BRB No. 92-0525 BLA
WILLIAM F. CURRY )
)
Claimant-Petitioner )
)
v. )
)
BEATRICE POCAHONTAS COAL )
COMPANY )
) DATE ISSUED: 04/25/1994
Employer-Respondent )
)
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER EN BANC
Appeal of the Decision and Order of Giles J. McCarthy, Administrative Law
Judge, United States Department of Labor.
Lawrence L. Moise, III (Vinyard & Moise), Abingdon, Virginia, for claimant.
Douglas A. Smoot and Melissa M. Robinson (Jackson & Kelly), Charleston,
West Virginia, for employer.
Anne Swiatek (Thomas S. Williamson, Jr., Solicitor of Labor; Donald S.
Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
Richard A. Seid and Michael J. Rutledge, Counsel for Administrative
Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers'
Compensation Programs, United States Department of Labor.
Before: DOLDER, Acting Chief Administrative Appeals Judge, SMITH, BROWN and
McGRANERY, Administrative Appeals Judges.
DOLDER, Acting Chief Administrative Appeals Judge:
Claimant appeals the Decision and Order (87-BLA-2570) of Administrative Law
Judge Giles J. McCarthy denying benefits on a claim filed pursuant to the
provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as
amended, 30 U.S.C. §901 et seq. (the Act). This case is before the
Board for the third time. Claimant filed a claim on May 26, 1978, and
Administrative Law Judge Stuart Levin issued a Decision and Order denying benefits
on January 18, 1980. In his Decision and Order, Administrative Law Judge Levin
found that claimant established twenty-seven and one-half years of coal mine employment and
accepted employer's concession that claimant
established invocation of the interim presumption pursuant to 20 C.F.R.
§727.203(a)(1). Administrative Law Judge Levin then found that employer
established rebuttal of the interim presumption pursuant to 20 C.F.R.
§727.203(b)(1). Accordingly, benefits were denied. Claimant filed a motion
for reconsideration, which was denied by Administrative Law Judge Levin on April
2, 1980. Claimant then filed an appeal with the Board seeking modification of the
administrative law judge's denial of benefits. The Board denied claimant's request
for modification and informed claimant that requests for modification should be
made directly to the administrative law judge. Curry v. Beatrice Pocahontas
Co., 3 BLR 1-306 (1981). Claimant's subsequent requests for modification and
reconsideration were denied. Claimant then filed a second appeal with the Board.
On appeal, the Board affirmed the Administrative Law Judge Levin's finding of
rebuttal pursuant to 20 C.F.R. §727.203(b)(1) and, accordingly, the Decision
and Order, Order Denying Reconsideration, Order Denying Modification and Order
Denying Reconsideration of Modification were affirmed. Curry v. Beatrice
Pocahontas Co., BRB Nos. 80-389 BLA and 82-987 BLA (November 30, 1984)(unpub.).
Claimant filed a second claim for benefits on January 10, 1985. Claimant also
filed a request for Modification of the Board's Decision and Order. The district
director, after determining that claimant's second claim was a request for
modification, denied the request on November 19, 1986. After a formal hearing,
Administrative Law Judge McCarthy found that claimant established twenty-eight
years of coal mine employment and that invocation of the interim presumption was
established pursuant to 20 C.F.R. §727.203(a)(1) as set forth in Judge Levin's
Decision and Order. The administrative law judge then determined that rebuttal
under 20 C.F.R. §727.203(b)(1) is not applicable in this case as claimant
retired from coal mine employment in January 1981, and that rebuttal was not
established pursuant to 20 C.F.R. §727.203(b)(2). The administrative law
judge further found that employer established rebuttal pursuant to 20 C.F.R.
§727.203(b)(3) and (4), and that claimant failed to establish entitlement
pursuant to 20 C.F.R. §410.490 and 20 C.F.R. Part 410, Subpart D.
Accordingly, benefits were denied.
On appeal, claimant contends that the administrative law judge erred in
failing to consider the evidence of record pursuant to 20 C.F.R.
§727.203(a)(2) and (4), and in failing to find rebuttal at Section
727.203(b)(4) precluded since invocation of the interim presumption was established
at Section 727.203(a)(1). Additionally, claimant contends that the administrative
law judge erred in finding the evidence of record sufficient to establish rebuttal
of the interim presumption pursuant to Section 727.203(b)(3) and (4). Employer
responds in support of the administrative law judge's Decision and Order. The
Director, Office of Workers' Compensation Programs (the Director), also responds
urging affirmance of the administrative law judge's Decision and Order. Oral
argument in this case was heard by the Board in Charleston, West Virginia on
October 13, 1993.
The Board's scope of review is defined by statute. The administrative law
judge's findings of fact and conclusions of law must be affirmed if they are
supported by substantial evidence, are rational, and are in accordance with law.
33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O'Keeffe
v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Initially, claimant contends that the administrative law judge erred in
failing to consider invocation of the interim presumption pursuant to Section
727.203(a)(2) and (4). The administrative law judge, in finding that invocation
was established, accepted Administrative Law Judge Levin's weighing of the x-ray
evidence and his acceptance of employer's concession that invocation was
established pursuant to Section 727.203(a)(1). The administrative law judge's
finding of invocation pursuant to Section 727.203(a)(1) has not been challenged on
appeal, thus, it is affirmed. Skrack v. Island Creek Coal Co., 6 BLR 1-710
(1983). As the administrative law judge's finding of invocation pursuant to
Section 727.203(a)(1) is affirmed, we need not address claimant's contentions
regarding Section 727.203(a)(2) and (4). Cochran v. Consolidation Coal Co.,
12 BLR 1-136 (1989); Wetzel v. Director, OWCP, 8 BLR 1-139 (1985).
Claimant next contends that it was an error of law for the administrative law
judge to find rebuttal pursuant to Section 727.203(b)(4) when he found that the
interim presumption had been invoked by x-ray evidence pursuant to Section
727.203(a)(1). Based on the facts of the instant case and current law, we agree
with claimant. In Mullins Coal Co., Inc. of Virginia v. Director, OWCP, 108
S.Ct. 427, 435-36 n.26, 11 BLR 2-1, 2-9 n.26 (1987), the United States Supreme
Court stated:
if the claimant invokes the presumption by establishing the existence of
pneumoconiosis under § (a)(1), the employer may not try to disprove
pneumoconiosis under § (b)(4). This limitation on rebuttal,
according to the Court of Appeals, renders the Secretary's position
internally inconsistent.
Again, we are constrained to disagree. Nothing in the regulation
requires each rebuttal subsection to be fully available in each
case. As long as the employer can introduce, say, nonqualifying X-rays
at the invocation stage to oppose invocation under § (a)(1), it has
been given the chance to show the nonexistence of pneumoconiosis. If
the presumption is nonetheless invoked, the employer can still try to disprove total disability or
causality.
Mullins, 108 S.Ct. at 435-36, 11 BLR at 2-9.
The Supreme Court further stated that "after a Subsection (a)(1) invocation,
the question of pneumoconiosis is effectively closed: the rebutting party cannot,
as a practical matter, attempt to show that the miner does not suffer from some
form of clinical pneumoconiosis." Mullins, 108 S.Ct. at 436 n. 26, 11 BLR
at 2-9 n. 26. In light of Mullins, the Board held in Buckley v.
Director, OWCP, 11 BLR 1-37 (1988), that subsection (b)(4) rebuttal is
precluded where the administrative law judge finds invocation under subsection
(a)(1). Buckley, 11 BLR at 1-38. In response to claimant's contention,
employer asserts that the Board's reliance on Mullins is incorrect as the
above quoted language is dicta, and that precluding rebuttal at subsection (b)(4)
would result in the administrative law judge's failure to consider all relevant
evidence. Employer's Brief at 18. The Director responds stating that, contrary
to employer's position, the comments made in Mullins are not merely dicta,
as Mullins limits rebuttal at subsection (b)(4) by holding that subsection
(b)(4) rebuttal can not be established by the same type of evidence which was
considered to invoke at subsection (a)(1). The Director, however, argues that
Mullins does not preclude the opposing party from relying on different
evidence to establish subsection (b)(4) rebuttal. Director's Brief at 6. Neither
employer nor the Director, however, has presented a compelling argument for the
Board to alter its position on this issue. As noted above, the Supreme Court in
Mullins clearly held that rebuttal pursuant to subsection (b)(4) is
precluded by a finding of invocation pursuant to subsection (a)(1). Thus,
notwithstanding employer's arguments to the contrary, the Supreme Court's
pronouncement on this issue cannot be considered dicta, and is, in fact, binding
authority on the Board and all parties seeking benefits under the Act.
Buckley, supra; see also Old Ben Coal Co. v.
Battram, 7 F.3d 1273 n. 4, BLR (7th Cir. 1993); Cort v. Director,
OWCP, 996 F.2d 1549, 1551 n. 3, 17 BLR 2-166 (3d Cir. 1993); Peabody Coal
Co. v. Shonk, 906 F.2d 264 (7th Cir. 1990). The contrary arguments of employer
and the Director on this issue are therefore rejected, and we hereby hold that,
pursuant to Mullins, a finding of invocation pursuant to subsection (a)(1)
precludes a finding of rebuttal under (b)(4). As a result, the administrative law
judge's finding that employer established rebuttal pursuant to Section
727.203(b)(4) is vacated.
Claimant next contends that the evidence of record is insufficient to support
a finding of rebuttal pursuant to Section 727.203(b)(3).[1] The United States Court of Appeals for the Fourth Circuit, the
jurisdiction in which this claim arises, has held that in order to establish
rebuttal of the interim presumption pursuant to subsection (b)(3), the party
opposing entitlement must rule out any relationship between the miner's disability
and coal mine employment. Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 7
BLR 2-72 (4th Cir. 1984). In making his findings pursuant to subsection (b)(3),
the administrative law judge stated that he considered all of the medical opinion
evidence of record. The administrative law judge then permissibly accorded great
weight to the opinion of Dr. Endres-Bercher, who diagnosed that claimant does not
have any pulmonary disability and retains sufficient lung capacity to perform his
previous employment as a supply man, because it is well reasoned and well supported
by findings on physical examination as well as objective test results. Decision
and Order at 18; Employer's Exhibit 5; Lafferty v. Cannelton Industries,
Inc., 12 BLR 1-190 (1989); Marcum v. Director, OWCP, 11 BLR 1-2 (1987);
Wetzel, supra. The administrative law judge further permissibly
found Dr. Endres-Bercher's report to be supported by the report of Dr. Fino, who
opined that "pneumoconiosis has not caused any disability and has not contributed
at all to a disability should one be found", as it is well reasoned and well
supported by objective medical evidence.[2]
Decision and Order at 19; Employer's Exhibit 7; see Lafferty, supra;
Fields v. Island Creek Coal Co., 10 BLR 1-19 (1987); Wetzel,
supra. The administrative law judge then permissibly found that the
opinions of Drs. Endres-Bercher and Fino outweigh Dr. Rupke's opinion, which states
that claimant is totally disabled due to his pneumoconiosis, as Dr. Rupke fails to
provide a discussion as to the basis for his diagnosis. Decision and Order at 18-19; Director's
Exhibit 82; Lafferty, supra; Lucostic v. United
States Steel Corp., 8 BLR 1-46 (1985). As a result, the administrative law
judge's finding that employer established rebuttal pursuant to Section
727.203(b)(3) is affirmed as supported by substantial evidence.
Accordingly, the administrative law judge's findings are vacated in part and
affirmed in part, and the administrative law judge's Decision and Order Rejection
of Claim is affirmed.
SO ORDERED.
NANCY S. DOLDER, Acting Chief
Administrative Appeals Judge
I concur:
ROY P. SMITH
Administrative Appeals Judge
Brown, Administrative Appeals Judge, concurring and dissenting:
I concur in the affirmance of the Decision and Order of the administrative law
judge denying benefits. Invocation of the interim presumption of total disability
due to pneumoconiosis was established pursuant to 20 C.F.R. §727.203(a)(1) as
a result of the employer's concession. Therefore, it was not necessary to consider
invocation pursuant to 20 C.F.R. §727.203(a)(2) and (4). I further agree that
rebuttal was established pursuant to 20 C.F.R. §727.203(b)(3) as a result of
the administrative law judge's weighing of all the medical opinion evidence as
discussed in the main opinion. The conclusion of the administrative law judge that
employer ruled out any relationship between the miner's disability and coal mine
employment is supported by substantial evidence.
The area where I differ from my colleagues, however, is in the handling of
rebuttal pursuant to 20 C.F.R. §727.203(b)(4) when invocation arose pursuant
to Section 727.203(a)(1), as in this case. In their opinion Judges Dolder and
Smith have taken the position, flatly, that rebuttal at Section 727.203(b)(4) is
precluded if invocation is established pursuant to Section 727.203(a)(1), citing
Mullins Coal Co., Inc of Virginia v. Director, OWCP, 108 S.Ct. 427, 11 BLR
2-1 (1987). Employer asserts the position, on the other hand, that the comments
made by the Supreme Court relating to subsections (a)(1) and (b)(4) is not a
holding by the Court, was simply dicta, and that rebuttal pursuant to subsection
(b)(4) is not necessarily precluded where there is appropriate evidence other than
that of the kind which constituted the basis for the establishment of invocation
pursuant to subsection (a)(1). The Director's position is that the relevant
comments in Mullins are not dicta, as asserted by the employer, but that
rebuttal may be established at subsection (b)(4) if the party asserting it relies
on evidence different from the type considered to invoke at subsection (a)(1).
Are these comments in Mullins concerning Section 727.203(a)(1) and
(b)(4) dicta or are they not? As Justice Stevens, who wrote the opinion, stated
in the opening paragraph:
"The question in this case concerns the burden of
proof that the claimant must satisfy to invoke the
presumption. The Court of Appeals held,
Stapleton v. Westmoreland Coal Co., 785 F.2d
424 (CA4 1986)(en banc)(case below), that a
single item of qualifying evidence is always
sufficient whereas the Secretary of Labor contends
that his regulation requires the claimant to
establish at least one of the five qualifying facts
by a preponderance of the evidence. Because we are
not persuaded that the Secretary has misread his
own regulation, we reverse."
Mullins, 108 S. Ct. at 429, 11 BLR at 2-3.
Justice Stevens went on to say that it was the view of the Court of Appeals that
invocation of the interim presumption under Section 727.203 (a)(1), (2) or (3) is
established where there is credible evidence that a qualifying x-ray indicates the
presence of pneumoconiosis, a single qualifying ventilatory study indicates a
chronic respiratory or pulmonary disease, or a single blood gas study indicates
pursuant to the regulatory standard an impairment in the transfer of oxygen from
the lungs to the blood. In contrast, the Secretary's view is that invocation under
any subpart must be by a preponderance of the evidence. Justice Stevens pointed
out that prior to Stapleton the Courts of Appeals had routinely reviewed for
substantial evidence the fact-finder's determination under a preponderance of the
evidence standard. The actual holding in Mullins was the adoption of the
Secretary's preponderance of the evidence standard to establish invocation and the
reversal of the judgment of the Court of Appeals. This holding was repeated by the
majority of the Supreme Court as its final thought in the case in its footnote 35,
wherein it stated that because it agreed that the regulation requires a claimant
to prove an invocation fact by a preponderance of the evidence, it need not pass
on petitioner's alternative argument that the Administrative Procedures Act, 5
U.S.C. §557(c)(3)(A), as incorporated into the Act 5 U.S.C. §554(c)(2),
33 U.S.C. §§919(d) and 932(a), also requires proof by a preponderance
of the evidence. In referring to the issue raised by the holding of the Court of
Appeals, Justice Stevens stated: "that presents the legal question we must decide."
Mullins, 108 S.Ct. at 430, 11 BLR at 2-4 (1987). The holding in
Mullins is limited solely to the issue of invocation. What it takes to
rebut was not litigated in any manner. Considering the narrow manner in which
Justice Stevens defined the legal question before the Court, it is obvious that the
discussion pertaining to subsections (a)(1) and (b)(4) has the earmarks of classic
dicta.
The question now presented is whether rebuttal under Section 727.203 (b)(4)
is precluded if invocation was established pursuant to Section 727.203 (a)(1). In
Mullins the comment was made that the Court of Appeals was persuaded that
some of the rebuttal provisions would be superfluous under the Secretary's reading,
that is, that if there is invocation under subsection (a)(1), the employer may not
try to disprove pneumoconiosis under subsection (b)(4). Mullins, 108 S.Ct.
at 430, 11 BLR at 2-4 (1987). The Court then referred in its footnote 26 to a
comment in the Federal Respondents brief that "[b]ased on current medical
knowledge, X-ray, biopsy, and autopsy evidence are today the only reliable evidence
for diagnosing pneumoconiosis. Therefore, after a Subsection (a)(1) invocation,
the question of pneumoconiosis is effectively closed; the rebutting party cannot,
as a practical matter, attempt to show that the miner does not suffer from some
form of clinical pneumoconiosis." Brief for Federal Respondent 24, n.22;
Mullins 108 S.Ct. 436 n. 26, 11 BLR 2-9 n. 26. Conspicuously absent from
the Secretary's quotation, however, is any specific reference to medical or
scientific authority to substantiate the assertions that x-ray, biopsy, and autopsy
evidence are today the only reliable evidence for diagnosing pneumoconiosis. Are
all medical opinions to be considered unreliable? Furthermore, we now know that
use is being made of a more sophisticated procedure to determine the presence or
absence of pneumoconiosis. See Melnick v. Consolidated Coal Company, 16 BLR
1-31 (1991) (in which the Board recognized that a CAT scan [computerized axial
tomography] was a procedure distinguishable from x-rays and a means other than x-ray, biopsy
or autopsy to determine the presence or absence of pneumoconiosis).
The recent and selected use of CAT scans in connection with Black Lung claims
apparently was never asserted in any of the briefs submitted to the Supreme Court.
It is the view of the Director that the decision in Mullins does not
require the conclusion that subsection (b)(4) rebuttal is absolutely foreclosed
when invocation has been established by subsection (a)(1). The Director also
agrees, along with employer, that precluding subsection (b)(4) rebuttal could, in
some cases, be a violation of Section 413 (b) of the Act, which requires that all
relevant evidence be considered in adjudicating claims. 30 U.S.C. §923(b).
The Director's position is that invocation under subsection (a)(1), with the use
of x-ray, biopsy or autopsy evidence precludes the use of this type of evidence at
subsection (b)(4) and that an employer, therefore, cannot establish the absence of
clinical pneumoconiosis, i.e., a dust disease of the lungs. However, the
Director agrees that medical opinion evidence is admissible on rebuttal at
subsection (b)(4) to establish the absence of "legal pneumoconiosis", i.e.,
a disease "arising out of coal mine employment [which] includes any chronic
pulmonary disease resulting in respiratory or pulmonary impairment significantly
related to or substantially aggravated by, dust exposure in coal mine employment."
20 C.F.R. §718.201. The Director asserts that in a subsection (a)(1)
situation, an employer can rebut the presumption with a different form of evidence
which proves that the miner's pneumoconiosis is not pneumoconiosis as defined in
the regulations: a dust disease of the lungs arising out of coal mine
employment. With this same thought in mind, employer takes the position that
the pneumoconiosis established pursuant to subsection (a)(1) can be rebutted by
medical opinions at subsection (b)(4) which, if credited, establish that the
"pneumoconiosis" did not arise from coal mine employment but actually was, as an
example, asbestosis due to shipyard employment. Other examples would be silicosis
due to foundry work or siderosis due to iron work.
In view of the limited holding in Mullins, and the conclusion that the
discussion therein concerning Section 727.203(a)(1) and (b)(4) is dicta, it is my
opinion, contrary to Buckley v. Director, OWCP, 11 BLR 1-37 (1987), that
invocation pursuant to subsection (a)(1) does not preclude rebuttal pursuant to
subsection (b)(4) where there is medical evidence which, if credited, establishes
that the pneumoconiosis indicated by the subsection (a)(1) evidence is actually a
disease that is not related to coal mine employment. Furthermore, such rebuttal
would not be foreclosed if there is evidence, such as a CAT scan, or procedure
other than x-ray, biopsy or autopsy, or medical opinions, that, if credited, and
if deemed to be more reliable than the subsection (a)(1) evidence, establishes that
pneumoconiosis is not present. I would hold that in an appropriate case such
evidence should be considered to determine whether subsection (b)(4) rebuttal has
been established. It is not necessary, however, to consider the evidence in this
case under subsection (b)(4) since rebuttal has been established pursuant to
Section 727.203(b)(3), and we are affirming the denial of benefits on this basis.
JAMES F. BROWN
Administrative Appeals Judge
McGRANERY, J., concurring and dissenting:
I concur with all my colleagues in holding that the administrative law judge
properly denied benefits because employer established rebuttal pursuant to 20
C.F.R. §727.203(b)(3). But I dissent from the opinion of Judges Dolder and
Smith, upholding
Buckley v. Director, OWCP, 11 BLR 1-37 (1987), and I concur in the opinion
of Judge Brown, holding that the language of the Supreme Court in Mullins Coal
Co., Inc. of Virginia v. Director, OWCP, 108 S.Ct. 427, 11 BLR 2-1 (1987),
regarding invocation pursuant to 20 C.F.R. §727.203(a)(1) and rebuttal
pursuant to 20 C.F.R. §727.203(b)(4) is dictum. In his dissent, Judge Brown
lucidly discusses the pertinent language in Mullins which makes plain that
the holding is limited to "the burden of proof that the claimant must satisfy to
invoke the presumption." Mullins, 108 S.Ct. at 429, 11 BLR at 2-3.
I write separately, however, to discuss the fundamental unsoundness of both
the Board's position in Buckley, maintaining that the Supreme Court held in
Mullins that Section 727.203(a)(1) invocation always precludes rebuttal
pursuant to Section 727.203(b)(4), and the Director's position in the case at bar,
that subsection (a)(1) invocation precludes a finding at subsection (b)(4) that
claimant did not suffer from clinical pneumoconiosis. Both positions are violative
of the Act, 30 U.S.C. §932(b), because they authorize the exclusion of
relevant evidence and both positions are unwise, because they hinge a legal
judgment upon the development of medical science at the time of the Supreme Court's
decision.
Both the Board's position in Buckley and the Director's position here
violate the directive in Section 413(b) of the Act that "all relevant evidence
shall be considered". 30 U.S.C. §923(b). The Director recognizes this flaw
in the Buckley analysis but not in her own. Although she maintains that the
opposing party may introduce evidence at subsection (b)(4), she would limit that
evidence to proof that claimant's clinical pneumoconiosis did not arise out of coal
mine employment. Hence, in the case at bar, she would preclude the administrative
law judge from considering medical opinions at subsection (b)(4) because the
doctors rejected the view that claimant had clinical pneumoconiosis, although the
administrative law judge had found those opinions persuasive. Thus, the Director
would exclude from consideration evidence relevant to the fundamental issue of the
existence of pneumoconiosis. Because both the Board's position in Buckley
and the Director's position here violate the statutory mandate to consider all
relevant evidence, they cannot be upheld.
Moreover, both these positions are unwise because they base a legal judgment
with prospective effect upon medical knowledge current at the time the Supreme
Court judgment was issued. Both the Board in Buckley and the Director
discuss footnote 26 of Mullins, in which the Supreme Court quotes the
Department of Labor's brief that
Based on current medical knowledge, X-ray, biopsy, and autopsy
evidence are today the only reliable evidence for diagnosing
pneumoconiosis. Therefore, after a Subsection (a)(1) invocation, the
question of pneumoconiosis is effectively closed; the rebutting party
cannot, as a practical matter, attempt to show that the miner
does not suffer from some form of clinical pneumoconiosis. Brief for
Federal Respondent 24, n. 22; Mullins 108 S.Ct. at 436 n. 26, 11
BLR at 2-9 n. 26 (emphasis added).
But the Board in Buckley and the Director have failed to understand that the
Court did not attempt in that footnote to render a prospective judgment. Its
discussion was limited to "current medical knowledge", available "today" which
would foreclose subsection (b)(4) rebuttal after subsection (a)(1) invocation "as
a practical matter." The Court did not assert that subsection (b)(4) rebuttal was
precluded as a legal matter. That is the effect of the Board's decision in
Buckley; also, to some extent, the effect of the Director's position. The
Court was not so short-sighted as to suggest that medical knowledge could not grow
and that "as a practical matter" it would never be possible to rebut a finding of
clinical pneumoconiosis. The positions advanced by the Board in Buckley and
by the Director would consign the parties in Black Lung cases to a time warp of the
year 1987 (when Mullins was issued), by prohibiting those opposing
entitlement from introducing evidence developed as a result of advances in medical
science since 1987.[3] This was never intended
by the Supreme Court in its decision.
I think the Court's language in Mullins makes plain that its discussion
of the availability of rebuttal pursuant to subsection (b)(4) is dictum. This
position is reinforced by recognition that to hold otherwise would necessitate
contravening the statutory mandate to consider all relevant evidence and would be
basically unsound by precluding the possibility of developments in medical
science. For these reasons, I must dissent from my colleagues who would uphold
Buckley.
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)The administrative law judge's finding that rebuttal is not
established pursuant to 20 C.F.R. §727.203(b)(2) is affirmed as it is not
challenged on appeal. See Skrack v. Island Creek Coal Co., 6 BLR 1-710
(1983).
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2)The administrative law judge also noted that Dr. Abernathy's
report concluding that claimant's impairment was not due to coal dust exposure and
that claimant had the capacity to do coal mine employment supports the opinion of
Dr. Endres-Bercher. Decision and Order at 18; Director's Exhibit 85.
Back to Text
3)This prohibition is particularly troublesome in the instant
case because employer conceded invocation pursuant to 20 C.F.R. §727.203(a)(1)
in 1980, and when employer sought to withdraw its concession in 1991, it was
prohibited from doing so.
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NOTE: This is a PUBLISHED BLA Document.
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