*1 716; Warszawa, (S.D.N.Y.1961) F.Supp. PANNELL, Appellant, allowing we consider those cases Ernest
or need
limited dis-
permit
the district court
arbitrability
particular
covery as to the
of. a
Jr.,
CALIFANO,
Secretary of
Joseph A.
Inc. v. Local 37
dispute, H. K. Porter Co.
Welfare, Appellee
Health,
.
&
Education
America, AFL-CIO,
United Steelworkers
No. 78-1082.
691;
1968) 400 F.2d
International
Electrical,
Machine
Union of
Radio &
Appeals,
Court of
United States
Workers,
Westinghouse Elec-
AFL-CIO v.
Fourth Circuit.
Corp., (S.D.N.Y.1969)
equally unpersuasive, since controversy question
contention that subject proper
was not the of arbitration. has re-
While at least one commentator discovery provisions
ferred to the limited “sport- as a return to the
during arbitration Jones,
ing theory justice,” The Accretion in Labor Arbitration—
of Federal Power Example Discovery, of Arbitral (1968); we believe
Penna.L.Rev. keeping limitations are in such underpinnings of arbitration— policy litigation
speed, efficiency, and reduction
expenses. second contention
Burton’s contrary to the facts
arbitration award was hearing is without
as established at
merit.
We conclude that the arbitration award we accordingly correct and affirm the
judgment of the district court.
AFFIRMED. Wolfe, Norton,
Joseph (Donald Va. E. Farmer, Earls, Earls, Norton, Va., &Wolfe brief), appellant. on Marinucci, Health, Dept, of Ed. Fred & (Paul Welfare, Pa. R. Philadelphia, Thom- Scott, son, Jr., E. Jr., Atty., Morgan U. S. Roanoke, Va., Stephanie Atty., Asst. U. S. *2 392 Naidoff, Regional Atty., through adjudicatory
W. the interim rules Joan E. of 20 Kaehne, Regional Atty., 410.490, Asst. Dept, of through CFR or the means set out Health, Welfare, Pa., Ed. Philadelphia, & on permanent in 20 rules at CFR 410.410- brief), appellee. for 410.430. We shall examine the claimant’s applicable provi evidence under each of HALL,
Before K. K. JAMES DICKSON sions. MURNAGHAN, and PHILLIPS Circuit rules, pre- Under the interim a rebuttable Judges. sumption disability pneumo- total due to PHILLIPS, JAMES DICKSON Circuit (1) x-ray, autopsy coniosis arises if an or Judge: biopsy simple the existence establishes pneumoconiosis, (2) or in the case of a miner Ernest Pannell an appeals from order of affirming years underground the district court a who worked ten decision of the or Health, Secretary of Education comparable and Wel- employment, coal mine ventila- fare that he was not entitled to “black tory function the presence studies establish lung” sought pursuant benefits to the regu- of a chronic respiratory or dis- B, lations enacted under Part Title IV of x-ray ease. The presented by evidence this the Federal Coal Mine Health Safety claimant consisted of nine films taken be- 1969, amended, 901, Act of as 30 U.S.C. et § 5, tween 8, March 1971 and March seq. The district court evaluated all of the Six of x-rays these were by found one or provisions claimant’s evidence and the un- more readers negative to be either for might benefits, der which he be entitled to poor or of too quality to concluded that the finding permit interpretation. Of the remaining and decision not to award benefits were three, 11, August one film dated 1973 was supported by “substantial evidence.” 30 initially interpreted positive, category as 923(b), incorporating by U.S.C. § reference 1/lp, by Upon an “A” reader. review of 205(g) Act, of the Security § Social 42 film, however, “B” one reader found 405(g). agree U.S.C. We with that con- § negative, it was and a “B” second Celebrezze, clusion and affirm. Laws v. 368 pronounced reader it unreadable. An 640, 1966). F.2d 642 film, 27, eighth August 1971, dated In order for the claimant to be held enti- found to be unreadable an “A” and a IV, tled to benefits under Part B of Title he reader, “B” rereading Navani, but on a Dr. miner, must establish that he was a that he a “B” reader who reviewed three films at properly benefits, has filed a claim for request, the claimant’s interpreted the film he suffers from arising showing as pneumoconiosis, category 1/0. from coal employment, mine and that this film, 8, The final 1974, dated March 30, disease 1973, disabled him before June interpreted by an “A” suggestive reader as jurisdiction when adjudicate claims pneumoconiosis, category p2/3, by a “B” passed Department to the of Labor. The unreadable, reader as and Dr. Navani as Secretary acknowledged that Pannell was a revealing findings more or less the same as miner and proper had filed a application, 27, 1971, the x-ray August positive, but found that he had failed to establish category deposition by 1/0. But at a that he was totally pneumo- disabled from 21, 1975, attorney claimant’s on November coniosis on jurisdictional or before the cut- August Dr. Navani stated that the 1971 off date. x-ray showed maybe “scattered modules of Q0/1,” negative.
Pursuant if Congressional to the When asked he could directive 411(b) Act, category of the find March 921(b), 1/0 § § U.S.C. x-ray, regulations has Dr. Navani stated that he could not promulgated prescribing 20, 1977, determining April read the when standards film. On Dr. for whether a miner is again deposed by due to Navani was the claimant’s totally disabled pneumoconiosis. proc- alterna attorney, Pannell two he was asked if “the disease had tive routes report entitlement: ess claiming of 1/0” shown in his initial on the had therefore not met his burden Panned x-ray existed on about March that, provision. Navani stated “most this May 1970. Dr. under probably,” it did. part either Having qualify failed to under proving the burden of The claimant has rules, Panned must the interim turn to presumption to the under his entitlement alternative means of entitlement set *3 regulations by preponderance a of the the permanent provision in the rules. One out Califano, 585 F.2d Sharpless v. evidence. rules, 410.418(a), at 20 CFR under these 664, (4th 1978). in the Any conflict Cir. presumption supplies an irrebuttable of to- Secretary, evidence is to be resolved the pneumoconiosis tal disablement due to to a supported if and his resolution must stand presence the of miner who establishes com- Id.; also see Sea evidence. by substantial through plicated pneumoconiosis x-rays or 1054, F.2d 1056-57 Weinberger, crist v. complicat- biopsies. no reader found Since (4th 1976). Cir. We think the any of ed in Panned’s x- x-rays that the failed to establish decision to the irre- rays, clearly he is not entitled has substan presence the of presumption. buttable each film read once support, given tial that that the evidence Finally, we conclude negative or as was also read as positive Secretary to find that the entitled reader, that the “B” and unreadable a had not established the rebuttable claimant Navani, which claim upon Dr. evidence of disabling pneumoco presumption totally of relies, in conflict. ant is itself provi niosis that is available under another also entitled to decide Secretary was The rules, 20 410. permanent sion of the CFR the criteria for had not met that Panned 414(b). provides a That subsection that establishing presence respir- of a chronic more of coal mine years claimant with 15 or disease, atory or which in con- presumption to a employment is entitled years of work in the junction long with his totally by pneumoconio that he is disabled presumption to a of give mines would rise (other x-rays, sis if “other evidence” than disability pneumoconiosis. total due to biopsy autopsy) demonstrates the exist may be estab- presence of such a disease totally disabling respirato ence of a chronic ventilatory function studies through lished ry pulmonary impairment. Petry See regula- with the performed in accordance Califano, 1978). 577 F.2d CFR) (20 reg- of the tions. 410.430 Section Though the record reflects that the claim specifies that the studies must in- ulations symptoms respiratory ant has some of im physician clude a statement from the con- breath, pairment as shortness of such cerning degree coopera- the claimant’s discomfort, cough, and chest productive during ventilatory tion the test. Because Secretary impair concluded that Panned’s breathing capacity, function measure tests “totally disabling” as is nec ment was not upon the results the effort depend part presumption. We essary to establish the undergo- cooperation and of the individual supported by that that conclusion find ing Ventilatory the tests. function studies physi The results of substantial evidence. performed were on this claimant on four on March performed examinations cal occasions, and for three of the tests the 22, 1974 indicated that the April 1973 and results fed within required the values symmetrical was in contour claimant’s chest entitlement. But for test claim- one such rales, rhonchi, expansion. No equal and “moderate,” cooperation ant’s was as noted lungs were expiratory wheezes in the second, for a no “poor,” and on the third lung dis No chronic obstructive present. cooperation notation of was made. The P. P. Baron Although Dr. ease was found. only test cooperation for which claimant’s 22,1974 April his report in his gan stated “good” was yielded in excess of values totally dis that claimant conclusion maximum We think allowing entitlement. employment, phys his any gainful abled for discounting the Secretary justified support that conclusion. findings do not ical performed those tests not in accordance sup very minimal Barongan reported Dr. concluding regulations and in breath pression employment sounds on both bases of not arise from in the coal lungs, no unusual area of dullness of the mines. lungs, expiratory no rales or and wheezes. presented The other evidence in this case Additionally, gas performed blood studies is substantial. Panned and his wife testi- only on June 1976 revealed a mild de perform fied that he can neither work nor gree hypoxia with no retention. CO2 breathing household chores without diffi- The claimant and his wife both testified at persistent productive culties. He has a difficulties, hearing breathing about his cough, sleeps partially sitting up, expe- and such evidence is relevant to a determi frequent riences shortness of breath. The nation of disability. upon weigh total But history medical evidence contains both a ing this testimony with the medical evi objective findings lung disease. Dr. dence, justifiably could have Barongan concluded Panned was total- per found the medical evidence more disabled, *4 ly listing pneumoconiosis as a rea- considering suasive. Thus after all of the son disability. for the And three of the evidence, Secretary’s we conclude that the ventilatory performed four studies on Pan- decision that Panned failed to establish that values, qualifying ned showed while the impairment respiratory totally his was disa extremely fourth was close. bling supported by substantial evi Council, Appeals The focusing primarily dence. symmetrical on the contour of Panned’s Panned has moved this court to remand rales, chest and the absence of rhonchi or his case to the for reconsideration expiratory wheezes during physical exami- Lung under the Black Benefits Reform Act nation, dismissed with one broad stroke a motion, of 1977. We deny noting the battery persuasive pulmo- evidence of such a necessary remand is not in order for nary impairment. I do not think these a claimant to have his by record reviewed findings negate the disabling existence of a standards, HEW under the new by the pulmonary impairment by demonstrated Department of Labor under Part C of the the other relevant evidence in this case. Federal Safety Coal Mine Health and Act of 1969. Accordingly, finding that the Sec- I am compelled protest especially to the retary’s supported decision is by substantial “cooperation” abuse of the fac- evidence with respect to provi- ad of the tor in evaluating pulmonary function stu- potentially applicable Panned, sions to we Appeals rejected dies. The Council three affirm judgment of the district court. ventilatory showing studies qualifying val- ues. One of these showed “moderate” coop-
AFFIRMED. by
eration
the claimant. Another did not
HALL,
K. K.
Judge,
specify cooperation,
Circuit
dissenting:
but was apparently
testing
considered
physician to be of
I think the Secretary
properly
failed to
sufficient validity
support
to
impression
an
analyze the evidence under
the principles
of “moderate
obstructive
dis-
Califano,
set forth in Petry v.
Even to award benefits
Secretary is not bound 410.490(b) based on
under 20 C.F.R. § showing cooper less than ideal study
timely
ation, justification depriving there is no “other probative of all value as
such studies
evidence,” where the claimant’s especially acceptable to the obviously
cooperation precisely what
testing physician. This case, and I in this Secretary has done supra, Ar holdings Petry,
think our 567 F.2d Secretary,
nold v. disregard of
1977) this sort of preclude favorable to the probative evidence
highly
claimant. respectfully
I dissent. *5 CAMPBELL, Plaintiff-Appellant,
Carlyne and Will D. PRESS
The SEABURY Defendants-Appellees.
Campbell,
No. 79-3072
Summary Calendar.* Appeals,
United Court States
Fifth Circuit.
Feb. 34(a);
* Fed.R.App.P. 5th Cir. R. 18.