Dehue Coal Company v. Laymond Ballard Director, Office of Workers' Compensation Programs, United States Department of Labor

65 F.3d 1189, 1995 U.S. App. LEXIS 27278, 1995 WL 562290
Court of Appeals for the Fourth Circuit·Decided September 25, 1995·No. 94-2369·Published·Cited by 88 cases

Opinions

Reversed and remanded by published opinion. Judge WILLIAMS wrote the majority opinion, in which Judge LUTTIG joined. Senior Judge BUTZNER wrote a dissenting opinion.

OPINION

WILLIAMS, Circuit Judge:

In this appeal we consider whether a coal miner, affected by simple pneumoconiosis1 but disabled by an unrelated respiratory condition, is “totally disabled due to pneumoconi-osis” within the meaning of 30 U.S.C. § 901(a) (1988). An administrative law judge (ALJ) determined that Laymond Ballard suffered from a totally disabling respiratory condition, but denied him black lung benefits because the ALJ credited several medical opinions that Ballard’s disability was not due to his coal mine employment. The Benefits Review Board (BRB) reversed and awarded benefits to Ballard on the ground that the medical opinions relied upon by the ALJ lacked probative value. Dehue Coal Company (Dehue) petitions for review of the BRB’s decision and order. After careful consideration of the record before the ALJ and the BRB, we reverse the decision of the BRB and remand for entry of an appropriate order denying benefits to Ballard.

I.

Ballard was born on November 13, 1938, and completed schooling through the eleventh grade. He was a coal miner for approximately sixteen years, working for Dehue from 1970 to 1985. In his last position, Ballard worked as an electric repairman, troubleshooter, and general underground laborer. On or about May 27, 1990, he left the coal mines shortly after the removal of his left lung due to cancer.

Prior to the lung surgery, Ballard had never missed work due to breathing problems, although he had smoked approximately one pack of cigarettes per day for more than thirty years. It was not until the period [1192] immediately preceding his lung surgery that Ballard noticed any breathing difficulties. On May 8,1990, Ballard underwent a routine physical examination by his family physician, Dr. Harry Fortner. At this initial office visit, Ballard complained of a recent twenty-pound weight loss and pain in his chest and left arm of about one-month duration, but denied any shortness of breath. Dr. Fortner ordered a chest x-ray which revealed a mass in the upper lobe of Ballard’s left lung. He then referred Ballard to Dr. George Zaldivar, a pulmonologist who evaluated him, administered pulmonary function tests, and sent him to Dr. Sampath, who performed a pneumo-nectomy on Ballard.2

On July 17, 1990, Ballard applied for benefits pursuant to the Black Lung Benefits Act, 30 U.S.C. §§ 901-945 (the Act). During the administrative consideration of Ballard’s claim, the Department of Labor identified Dehue as the responsible operator liable for payment of benefits under the Act.3 Dehue disputed Ballard’s claim and requested a hearing before an ALJ.

After conducting a hearing on the matter, the ALJ denied Ballard’s claim for benefits on May 10, 1993. Based upon his review of the opinions of at least ten physicians and his review of x-ray, biopsy, and pulmonary function evidence, the ALJ concluded that Ballard suffered from simple pneumoconiosis and that he had a totally disabling respiratory condition. The ALJ further accorded Ballard the rebuttable presumption, as provided in 20 C.F.R. § 718.203(b) (1994), that his pneumoconiosis arose out of his coal mine employment. Nevertheless, the ALJ found Ballard ineligible for benefits because the record did not support the conclusion that his total disability was due to the pneumoconio-sis. See 20 C.F.R. § 718.204. In particular, the ALJ observed:

I find the medical evidence, taken as a whole, establishes that although Claimant may have minimal, simple pneumoconiosis, it caused little, if any, respiratory impairment- Furthermore, even if pneumo-coniosis might have played a minimal role in Claimant’s wore-disabling respiratory condition, it is wholly unrelated to Claimant’s totally disabling condition, which was caused by the pneumonectomy necessitated by Claimant’s cigarette-induced lung cancer. These conclusions are not only supported by the better reasoned medical opinions, but are buttressed by the precipitous drop recorded on the pulmonary function studies, Claimant’s work history, as well as Claimant’s testimony.

(J.A. 51.) The ALJ, therefore, concluded that pneumoconiosis was not a contributing factor in Ballard’s total disability and denied his request for benefits.

Ballard appealed to the BRB, which reversed the ALJ’s decision on September 28, 1994, and awarded benefits to Ballard. Relying upon our decision in Grigg v. Director, OWCP, the BRB concluded that the ALJ erred in lending any credence to the opinions of physicians who failed to diagnose pneumo-coniosis. See Grigg v. Director, OWCP, 28 F.3d 416, 419-20 (4th Cir.1994) (observing that interim presumption that pneumoconio-sis caused disability cannot be rebutted by medical report finding “no respiratory or pulmonary impairment” if physician erroneously assumed miner had no pneumoconiosis). Discounting the credibility of the physicians’ opinions relied upon by the ALJ, the BRB focused on the remaining medical opinions in holding that Ballard’s pneumoconiosis was a contributing cause of his total disability. See Hobbs v. Clinchfield Coal Co., 917 F.2d 790 (4th Cir.1990) (Hobbs I); Robinson v. Pickands Mather & Co., 914 F.2d 35 (4th Cir.1990) (holding claimant must show by preponderance of evidence that pneumoconiosis was contributing cause of totally disabling respiratory impairment). The BRB therefore reversed the ALJ’s decision and ordered entry of an award of benefits.

[1193] Dehue asserts that the ALJ’s determination that pneumoconiosis was not a contributing cause of Ballard’s disability was supported by substantial evidence in the record and was in accordance with law. Dehue therefore contends that the BRB erred in awarding Ballard black lung benefits. We agree.

II.

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Dehue Coal Company v. Laymond Ballard Director, Office of Workers' Compensation Programs, United States Department of Labor, 65 F.3d 1189, 1995 U.S. App. LEXIS 27278, 1995 WL 562290 (4th Cir. 1995).

65 F.3d 1189 (Dehue Coal Company v. Laymond Ballard Director, Office of Workers' Compensation Programs, United States Department of Labor) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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