Coastal Coal-West Virginia v. DOWCP


Case reopened upon grant of rehearing/rehearing en banc. Originating case number: 13-0213 BLA. [14-2012]

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Appeal: 14-2012 Doc: 48 Filed: 10/05/2015 Pg: 1 of 5 ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-2012 COASTAL COAL-WEST VIRGINIA, LLC, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; RICHARD L. MILLER, Respondents. On Petition for Review of an Order of the Benefits Review Board. (13-0213 BLA) Submitted: September 29, 2015 Decided: October 5, 2015 Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition for rehearing granted; petition for review vacated and remanded by unpublished per curiam opinion. granted; Jeffrey R. Soukup, JACKSON KELLY PLLC, Lexington, Kentucky, for Petitioner. Otis R. Mann, Jr., Charleston, West Virginia; Sean Gregory Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Helen Hart Cox, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, Washington, D.C., for Respondents. Unpublished opinions are not binding precedent in this circuit. Appeal: 14-2012 Doc: 48 Filed: 10/05/2015 Pg: 2 of 5 PER CURIAM: Coastal Coal-West Virginia, LLC (“Employer”) petitions for rehearing of our May 12, 2015 decision dismissing as untimely its petition for review of the Benefits Review Board’s (“the Board”) decision and order affirming the Administrative Law Judge’s (“ALJ”) award of benefits to Richard L. Miller under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945 (2012). the petition vacate the for rehearing, * ALJ’s award grant of the petition benefits, We grant for review, and remand the ALJ’s for reconsideration of the evidence. We review de novo the Board’s and legal conclusions and conduct an “independent review of the record to determine whether the ALJ’s findings of fact were supported by substantial evidence.” Island Creek Coal Co. v. Compton, 211 F.3d Cir. 203, 207-08 omitted). (4th “‘Substantial 2000) (internal evidence is more quotation than a marks mere scintilla’; it is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). * We conclude (contrary to our earlier opinion) that Employer filed a timely motion for reconsideration of the Board’s order affirming the ALJ’s award of benefits. See 20 C.F.R. §§ 802.221(b), 802.407 (2014). Accordingly, Employer’s petition for review in this court was timely. See 33 U.S.C. § 921(c) (2012). 2 Appeal: 14-2012 Doc: 48 Filed: 10/05/2015 Pg: 3 of 5 “As long as substantial evidence supports an ALJ’s findings, we must sustain the ALJ’s decision, even if we disagree with it.” Westmoreland Coal Co. v. Cochran, 718 F.3d 319, 322 (4th Cir. 2013) (internal quotation marks and brackets omitted). Subject to the substantial evidence requirement, we defer to the ALJ’s credibility determinations and “evaluation of the proper weight to accord conflicting medical opinions.” Harman Mining Co. v. Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 310 (4th Cir. 2012) (internal quotation marks omitted). On review, this court is not permitted to reweigh the medical evidence. Milburn Colliery Co. v. Hicks, 138 F.3d 524, 536 (4th Cir. 1998). To establish entitlement to benefits under the Act, a miner must prove: “(1) he has pneumoconiosis; (2) the pneumoconiosis arose out of his coal mine employment; (3) he has a totally disabling respiratory (4) pneumoconiosis respiratory is or a disability.” pulmonary contributing Id. at cause 529. condition; to An his and total irrebuttable presumption of total disability due to pneumoconiosis attaches If such miner is suffering . . . from a chronic dust disease of the lung which: (a) When diagnosed by chest X–ray . . . yields one or more large opacities (greater than one centimeter in diameter) and would be classified in Category A, B, or C in accordance with the classification system established in Guidelines for the Use of the ILO International Classification of Radiographs of Pneumoconiosis as provided in § 718.102(d); or 3 Appeal: 14-2012 Doc: 48 Filed: 10/05/2015 Pg: 4 of 5 (b) When diagnosed by biopsy massive lesions in the lung; or (c) When diagnosed by in paragraphs (a) and condition which could the results described section had diagnosis . . . or autopsy, yields means other than those specified (b) of this section, would be a reasonably be expected to yield in paragraph (a) or (b) of this been made as therein described . 20 C.F.R. § 718.304(a)-(c) (2014); see 30 U.S.C. § 921(c)(3). Ultimately, although the presumption is irrebuttable once attached, the miner bears the burden of proving the existence of complicated pneumoconiosis. Lester v. Dir., Office of Workers’ Comp. Programs, 993 F.2d 1143, 1146 (4th Cir. 1993). In the petition for review, Employer contends that the ALJ erred by failing Alexander, and to consider Gaziano on the comments their x-ray of Drs. Abrahams, interpretations in determining that Miller proved by x-ray evidence that he suffers from complicated pneumoconiosis §§ 718.202(a)(1), 718.304(a). under 20 C.F.R. We agree that the ALJ erred by failing to consider the physicians’ comments, as those comments have direct bearing on whether the mass appearing on the x-ray is in fact the manifestation of a chronic dust disease or is the result of some § 921(c)(3); primarily Alexander, 20 on and other C.F.R. the disease § x-ray Gaziano in process. 718.304. Because interpretations finding See that of 30 U.S.C. the ALJ relied Drs. Miller Abrahams, suffers from complicated pneumoconiosis without considering the credibility 4 Appeal: 14-2012 of the Doc: 48 Filed: 10/05/2015 readings in light of Pg: 5 of 5 the comments, we conclude that substantial evidence does not support the award of benefits. Accordingly, vacate the ALJ’s reconsideration pneumoconiosis. establishes should then we the grant award of the Employer’s of petition benefits, x-ray and evidence of for review, remand for complicated If the ALJ again finds that the x-ray evidence existence weigh all of of complicated the evidence pneumoconiosis, to determine he whether Employer provided affirmative evidence showing that the opacity does not exist or was caused by another disease process. See Westmoreland Coal Co. v. Cox, 602 F.3d 276, 283-84 (4th Cir. 2010); E. Assoc. Coal Corp. v. Dir., Office of Workers’ Comp. Programs, 220 F.3d 250, 256 (4th Cir. 2000). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. PETITION FOR REHEARING GRANTED; PETITION FOR REVIEW GRANTED; VACATED AND REMANDED 5

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