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    Albert C. Dayton v. Consolidation Coal Company Office of Workers Compensation Programs, 953 F.2d 637, 4th Cir. (1992)

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    1. The Supreme Court had previously reversed the Fourth Circuit's decision in this black lung benefits case and remanded it for further consideration. 2. On remand, the Fourth Circuit maintains its previous holding that the administrative law judge improperly found rebuttal of the presumption of pneumoconiosis under one regulation but not the other. 3. The court also finds that the employer's medical evidence did not sufficiently rebut the presumption that the miner's respiratory condition was due to coal mine employment, as opposed to smoking. The decision of the Benefits Review Board is therefore reversed and the case remanded with instructions to award benefits.

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    Albert C. Dayton v. Consolidation Coal Company Office of Workers Compensation Programs, 953 F.2d 637, 4th Cir. (1992)

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    1. The Supreme Court had previously reversed the Fourth Circuit's decision in this black lung benefits case and remanded it for further consideration. 2. On remand, the Fourth Circuit maintains its previous holding that the administrative law judge improperly found rebuttal of the presumption of pneumoconiosis under one regulation but not the other. 3. The court also finds that the employer's medical evidence did not sufficiently rebut the presumption that the miner's respiratory condition was due to coal mine employment, as opposed to smoking. The decision of the Benefits Review Board is therefore reversed and the case remanded with instructions to award benefits.

    Original Description:

    Filed: 1992-01-13 Precedential Status: Non-Precedential Citations: 953 F.2d 637 Docket: 89-3203

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    1. The Supreme Court had previously reversed the Fourth Circuit's decision in this black lung benefits case and remanded it for further consideration. 2. On remand, the Fourth Circuit maintains its previous holding that the administrative law judge improperly found rebuttal of the presumption of pneumoconiosis under one regulation but not the other. 3. The court also finds that the employer's medical evidence did not sufficiently rebut the presumption that the miner's respiratory condition was due to coal mine employment, as opposed to smoking. The decision of the Benefits Review Board is therefore reversed and the case remanded with instructions to award benefits.

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    25 views4 pages

    Albert C. Dayton v. Consolidation Coal Company Office of Workers Compensation Programs, 953 F.2d 637, 4th Cir. (1992)

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    1. The Supreme Court had previously reversed the Fourth Circuit's decision in this black lung benefits case and remanded it for further consideration. 2. On remand, the Fourth Circuit maintains its previous holding that the administrative law judge improperly found rebuttal of the presumption of pneumoconiosis under one regulation but not the other. 3. The court also finds that the employer's medical evidence did not sufficiently rebut the presumption that the miner's respiratory condition was due to coal mine employment, as opposed to smoking. The decision of the Benefits Review Board is therefore reversed and the case remanded with instructions to award benefits.

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    of 4

    953 F.

    2d 637

    NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of


    unpublished dispositions is disfavored except for establishing
    res judicata, estoppel, or the law of the case and requires
    service of copies of cited unpublished dispositions of the Fourth
    Circuit.
    Albert C. DAYTON, Petitioner,
    v.
    CONSOLIDATION COAL COMPANY; Office of Workers
    Compensation
    Programs, Respondents.
    No. 89-3203.

    United States Court of Appeals, Fourth Circuit.


    Submitted Sept. 12, 1991.
    Decided Jan. 13, 1992.

    On Remand from the Supreme Court of the United States, No. 90-114.
    Thomas Roy Michael, Michael & Kupec, Clarksburg, W.Va., for
    petitioner.
    David Allen Barnette, Jackson & Kelly, Charleston, W.Va., Jerry G.
    Thorn, Acting Solicitor of Labor, Donald S. Shire, Associate Solicitor for
    Black Lung Benefits, Sylvia T. Kaser, Counsel for Appellate Litigation,
    Robert Edward Kirschman, Jr., United States Department of Labor,
    Washington, D.C., for respondents.
    S.Ct. [ON REMAND FROM 111 S.CT. 2524].
    REVERSED AND REMANDED.
    Before WIDENER and K.K. HALL, Circuit Judges, and JOSEPH F.
    ANDERSON, JR., United States District Judge for the District of South
    Carolina, sitting by designation.
    OPINION

    PER CURIAM:

    On June 24, 1991, the Supreme Court reversed our earlier judgment and
    remanded this case for further proceedings. Pauley v. BethEnergy Mines, Inc.,
    111 S.Ct. 2524 (1991), rev'g, Dayton v. Consolidation Coal Co., 895 F.2d 173
    (4th Cir.1990). The Court ruled, contrary to our holdings in this case and in
    Taylor v. Clinchfield Coal Co., 895 F.2d 178 (4th Cir.1990), that the rebuttal
    criteria available under the Department of Labor's interim regulations, 20
    C.F.R. Part 727, are not "more restrictive than" the criteria formerly applied by
    the Department of Health, Education and Welfare under interim regulations at
    20 C.F.R. Part 410. Though we apply the Part 727 rebuttal criteria, we adhere
    to our earlier judgment, and reverse.

    I.
    2

    The administrative law judge (ALJ) found rebuttal established under 20 C.F.R.
    727.203(b)(2) (the claimant is able to do his usual coal mine work) and (b)(4)
    (the claimant does not have pneumoconiosis). The Benefits Review Board
    (BRB) affirmed only the (b)(4) rebuttal, and did not address (b)(2).
    Accordingly, in our first opinion, we held that Securities and Exchange
    Comm'n v. Chenery Corp., 318 U.S. 80, 95 (1943), precluded affirmance based
    on (b)(2) rebuttal. The Supreme Court did not address this holding, and we
    maintain it.

    Consequently, the only issue remaining is whether substantial evidence


    supported the ALJ's conclusion that the employer rebutted the interim
    presumption by showing that Dayton does not have pneumoconiosis.

    II.
    4

    All of the physicians, including those offered by the employer, agree that
    Dayton has a respiratory impairment. The employer's physicians suggest that
    his disability is caused by obesity and cigarette smoking.* However, these
    opinions suffer from various defects. Dr. Jones found no evidence of
    "pneumoconiosis," but did not address whether Dayton's pulmonary condition
    was related to dust exposure; accordingly, his opinion provides no evidence to
    rebut the presumption that Dayton suffers from "pneumoconiosis" in its legal,
    as opposed to its narrow clinical, sense. Dr. Bellotte said that Dayton's
    emphysema is "probably related to his smoking history," and "little of this
    impairment is due to any coal dust exposure." (Emphasis added.) Dr. Renn did
    state flatly that "to a reasonable degree of medical certainty," Dayton's

    emphysema resulted from cigarette smoking; however, he offered no


    explanation of the basis of his opinion. Finally, the employer also offered the
    report of Dr. Kress, who did not conduct a physical exam of the claimant. From
    his review of the reports of others, Dr. Kress offered the armchair opinion that
    "there is insufficient objective evidence to justify a diagnosis of coal worker's
    pneumoconiosis," and "I would not attribute [Dayton's emphysema] to his prior
    coal dust exposure, but would feel that it has to be related to his prior smoking
    habits." The claimant's experts, Dr. Rasmussen and Dr. Sine (his longtime
    treating physician) concluded that dust exposure contributed to his respiratory
    impairment.
    III.
    5

    The employer, perhaps sensing the infirmities of its rebuttal evidence, argues
    (at p. 7 of its brief) that "the expanded [that is, legal] definition of
    pneumoconiosis does not apply in this case." The employer does not cite
    anything in support of this astonishing conclusion. The Director, Office of
    Workers' Compensation Programs takes no position on the merits of the (b)(4)
    issue, but does urge that the legal definition of pneumoconiosis applies to (b)(4)
    rebuttal.

    The Act specifically defines "pneumoconiosis," 30 U.S.C. 902(b), and we see


    absolutely no reason why it should not carry that definition through every
    reference in the Act and regulations. Finally, we note that the employer
    conceded this point before the Supreme Court:

    Rebuttal may be established under [ 727.203(b)(4) ] if the proof affirmatively


    demonstrates that the miner does not have clinical pneumoconiosis (diagnosed
    by x-ray, biopsy or autopsy evidence) or so-called "legal" pneumoconiosis
    defined as a "respiratory or pulmonary impairment arising out of coal mine
    employment." Rebuttal of the [Part 727 interim] presumption is accomplished
    only by strongly persuasive evidence demonstrating the falsity of a presumed
    fact.

    Brief of petitioners Clinchfield Coal Company and Consolidation Coal


    Company, U.S.Sup.Ct. Nos. 89-1714, 90-113 and 90-114 (December 13, 1990)
    (cites ommitted).

    The employer cites a Fifth Circuit case that holds that emphysema is not
    pneumoconiosis. United States Steel Corp. v. Gray, 588 F.2d 1022 (5th
    Cir.1979). In reply, the claimant cites this circuit's rule, announced in

    Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 124 (4th Cir.1984), that the
    employer's rebuttal burden where multiple causes contribute to the disabling
    respiratory condition is to prove that the miner's "primary condition, whether it
    be emphysema or some other pulmonary disease, was not aggravated to the
    point of total disability by prolonged exposure to coal dust." As the employer
    admitted in the Supreme Court, this proof "is accomplished only by strongly
    persuasive evidence demonstrating the falsity of a presumed fact." Rebuttal
    evidence must be strongly persuasive, because doubts in the evidence must be
    resolved in favor of the claimant. Greer v. Director, OWCP, 940 F.2d 88 (4th
    Cir.1991). The medical reports submitted by the employer in this case do not
    meet this standard. Consequently, we hold that the ALJ's finding that the
    employer established rebuttal under 727.203(b)(4) is not supported by
    substantial evidence, and the presumption that the miner suffers from
    pneumoconiosis stands.
    10

    The decision of the Benefits Review Board is reversed, and the claim is
    remanded with instructions to award benefits.

    11

    REVERSED AND REMANDED.

    Dayton smoked a pack of cigarettes a day for twenty or more years, but stopped
    around 1970

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