Harry J. Benson and Son, Inc. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, No. 93-1491

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before HALL, WILKINSON, and MOTZ; PER CURIAM
• Citation: 59 F.3d 166
• Parties: NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Harry J. BENSON and Son, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor; Eva Kearns, Widow of Edward A. Kearns, Respondents. . Submitted:
• Docket Number: No. 93-1491
• Decision Date: 23 May 1995

Page 166

59 F.3d 166
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Harry J. BENSON and Son, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United
States Department of Labor; Eva Kearns, Widow of
Edward A. Kearns, Respondents. No. 93-1491. United States Court of Appeals, Fourth Circuit. Submitted: May 23, 1995
Decided: June 22, 1995

W. Randolph Fife, Douglas G. Lee, STEPTOE & JOHNSON, Clarksburg, WV, for Petitioner. Thomas S. Williamson, Jr., Solicitor of Labor, Donald S. Shire, Associate Solicitor, Patricia M. Nece, Counsel for Appellate Litigation, Jill M. Otte, UNITED STATES DEPARTMENT OF LABOR, Washington, DC, for Respondents.

Before HALL, WILKINSON, and MOTZ, Circuit Judges.

OPINION

PER CURIAM:

Harry J. Benson and Son, Incorporated (Benson), petitions for review of an order of the Benefits Review Board (Board) affirming the administrative law judge's (ALJ) decision to award black lung benefits to respondent Eva Kearns, the widow of Edward Kearns, a former coal miner. At issue in this appeal are the ALJ's finding that Benson failed to rebut the interim presumption of entitlement pursuant to 20 C.F.R. Sec. 727.203(b)(3) (1994), and the ALJ's decision to require Benson to secure the payment of the miner's benefits by posting security in the amount of $150,000 to the Treasurer of the United States.

Rebuttal is established under subsection (b)(3) where the party opposing entitlement to benefits establishes by a preponderance of the evidence that the miner's presumed totally disabling respiratory impairment did not arise in whole or in part out of coal mine employment. See 20 C.F.R. Sec. 727.203(b)(3) (1994). We have interpreted this language to require the party opposing entitlement to "rule out" any connection between disability and coal mine employment. See Thorn v. Itmann Coal Co., 3 F.3d 713, 718 (4th Cir.1993); Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 123 (4th Cir.1984). In this case, Benson's only potential rebuttal evidence consisted of Dr. Piccirillo's opinion that coal dust exposure did not significantly contribute to the miner's totally disabling respiratory impairment. While, on appeal, Benson challenges the ALJ's decision to discount Dr. Piccirillo's opinion on the grounds that his opinion was equivocal and hostile to the spirit of the Black Lung Benefits Act, we need not address these arguments because we agree with the Board's holding that Dr. Piccirillo's opinion is insufficient as a matter of law to establish subsection (b)(3) rebuttal.

Dr. Piccirillo conceded that coal dust exposure may have been partially responsible for the miner's disabling impairment. He testified that coal dust exposure played only a minor role, estimating it to be "under five percent." Nonetheless, however, as the Board correctly concluded, such findings simply do not "rule out" any connection between disability and coal mine employment. Dr. Piccirillo's report therefore could not establish subsection (b)(3) rebuttal even had the ALJ fully credited it. ^* Accordingly, the ALJ's award of benefits is affirmed.

Turning to the security bond issue, the ALJ ordered the posting of security in this case because, unlike most employers potentially facing the payment of black lung benefits, Benson did not possess an insurance policy for the payment of claims. Benson does not conduct strip mining operations, but is a trucking company engaged solely in the transportation of coal from various strip mining sites....