Double B Min., Inc. v. Blankenship

• Decision Date: 21 May 1999
• Docket Number: No. 98-1206,98-1206
• Citation: 177 F.3d 240
• Parties: DOUBLE B MINING, INCORPORATED, Petitioner, v. Lloyd BLANKENSHIP; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 240

177 F.3d 240

DOUBLE B MINING, INCORPORATED, Petitioner, v. Lloyd BLANKENSHIP; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 98-1206.

United States Court of Appeals Fourth Circuit.

Argued Dec. 2, 1998.

Decided May 21, 1999.

ARGUED: Ronald Eugene Gilbertson, Kilcullen, Wilson & Kilcullen, Washington, D.C., for Petitioner. Sarah Marie Hurley, United States Department of Labor, Washington, D.C., for Respondent Director; Joseph E. Wolfe, Wolfe & Farmer, Norton, Virginia, for Respondent Blankenship. ON BRIEF: Marvin Krislov, Deputy Solicitor for National Operations, Donald E. Shire, Associate Solicitor, Patricia M. Nece, for Appellate Litigation, United States Department of Labor, Washington, D.C., for Respondent Director. Vernon M. Williams, Bobby S. Belcher, Jr., Wolfe & Farmer, Norton, Virginia, for Respondent Blankenship.

Before ERVIN and NIEMEYER, Circuit Judges, and HILTON, Chief United States District Judge for the Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge ERVIN and Chief Judge HILTON joined.

OPINION

NIEMEYER, Circuit Judge:

Under the Black Lung Benefits Act, a coal miner is entitled to an irrebuttable presumption that he is totally disabled due to pneumoconiosis if he is able to show that he has "complicated pneumoconiosis" as defined by the Act. Because the administrative law judge failed to apply the statutory criteria for finding complicated pneumoconiosis in this case, we remand this case for further proceedings.

I

For over 20 years, Lloyd Blankenship worked as a coal miner for Double B Mining, Inc. in Grundy, Virginia. Acting on the advice of Dr. Emory Robinette, Blankenship stopped working in 1990 and underwent surgery to remove the lower portion of his left lung. Specimens taken from the removed lung were examined by Dr. J.W. Ferguson, a pathologist, who concluded that Blankenship was suffering from "anthrasilocotic pneumoconiosis with massive fibrosis."

Blankenship filed an application for black lung benefits, and the Department of Labor denied his claim. Following a hearing before an administrative law judge ("ALJ"), however, the ALJ found that Blankenship was totally disabled due to pneumoconiosis, applying 20 C.F.R. § 718.204(c)(4) (providing for total disability when "a miner's respiratory or pulmonary condition prevents or prevented the miner from engaging in employment"). The ALJ based his disability finding on the opinion testimony of Dr. Robinette.

Although Dr. Robinette found that Blankenship suffered from complicated coal workers' pneumoconiosis, he did not find that Blankenship was totally disabled. On the complicated pneumoconiosis issue, Dr. Robinette asserted that "a number of clinicians recognize complicated pneumoconiosis as representing a mass greater than 1 cm in size," implying that the 1.3 centimeter nodule found on Blankenship's lung was sufficient to indicate complicated pneumoconiosis.

Double B Mining offered the testimony of Dr. Echols Hansbarger, Jr., who based his opinion on the materials developed by Dr. Ferguson's biopsy. Dr. Hansbarger stated that while he agreed generally with Dr. Ferguson's pathology findings, he did not agree with the diagnosis of "massive fibrosis" and found no evidence of "complicated Coal Workers' Pneumoconiosis." Dr. Hansbarger asserted that complicated pneumoconiosis exists where there are nodules on the lungs that are larger than two centimeters in greatest dimension. He stated that the largest nodule on Blankenship's lungs was 1.3 centimeters in greatest dimension. He concluded that Blankenship had "Simple Coal Workers' Pneumoconiosis" and also that he had no restriction in pulmonary function. Drs. Dale Sargent, James Castle, and Gregory Fino also testified on behalf of Double B Mining, concluding that Blankenship suffered only from simple, not complicated, pneumoconiosis.

On appeal to the Benefits Review Board, the Board vacated the ALJ's opinion, finding that the ALJ had erred in relying on Dr. Robinette's statements for the proposition that Blankenship was totally disabled, because Dr. Robinette had not offered any such opinion. The Board, however, remanded the case for reconsideration under the regulation for complicated pneumoconiosis, 20 C.F.R. § 718.304, which provides that there is "an irrebuttable presumption that a miner is totally disabled due to pneumoconiosis" if a biopsy diagnoses him with "massive lesions in the lung." The Board instructed the ALJ first to examine the evidence in light of § 718.304 and then, if § 718.304 were determined to be inapplicable, to reexamine the evidence in light of § 718.204(c)(4), under which the ALJ had originally considered the matter.

On remand, the ALJ found that Blankenship had complicated pneumoconiosis, noting that Dr. Ferguson's diagnosis of "anthrasilocotic pneumoconiosis with massive fibrosis" was sufficient to satisfy the "massive lesions" requirement and to trigger the irrebuttable presumption under 20 C.F.R. § 718.304(b). The ALJ noted, "Granted, Dr. Ferguson did not use the exact legislative words of art, but his finding[s] by biopsy are sufficient to fall within the criteria [for complicated pneumoconiosis] established by Congress in Section 718.304(b) for purposes of meeting Claimant's burden of proof." The ALJ rejected Dr. Hansbarger's opinion that complicated pneumoconiosis could only be diagnosed where there is a nodule larger than two centimeters in greatest dimension, stating, "Whether medically correct or not, Dr.Hansbarger's personal criteria is [sic] irrelevant."

On appeal for the second time, the Board affirmed the ALJ, endorsing both his reliance on Dr. Ferguson's diagnosis of "massive fibrosis" to find complicated pneumoconiosis and his rejection of Dr. Hansbarger's opinion. The Board stated that the ALJ "properly rejected Dr. Hansbarger's opinion that the nodules must be larger than two centimeters for a pathological finding of complicated pneumoconiosis because this is not supported by the 'legislative criteria.' "

This appeal followed.

II

Section 921(c)(3) of the Black Lung Benefits Act, describing what is often called "complicated pneumoconiosis," creates an irrebuttable presumption that a coal miner is totally disabled due to pneumoconiosis if (A) an x-ray of the miner's lungs shows at least one opacity greater than one centimeter in diameter; (B) a biopsy reveals "massive lesions" in the lungs; or (C) a diagnosis by other means reveals a result equivalent to (A) or (B). See 30 U.S.C. § 921(c). ^* The regulations implementing the statute employ virtually the same language. See 20 C.F.R. § 718.304; cf. 20 C.F.R. § 410.418 (defining similarly "complicated pneumoconiosis" for Social Security purposes). A miner thus "afflicted with complicated pneumoconiosis, is 'irrebuttably presumed' to be totally disabled due to pneumoconiosis." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 10-11, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976); see also Lester v. Director, Office of Workers' Compensation Programs, 993 F.2d 1143, 1144 (4th Cir.1993); Adkins v. Director, Office of Workers' Compensation Programs, 958 F.2d 49, 50 (4th Cir.1992).

Because clauses (A), (B), and (C) of § 921(c)(3) are three different ways of diagnosing complicated pneumoconiosis, in construing the requirements of each, one must perform equivalency determinations to make certain that regardless of which diagnostic technique is used, the same underlying condition triggers the irrebuttable presumption. In other words, the same condition that triggers the presumption by producing opacities greater than one centimeter in diameter on an x-ray...