Edd Potter Coal Co. v. Director, Office of Workers' Compensation Programs , 43 F. App'x 540 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EDD POTTER COAL COMPANY, 
INCORPORATED; OLD REPUBLIC
INSURANCE COMPANY,
Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS’  No. 01-2001
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
BERNIE J. HENSLEY (Widow of John
Hensley),
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(00-0347-BLA)
Argued: May 7, 2002
Decided: July 25, 2002
Before WILKINS, MOTZ, and KING, Circuit Judges.
Petition for review denied and award affirmed by unpublished per
curiam opinion.
COUNSEL
ARGUED: Laura Metcoff Klaus, GREENBERG TRAURIG, Wash-
ington, D.C., for Petitioners. Jeffrey Steven Goldberg, Office of the
2 EDD POTTER COAL CO. v. DIRECTOR, OWCP
Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washing-
ton, D.C., for Respondent Director; Gerald Francis Sharp, Lebanon,
Virginia, for Respondent Hensley. ON BRIEF: Mark E. Solomons,
GREENBERG TRAURIG, Washington, D.C., for Petitioners. How-
ard M. Radzely, Solicitor of Labor, Donald S. Shire, Associate Solici-
tor for Black Lung Benefits, Patricia M. Nece, Counsel for Appellate
Litigation, Office of the Solicitor, UNITED STATES DEPART-
MENT OF LABOR, Washington, D.C., for Respondent Director.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Edd Potter Coal Company and its insurer, Old Republic Insurance
Company (collectively "Edd Potter"), jointly petition for review of the
Decision and Order of the Benefits Review Board (the "BRB"),
upholding the award of black lung and survivor’s benefits to the
widow of John Hensley. Hensley v. Edd Potter Coal Co., Decision
and Order, 00-0347 BLA (Jan. 11, 2001). As explained below, we
deny the petition for review and affirm the award of benefits.
I.
After working as a coal miner for over twenty-one years and expe-
riencing cardiovascular and pulmonary health problems, John Hens-
ley retired in October of 1973. On January 17, 1974, he filed a claim
for benefits under the Black Lung Benefits Act, contending that he
suffered from pneumoconiosis, i.e., black lung disease, as a result of
his work in Virginia’s coal mines. After initially denying his claim for
benefits, the appropriate authority in the Department of Labor, in Sep-
tember 1979, made an initial finding that Hensley was eligible for
black lung benefits. Over the next two decades, the parties engaged
in exhaustive procedural wrangling, during which Hensley, on Febru-
EDD POTTER COAL CO. v. DIRECTOR, OWCP 3
ary 14, 1986, passed away. Following multiple hearings, various deci-
sions, and several remands, an Administrative Law Judge (the
"ALJ"), on August 27, 1998, issued a final Decision and Order on the
merits of Hensley’s claim. Hensley v. Edd Potter Coal Co., Decision
and Order on Remand Awarding Benefits, 1993-BLA-405 (Aug. 27,
1998) (the "ALJ Opinion"). Based on her review of the extensive
medical evidence relating to Hensley’s claim, much of it conflicting,
the ALJ found that Hensley became totally disabled, due to pneumo-
coniosis, in September 1974. As such, the ALJ awarded black lung
and survivor’s benefits to Hensley’s widow, Bernie J. Hensley. Edd
Potter then sought reconsideration and, on November 16, 1999, the
ALJ issued a lengthy decision reaffirming the ALJ Opinion. Hensley
v. Edd Potter Coal Co., Order Granting In Part Employer’s Motion
For Reconsideration, 1993-BLA-405 (Nov. 16, 1998). Edd Potter
thereafter appealed to the BRB, which, on January 11, 2001, affirmed
the ALJ’s award of benefits. Edd Potter has now petitioned for our
review of the BRB’s decision, and we possess jurisdiction pursuant
to 33 U.S.C. § 921(c) (incorporated by reference into 30 U.S.C.
§ 932(a)).
II.
In our review of a decision of the BRB, we must affirm an award
of black lung benefits "if it is in accordance with the law and is sup-
ported by substantial evidence." Piney Mountain Coal Co. v. Mays,
176 F.3d 753, 756 (4th Cir. 1999). Substantial evidence is "more than
a mere scintilla; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Island Creek Coal
Co. v. Compton, 211 F.3d 203, 207-08 (4th Cir. 2000) (quotation
omitted). Under the Administrative Procedure Act (the "APA"), an
ALJ’s opinion must state the "findings and conclusions, and the rea-
sons or bases therefore, on all material issues of fact, law or discretion
presented on the record." 5 U.S.C. § 557(c)(3)(A).
III.
Edd Potter raises two contentions in its petition for review. First,
it asserts that the ALJ violated the APA by failing to provide a suffi-
cient rationale for crediting the medical evidence which was positive
for pneumoconiosis, rather than crediting the evidence to the contrary.
4 EDD POTTER COAL CO. v. DIRECTOR, OWCP
Secondly, Edd Potter contends that, if Hensley’s widow is entitled to
benefits, due process precludes liability being assigned to it because
of the extraordinary delay in the resolution of Hensley’s claim.
A.
Prolonged exposure to coal dust has subjected thousands of our
nation’s coal miners to pneumoconiosis, prompting Congress to
create a federal benefits program for victims of this terrible disease.
Because Hensley worked in the coal mines for more than ten years,
and because his claim was filed prior to 1978, his claim is governed
by what are commonly known as "the interim regulations," 20 C.F.R.
§§ 727.1 - 727.405. Pursuant thereto, an interim presumption may
arise under certain circumstances, and a miner is "presumed to be
totally disabled due to pneumoconiosis . . . [if] a chest roentgenogram
(X-ray), biopsy, or autopsy establishes the existence of pneumoconio-
sis."1 20 C.F.R. § 203(a)(1). This presumption may be rebutted, how-
ever, if, inter alia, "[i]n light of all relevant evidence it is established
that the individual is able to do his usual coal mine work or compara-
ble and gainful work," or if "[t]he evidence establishes that the total
disability or death of the miner did not arise in whole or in part out
of coal mine employment . . . ." 20 C.F.R. § 727.203(b)(2) & (3).2
B.
In determining whether Hensley qualified for the interim presump-
tion of total disability due to pneumoconiosis, the ALJ reviewed and
analyzed thirty-two separate x-ray readings of Hensley’s condition
taken between 1977 and 1984. ALJ Opinion at 4-7. In so doing, she
observed that twelve of the x-ray readings were positive for pneumo-
coniosis while twenty of the readings were negative. Id. at 7. The ALJ
1
Although 20 C.F.R. § 203(a)(1) refers to a single x-ray, "it in fact
requires the ALJ to weigh all available x-ray evidence to determine
whether it preponderates in favor of a finding of pneumoconiosis." Lane
Hollow Coal Co. v. Director, OWCP, 137 F.3d 799, 803 (4th Cir. 1998).
2
Pursuant to 20 C.F.R. § 727.203(b), there are four bases capable of
rebutting the interim presumption of total disability due to pneumoconio-
sis. The parties agree, however, that two of those bases, found in 20
C.F.R. § 727.203(b)(1) and (4), are not applicable in this case.
EDD POTTER COAL CO. v. DIRECTOR, OWCP 5
further observed that seven of the positive readings were offered by
Board-certified radiologists and B-readers, while nineteen of the neg-
ative readings were offered by individuals of similar qualifications.3
Edd Potter contends that the ALJ failed to provide an explanation for
crediting the positive x-rays over the negative ones. To the contrary,
the ALJ offered such an explanation, stating that she found it signifi-
cant that six different dually qualified physicians offered seven posi-
tive readings for pneumoconiosis. Id. In substance, she concluded that
the possibility of six qualified doctors making erroneous positive
readings of pneumoconiosis was highly unlikely. And we have previ-
ously observed, the APA "neither burdens ALJs with a duty of long-
windedness nor requires them to assume that we cannot grasp the
obvious connotations of everyday language." Lane Hollow Coal Co.
v. Director, OWCP, 137 F.3d 799, 803 (4th Cir. 1998). Faced with
multiple x-rays from various qualified physicians, we are perfectly
capable of understanding the ALJ’s focus on the "corroborative nature
of these [positive] readings." ALJ Opinion at 7.
Edd Potter similarly contends that the ALJ failed to satisfactorily
explain her decision not to credit its rebuttal evidence. The ALJ, how-
ever, discussed at length the medical reports submitted by Edd Potter,
and she offered her reasons for discrediting them. For example, the
ALJ discounted the report of one Edd Potter physician because he had
not reviewed all of the evidence in the record, and she discredited the
report of another such physician because he changed his opinion after
receiving correspondence from the company. ALJ Opinion at 10-12.
In context, the ALJ provided a sufficient explanation for applying
the interim presumption of pneumoconiosis and for discounting Edd
Potter’s rebuttal evidence. Having complied with the APA and the
applicable legal principles, we conclude that the ALJ Opinion is sup-
ported by substantial evidence.
3
A "B-reader" is a physician who has demonstrated proficiency in
interpreting x-rays for the presence of pneumoconiosis by passing an
examination given by or on behalf of the Appalachian Laboratory for
Occupational Safety and Health. 20 C.F.R. § 718.202(a)(1)(ii)(E); 42
C.F.R. § 37.51(b)(2).
6 EDD POTTER COAL CO. v. DIRECTOR, OWCP
C.
Edd Potter also contends that, due to the extraordinary twenty-eight
year delay in resolving Hensley’s black lung claim, it would contra-
vene due process to require it to pay his widow the benefits awarded
to her. As such, it maintains that the benefits should be paid by the
Black Lung Disability Trust Fund.4 In support of this contention, Edd
Potter points to our decision in Lane Hollow, in which we found a due
process violation when the Department of Labor failed to notify a
mine operator of a black lung claim until seventeen years after the
miner had filed the claim. Hensley’s claim, however, is markedly dif-
ferent than the one addressed in Lane Hollow. Edd Potter received
timely notice of Hensley’s claim, and its physicians were provided the
opportunity to (and in fact they did) examine Hensley prior to his
death. Indeed, Edd Potter has vigorously litigated this case since its
inception nearly three decades ago. As Judge Michael cogently
explained in Lane Hollow, "[t]he Due Process Clause does not create
a right to win litigation; it creates a right not to lose without a fair
opportunity to defend oneself." 137 F.3d at 807 (emphasis in origi-
nal). Edd Potter has been accorded such an opportunity, and assigning
it liability for Mrs. Hensley’s benefits award does not contravene any
of its due process rights.
IV.
Pursuant to the foregoing, the petition for review is denied and the
decision of the Benefits Review Board is affirmed.
PETITION FOR REVIEW DENIED AND
AWARD AFFIRMED
4
The Black Lung Disability Trust Fund is a separate fund within the
general treasury, which pays black lung claims to coal miners when
"there is no operator who is liable for the payment of such benefits." 26
U.S.C. § 9501(d)(1)(B). The Trust Fund and its operation are fully
described in our decision in Director, OWCP v. Bethlehem Mines Corpo-
ration, 669 F.2d 187 (4th Cir. 1982).