Coastal Coal-West Virginia v. DOWCP

Filing

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

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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UNPUBLISHED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vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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).

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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).

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

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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
. . .

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
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of

the

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readings

in

light

of

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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

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