BRB No. 00-0324 BLA

MARY F. RIFFLE
(Widow of HERBERT E. RIFFLE)

                  Claimant-Respondent

          v.

CARBON FUEL COMPANY

                  Employer-Petitioner

DIRECTOR, OFFICE OF WORKERS' 
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR

                  Party-in-Interest)
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ISSUED:01/31/2001        
      
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)    DECISION AND ORDER
     Appeal of the Decision and Order-On Remand of John C. Holmes,
     Administrative Law Judge, United States Department of Labor.

     Gregory W. Evers (Franklin W. Kern, L.C.), Charleston, West Virginia,
     for claimant.

     William S. Mattingly (Jackson & Kelly), Charleston, West Virginia, for
     employer.

     Before:  HALL, Chief Administrative Appeals Judge, SMITH,
     Administrative Appeals Judge, and NELSON, Acting Administrative
     Appeals Judge.

     PER CURIAM:

     Employer appeals the Decision and Order-On Remand (89-BLA-1959) of
Administrative Law Judge John C. Holmes with respect to a miner's claim and a
survivor's 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).[1]   In the Board's most recent
Decision and Order, issued on May 11, 1999, the Board affirmed the administrative law judge's determination that
the record be reopened for the submission of one medical opinion from each party and one joint opinion.  The Board
also affirmed the administrative law judge's decision to accord little weight to Dr. Zaldivar's opinion under 20
C.F.R. §727.203(b)(3).  The Board vacated the administrative law judge's ultimate finding that rebuttal was
not established under Section 727.203(b)(3), however, as the administrative law judge did not address the opinions
of Drs. Fino and Kory and did not provide a sufficient rationale for his discrediting of the opinions of Drs.
Kleinerman and Naeye.  The Board instructed the administrative law judge "to consider whether a physician's
finding of no pneumoconiosis undermines the probative value of this opinion relevant to the issue of whether
pneumoconiosis contributed to the miner's impairment." Riffle v. Carbon Fuel Co., BRB No. 98-1103
BLA (May 11, 1999)(unpub.), slip op. at 6.

     The administrative law judge found on remand that the opinions of Drs. Fino, Kory, Naeye, and Kleinerman
do not meet the Section 727.203(b)(3) rebuttal standard set forth in Bethlehem Mines Corp. v.
Massey, 736 F.2d 120, 7 BLR 2-72 (4th Cir. 1984), which requires the party
opposing entitlement to rule out the causal relationship between coal mine
employment and the miner's total disability, and Grigg v. Director, OWCP, 28 F.
3d 416, 18 BLR 2-299 (4th Cir. 1994).[2]  
Accordingly, benefits were awarded in the miner's claim and the survivor's
claim.  Employer's present appeal followed.  Employer asserts that the
administrative law judge erred in failing to reopen the record following the
second remand from the Board for the submission of additional medical reports
concerning the source of the miner's disabling respiratory impairment.  Employer
also argues that the administrative law judge did not properly apply the
relevant rebuttal standard and did not provide a sufficient rationale for
discrediting the opinions of Drs. Kory, Fino, Kleinerman, Naeye, and Crisalli. 
Claimant has responded and urges affirmance of the award of benefits regarding
both claims.  The Director, Office of Workers' Compensation Programs, has not
filed a brief in this appeal.

     The Board's scope of review is defined by statute.  The administrative law
judge's Decision and Order must be affirmed if it is supported by substantial
evidence, is rational, and is in accordance with applicable law.  33 U.S.C.
§921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a);
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359
(1965).

     As an initial matter, we reject employer's argument pertaining to the administrative law judge's decision to
limit the reopening of the record.  Employer raised this issue in its most recent prior appeal before the Board which
held that the administrative law judge acted within his discretion in allowing the parties to submit one separate
opinion and one joint opinion relevant to the Section 727.203(b)(3) rebuttal standard set forth in Grigg.
Riffle v. Carbon Fuel Co., BRB No. 98-1103 BLA (May 11, 1999)(unpub.), slip op. at 3-4.  Inasmuch
as the Board previously addressed and rejected employer's contention and no intervening case law has been issued
which mandates a different result, the Board's prior holding constitutes the law of the case and need not be
disturbed. See Cochran v. Consolidation Coal Co., 12 BLR 1-136 (1989); see
also Bridges v. Director, OWCP, 6 BLR 1-988 (1984).

     Citing decisions of the United States Court of Appeals for the Seventh Circuit in this case arising within the
jurisdiction of the United States Court of Appeals for the Fourth Circuit, employer contends that the finding of
invocation at 20 C.F.R. §727.203(a)(1), which was made by Administrative Law Judge G. Marvin Bober in
the initial Decision and Order in this case, should be revisited, as Judge Bober erred in mechanically according
greatest weight to the autopsy prosector's opinion.  Judge Bober, in his Decision and Order on Reconsideration
stated that Dr. Klapproth, the prosector, was:

     [A]ble to analyze the [miner's] lungs in their entirety, and concluded that [the miner] had anthracosis,
     dense fibrosis with coal dust trapped in the dense collagen rear (sic) lung tissue and coal dust
     pigmentation of the hilar lymph nodes.  None of the other physicians [was] able to make such a
     thorough and complete diagnosis of the [miner's] lungs after simply reviewing sections of the lungs
     under slides.

1992 Decision and Order on Reconsideration at 2; Director's Exhibit 58; Claimant's Exhibit 12.  The Board
previously affirmed Judge Bober's finding. Riffle v. Carbon Fuel Co., BRB No. 92-2212
BLA-A (July 28, 1994)(unpub.), slip op. at 3.  Subsequent to the Board's
affirmance of Judge Bober's determination and subsequent to the filing of
employer's brief in this appeal, however, the United States Court of Appeals for
the Fourth Circuit issued Bill Branch Coal Corp. v. Sparks, 213 F.3d 186, 
   BLR      (4th Cir. 2000).  In Sparks, the court held that an
administrative law judge must refrain from giving determinative weight to the
opinion of an autopsy prosector solely because the autopsy prosector was the
only physician with an opportunity to conduct a gross examination near the time
of death.  Sparks, supra.  In light of the Fourth Circuit's recent
decision and in light of the fact that the descriptions upon which Judge Bober
relied to give greater weight to Dr. Klapproth's opinion actually appear in the
section of the autopsy report containing Dr. Klapproth's  microscopic findings,
we now vacate the finding of invocation under Section 727.203(a)(1).  On remand,
the administrative law judge must reconsider whether the medical evidence of
record supports a finding of invocation pursuant to Section 727.203(a)(1) in
light of the holding in Sparks.[3]   If
he determines that invocation has not been established under Section
727.203(a)(1), he should consider whether invocation has been established under
Section 727.203(a)(2)-(a)(4).

     Turning to Section 727.203(b)(3), the administrative law judge stated that he was required to discredit the
opinions of Drs. Kory, Fino, Kleinerman, and Naeye on the ground that they did not diagnose pneumoconiosis and,
therefore, could not rule out pneumoconiosis as a contributing cause of the miner's presumed total disability. 
Decision and Order-On Remand at 3-4, citing Massey, supra; Grigg,
supra.  Inasmuch as the finding of pneumoconiosis may have been erroneous,
however, we must vacate the administrative law judge's finding that employer
failed to establish rebuttal under Section 727.203(b)(3).  Moreover, if the
administrative law judge again determines that the existence of pneumoconiosis
has been proven pursuant to Section 727.203(a)(1), he must reconsider his
findings under Section 727.203(b)(3) in light of a consideration of all relevant
evidence.[4] 

     In so doing, the administrative law judge should be aware that, contrary to
his analysis, the Fourth Circuit has recognized that a physician's report is
probative of the issue of causation, even if the physician determines, in
contrast to the administrative law judge's finding, that the miner did not have
pneumoconiosis, provided that the physician did not actually premise his
opinion upon a conclusion that pneumoconiosis was absent.  If the physician
acknowledges the miner's respiratory or pulmonary impairment, but nevertheless
concludes that an ailment other than pneumoconiosis caused the disability, the
Fourth Circuit has held that such an opinion is not premised upon the flawed
assumption and is probative evidence under Section 727.203(b)(3). See
LeMaster v. Imperial Colliery Co., 73 F.3d 358, 20 BLR 2-20 (4th Cir. 1995);
Curry v. Beatrice Pocahontas Coal Co., 67 F.3d 517, 20 BLR 2-1 (4th Cir.
1995), rev'g, 18 BLR 1-59 (1994)(en banc); see also Dehue Coal
Co. v. Ballard, 65 F.3d 1189, 19 BLR 2-304 (4th Cir. 1995); Warth v.
Southern Ohio Coal Co., 60 F.3d 173, 19 BLR 2-265 (4th Cir. 1995); Hobbs
v. Clinchfield Coal Co. [Hobbs II], 45 F.3d 819, 19 BLR 2-86 (4th Cir.
1995).  With respect to the opinion of Dr. Naeye, however, we affirm the
administrative law judge's discrediting of this opinion, as the administrative
law judge acted rationally in determining that Dr. Naeye did, in fact, base his
conclusions regarding the cause of the miner's presumed total disability upon
the belief that the miner did not have pneumoconiosis.  Director's Exhibit 59;
see Lemaster, supra; Curry, supra.  Thus, if the
administrative law judge finds the existence of pneumoconiosis established on
remand, he need not reconsider Dr. Naeye's opinion under Section 727.203(b)(3).

     If the administrative law judge determines that entitlement has not been
established under Part 727 in the miner's claim, he must consider entitlement in
the miner's claim under 20 C.F.R. Part 410, Subpart D and entitlement in the
survivor's claim under 20 C.F.R. Part 727.[5]  
See 20 C.F.R. §§725.201, 725.212; Smith v. Camco Mining,
Inc., 13 BLR 1-17 (1989); Muncy v. Wolfe Creek Collieries Coal Co.,
Inc., 3 BLR 1-627 (1981).

     Finally, employer asks that the case be remanded to a different
administrative law judge.  We deny this request, as employer has not proven any
bias or recalcitrance on the part of the administrative law judge. See
Cochran, supra; Zamora v. C.F. & I. Steel Corp., 7 BLR 1-568
(1984); cf. Milburn Colliery Co. v. Hicks, 138 F.3d 524, 21 BLR 2-323
(4th Cir. 1998).

     Accordingly, the administrative law judge's Decision and Order-On Remand is
affirmed in part and vacated in part and the case is remanded to the
administrative law judge for further proceedings consistent with this opinion. 

     SO ORDERED.
     


                         
                                
                      
BETTY JEAN HALL, Chief Administrative
Appeals Judge




                                
                      
ROY P. SMITH     
Administrative Appeals Judge




                                
                      
MALCOLM D. NELSON, Acting
Administrative Appeals Judge


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Footnotes.
 1)The miner, Herbert E. Riffle, filed an application for benefits on November 17, 1979. 
Director's Exhibit 1.  Mr. Riffle died on October 20, 1988, prior to the full adjudication of his claim.  Director's
Exhibit 72.  His widowed spouse, Mary F. Riffle (claimant), filed an application for survivor's benefits on
November 23, 1988.  Director's Exhibit 71.  The claims were joined for adjudication purposes.
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 2)This case arises within the jurisdiction of the United States Court of Appeals for the
Fourth Circuit, as the miner's last year of coal mine employment occurred in West Virginia.  Director's Exhibit 2;
see Shupe v. Director, OWCP, 12 BLR 1-200 (1989)(en banc).
 Back to Text

 3)On remand, the administrative law judge should address Dr. Kleinerman's statement
that having the autopsy report to review, in addition to the slides, put him and any other reviewing physician on
equal footing with Dr. Klapproth.  Employer's Exhibit 2 at 9-10.
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 4)The administrative law judge did not explicitly weigh Dr. Crisalli's opinion in his most
recent Decision and Order-On Remand.  The administrative law judge's discrediting of Dr. Zaldivar's opinion under
20 C.F.R. §727.203(b)(3) constitutes the law of the case. See Cochran v. Consolidation
Coal Co., 12 BLR 1-136 (1989); see also Bridges v. Director, OWCP, 6 BLR 1-988
(1984).
 Back to Text

 5)Employer's contention that the administrative law judge must resolve the issue of the
presence of complicated pneumoconiosis is correct, provided that the administrative law judge reaches consideration
of entitlement under 20 C.F.R. Part 410, Subpart D. See 20 C.F.R. §410.418.
 Back to Text

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