Ward v. DOWCP ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HUBERT J. WARD,
Petitioner,
v.
No. 95-2888
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondent.
On Petition for Review of an Order
of the Benefits Review Board.
(90-1115-BLA)
Submitted: September 17, 1996
Decided: November 21, 1996
Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Lawrence L. Moise, III, VINYARD & MOISE, Abingdon, Virginia,
for Appellant. Donald S. Shire, Associate Solicitor, Patricia May
Nece, Counsel for Appellate Litigation, Eileen M. McCarthy, Office
of the Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Hubert Ward seeks review of the Benefits Review Board's (Board)
decision and order affirming the administrative law judge's (ALJ)
denial of his application for black lung benefits pursuant to 30 U.S.C.
§§ 901-45 (1994). The issue on appeal is whether Dr. Daniel's medi-
cal opinion is sufficient to rebut, pursuant to 20 C.F.R.
§ 727.203(b)(3) (1996), the interim presumption invoked in this case
under 20 C.F.R. § 410.490(b) (1996).
Because Dr. Daniel made clear in his deposition testimony that he
believed Ward to have no respiratory or pulmonary impairment at all,
we agree with the Director, Office of Workers' Compensation Pro-
grams (Director), that Dr. Daniel's opinion is legally sufficient to sup-
port subsection (b)(3) rebuttal. See Grigg v. Director, Office of
Workers' Compensation Programs, 28 F.3d 416, 419 (4th Cir. 1994).
Moreover, we reject Ward's contention that Dr. Daniel's finding of
no pneumoconiosis dooms his report because such finding was con-
trary to the ALJ's finding that Ward established the disease. First, the
ALJ's finding of pneumoconiosis, based on X-rays, is not necessarily
inconsistent with a finding of no impairment, which is made on the
basis of different data. See Koppenhaver v. Director, Office of Work-
ers' Compensation Programs, 864 F.2d 287, 288 (3d Cir. 1988). Sec-
ond, Dr. Daniel's finding of no impairment is not problematic unless
it was actually predicated on the erroneous assumption that pneumo-
coniosis was absent. See Dehue Coal Co. v. Ballard, 65 F.3d 1189,
1193-95 (4th Cir. 1995). Because Dr. Daniel explicitly stated in his
deposition that his opinion would be the same even assuming that the
miner had pneumoconiosis, it is clear that his finding of no impair-
ment was made independently of his findings regarding the presence
of pneumoconiosis.
Finally, Ward contends that Dr. Daniel improperly found no con-
nection between Ward's chronic obstructive pulmonary disease and
2
his coal dust exposure based on his erroneous view that pneumoconi-
osis or coal dust exposure does not cause obstructive impairment.
Assuming Ward's claim to be true, however, this fact would not
undercut the validity of Dr. Daniel's finding of no impairment, which
effectively rules out any connection between the miner's presumed
disability and his coal mine employment, and therefore establishes
rebuttal under subsection (b)(3). See Grigg, 28 F.3d at 419.
Accordingly, the decision of the Board is affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
3