Petition for Review of the Decision of the Benefits Review Board, U.S. Department of Labor, BRB No. 78-436 BLA (OWCP No. 207-09-9605)
Before Weis, Van Dusen and Higginbotham, Circuit Judges.
Republic Steel Corporation petitions for review of a decision of the Benefits Review Board. The sole question raised is whether an award of benefits based on ex parte medical reports is constitutionally permissible. We hold that it is and will therefore deny the petition.
Earl Leonard, the miner upon whose employment history this case is based, died on July 17, 1975. His employment history shows that he had approximately forty-seven years of underground coal mining experience ending in January, 1974. On October 20, 1975, his widow filed a claim for benefits under Subchapter IV of the Federal Coal Mine Health and Safety Act of 1969 (FCMHSA), 30 U.S.C. §§ 901-945.*fn1 On January 24, 1978, a hearing was held on her claim in order to determine whether her husband had pneumoconiosis prior to his death and whether the pneumoconiosis, if present, was the cause of his death or was totally disabling at the time of his death.
The hearing officer found that Leonard had pneumoconiosis at the time of his death. He further found that the autopsy evidence was not determinative of the existence of pneumoconiosis and that Leonard's death was due to liver cancer rather than to any pulmonary or respiratory impairment. On the issue of whether Leonard was totally disabled due to pneumoconiosis at the time of his death, the hearing officer found that the ventilatory study evidence of record did not support a finding of total disability. However, he found that Leonard was totally disabled due to pneumoconiosis at the time of his death based upon "other relevant evidence of record," including the testimony of his widow, a medical report submitted by his regular physician and other medical reports documenting total disability due to pneumoconiosis.
The employer appealed the hearing officer's decision to the Benefits Review Board. The employer, however, did not argue the merits of the widow's entitlement, but rather questioned whether physicians' unsworn statements in medical reports, constituting fourteen exhibits, can constitute substantial evidence of entitlement and whether the use of such unsworn evidence violates the due process clause. The Board rejected employer's arguments and affirmed the award of benefits. This petition for review followed.
The Benefits Review Board, in rejecting the employer's arguments, relied principally on two cases. The first was Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971), in which the Supreme Court held that written medical reports of examining physicians are admissible and may constitute substantial evidence to deny a claim under the disability provisions of the Social Security Act. This was so, the court reasoned, "despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony by the claimant himself," id. at 402, 91 S. Ct. at 1427, where the party protesting the evidence has an opportunity to subpoena and cross-examine the reporting physician.
The Board also relied on U. S. Pipe & Foundry v. Webb, 595 F.2d 264 (5th Cir. 1979), in which the court construed Perales to apply to Part C of the Black Lung Benefits Act, the section of the statute under which the instant claim was brought.*fn2 For much the same reasons relied on by the Supreme Court in Perales, the court in Webb noted that:
(T)he out-of-court declarants were not biased and had no interest in the result of the case; the opposing party could have obtained the reports before the hearing and could have subpoenaed the declarants; the reports were not inconsistent on their face; and courts have traditionally recognized that medical reports written by treating physicians are inherently reliable.
The employer raises two principal arguments against the application of these precepts. First, it argues that Part C proceedings are not governed by the evidentiary and cross-examination standards of the Social Security Act but by those of the Administrative Procedure Act (APA), which afford a party the right of cross-examination. It bases this argument on the fact that Section 422(a), 30 U.S.C. § 932(a), the enabling provision for Part C, specifically incorporates the hearing and evidentiary procedures of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA) and that Section 19(d) of the LHWCA, 33 U.S.C. § 919(d), an incorporated provision under 30 U.S.C. § 932(a), in turn refers to Section 554 of the APA. Section 554(d) provides for the reception of evidence pursuant to Section 556. Section 556(d) provides that a party is entitled "to conduct such cross-examination as may be required for a full and true disclosure of the facts." The employer argues therefore that Webb is analytically ...