Freeman v. Director, Off. of Workers' Comp

5 Citing cases

  1. Begley v. Consolidation Coal Co.

    826 F.2d 1512 (6th Cir. 1987)   Cited 5 times
    Setting forth the test for rebutting the widow's presumption

    See Bizzarri v. Consolidation Coal Co., 775 F.2d 751, 754 (6th Cir. 1985) (the death certificate may only describe the immediate cause of death without mentioning the underlying etiology); Amax Coal Co., 772 F.2d at 306; Congleton, 743 F.2d at 431 (death certificate alone not sufficient to rebut presumption); Consolidation Coal Co. v. Smith, 699 F.2d 446, 449 (8th Cir. 1983) (evidence of continued mine employment up to time of death not sufficient); Bishop v. Peabody Coal Co., 690 F.2d 131, 133 (7th Cir. 1982); Battaglia v. Peabody Coal Co., 690 F.2d 106, 113 (7th Cir. 1982); United States Steel Corp. v. Oravetz, 686 F.2d 197, 200-01 (3d Cir. 1982). Although a single category of this type of evidence, by itself, will not be sufficient to rebut the presumption, a conjunction of two or more does tend "to indicate the absence of reduced work ability," Freeman v. Director, Office of Workers' Compensation Programs, 687 F.2d 214, 217 (7th Cir. 1982), and can suffice to defeat the presumption. Bishop, 690 F.2d at 134-36; Battaglia, 690 F.2d at 113; see Congleton, 743 F.2d at 431 (a death certificate with no mention of pneumoconiosis and extensive medical records without indications of the disease held sufficient to rebut the presumption); Freeman, 687 F.2d at 217 (presence of three of four section 727.204(d) factors held sufficient for rebuttal). Introduction of more than one category of evidence does not mandate rebuttal, however, Oravetz, 686 F.2d at 201, and the ALJ remains free to weigh conflicting evidence and discount the probative value of the rebuttal evidence.

  2. Amax Coal Co. v. Director, Workers' Comp

    772 F.2d 304 (7th Cir. 1985)   Cited 7 times

    (4) A death certificate which makes no mention of pneumoconiosis. Although in Freeman v. Director, 687 F.2d 214, 217 (7th Cir. 1982), this Court stated that "the presence of more than one of these [ § 727.204(d)] factors tends to indicate the absence of reduced work ability," the narrowness of the Court's holding must be recognized. In Freeman the Court affirmed on substantial evidence grounds the Benefits review Board's ruling that the § 411(c)(5), 30 U.S.C. § 921(c)(5), presumption was rebutted by presentation of three of the four § 727.204(d) factors ((d)(1), (2), and (4)). The case is distinguishable from the present situation because in Freeman the claimant presented absolutely no evidence of disability and relied upon the force of the § 921(c)(5) presumption alone.

  3. Amax Coal Co. v. Burns

    855 F.2d 499 (7th Cir. 1988)   Cited 11 times
    Comparing the "silent" record in Old Ben Coal Co. v. Prewitt, 755 F.2d 588 (7th Cir. 1985) and the record in Burns

    While neither of these factors alone is sufficient to rebut the presumption, see 20 C.F.R. § 727.204, each may be considered to have some probative force. Freeman v. Director, 687 F.2d 214, 217 (7th Cir. 1982). The claimant appealed the ALJ's decision to the Benefits Review Board, arguing that because the record was devoid of any evidence affirmatively establishing that the miner did not have pneumoconiosis, Amax had not met its burden of rebuttal and she was entitled to prevail by virtue of the presumption in her favor.

  4. Bishop v. Peabody Coal Co.

    690 F.2d 131 (7th Cir. 1982)   Cited 11 times

    Claimant also challenges the board's interpretation of 20 C.F.R. § 727.204(d). We upheld the board's view of this regulation in Freeman v. Director, Office of Workers' Compensation Programs, 687 F.2d 214 (7th Cir. 1982) against arguments, some of which were identical to the ones here advanced by claimant. In Freeman, we stated "[o]ur understanding of the four factors enumerated in section 727.204(d) is that each has some probative force, not that each should be disregarded as unreliable under all circumstances. By limiting the use of the criteria listed in the regulation, Congress was merely recognizing that claimants should not be easily defeated by a single piece of evidence.

  5. Battaglia v. Peabody Coal Co.

    690 F.2d 106 (7th Cir. 1982)   Cited 14 times
    Rejecting due process challenge to presumption of benefit eligibility in Black Lung Benefits Act, 30 U.S.C. § 921(c)

    Claimant urges a construction of "alone" as allowing for rebuttal no evidence of the four types listed above, and, therefore, as requiring something other and different. Respondents, on the other hand, contend that "alone" means that evidence meeting only one category is insufficient, but that proof of two or more are competent and can suffice. This precise issue was determined by this court in Freeman v. Director, Office of Workers' Compensation Programs, et al., 687 F.2d 214 (1982) in favor of the board view advocated by respondents. Claimant cannot prevail on this point. Next, claimant contends that her property right in entitlement to benefits pursuant to § 921(c)(5) was forfeited without due process because the board retroactively changed its official interpretation of § 727.204(d) as contained in the Black Lung Desk Book. The passage relied on by claimant states: