Westmoreland Coal Co. v. Director, Office of Workers' Compensation Programs, United States Department of Labor , 706 F. App'x 111 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1577
WESTMORELAND COAL COMPANY,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR; WILLIAM RAY SMITH,
Respondents.
On Petition for Review of an Order of the Benefits Review Board. (15-0154-BLA)
Submitted: November 30, 2017 Decided: December 11, 2017
Before KING, SHEDD, and DIAZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Paul E. Frampton, BOWLES RICE LLP, Charleston, West Virginia, for Petitioner. Joseph
E. Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton, Virginia; M. Patricia Smith,
Solicitor of Labor, Rae Ellen James, Associate Solicitor, Gary K. Stearman, Counsel for
Appellate Litigation, Rita A. Roppolo, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Westmoreland Coal Company (Employer) seeks review of the Benefits Review
Board’s (Board) decision and order affirming the Administrative Law Judge’s (ALJ) award
of black lung benefits pursuant to 30 U.S.C. §§ 901-944 (2012). Employer argues, among
other points, that the ALJ erred in discounting Dr. David Rosenberg’s assessment of the
significance of the FEV1/FVC ratio in determining whether a miner suffers from smoke-
induced or dust-induced chronic obstructive pulmonary disease (COPD). We placed this
petition for review in abeyance for Westmoreland Coal Co. v. Stallard, ___ F.3d ___,
No. 16-1460, 2017 WL 5769516 (4th Cir. Nov. 29, 2017). Stallard has issued, and
Employer’s petition for review is therefore ripe for disposition.
“Our review of a decision awarding black lung benefits is limited. We ask only
whether substantial evidence supports the factual findings of the ALJ and whether the legal
conclusions of the Board and ALJ are rational and consistent with applicable law.” Hobet
Mining, LLC v. Epling, 783 F.3d 498, 504 (4th Cir. 2015) (brackets, citation, and internal
quotation marks omitted). “We evaluate the legal conclusions of the Board and ALJ de
novo but defer to the ALJ’s factual findings if supported by substantial evidence.” Sea
“B” Mining Co. v. Addison, 831 F.3d 244, 252 (4th Cir. 2016). “Substantial evidence is
more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).
In Stallard, we endorsed the ALJ’s finding that “Dr. Rosenberg’s hypothesis
regarding FEV1/FVC ratios runs directly contrary to the agency’s own conclusions in this
regard.” Stallard, 2017 WL 5769516, at *5. We explained that the “Preamble cites various
2
studies indicating that coal dust exposure does result in decreased FEV1/FVC ratios” and
that “[t]he Preamble is consistent with the corresponding regulation permitting claimants
to demonstrate entitlement to Black Lung Act benefits based on a reduced FEV1/FVC
ratio.” Id. We also criticized Dr. Rosenberg’s interpretation of studies predating the
Preamble. Id. at *6. “Likewise,” we determined that “the more recent studies” upon which
Dr. Rosenberg relied “do not address black lung disease at all and thus offer little support
for Westmoreland’s argument that the ALJ erred in discrediting Dr. Rosenberg’s opinion.”
Id. In light of Stallard, we conclude that the ALJ in this case did not err in discounting Dr.
Rosenberg’s theory that the etiology of a miner’s COPD can be deduced through
FEV1/FVC ratio patterns.
Finding no merit to Employer’s remaining challenges to the ALJ’s award of
benefits, we deny the petition for review for the reasons stated by the Board. Westmoreland
Coal Co. v. Dir., Office of Workers’ Comp. Programs, No. 15-0154 BLA (B.R.B. Mar. 21,
2016). We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
PETITION DENIED
3