Imperial Colliery v. Tichenor

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
IMPERIAL COLLIERY COMPANY,
Petitioner,
v.
NORMA TICHENOR, widow of Hope
O. Tichenor, deceased; HANSFORD
No. 98-1310
COAL COMPANY, West Virginia CWP
Fund; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(97-584-BLA)
Submitted: August 18, 1998
Decided: September 9, 1998
Before NIEMEYER and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William S. Mattingly, JACKSON & KELLY, Morgantown, West
Virginia, for Petitioner. Don M. Stacy, Beckley, West Virginia; Mar-
vin Krislov, Deputy Solicitor, Donald S. Shire, Associate Solicitor,
Christian P. Barber, Counsel for Appellate Litigation, Jennifer U.
Toth, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Imperial Colliery Company seeks review of the Benefits Review
Board's ("BRB's") affirmance of an award of federal black lung ben-
efits to Hope O. Tichenor.1 Specifically, Imperial argues that the
administrative law judge incorrectly determined that Tichenor devel-
oped complicated pneumoconiosis while employed at Imperial, and
alternatively, that, even if Tichenor's complicated pneumoconiosis
arose during his employment with Imperial, it still is not the "respon-
sible operator." Because we find that substantial evidence supports
the ALJ's determination that Tichenor developed complicated pneu-
moconiosis while employed at Imperial, we affirm the BRB's order.
We decline to address Imperial's alternative argument that it is not the
"responsible operator," as that issue was not raised below.
I.
Tichenor, who died in 1988, had a thirty-nine year history of coal
mine employment. After working for numerous coal companies, he
was employed by Imperial as a fire boss and mine foreman on strip
mines from 1969 until June 4, 1978. On June 5, 1978, Tichenor began
_________________________________________________________________
1 Tichenor died in 1988 while his claim was pending. His widow,
Norma Tichenor, is eligible for survivors' benefits based upon the suc-
cessful prosecution of the miner's claim. See 20 C.F.R. § 725.212(1997).
2
employment with Hansford Coal Company, for whom he worked
until 1986.
In June 1976, while employed by Imperial, Tichenor filed an appli-
cation for federal black lung benefits. The district director made an
initial finding that Tichenor was entitled to benefits due to the pres-
ence of complicated pneumoconiosis, and that Imperial was the puta-
tive responsible operator.2 After Tichenor began working for
Hansford, the district director notified Hansford that it was also being
held as a responsible operator in Tichenor's claim. The claim was
eventually referred to an ALJ.
In March 1989, an ALJ issued a decision awarding benefits to
Tichenor. The ALJ determined that Tichenor suffered from compli-
cated pneumoconiosis as of July 7, 1976, and that, because Tichenor
did not begin his employment with Hansford until 1978, Imperial was
the sole responsible operator. Imperial appealed to the BRB, who, in
April 1994, affirmed the ALJ's decision. Imperial then requested
reconsideration of the BRB's decision on the basis that the ALJ had
incorrectly relied upon the "true doubt" rule. 3 The BRB subsequently
reversed its prior determination, vacated the award of benefits, and
remanded the case so that the ALJ could reweigh the evidence with-
out relying on the "true doubt" rule.
On remand, an ALJ again determined that Tichenor was totally dis-
abled due to complicated pneumoconiosis beginning July 7, 1976, and
that Imperial was liable for Tichenor's black lung benefits. Imperial
appealed the ALJ's decision to the BRB, which affirmed the ALJ's
determinations. This appeal followed.
II.
In reviewing claims for benefits under the Black Lung Benefits
Act, we must determine whether an ALJ's determinations are sup-
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2 The responsible operator is the miner's employer who is found liable
for any benefits awarded. See id. at §§ 725.492-725.493 (1997).
3 The Supreme Court invalidated the "true doubt" rule in Director,
OWCP v. Greenwich Collieries, 512 U.S. 267 (1994).
3
ported by substantial evidence.4"Substantial evidence" has been
defined as "such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion."5 A review for substantial evi-
dence does not involve re-weighing conflicting evidence, making
credibility determinations, or substituting our judgment for that of the
ALJ.6
A.
The issue of Tichenor's eligibility for federal black lung benefits
is not in dispute. Indeed, all parties agree that the evidence establishes
the existence of complicated pneumoconiosis. Rather, Imperial con-
tends that substantial evidence does not support the ALJ's determina-
tion that Tichenor developed complicated pneumoconiosis prior to
leaving employment with Imperial in June 1978. We disagree.
The ALJ determined that the medical evidence contained in the
record indicated that Tichenor's pneumoconiosis followed a progres-
sive course from simple to complicated pneumoconiosis. First, the
ALJ analyzed the April 26, 1975, examination report of Dr. E.S.
Hamilton, Tichenor's treating physician. In this report, Dr. Hamilton
opined that Tichenor was "``permanently disabled, unemployable in
regular industry, and with questionable rehabilitation.'"7 Second, the
ALJ analyzed the physicians' reports based upon three chest x-rays
taken during the time Tichenor worked for Imperial. 8 The first of
these x-rays was taken on August 5, 1971. Dr. W.K.C. Morgan inter-
preted the film as demonstrating complicated pneumoconiosis. Two
other doctors, both "B"-readers,9 interpreted simple pneumoconiosis.
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4 See Dehue Coal Co. v. Ballard , 65 F.3d 1189, 1193 (4th Cir. 1995)
(citation omitted).
5 Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229 (1938) (citation
omitted).
6 See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citation omit-
ted).
7 J.A. at 161 (ALJ quoting from Dr. Hamilton's report).
8 Tichenor also had three x-rays taken after he left Imperial. Every doc-
tor who interpreted these films reported complicated pneumoconiosis.
9 B-readers are physicians who have proven proficiency in classifying
x-rays for changes in pneumoconiosis, having passed a certified exami-
nation sponsored by NIOSH.
4
Although the ALJ did not give Dr. Morgan's interpretation superior
weight, he believed that it "pointedly introduce[d] the spectre of
uncommon complicated pneumoconiosis which evolve[d] into a real-
ity within the evidence in this case."10 Based upon the second x-ray,
taken July 7, 1976, Dr. G. Jacobson, a B-reader, identified compli-
cated pneumoconiosis. However, Dr. W.G. Hayes, another B-reader,
interpreted this same film as showing advanced simple pneumoconio-
sis. Finally, Dr. Hayes and Dr. Charles W. Nelson interpreted the
third x-ray, taken July 9, 1976, as demonstrating advanced simple
pneumoconiosis.
We believe that the April 26, 1975, report of Tichenor's treating
physician, in conjunction with the July 7, 1976, x-ray report of Dr.
Jacobson, a B-reader, constitutes substantial evidence that the onset
of Tichenor's complicated pneumoconiosis was July 7, 1976. As the
ALJ stated:
Dr. Hamilton as the treating and examining physician, com-
mands a unique position in the composition of the total evi-
dence in this case and his reasoned opinion soundly rests
upon clinical findings which have not been contradicted and
are firmly supportive of his opinion that [Tichenor] was
totally disabled due to advanced, if not complicated pneu-
moconiosis . . . . The evidenced advance and progress of the
disease removes the possibility that Dr. Jacobson, a B
reader, made an erroneous interpretation of the July 7, 1976
film.11
Accordingly, we decline to disturb the ALJ's determination on this
ground.
B.
Imperial makes the additional argument that, even if Tichenor's
complicated pneumoconiosis developed as of July 7, 1976, Hansford
bears financial responsibility for this claim because Hansford
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10 J.A. at 159.
11 Id. at 163.
5
employed Tichenor after Imperial. "It is generally recognized that
under the doctrine of exhaustion of administrative remedies a court
should not consider an argument which has not been raised in the
agency proceedings which preceded the appeal, absent unusual
circumstances."12 Therefore, we decline to address this contention,
which was not raised in the proceedings below.13
III.
Based upon the foregoing, we hold that substantial evidence sup-
ports the ALJ's determinations that the onset of Tichenor's compli-
cated pneumoconiosis was July 7, 1976, and that Imperial is the
responsible operator. Accordingly, we decline to disturb the BRB's
order affirming the ALJ's decision. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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12 Director, OWCP v. North Am. Coal Corp., 626 F.2d 1137, 1143 (3d
Cir. 1980).
13 Having determined that Imperial is the sole responsible operator, we
similarly decline to address the argument, advanced by the West Virginia
Coal-Workers' Pneumoconiosis Fund, that we lack subject matter juris-
diction to consider the responsible operator issue because Imperial alleg-
edly accepted liability for this claim in 1979.
6