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Westmoreland Coal Co. v. Stallard

United States Court of Appeals, Fourth Circuit

November 29, 2017

WESTMORELAND COAL COMPANY, Petitioner,
v.
HERSKEL D. STALLARD; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents.

          Argued: September 12, 2017

         On Petition for Review of an Order of the Benefits Review Board. (15-0156 BLA)

         ARGUED:

          Fazal Afaque Shere, BOWLES RICE LLP, Charleston, West Virginia, for Petitioner.

          Barry H. Joyner, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Joseph E. Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton, Virginia, for Respondents.

         ON BRIEF:

          Paul E. Frampton, BOWLES RICE LLP, Charleston, West Virginia, for Petitioner.

          M. 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 Programs.

          Before KEENAN and WYNN, Circuit Judges, and John A. GIBNEY, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.

          WYNN, CIRCUIT JUDGE.

         Petitioner 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 review.

         I.

         A.

         Herskel 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.

         Near 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.

         Nearly 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.[1] 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.

         By 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.

         B.

         On July 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 Zaldivar.

         Roughly 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. ยง 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 ...


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