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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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
COASTAL COAL-WEST VIRGINIA, LLC,
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; RICHARD L. MILLER,
On Petition for Review of an Order of the Benefits Review Board.
September 29, 2015
October 5, 2015
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Petition for rehearing granted; petition for review
vacated and remanded by unpublished per curiam opinion.
Jeffrey R. Soukup, JACKSON KELLY PLLC, Lexington, Kentucky, for
Petitioner. Otis R. Mann, Jr., Charleston, West Virginia; Sean
COMPENSATION PROGRAMS, Washington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.
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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
Judge’s (“ALJ”) award of benefits to Richard L. Miller under the
Black Lung Benefits Act, 30 U.S.C. §§ 901-945 (2012).
reconsideration of the evidence.
conclusions and conduct an “independent review of the record to
determine whether the ALJ’s findings of fact were supported by
Island Creek Coal Co. v. Compton, 211
scintilla’; it is ‘such relevant evidence as a reasonable mind
(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.
C.F.R. §§ 802.221(b), 802.407 (2014).
petition for review in this court was timely.
See 33 U.S.C. §
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“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).
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.
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
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
established in Guidelines for the Use of the ILO
Pneumoconiosis as provided in § 718.102(d); or
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(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
. . .
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).
attached, the miner bears the burden of proving the existence of
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
determining that Miller proved by x-ray evidence that he suffers
§§ 718.202(a)(1), 718.304(a).
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
complicated pneumoconiosis without considering the credibility
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substantial evidence does not support the award of benefits.
If the ALJ again finds that the x-ray evidence
Employer provided affirmative evidence showing that the opacity
does not exist or was caused by another disease process.
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
this court and argument would not aid the decisional process.
PETITION FOR REHEARING GRANTED;
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED
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