Lewis Coal Company v. DOWCP

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LEWIS COAL COMPANY; OLD REPUBLIC 
INSURANCE COMPANY,
Petitioners,
v.
DIRECTOR, OFFICE OF WORKERS’  No. 03-1425
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
HERSHEL U. MCCOY,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(01-953-BLA)
Argued: February 25, 2004
Decided: June 24, 2004
Before WIDENER and DUNCAN, Circuit Judges, and
William D. QUARLES, Jr., United States District Judge
for the District of Maryland, sitting by designation.
Petition denied by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Widener and Judge Quarles joined.
COUNSEL
ARGUED: Mark Elliott Solomons, GREENBERG TRAURIG,
L.L.P., Washington, D.C., for Petitioners. Gary K. Stearman, Office
2 LEWIS COAL CO. v. DIRECTOR, OWCP
of the Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondents. ON BRIEF: Laura Metcoff
Klaus, GREENBERG TRAURIG, L.L.P., Washington, D.C., for Peti-
tioners. Howard M. Radzely, Acting Solicitor of Labor, Allen H.
Feldman, Associate Solicitor for Special Appellate and Supreme
Court Litigation, Nathaniel I. Spiller, Deputy Associate Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Federal Respondent. Susan D. Oglebay, Castlewood, Virginia, for
Respondent McCoy.
OPINION
DUNCAN, Circuit Judge:
Lewis Coal Company, Inc. and its insurer, Old Republic Insurance
Company, petition for review of the final Decision and Order of the
Benefits Review Board ("BRB") directing them to pay medical bene-
fits to Respondent Hershel McCoy. McCoy is a former coal miner and
employee of Lewis Coal adjudged to be totally disabled due to pneu-
moconiosis, a pulmonary condition commonly referred to as "black
lung disease." The BRB directed that Lewis Coal reimburse McCoy
for approximately $1800 in medical expenses that it concluded were
related to his disability, based in large part on the presumption in this
circuit that a miner applying for medical benefits may demonstrate his
eligibility by showing that he has been adjudged to be disabled by
pneumoconiosis. Because we find the challenges to the legal and evi-
dentiary underpinnings of the BRB’s Order to be meritless, the peti-
tion for review is denied.
I.
The essential facts underlying McCoy’s medical benefits claim are
as follows. McCoy ended his roughly twenty-year career as a coal
miner in 1972, at the age of forty-three, due to "chest problems" he
began experiencing in 1971. Before ending his employment with
Lewis Coal, McCoy filed a disability claim with the Social Security
Administration ("SSA") under Part B of the antecedent to the Black
Lung Benefits Act (codified as amended at 30 U.S.C. § 901 et seq.)
LEWIS COAL CO. v. DIRECTOR, OWCP 3
1
("the BLBA"). Part B of the BLBA established a federally funded
program administered by the SSA to provide monthly disability pay-
ments to miners who claimed to be totally disabled due to pneumoco-
niosis within the meaning of the BLBA on or before June 30, 1973.
See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 8-11 (1976)
(discussing statutory history and organization of BLBA). Based on
McCoy’s claim and supporting medical evidence, the SSA concluded
McCoy was totally disabled and awarded disability payments under
Part B.
In 1978, Congress amended Part C of the BLBA, which established
an industry-funded disability program administered by the Depart-
ment of Labor ("DoL") for all BLBA claims filed on or after July 1,
1973. Id. As part of its 1978 amendments to Part C, Congress permit-
ted miners with a Part B disability determination to file claims for
"medical benefits only" under Part C.2 See Doris Coal Co. v. Direc-
tor, Office of Workers’ Comp. Programs, 938 F.2d 492, 494 (4th Cir.
1991). The DoL designated Lewis Coal as the mine operator responsi-
ble for McCoy’s disability, and thus responsible for covering
McCoy’s medical benefits payments. Although Lewis Coal initially
contested McCoy’s claim, it withdrew its challenge in 1981 and
entered into a settlement agreement with McCoy. Significantly, the
agreement stated that Lewis Coal "agrees to accept the . . . initial
determination that the claimant, Herschel U. McCoy, meets the stan-
dards of total disability under the [BLBA]," and that it understood
that the agreement "may be the basis for the issuance of an Award of
Medical Benefits and Order to Pay Medical Benefits in this claim."
J.A. 18.
1
McCoy filed his application under the Federal Coal Mine Health and
Safety Act of 1969, Pub. L. No. 91-173, 83 Stat. 792-98 (1969) ("the
FCMHSA"). In 1972, Congress amended the FCMHSA and renamed it
the Black Lung Benefits Act. See Black Lung Benefits Act of 1972, Pub.
L. No. 92-303, 86 Stat. 150 (1972).
2
The regulations governing Part C of the BLBA apply to all claims
filed on or after July 1, 1973, whether for a disability determination or
for medical benefits only. However, for the purposes of this appeal, ref-
erences to Part C should be understood to be synonymous with a "medi-
cal benefits only" claim.
4 LEWIS COAL CO. v. DIRECTOR, OWCP
Lewis Coal paid McCoy’s medical bills pursuant to the agreement
until 1986, at which point Lewis Coal and its workers’ compensation
insurer, Old Republic Insurance Co. (collectively "Lewis Coal"), took
the position that the bills reflected unnecessary treatment. Specifi-
cally, Lewis Coal alleged that McCoy’s condition reflected "[n]o
CWP [coal workers’ pneumoconiosis] or Very Minimal Disease," and
that pneumoconiosis present at those levels "rarely requires medical
attention or interacts to exacerbate other health problems." J.A. 19.
McCoy filed a complaint with the DoL regarding Lewis Coal’s denial
of benefits, which the DoL referred to an administrative law judge
("ALJ") for a hearing. At the hearing, McCoy presented evidence that
the medical treatments for which he sought compensation under Part
C were related to the disabling conditions on which his Part B award
was based. In response, Lewis Coal presented medical evidence from
several sources suggesting that McCoy no longer suffered from a Part
B disability and that the pulmonary conditions for which he sought
compensation were attributable to cigarette smoking rather than dis-
abling pneumoconiosis. Applying this court’s presumption in Doris
Coal that "most pulmonary disorders are going to be related or at least
aggravated by the presence of pneumoconiosis," 938 F.2d at 496, the
ALJ concluded that Lewis Coal’s medical evidence did not provide
a basis for denying McCoy’s continuing requests for medical benefits,
and the BRB affirmed the ALJ’s determination on that basis. Lewis
Coal timely petitioned this Court for review.
II.
Our review of the BRB’s order is limited. We review the BRB’s
decision to assess whether substantial evidence supports the factual
findings of the ALJ and whether the legal conclusions of the BRB and
ALJ are rational and consistent with applicable law. Milburn Colliery
Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998). Substantial evidence
"is such relevant evidence as a reasonable mind might accept as ade-
quate to support a conclusion." Bill Branch Coal Corp. v. Sparks, 213
F.3d 186, 190 (4th Cir. 2000) (internal quotation marks omitted). As
presented in its petition for review, Lewis Coal’s claims require once
again that we assess whether the BRB "properly applied our prece-
dent in Doris Coal to the facts at hand." Gulf & Western Indus. v.
Ling, 176 F.3d 226, 231 (4th Cir. 1999).
LEWIS COAL CO. v. DIRECTOR, OWCP 5
A.
Through Doris Coal and its progeny, this court has clarified the
process by which a miner whose lung disease has been adjudged to
be totally disabling under Part B may sustain a claim for medical ben-
efits under Part C. In order to demonstrate his eligibility, the miner
must show that the mine operator was responsible for his pneumoco-
niosis and that the particular medical expenses for which he seeks
reimbursement were necessary to treat his disabling condition. Doris
Coal, 938 F.2d at 495. An expense is deemed necessary to treat pneu-
moconiosis if the treatment "relates to any pulmonary condition
resulting from or substantially aggravated by the miner’s pneumoco-
niosis." Id. at 496 (emphasis added). In establishing this regime, this
court presumed that "most pulmonary disorders are going to be
related or at least aggravated by the presence of pneumoconiosis." Id.
As a result, "when a miner receives treatment for a pulmonary disor-
der, a presumption arises that the disorder was caused or at least
aggravated by the miner’s pneumoconiosis." Id. at 496-97.
In practice, the Doris Coal presumption permits a miner to satisfy
his initial burden of production regarding his eligibility for Part C
benefits by presenting his underlying Part B award, which specifies
the conditions and symptoms that were found to be disabling, and the
expenses he claims are related to those conditions and symptoms.
Doris Coal, 938 F.2d at 496. The mine operator may then rebut the
presumption of relatedness by showing that a particular expense is
actually: 1) "for a pulmonary disorder apart from those previously
associated with the miner’s disability"; 2) "beyond that necessary to
effectively treat a covered disorder"; or 3) "not for a pulmonary disor-
der at all." Ling, 176 F.3d at 233. Throughout the process, however,
the burden of persuasion as to relatedness remains with the miner.
Gen. Trucking Corp. v. Salyers, 175 F.3d 322 (4th Cir. 1999).
As we have often stated, the Doris Coal presumption precludes a
mine operator from attempting to rebut the presumption of relatedness
by attacking the underlying Part B award. Permitting a mine operator
to contest a Part C claim by requiring the miner to prove his qualify-
ing disability would "place a significant burden on the Black Lung
benefits system, increase litigation costs for all of the parties
involved, and further delay important medical benefits that a miner
6 LEWIS COAL CO. v. DIRECTOR, OWCP
suffering from pneumoconiosis needs." Doris Coal, 938 F.2d at 497;
see also Ling, 176 F.3d at 233-34. Consequently, "mine operators can
only use subsequent proceedings to challenge the necessity of certain
medical charges for the treatment of a pneumoconiosis related disor-
der or challenge medical charges not related to pneumoconiosis"; they
may not "require the miner to prove again that he has pneumoconiosis
each time he makes a claim for health benefits." Doris Coal, 938 F.2d
at 497.
B.
In accordance with Doris Coal, McCoy presented evidence regard-
ing his 1973 Part B disability determination and the treatment for
which he sought reimbursement under Part C. Although neither
McCoy nor Lewis Coal introduced a copy of McCoy’s actual Part B
award from the SSA that discussed the conditions and symptoms the
SSA found to be totally disabling, see Ling, 176 F.3d at 233 (noting
that "[i]n every such case, the specific symptoms associated with
these disorders will be a matter of record, for it is these symptoms—
shortness of breath, coughing, loss of stamina, etc.—that render the
miner disabled to begin with"), the ALJ found that a copy of the
award was unnecessary. Evidence submitted by both parties con-
firmed that doctors diagnosed McCoy as having chronic bronchitis as
well as pneumoconiosis in 1971, immediately prior to his award of
Part B benefits. Two evaluating physicians (including one of Lewis
Coal’s experts, Dr. Castle) confirmed this diagnosis. Furthermore, the
medical evidence introduced by both parties indicated that chronic
bronchitis could be precipitated by exposure to coal dust.
Based on evidence that McCoy’s Part B award was predicated on
both the presence of pneumoconiosis and McCoy’s chronic bronchi-
tis, the ALJ concluded that McCoy was entitled to reimbursement for
any expenses related to either condition. After reviewing reports from
several doctors identifying which office visits, treatments, and medi-
cations were necessary to treat chronic bronchitis or pneumoconiosis,
the ALJ awarded McCoy benefits for some, but not all, of the medical
expenses for which McCoy sought compensation under Part C.3
3
There was ample evidence in the record that allowed the ALJ to attri-
bute certain doctor visits and treatments to particular conditions and
LEWIS COAL CO. v. DIRECTOR, OWCP 7
III.
Lewis Coal’s first objection to the ALJ’s reliance on Doris Coal
concerns the effect of its settlement agreement with McCoy, through
which Lewis Coal agreed to accept the "initial determination that
[McCoy] meets the standards of total disability." J.A. 41. Lewis Coal
argues that the settlement agreement does not give rise to the Doris
Coal presumption because the agreement does not amount to a stipu-
lation that McCoy has "legal" pneumoconiosis. In response, McCoy
and the DoL argue that the agreement demonstrates both that Lewis
Coal recognized McCoy’s "legal" pneumoconiosis for purposes of his
eligibility for Part C benefits and that further relitigation of this issue
is foreclosed by the Doris Coal presumption. We agree.
A.
As a threshold matter, we note that Lewis Coal’s argument misap-
prehends the concept of "legal" pneumoconiosis. We have observed
on several occasions that "legal" pneumoconiosis is a statutory term
referring to any "‘chronic pulmonary disease resulting in respiratory
or pulmonary impairment significantly related to, or substantially
aggravated by, dust exposure in coal mine employment.’" Ling, 176
F.3d at 231 (quoting and adding emphasis to 20 C.F.R. § 718.201
(2003)). The term is thus broader than "medical" or "clinical" pneu-
moconiosis, as "legal" pneumoconiosis also encompasses "diseases
whose etiology is not the inhalation of coal dust, but whose respira-
symptoms, and therefore to parse which treatments were attributable to
covered conditions and which were not. Specifically, Dr. Sherman
reviewed a list of each of McCoy’s claims and identified which reflected
treatment for disabling pneumoconiosis that manifested as "‘chronic
bronchitis with recurrent infection, chronic cough and sputum produc-
tion, and bronchial reactivity.’" J.A. 93. Additionally, Dr. Kurtz Alder-
man, McCoy’s treating physician, stated that "‘[y]ou can tell by the
prescriptions given on each visit that certain medicines are for lung dis-
ease and other prescriptions for other problems,’" and listed specific
medications as indicative of treatment for pulmonary conditions. J.A. 79.
Where there was disagreement over whether a particular medication was
appropriate for the treatment of McCoy’s covered conditions, the ALJ
accepted the evaluation of Lewis Coal’s expert, noting that it appeared
to conform with the description of that drug’s purpose in medical texts.
8 LEWIS COAL CO. v. DIRECTOR, OWCP
tory and pulmonary symptomatology have nonetheless been made
worse by coal dust exposure." Clinchfield Coal Co. v. Fuller, 180
F.3d 622, 625 (4th Cir. 1999). When the SSA determines that a miner
is totally disabled by pneumoconiosis, it can only be because the
miner has a form of "legal" pneumoconiosis that is disabling. See id.
(noting that while the mere presence of clinical pneumoconiosis
meets the statutory definition of "legal" pneumoconiosis, "whether the
particular disease exists to such an extent as to be compensable is a
separate question"); Hobbs v. Clinchfield Coal Co., 917 F.2d 790, 791
n.1 (4th Cir. 1990).
Consequently, Lewis Coal’s attempts to contest whether McCoy’s
chronic bronchitis is compensable by arguing that it may still contest
the issue of "legal" pneumoconiosis is unavailing. In the settlement
agreement, Lewis Coal conceded both that McCoy "meets the stan-
dards of total disability under the [BLBA]" and that the agreement
"may be the basis for the issuance of an Award of Medical Benefits."
J.A. 41. Because a miner cannot be found to be totally disabled under
the BLBA without satisfying one of the statutory or regulatory defini-
tions of pneumoconiosis, see 20 C.F.R. §§ 410.110(n); 410.490(b)
(2003), the admission that McCoy "meets the standards of total dis-
ability," effectively establishes that all of the conditions and symp-
toms on which McCoy’s Part B disability determination were based
qualify as "legal" pneumoconiosis. Cf. Island Creek Coal Co. v.
Compton, 211 F.3d 203, 209 (4th Cir. 2000) (noting that because the
alternative regulatory definitions of "pneumoconiosis" are "various
bases which may be sufficient for a finding of [‘legal’] pneumoconio-
sis," it is the evidence in each particular case that is determinative of
whether the miner has "legal" pneumoconiosis).
B.
The Doris Coal presumption is usually triggered when the miner
presents his Part B award, but McCoy did not do so here. As we
stated in Ling, "[i]n each case where a miner seeks an award of medi-
cal benefits, there will be a prior adjudication of disability as the
result of legal pneumoconiosis, comprising one or more pulmonary
disorders"; as a result, the specific, compensable symptoms associated
with these disorders will be a matter of record, as it is these symptoms
"that render the miner disabled to begin with." 176 F.3d at 233.
LEWIS COAL CO. v. DIRECTOR, OWCP 9
Although the ALJ called the absence of McCoy’s Part B award to the
parties attention, neither McCoy nor Lewis Coal introduced a copy of
the award. We must therefore determine whether there was an ade-
quate factual basis for the presumption to arise.
We conclude that because McCoy produced sufficient evidence
from which the ALJ could reasonably conclude that both medical
pneumoconiosis and chronic bronchitis figured in the SSA’s disability
determination, the award itself was unnecessary. It is undisputed that
x-rays taken prior to the SSA’s disability determination under Part B
revealed the presence of medical pneumoconiosis, and McCoy’s med-
ical records reflect a diagnosis of chronic bronchitis in 1971, also
prior to the SSA’s determination that he was totally disabled under
Part B. The doctors representing McCoy and Lewis Coal stated that
this chronic bronchitis was probably caused by McCoy’s exposure to
coal dust. The conclusion that McCoy’s Part B award was based in
part on his chronic bronchitis finds further support in the fact that
Lewis Coal paid for treatments related to chronic bronchitis following
its settlement with McCoy.
The medical evidence as well as the settlement agreement thus rea-
sonably support the ALJ’s conclusion that McCoy was totally dis-
abled under the BLBA and that chronic bronchitis figured in that
determination. Because the evidence qualifies as a predicate for the
Doris Coal presumption, which forecloses relitigation of the underly-
ing disability determination, Lewis Coal is limited to rebutting the
presumption that attaches to McCoy’s medical expenses related to
chronic bronchitis by showing that the expenses were actually
incurred to treat separate pulmonary disorder, were unnecessary, or
were not for a pulmonary disorder at all. See Ling, 176 F.3d at 233.
Lewis Coal offered no such rebuttal, however, arguing instead that
McCoy’s chronic bronchitis was not a pulmonary condition to which
the Doris Coal presumption could attach. This amounts to an attack
on the SSA’s apparent finding that chronic bronchitis comprised part
of McCoy’s "legal" pneumoconiosis as a categorical matter, and as
we have previously stated, a proceeding under Part C for medical ben-
efits is not an opportunity to require that the miner again prove that
he has disabling "legal" pneumoconiosis. Doris Coal, 938 F.2d at
497. Moreover, the threshold creating the entitlement to Part C bene-
10 LEWIS COAL CO. v. DIRECTOR, OWCP
fits, "that the pulmonary condition treated be merely aggravated by
the miner’s pneumoconiosis," is low enough to permit the inclusion
of most disorders and symptoms as compensable under Part C even
if there is not perfect identity with those found to be disabling by the
SSA under Part B. Ling, 176 F.3d at 233 (emphasis added). We there-
fore find that the ALJ properly found Lewis Coal’s evidence incom-
petent to rebut the presumption that McCoy’s treatments for chronic
bronchitis were related to his Part B disability and thus compensable
under Part C.
IV.
Lewis Coal’s second objection offers a broader challenge to the
Doris Coal presumption by arguing that the presumption constitutes
an abuse of the doctrine of offensive collateral estoppel. Offensive
collateral estoppel arises when a plaintiff attempts to prevent a defen-
dant from relitigating issues previously litigated and lost by the defen-
dant in an action brought by a different plaintiff. See In re Microsoft
Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir. 2004). Recognizing
the unfairness that can result to a defendant in that context, including
the possibility that the defendant may not have fully litigated the issue
of which the plaintiff seeks to preclude further litigation, the Supreme
Court has circumscribed a plaintiff’s ability to invoke the doctrine by
admonishing district courts to foreclose its use where: 1) the plaintiff
could have easily joined in the action against the defendant in the ear-
lier action, (2) the defendant lacked an incentive in the prior action
to defend the action fully and vigorously; (3) other decisions in differ-
ent cases resolved the issue in the defendant’s favor; or (4) the second
action affords greater procedural opportunities to the defendant than
the first, and the difference could be dispositive. Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 330-31, 332 (1979). Hence, a plaintiff’s
recourse to the doctrine must be limited to preventing a defendant
from "relitigating a fact actually found against the defendant in prior
litigation when the fact was critical and necessary to the judgment in
the prior litigation, [provided] . . . application of the doctrine would
not be unfair to the defendant." In re Microsoft, 355 F.3d at 326-27.
Lewis Coal contends that it had no legal interest in McCoy’s Part
B proceeding at the time it was decided because any award would be
paid by the federal government. It therefore follows, according to
LEWIS COAL CO. v. DIRECTOR, OWCP 11
Lewis Coal, that it should not be precluded from challenging the mer-
its of that proceeding now that its interests will be adversely affected
by it.
Lewis Coal’s characterization of the Doris Coal presumption as
violative of the strictures on non-mutual offensive collateral estoppel,
however, is a thinly veiled attempt to circumvent the consequences of
the settlement to which it agreed. Contrary to its current assertions,
Lewis Coal understood at the time it entered into the settlement agree-
ment that it might form "the basis for the issuance of an Award of
Medical Benefits and Order to Pay Medical Benefits in this claim."
J.A. 41.4 To the extent that Lewis Coal’s current reluctance to pay
McCoy’s medical benefits stems from its concern regarding the valid-
ity of McCoy’s Part B award, we note that the governing regulations
would have permitted it to challenge the award before it began deny-
ing McCoy’s requests for Part C benefits. See 20 C.F.R. §§ 410.473,
410.490(d) (2003).
Finally, Lewis Coal’s insistence that the Doris Coal presumption
implicates the fairness considerations limiting recourse to offensive
collateral estoppel is misplaced. As we have noted above, the Doris
Coal presumption is rebuttable; the burden of proof remains at all
times with the miner. A mine operator who was not a party to the Part
B proceeding may rebut the presumption of relatedness arising from
a threshold showing of disability by demonstrating that the current
expenses are unrelated to, or were unnecessary for, treating the dis-
ability. Lewis Coal’s complaint that the Doris Coal presumption is
irrebuttable as applied by the ALJ is inapposite, as in this particular
case, Lewis Coal’s evidence was almost exclusively and improperly
focused upon challenging the existence of McCoy’s disability vel
non, rather than rebutting the presumption that McCoy’s medical
expenses were related to his medical pneumoconiosis and chronic
bronchitis. In such a context, the fairness concerns implicit in the lim-
itations on offensive collateral estoppel simply do not arise.5
4
The fact that Lewis Coal initially paid McCoy’s medical bills further
supports this conclusion.
5
As part of its offensive collateral estoppel discussion, Lewis Coal sug-
gests that application of the Doris Coal presumption would be particu-
12 LEWIS COAL CO. v. DIRECTOR, OWCP
V.
Finally, we find little merit to Lewis Coal’s contention that the
ALJ’s decision was not supported by substantial evidence because the
ALJ failed to consider all relevant evidence. As indicated above, the
ALJ considered all of Lewis Coal’s evidence, but rejected any evi-
dence suggesting that McCoy was no longer disabled, as it was
required to under Doris Coal. See 938 F.2d at 497. Lewis Coal’s
experts opined that McCoy’s clinical pneumoconiosis was "asymp-
tomatic," and that his current chronic bronchitis could not be attribut-
able to the inhalation of coal dust. However, little weight can be given
to medical findings that conflict with the BLBA’s implementing regu-
lations, see Warth v. S. Ohio Coal Co., 60 F.3d 173, 175 n.* (4th Cir.
1995), such as a finding that a miner’s previously disabling clinical
pneumoconiosis, which is a "progressive disease," 20 C.F.R.
§ 718.210 (2003), had become "asymptomatic."
Contrary to Lewis Coal’s assertions, it is clear that the ALJ did not
arbitrarily disregard or discount all of Lewis Coal’s medical evidence.
For example, in resolving a conflict regarding whether a particular
medication, Vanceril, reflected treatment for a compensable condi-
tion, the ALJ noted that "[t]he 1988 [Physician’s Desk Reference]
substantiates Dr. Castle’s statement. Thus the rebuttal is sufficient on
the use of Vanceril." J.A. 32. Because we find the ALJ gave proper
weight to all of the medical evidence present in the record, we find
the determination that McCoy was eligible to receive reimbursement
for medical expenses related to clinical pneumoconiosis and chronic
bronchitis to be supported by substantial evidence.
larly unfair given that McCoy may have benefitted from the "interim
presumption" that his pneumoconiosis arose from his exposure to coal
dust, a presumption created by the "interim" regulations of 20 C.F.R.
§§ 727.1 to 727.405 (1984). These regulations apply to BLBA claims
filed before 1978 in which the miner has worked in coal mines for ten
or more years. However, we have already resolved this issue. McCoy’s
claim, like that of the claimant in Doris Coal, was adjudicated under 20
C.F.R. § 410.490 (2003), which applies to claims filed before July 1,
1973, see Doris Coal, 938 F.3d at 434; see also 20 C.F.R. § 727.1(a).
Hence, this circumstance does not distinguish McCoy’s case from that in
Doris Coal.
LEWIS COAL CO. v. DIRECTOR, OWCP 13
VI.
Because we conclude that Lewis Coal’s objections to the BRB’s
Decision and Order lack merit, Lewis Coal’s petition for review is
DENIED.