Argued: September 12, 2017
Petition for Review of an Order of the Benefits Review Board.
Afaque Shere, BOWLES RICE LLP, Charleston, West Virginia, for
H. Joyner, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C.; Joseph E. Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton,
Virginia, for Respondents.
E. Frampton, BOWLES RICE LLP, Charleston, West Virginia, for
Patricia Smith, Solicitor of Labor, Maia S. Fisher, Acting
Associate Solicitor, Gary K. Stearman, Counsel for Appellate
Litigation, Rebecca J. Fiebig, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondent Director, Office of Workers' Compensation
KEENAN and WYNN, Circuit Judges, and John A. GIBNEY, Jr.,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Westmoreland Coal Company challenges a final decision and
order by the U.S. Department of Labor Benefits Review Board
(the "Board") granting federal disability benefits
to Respondent Herskel Stallard, a retired coal miner, under
the Black Lung Benefits Act (the "Black Lung Act"),
30 U.S.C. § 901 et seq. The Board affirmed a
decision by the Administrative Law Judge ("ALJ")
concluding that Stallard timely brought his claim and that
Westmoreland failed to rebut the statutory presumption that
Stallard was entitled to benefits. Because substantial
evidence supports the award of benefits and the award accords
with applicable law, we deny Westmoreland's petition for
Stallard worked as a coal miner throughout much of his adult
life. In total, Stallard's career included more than
thirty years of mining employment either underground or in
conditions that were substantially similar to underground
mines. Throughout much of this time, Stallard also smoked
cigarettes. In particular, he testified that on workdays he
smoked "one cigarette, maybe two"-and as much as
half a pack per day otherwise-for thirty-nine years before
quitting in 1993. J.A. 450.
the end of Stallard's career, several physicians advised
him not to return to work due to breathing difficulties. In
particular, around 1990 Dr. Charles P. Maine told Stallard
that he had black lung disease that was "not real
severe" but would continue progressing the longer he
worked in the mines. Id. at 447. Several years
later, in March 1993, Stallard experienced carbon monoxide
poisoning while working in a Westmoreland machine shop. Upon
seeking treatment for the poisoning, two other
physicians-Drs. Estocino and Dorman-each advised him not to
return to work due to breathing difficulties. Dr. Estocino
determined that the carbon monoxide poisoning would
dissipate, but nonetheless advised Stallard to stop working
in the mines to prevent further damage to his lungs. Dr.
Dorman told Stallard that he was "permanently
disabled" as a result of his impaired respiratory
function. Id. at 448. Soon thereafter, on Dr.
Dorman's advice, Stallard retired from the coal industry.
twenty years later, on March 22, 2011, Stallard filed a claim
for Black Lung Act benefits. In connection with this claim,
three physicians examined Stallard- Drs. Ronald Jay Klayton,
James Gallai, and David M. Rosenberg. A fourth doctor, Dr.
George L. Zaldivar, provided a medical opinion without
conducting his own examination. Drs. Klayton and Gallai
diagnosed Stallard with black lung disease. Although Dr.
Gallai opined that exposure to coal dust caused
Stallard's condition, Dr. Klayton said that he could not
"quantitate the relative contributions" of
Stallard's exposure to coal dust and cigarette smoke in
reaching his diagnosis. Id. at 223.
contrast, Drs. Rosenberg and Zaldivar diagnosed Stallard not
with black lung disease, but instead with severe chronic
obstructive pulmonary disease ("COPD"). Based on
his review of Stallard's treatment history, as well as
his suspicion that Stallard concealed the true extent of his
smoking habit, Dr. Rosenberg concluded that cigarette smoke
was the "sole culprit" responsible for
Stallard's breathing difficulties. Id. at 406.
Similarly, Dr. Zaldivar testified that Stallard did not have
black lung disease, attributing his severe lung impairment to
a lifetime of asthma and smoking.
10, 2014, the ALJ presiding over Stallard's claim
conducted a hearing to consider the medical and other
evidence regarding Stallard's eligibility for Black Lung
Act benefits. In addition to Stallard's live testimony at
the hearing, the ALJ considered various exhibits, including
transcripts of the depositions of Drs. Rosenberg and
six months later, the ALJ issued a decision and order
granting Stallard Black Lung Act benefits. The ALJ first
found Stallard's claim timely filed. 30 U.S.C. §
932(f); see also 20 C.F.R. § 725.308(a). Next,
in light of Stallard's long career in the mining
industry, the ALJ applied a statutory presumption that
Stallard's work in the mines caused or substantially
contributed to any disabling lung disease he experienced. 30
U.S.C. § 921(c)(4); see also 20 C.F.R. §
718.305(b). The ALJ then concluded that: (1) the medical
evidence demonstrated that Stallard suffered from a disabling
lung disease; and (2) Westmoreland failed to rebut the
statutory presumption that Stallard's disease was ...