Roberts v. Olga Coal Company

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHIRLEY J. ROBERTS, Estate of Clyde
Roberts,
Petitioner,

v.

OLGA COAL COMPANY; WEST
No. 97-1660
VIRGINIA COAL WORKERS'
PNEUMOCONIOSIS 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.
(96-1436-BLA)

Submitted: October 20, 1997

Decided: November 3, 1997

Before HALL, HAMILTON, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

S.F. Raymond Smith, RUNDLE & RUNDLE, L.C., Pineville, West
Virginia, for Petitioner. K. Keian Weld, Senior Assistant Attorney
General, EMPLOYMENT PROGRAMS LITIGATION UNIT,
Charleston, West Virginia; Jeffrey Steven Goldberg, Christina P. Bar-
ber, 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Unpublished opinions are not binding precedent in this circuit.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:

For the second time Shirley Roberts, the widow of Clyde Roberts,
petitions for review of a decision of the Benefits Review Board
("Board") affirming an administrative law judge's ("ALJ") denial of
her husband's application for black lung benefits. The central facts
and procedural history of this case are set forth in our prior decision
in this case. Roberts v. West Virginia C.W.P. Fund, No. 95-1113 (4th
Cir. Jan. 12, 1996) (unpublished). After our decision, it was settled
that the miner suffered from pneumoconiosis and a totally disabling
respiratory impairment. Because the Board did not rule on the issue
of whether the miner's disabling respiratory impairment was "due to"
pneumoconiosis, we remanded for consideration of this remaining
critical element of entitlement. See Jewell Smokeless Coal Corp. v.
Street, 42 F.3d 241, 243 (4th Cir. 1994) (discussing claimant's burden
to prove that pneumoconiosis contributed to his totally disabling res-
piratory impairment).

On remand, the ALJ found that neither the death certificate nor any
of the reports submitted by five physicians in this case linked pneu-
moconiosis to the miner's respiratory problems. Three physicians,
Drs. Vasudevan, Naeye, and Hippensteel, explicitly addressed the eti-
ology of the miner's impairment. None, however, found any connec-
tion to coal mine employment. Before the Board, Roberts argued that
the ALJ erred by relying on the reports of Drs. Naeye and Hippensteel
in finding no causation. The Board found that even assuming that this
were true, any error would be harmless, because Roberts bore the bur-

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den of proving that pneumoconiosis contributed to her husband's dis-
ability, and she did not even allege that the record contained any
evidence linking the disease to his impairment. Accordingly, benefits
were denied.

In this appeal, Roberts reiterates her contentions that the ALJ erred
by relying on the opinions of Drs. Naeye and Hippensteel. She avers
that Dr. Naeye's finding that the miner's pneumoconiosis was too
mild to have contributed to his respiratory problems is not well rea-
soned, and that Dr. Hippensteel's attribution of the miner's impair-
ment to smoking relies on reasoning inimical to our decision in Warth
v. Southern Ohio Coal Co., 60 F.3d 173 (4th Cir. 1995).

We note that Roberts does not challenge the ALJ's reliance on Dr.
Vasudevan, who also found no connection between pneumoconiosis
and the miner's disability. Even excluding the opinions of Drs. Naeye
and Hippensteel, his opinion could support a finding of no causation.
Moreover, we agree with the Board that, regardless of whether the
ALJ erred by accepting the opinions of the coal company's physi-
cians, the absence of any affirmative evidence of causation is fatal to
Roberts' claim. See Robinson v. Pickands Mather & Co., 914 F.2d 35,
38 (4th Cir. 1990). The closest the record comes to providing such
evidence is Dr. Naeye's finding that the miner's disability arose from
a "severe pulmonary fibrosis." Because Dr. Naeye did not connect the
fibrosis to the miner's coal mine employment, however, this finding
does not assist Roberts in carrying her burden. See id. at 39. Accord-
ingly, the decision of the Board is affirmed. We deny Respondent's
motion for 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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