Coy J. Rush v. Director, Office of Workers' Compensation Programs

859 F.2d 609

Coy J. RUSH, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, Respondent.

No. 88-1320.

United States Court of Appeals,
Eighth Circuit.

Submitted Sept. 20, 1988.
Decided Oct. 24, 1988.

David L. Rush, Paris, Ark., for petitioner.

Priscilla Schwab, Washington, D.C., for respondent.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge and FAGG, Circuit Judge.

ORDER

1

This matter is before the court following briefing and oral argument. The Director finally denied Rush's ten-year-old application for Black Lung benefits under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. Sec. 901, et seq.

2

Rush initially submitted to the administrative law judge an x-ray positively establishing the existence of pneumoconiosis. The administrative law judge weighed this positive reading of the x-ray against a subsequent negative reading and thereupon denied Rush's claim. The Benefits Review Board affirmed. The Director, however, concedes that the administrative law judge and the Benefits Review Board erred in failing to review this case under the standards set forth in Coughlan v. Director, Office of Workers' Compensation Programs, 757 F.2d 966 (8th Cir.1985), which entitles Rush, under 20 C.F.R. Sec. 410.490, to a presumption of total disability due to pneumoconiosis if an x-ray positively establishes the existence of pneumoconiosis.

3

Here, a qualified physician-radiologist gave one of Rush's x-rays such a positive reading for pneumoconiosis. The agency thereafter submitted the same x-ray to another qualified radiologist who disagreed with the first reading. On appeal, the Director admits that such procedure violates this court's determination of a similar issue relating to a disagreement between qualified physicians as to whether or not an x-ray should be read positively or negatively for the lung disease in question under circumstances where the same x-ray, after receiving a positive reading, was submitted to another qualified reader who disagreed with that reading. See id. at 969. See also 30 U.S.C. Sec. 923(b) (requiring, in any case in which there is other evidence that a miner has a pulmonary or a respiratory impairment, the Secretary to accept a board-certified radiologist's interpretation of a chest x-ray which is of a quality sufficient to demonstrate the existence of pneumoconiosis).

4

We, therefore, in light of the Director's concession of error, vacate the judgment and remand this case to the Benefits Review Board for reconsideration in light of Coughlan. The Board is obligated to resolve this case within thirty days after the Supreme Court issues its opinion in In re Sebben, 815 F.2d 475 (8th Cir.1987), cert. granted sub nom. Pittston Coal Group v. Sebben, --- U.S. ----, 108 S. Ct. 1011, 98 L. Ed. 2d 977 (1988) (the Supreme Court in that case might alter the Coughlan rule and thus the outcome here). Any further hearings or proceedings that may be necessary to resolve this case must be taken up promptly to comply with the thirty-day limitation.