of total disability either by results
of objective tests or by a physician’s opinion. Mr. Svetich filed a subsequent
claim for benefits in 1997, asserting that there had been a material change in the
condition on which the denial was based. See 20 C.F.R. § 725.309 (d)(2) (stating
that a change in conditions may be asserted only for “those conditions upon which
the prior denial was based”). He based the change in conditions on a 1997
arterial blood-gas test that, for the first time, unequivocally met the statutory
requirements of total disability. The district director determined that Mr. Svetich
was eligible for benefits based on this test, but the Operator contested that finding
and requested a formal hearing.
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At the hearing, the ALJ considered several medical reports. In three of the
reports, the physicians concluded that Mr. Svetich was not totally disabled by his
pulmonary condition. See Operator’s Ex. 9, at 4 (1997 report from Dr. Farney
stating that “there was no evidence of significant pulmonary impairment which
might lead to disability from coal worker’s pneumoconiosis,” and that Mr. Svetich
had “quite adequate levels of ventilation and gas exchange”); Director’s Ex. 9, at
4 (Dr. Klepper’s 1997 report stating that the “pulmonary condition does not
cause any limitations of activity”); Operator’s Ex. 25, at 2 (Dr. Repsher’s 1999
report stating that Mr. Svetich’s pulmonary function tests were “normal” and that
he “has no impairment as a result of . . . coal workers pneumoconiosis” and
“retains the respiratory capacity to do sustained, heavy, coal mine work”).
Mr. Svetich’s expert, Dr. James, noted that Mr. Svetich’s arterial blood gas
results were abnormal but that his exercise tolerance and lung function tests were
normal for his age. Claimant’s Ex. 8, at 5. He stated that he could “not
determine with a reasonable degree of medical certainty that Mr. Svetich would
be totally disabled as a consequence of his coal mine dust induced lung disease.”
Id. Based on these reports, the ALJ concluded that Mr. Svetich had failed to
establish a material change in condition warranting the filing of the duplicate
claim and that, notwithstanding the abnormal arterial blood-gas test, record
evidence did not establish that Mr. Svetich was totally disabled from a respiratory
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impairment. Mr. Svetich appealed and the Board upheld the ALJ’s decision,
finding that substantial evidence in the record supported the ALJ’s findings and
conclusions.
III.
On review, the court of appeals must “scrutinize the [review board’s
decision] for errors of law and for adherence to the substantial evidence standard
governing the Board’s review of the administrative law judge’s factual
determinations.” Maddaleni v. Dir., OWCP , 961 F.2d 1524, 1525 (10th Cir.
1992) (quotations omitted) (alteration in original). “Our review of alleged errors
of law, and the effect they may have had on the benefits decision, must be made
in light of the premise that [t]he Act is intended to be remedial in nature, and
doubts should be resolved in favor of the disabled miner or his [or her]
survivors.” Bosco v. Twin Pines Coal Co. , 892 F.2d 1473, 1476 (10th Cir. 1989)
(quotations omitted) (alterations in original).
Mr. Svetich asserts that the Board misconstrued Dr. James’ testimony by
concluding that Dr. James did not find a totally disabling respiratory impairment.
We disagree. As his report quoted supra shows, Dr. James clearly stated that he
was unable to conclude that Mr. Svetich’s respiratory impairment was totally
disabling.
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Mr. Svetich next asserts that the Board erroneously relied on Dr. Repsher’s
opinion because it was based on an inaccurate smoking history. We agree with
the Board that any inaccuracy in the smoking history is not relevant to the issue of
whether a totally disabling respiratory impairment exists. Therefore, it was not
reversible error to consider Dr. Repsher’s opinion in determining that issue.
Further, even without Dr. Repsher’s opinion, there is substantial medical evidence
in the record to support the ALJ’s conclusion that Mr. Svetich’s respiratory
impairment was not totally disabling, notwithstanding the arterial blood-gas test.
The presumption of total disability arising from that test result was sufficiently
rebutted by other lung function and exercise tolerance tests and by the medical
opinions of Drs. Farney and Klepper. Because the ALJ’s determination that
Mr. Svetich is not totally disabled by his respiratory impairment is supported by
substantial evidence, the Board properly affirmed the ALJ’s order denying
benefits. We therefore need not address Mr. Svetich’s argument alleging error in
the ALJ’s determination that Mr. Svetich did not establish a material change in
condition.
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The petition for review is DENIED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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