Charleston attorneys win 'head counting' appeal at Fourth Circuit

By Nathan Bass | Aug 26, 2013

RICHMOND, Va. – A Westmoreland Coal Company employee who had been found to be disabled by black lung disease will have to prove it again as a result of a federal appeals court overturning a Workers’ Compensation administrative law judge’s decision.

A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit consisting of Judges Diana Gribbon Motz, Barbara Milano Keenan and Albert Diaz issued a per curiam opinion in the case of Westmoreland Coal Company v. Johnny Fortner et al. on August 14. Representing Westmoreland is Paul E. Frampton and Thomas M. Hancock of Bowles Rice in Charleston.

Johnny Fortner, who worked in mines in Virginia and Kentucky, was denied disability under the Black Lung Benefits Act and subsequently filed another claim. Because it was a subsequent claim, Fortner was required to demonstrate a change in “one of the applicable conditions of entitlement” since his last denial of benefits.

After Fortner submitted new evidence in the form of arterial blood gas studies and medical opinions, the ALJ allowed the claim to proceed, ruling that there was no probative contrary evidence in the record.

Westmoreland Coal, while not disputing that the newly submitted arterial blood gas studies qualified Fortner as totally disabled due to a respiratory impairment, contended that the ALJ erred by rejecting the opinion of Dr. Kirk Hippensteel when evaluating the medical opinions. The coal company claimed the ALJ had not explained his reason for discrediting the physician’s opinion and had engaged in “head counting.”

“Head counting” is the act of resolving the conflict of medical opinions solely on the basis of the number of physicians supporting a respective party. Westmoreland contended that this was what the ALJ did in this case. The ALJ simply decided that the “consensus” of Fortner’s two physicians outweighed Dr. Hippensteel’s opinion without explaining why, Westmoreland asserted.

The panel of judges agreed with Westmoreland Coal Company.

“Because we have concluded that the ALJ improperly discredited Dr. Hippensteel’s opinion on the grounds that he was outnumbered, we also conclude that substantial evidence does not support his conclusion that Fortner established that he suffered from a totally disabling respiratory condition," the opinion says.

“Thus, the ALJ erred in finding that Fortner demonstrated a change in applicable condition of entitlement, as required by § 725.309(d), and allowing the subsequent claim to proceed... Accordingly, we grant Employer’s petition for review, vacate the Board’s order affirming the ALJ’s award of benefits, and remand to the Board for further proceedings consistent with this opinion.

“On remand, the ALJ certainly may reach the same conclusion after properly weighing the evidence; however, he must fully explain that decision in accordance with the substantial evidence standard.”

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