Southern Appalachian v. Holliday

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SOUTHERN APPALACHIAN COAL
COMPANY,
Petitioner,

v.
No. 98-2594
DEWEY HOLLIDAY; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(97-168-BLA)

Submitted: May 28, 1999

Decided: June 21, 1999

Before WILKINSON, Chief Judge, and WILKINS
and HAMILTON, Circuit Judges.

_________________________________________________________________

Reversed and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

David L. Yaussy, ROBINSON & MCELWEE, Charleston, West Vir-
ginia, for Petitioner. Frederick K. Muth, HENSLEY, MUTH, GAR-
TON & HAYES, Bluefield, West Virginia, for Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Southern Appalachian Coal Company ("employer") petitions for
review of a Benefits Review Board ("Board") decision affirming an
administrative law judge's ("ALJ") decision to award black lung ben-
efits to Dewey Holliday, a former coal miner. The ALJ evaluated this
claim under 20 C.F.R. Part 718 (1998), of the applicable regulations
and determined that Holliday established that he suffered from totally
disabling pneumoconiosis arising out of his coal mine employment.
We must affirm the Board's decision if it properly decided that the
ALJ's decision is supported by substantial evidence and is in accor-
dance with law. See Doss v. Director, Office of Workers' Compensa-
tion Programs, 53 F.3d 654, 658 (4th Cir. 1995).

We need not address all of the contentions raised by employer on
appeal. The claimant bore the burden of establishing all critical ele-
ments of his claim by a preponderance of the evidence. See Director,
Office of Workers' Compensation Programs v. Greenwich Collieries,
512 U.S. 267, 281 (1994). Employer avers on appeal that the ALJ
erred as a matter of law in finding the medical opinion evidence suffi-
cient to prove that pneumoconiosis contributed to any totally dis-
abling impairment the miner might have had. This causation showing
is a critical element of a black lung claim. See Lane v. Union Carbide
Corp., 105 F.3d 166, 170 (4th Cir. 1997). Because we agree with
employer that the medical opinion evidence relevant to this issue can-
not support the ALJ's finding of causation, the remaining issues in
this appeal are moot.

In finding causation, the ALJ relied on the opinions of Drs. Ras-
mussen and Forehand. Dr. Rasmussen did not address disability,
much less its cause. Dr. Forehand did, in a thorough and detailed
report, opine that pneumoconiosis contributed to the miner's respira-
tory impairment, which the doctor found to be totally disabling in

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light of the exertional requirements of the miner's last coal mine job.
Dr. Forehand's written reports even addressed the miner's 41 year
smoking history and history of cardiovascular disease, and concluded
that, despite the possibility that these histories could lead to respira-
tory or pulmonary impairment, he still believed that coal dust expo-
sure contributed to Mr. Holliday's disability.

But Dr. Forehand subsequently contradicted these findings at his
deposition. During cross-examination, he learned for the first time
that the miner suffered myocardial infarctions in 1988 and 1990. He
conceded that this was important information that he had requested
from the miner but had not received. After reviewing the relevant
medical evidence pertaining to the infarctions, he acknowledged that
the heart attacks would have predominantly damaged the miner's left
ventricle, and that this could decrease cardiac output, causing impair-
ment during exercise. Dr. Forehand had relied heavily on the fact that
during exercise blood gas testing, the miner exhibited a very low aer-
obic threshold to find that coal dust exposure contributed to disability.
He admitted, however, that the miner's heart condition could produce
the same results on exercise blood gas testing.

He also stated during his deposition that, while there are some
cases in which he would be able to distinguish the effects of smoking
from the effects of pneumoconiosis, he could not in this case. He
explicitly conceded that all of the miner's impairment could be due
to smoking. While Dr. Forehand did maintain that he could not rule
out pneumoconiosis as a contributing factor to the miner's disability,
that finding is clearly insufficient to affirmatively prove causation
under a preponderance standard. Because the record contains no other
evidence that could potentially connect the miner's disability to his
coal mine employment, we are constrained to reverse the decision of
the Board and remand with instructions to deny benefits. We dispense
with oral argument in light of our prior order granting Holliday's
motion to submit the case on the briefs, and because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

REVERSED AND REMANDED WITH INSTRUCTIONS

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