Administrative – Smoking Miner Has ‘Legal’ Black Lung Disease

Westmoreland Coal Co. v. Cochran (Lawyers Weekly No. 13-01-0564, 21 pp.) (Wynn, J.) No. 11-1839, June 4, 2013; On Petition for Review; 4^th Cir.

Holding: A 16-year veteran of employment in West Virginia coal mines, above and below ground, who also smoked a pack of cigarettes a week for 20 years wins black lung benefits based on proof that he suffers from “legal pneumoconiosis,” and the 4^th Circuit denies the coal company’s petition for review of the decision awarding benefits.

Appellant Westmoreland Coal Co. compares Dr. D.L. Rasmussen’s testimony here to his testimony in another black lung case in which this court found the record evidence was insufficient to support an award of benefits. Here, Dr. Rasmussen testified that both coal mine dust and cigarette smoke were causes, affirmatively asserting that claimant’s coal mine dust exposure must be considered as a significant contributing factor to what he described as “overlap syndrome” and that claimant did have at least legal pneumoconiosis, i.e., COPD/emphysema, caused in significant part by coal mine dust exposure.

Given Dr. Rasmussen’s expert opinion, the administrative law judge’s conclusion that claimant’s COPD/emphysema was due in part to coal mine dust exposure was supported by substantial evidence. The Benefits Review Board did not err in affirming the ALJ’s finding of legal pneumoconiosis.

Nor did the ALJ err by improperly discounting the opinions of Dr. George L. Zaldivar and Dr. Kirk E. Hippensteel in favor of Dr. Rasmussen’s.

Westmoreland argues the ALJ misinterpreted the Preamble to the Black Lung Benefits Act’s implementing regulations to mean that smoke-induced and coal mine dust-induced respiratory impairments always are indistinguishable. Westmoreland overstates the ALJ’s reliance on the Preamble. Only Dr. Zaldivar cited literature that post-dates the Preamble – none of which appears to even discuss the effects of coal mine dust exposure on lungs.

Moreover, the ALJ did not rely solely on the Preamble for giving less weight to Dr. Zaldivar’s and Dr. Hippensteel’s opinions. Rather, the ALJ discredited their opinion also because both experts primarily concentrated on explaining why they believed the miner did not suffer from clinical pneumoconiosis and why clinical pneumoconiosis was not responsible for his symptoms or impairment without addressing legal pneumoconiosis.

We conclude the board properly affirmed the ALJ’s finding that claimant suffers from legal pneumoconiosis.

Petition for review denied.

Dissent

Traxler, C.J.: With respect, I dissent. In my opinion, the ALJ’s decision to award benefits is not supported by substantial evidence and the ALJ erred in shifting the burden to Westmoreland to disprove pneumoconiosis. I also believe the ALJ erred in discrediting the opinions of Drs. Zaldivar and Hippensteel based upon the language in the Preamble.