Fourth Circuit affirms black lung benefits award

By Nathan Bass | Sep 13, 2013

RICHMOND – A federal appeals court has denied the petition of Westmoreland Coal Company, Inc., and will allow the award of benefits to a former coal miner under the Black Lung Benefits Act.

A three-member panel of the U.S. Court of Appeals for the Fourth Circuit issued an unpublished per curiam opinion in the case Sept. 6. Unpublished opinions are not binding precedent in the Fourth Circuit. Judges Paul V. Niemeyer, Diana Gribbon Motz and Albert Diaz heard the argument.

Westmoreland Coal Company petitioned the court for review of the Workers’ Compensation Benefits Review Board’s decision affirming the administrative law judge’s award of benefits to former employee James E. Sizemore under the Black Lung Benefits Act.

Westmoreland did not dispute the ALJ’s finding that Sizemore was entitled to the rebuttable 15-year presumption that he was totally disabled due to pneumoconiosis. This presumption, which leads to a finding of “legal pneumoconiosis,” is triggered when a miner has a respiratory or pulmonary impairment which causes total disability and he has worked 15 or more years in coal mines. The presumption, once law under the Black Lung Benefits Act but later stricken, was resurrected by the Affordable Care Act in 2010.

Westmoreland argued that the ALJ erred in his decision to discredit its expert physicians’ opinion, which Westmoreland offered to rebut the 15-year “legal pneumoconiosis” presumption afforded to Sizemore.

On application for review, the court wrote, “The ALJ is not bound to accept any medical expert opinion but must evaluate the evidence, weigh it, and draw its own conclusions, giving consideration to the qualifications of the experts, the opinions’ reasoning, their reliance on objectively determinable symptoms and establish science, their detail of analysis, and their freedom from irrelevant distractions and prejudices.

“In this case, the ALJ discredited Employers’ physicians on the issue of whether Sizemore suffered from legal pneumoconiosis because their explanations for discounting his lengthy history in the coal mines as a cause of his emphysema were insufficient in light of the science underlying the preamble to the regulations implementing the Act.

“We have, in two recent cases, held that an ALJ is permitted to rely on this preamble to assess physicians’ credibility.”

The court cited Westmoreland Coal Co. v. Cochran and Harman Mining Co. v. Director, Office of Workers’ Compensation Programs.

“Thus. We conclude that the ALJ did not err in consulting the preamble to discredit Employer’s experts on the issue of legal pneumoconiosis. We also conclude the ALJ did not transform the rebuttable presumption into an irrebuttable presumption by his reliance on the preamble," the opinion says.

The court noted that since the coal company’s physicians were found not to be credible on the issue of legal pneumoconiosis, the ALJ could not credit the physicians’ opinions on the causation of total disability without clear reasons for concluding the doctor’s judgment on disability causation did not rest upon their rejected legal pneumoconiosis opinions.

“Thus, we conclude that the ALJ did not err in finding that Employer failed to rebut the fifteen-year presumption afforded to Sizemore,” the opinion says.

Representing Westmoreland was Paul E. Frampton of Bowles Rice in Charleston.

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