Tennessee Consolidated Coal Company v. Clarence O. Crisp, and Director, Office of Workers' Compensation Programs, United States Department of Labor
866 F.2d 179
6th Cir.
1989
Check Treatment

*1 179 ” — Pennell, question at of bias cannot be raised as an U.S. necessary.’ decision decisionmaking appa- (quoting Hodel v. attack on the entire -, at 856 108 S.Ct. state, leaving the state without Reclamation ratus of the Mining & Virginia Surface 264, 294-95, Inc., way disputes 101 S.Ct. in which it has Assn., 452 U.S. a resolve (1981)). case, 2369-70, state, 1 2352, 69 L.Ed.2d interest. The in this has “ question em- given opportunity to affect the federal constitutional not been an ‘[T]he taking on taking, a rights property. but We decline to braces Offutts’ occurred, A state just compensation. payment process which has not condemn unless it covers both judgment is not final injury or redress an which has not been ” integral problem.’ Therefore, San aspects of suffered. we AFFIRM. 633, Gas, 101 at at S.Ct. 450 U.S. Diego Dakota Board (quoting 1294 North Stores, Inc., Snyder’s Drug

Pharmacy v. 163, 407, 412, 156, 94 S.Ct.

414 U.S. (1973)).

L.Ed.2d 379 claiming a constitutional viola- party state prove that the available

tion must inadequate. are National Com- TENNESSEE CONSOLIDATED COAL remedies COMPANY, Petitioner, Michigan v. Systems, Inc. munication Commission, 789 F.2d Public Service v. (6th Cir.1986). This Circuit has noted CRISP, Director, Clarence O. Office line of concept analogous is to the that this Compensation Programs, of Workers’ beginning procedural process due cases Labor, Department of Re United States (citing Parratt Taylor. v. Id. with Parratt spondents. 527, 101 S.Ct. Taylor, 451 U.S. No. 87-3771. (1981)). Ramsey also L.Ed.2d County, Whitley Education Board of Appeals, United States Court (6th Cir.1988). 844 F.2d 1268 Circuit. Sixth Kentucky provides cause of action for Argued Aug. alleg a citizen inverse condemnation when 19, 1989. Decided Jan. property that his has been taken es regula the state’s through the exercise of

tory powers. v. Stearns Commonwealth Lumber 678 S.W.2d 378

Coal and Thus, plaintiffs have a state

(Ky.1984). damage

remedy alleged to address the property; and a suit U.S.C.

their inappropriate until a final deci 1983 is in an condemna

sion of the state inverse against plaintiffs.

tion action is entered level,

Indeed, on the federal “availabili action, condemnation

ty of a state inverse showing is that such action inade

absent rights,

quate protect constitutional satisfy the mandates of the

sufficient Amendment.” R.R.

Fifth Union Pacific Idaho, F.Supp.

Co. v. State of

(D. 1987). Idaho

Thus, conclude that the Offutts’

claims, couched terms of the whether

adequacy process or harm to the property, are without merit.

Offutts’ *2 Kileullen, (argued), E. Gilbertson

Ronald D.C., Kileullen, Washington, & Wilson Smith, petitioner. Mary Lou for Tenn., Layne, Tracy City, Robert Nelson Winchester, Tenn., S.Peters, Crisp. for (argued), Office Anne Schwab Priscilla Labor, Washing- Solicitor, Dept, U.S. Holzman, D.C., A. ton, L. Priscilla Thomas Bd., Schwab, Dept, of Benefits Review U.S. D.C., respondents. Labor, Washington, WELLFORD, KENNEDY and Before CELEBREZZE, Judges; and Circuit Judge. Circuit Senior CELEBREZZE, Judge. Senior Circuit Compa- Tennessee Consolidated “Petitioner”) petitions (“Company” or ny order to review a final this court (“Board” or Review Board Benefits “BRB”) affirming award benefits an (“Act”) Lung Act Black Benefits under the Compa- Crisp. The Clarence to claimant 0. BRB, argues, as it did before ny now (“AU”) Judge Administrative Law permanent applied regula- should Part 718 instead of tions in 20 C.F.R. 727, Part and alter- interim refusing natively, that the erred AU under C.F.R. find that the AU We conclude regula- interim applying err in did not claim, 727 to this and that tions Part dispute is factual resolution of the AU’s Ac- evidence. supported substantial cordingly, affirm. Crisp on March born was

Claimant the Nation’s He worked in 1921. filed and then from 1963 until mines Lung Benefits on No- for Black this claim Because claim 1979. vember effective date of filed was before (March regulations of Part permanent 1980), it under the AU evaluated Part 727. 20 C.F.R. interim 718.2, 725.4(a) (d). The & C.F.R. §§ years em- Crisp fifteen AU credited 421(c) not relevant. 902(d), in section War- od “miner,” 30 U.S.C. as a ployment ren, 841 F.2d at Crisp’s claim analyzed therefore 727.203. 20 C.F.R. § 411(b)in relies on section Petitioner now Act, imposes B on the Sec- presump- the interim invoked The AU Human retary of Health and Services pneumoconio- disability due of total *3 following requirement: ventilatory qualifying upon two sis based 727.203(a)(2),and then studies, required imple- 20 C.F.R. regulations Final § for for rebut- the evidence any to review amendments to this proceeded mentation of 727.203(b). The evidence promulgated under section shall be and subchapter tal from a severe Crisp suffered Register indicated that in the Federal at the published to- impairment that of practicable date after the date obstructive earliest employ- amendments, any type him from and tally disabled of such enactment under sub- ment, precluding rebuttal thus end event later than the no (b)(2). Id. and following sections the month month fourth addition, (2). the AU 727.203(b)(1) In & such amendments are enacted. § of Drs. Gil- opinions considered 921(b) The 30 U.S.C. § Mitchell, them insuffi- and found and ley 411(b) also Company argues that section Crisp’s disability did to establish cient through binding Secretary on the of Labor occupational part” “in from not arise amendments which states that section 727.203(b)(3),or exposure, id. coal dust § shall, subchapter to the part B of this “to pneumoconi- from Crisp did not suffer apply to this appropriate, extent also there- osis, The AU id. § 940. Petitioner 30 U.S.C. C].” § [Part Crisp. appeal, On awarded benefits fore Secretary that the of Labor thus contends Company’s conten- rejected the the Board regula- promulgated the final should have are in- regulations the Part 727 tions that four months after tions in Part 718 within that the AU this case and applicable to enabling statute in which its the month finding under subsec- in not erred Lung The Black Bene- effective. became (b)(3), accordingly affirmed. and Act”), (“Reform of 1977 fits Reform Act this court to timely petitioned Company effec- became which authorized the BRB’s decision. review 1, 1978; Company there- on March tive regulations final concludes that fore I. promulgated no later have been should importantly, the July 1978. More than ap on first contention Petitioner’s pro- interprets the four month by the AU and challenges the decision peal Congress’ man- mulgation requirement as Crisp’s claim under the BRB evaluate apply Secretary of Labor date to the 20 C.F.R. Part regulations of the interim to all claims regulations in Part 718 final that the final Company contends 727. The month four expiration of the filed after applied must in Part 718 be regulations case, regard- period, including the instant here, therefore order. that remand is actually regulations were less of when the initially supported its claim Petitioner promulgated. rely Part 718 application of retroactive Labor, the other Secretary limit in section month time ing on the six apply pro hand, regulations to final drafted 421(c) promulgating of the Act for 718.2, only, 20 C.F.R. 931(c). spectively see §§ 30 U.S.C. regulations. See 727.2(d), Re 725.4(d) the Benefits & Co. v. War and Ohio Coal Youghiogheny upheld however, on several occasions (6th Cir.1987), view Board has ren, F.2d 134 action, see, McFarland Secretary’s e.g., 421(c) only controlled section held that we (B.R. 1-163 8 B.L.R. Peabody pursuant to regulations promulgated final Corp., 7 B.1985); Mines v. National Smith at 136. Because of the Act. Id. Part C (B.R.B.1985). conclude We B.L.R. 1-803 Part 718 were regulations in 20 C.F.R. Act is reading of the Act, Secretary’s that the A of the under Part promulgated legis- reasonable; and its the statute peri- 902(f)(1)(D), six month 30 U.S.C. § apply “any claim filed regulations would the four incorporation of history, lative of the final requirement the effective date” on or before promulgation month application 411(b) any retroactive remain- regulations. to mandate To eliminate Id. “appropri- regulations is doubt, the Part provided further ing the statute Accordingly, the ate.” 30 U.S.C. § control interim may ap- in Part 718 final disposition of or not the final “whether prospective fashion. strictly in a plied occurs after the date” such claim authority in Id. persuasive regulations became effective. Initially, find final support the Secre- enabling 902(f)(2). clearly statute to autho- provisions These regula- interim apply tary’s decision pro- Secretary apply rized the Labor filed before to all claims tions in Part 727 regulations in 20 C.F.R. spectively the final *4 effective. regulations became final the Part 718. from the regulations derive sets of Both Company nonetheless asserts 1, March Act of Reform Act. See 1977 411(b), applied to Secre when the section 95-239, 1978, 2(c), 1978 U.S. No. Pub.L. § 430, indi through section tary of Labor 95-96, (92 Stat.) Cong. & Admin.News Code result con Congress intended a cates that 902(f); 20 C.F.R. 30 at U.S.C. § codified statutory language. We trary to this clear in Part 718.1(a). regulations The final § sections, however, nothing in those find pursuant to Con- promulgated 718 were evidencing Congress’ apply intent to the gress’ mandate 411(b) in limitation section four month Labor, in consultation Secretary of the 411(b) Secretary the of Labor. Sections National Insti- Director of the the by the the 430 both added to Act and were Health, Safety and Occupational tute Act Lung Benefits Act of 1972. See Black appropriate criteria for all establish shall 4(d), 19,1972, May No. of Pub.L. 92-303 §§ this which medical tests under subsection 5(10), Cong. 1972 U.S.Code & Admin.News in accurately reflect total time, however, in U.S.C. At the same Con defined 191. as miners [30 902(f)(1)(A)]. specifically gress provision also enacted a § pro controlling Secretary the of Labor’s 902(f)(1)(D). also di- Congress 30 U.S.C. § regulations Part mulgation of final under however, Labor, Secretary the of rected at issue in requirement month C—the six regulations now found issue the interim 5(5), decision. Id. 1972 U.S. our Warren § Part 727 to control 190; Cong. & Admin.News War Code see the on or any claim before effec- filed ren, Congress simul at 136. thus F.2d un- regulations promulgated of tive date separate provisions with taneously enacted Secretary of by the this subsection der timing requirements to control the regulations Part distinct [i.e., the final Labor dispo- Secretary. final Un 718]; regulatory or not the actions fo each ... whether the circumstances, accept claim after any of such occurs sition der these we cannot regulations of promulgation such Congress of in Company’s argument date the Secretary of Labor. by the section procedural tended the limitations in Secretary 411(b) apply to the of added). 902(f)(2)(C) also (emphasis 30 U.S.C. § Part 727 Labor.1 Congress decided that thus the 411(b) addition, requirement incorporation in section Company’s ar- the four month the this, applicable language to cases as would such gument appears the remain inconsistent with First, Secretary promulgates incorporating the of Labor section of 411(b) statutes. the Company regulations effec- arguably subject under Part A. The would into Part C therefore, tively conflicting argues, that the month four Secretary time limi- of Labor to two Secretary requirement applies of Labor promulgating un- when final tations promulgating Part when under period in section C—the four month der Part however, result, very 921(b), A Act. This 411(b), similar six U.S.C. § statutory lan- directly to reconcile with the applicable to Part C in difficult limitation month 411(b) Warren, applies 931(c); guage. month 421(c), four Section id. section regulations promulgated requirement argues reply to final that the Petitioner at 136. Act, just “any to the not "obviously” amendments" requirement con- would six month 921(b). C, U.S.C. under Part A. 30 regulations required while amendments Part trol part under the Federal lent” to those support for conclu- further

We find history program. legislative in the sion explic- history does Although the Act. Although appear it would clear that incorpo- section itly whether address govern, are to same standards section timing requirement of rates concluded that it would be Committee following C, find the 411(b) into specify. best to so explanation instructive: Committee, contemplated by It is following applicable portions B to Part C Application of Part B, amended, part sections of as would requires that amend- New section 430 part section 412 apply to C: section applied, part B be wherever ments (except sentence of subsection last re- Existing law appropriate, to C. (b) thereof), and section 414. compensa- workmen’s quires that State Sess., S.Rep. Cong., No. 92d 2d re substantially to the conform tion laws printed Cong. 1972 U.S.Code & Admin. by regulations interpreted 1969 Act Relying News Health, Secretary Education the reference to section 411 the last further provision This Welfare. quoted paragraph, contends expressed exist- strengthen the intent *5 requirement in that the four month section ing law. 411(b) incorporated into Part C.2 The is Questions during Com- were raised the sections, specific statutory reference to the over whether mittee deliberations however, explicitly “appli is limited to their part B would amendments to automati- Id.; portions.” see also 30 U.S.C. cable to cally applicable, appropriate, where be (Part incorporated only “to the 940 B § part C. Rep. appropriate”); No. extent Conference existing the language the Under 1048, Sess., Cong., 92d 2d Amendment No. law, applied by the to be the standards 46, reprinted Cong. in 1972 U.S.Code & administering part Secretary of Labor (“new ap 430 to Admin.News 2341 section compensation by a workmen’s C or State B ply amendments in Part appropriate all program “which agency adopting C”). provision “appli is to Part Whether coverage pneumo- for provides adequate incorporation “appropriate” is cable” coniosis,” only must not be “substantial- conjunction the must determined with be greater than the ly equivalent to or previous paragraphs, which we believe B, prescribed” in of benefits amount Congress’ that the only intent Secre show determining “The standards but also (as well as State work tary of Labor pneumoco- disability or total due to death law) apply “sub- compensation must “substantially equiva- ers’ must niosis” Senate, 23, 1972). Moreover, May 411(b) regu- gressional This application to of section Record— 430, however, promulgated only cursory “summary” is under Part A is also of section lations contrary 430, compared to the terms of section statement when an insubstantial only incorporates provisions C, statute, B into Part of Part as as detailed of the well the discussion absolutely of Part A. C, no mention and makes relationship Parts B and the the between interpreta- an We decline to embrace addition, §Id. Report quoted in the text. Senate statutory language. so odds with this tion at explicit "summary" to makes no reference the procedural requirements, it incorporating and Company to a directs our 2. The also attention conflicting attempts explanation of re- no "summary” of section 430 two-sentence legislative incorporation foist quirements such provi- history, which reiterated that Compare Secretary 30 U.S.C. of Labor. only incorporated into Part C sions in B are Part 931(c). 921(b) Finally, the "sum- with id. appropriate,” on to but then “to the extent went Company’s mary” support as- for the offers no except Part B "all amendments to state that 411(b) apply sertion that should to section security provision and transi- offset social reg- Secretary promulgating when of Labor Legislative provision apply Part C." ... tion History A, Part a result we found ulations under Mine and the Federal Coal Health language. statutory 91-173) inconsistent with (Public Safety Law 1969 Act of conclude, therefore, sup We 1974, fa note 1. Lung Through including Black Amended persuasive Print, quoted is more 1972, in the text material Committee 94th Amendments of congressional (1975) intent. (Reprinting indication of Cong., 2137 Con- Sess. at 1st the re- employer satisfied has then used standards as equivalent” stantially disability quirement due determining total B for Part however, is a Where, pneumoconiosis appropriate bene and pneumoconiosis miner’s total Congress’ to a contributing made of cause is No fits. Id. mention conclusively entitled to requirements procedural disability, he apply intent of Part provisions C. B to Part benefits. in Part apply intended Congress B that Co., F.2d Mining Saginaw Gibas stan therefore, substantive C, those are added), Cir.1984) (6th 1112, 1120 re defining total dards 2357, 1116, denied, 105 S.Ct. 471 U.S. cert. See, e.g., 80 U.S.C. sulting benefits. (1985); Wright v. Island 86 L.Ed.2d month the four 921(c) Because 922.& §§ (6th Co., F.2d Coal Creek 411(b) in section requirement promulgation Review Cir.1987); Roberts Benefits hold provision, we such Act is not of the Cir.1987); (6th Board, 638-39 822 F.2d Part C. incorporated into it is not Co., 769 F.2d Peabody Coal Moseley v. Company’s ar reject the Accordingly, Cir.1985); Ramey v. Kentland (6th applica mandatory retroactive gument for 491-92 Elkhorn claim Since of Part 718.3 Cir.1985) (employer prove must (6th effective date filed before well disability was other of miner’s “sole” cause con properly the AU regulations, Part 718 pneumoconiosis). than regulations in the interim it under sidered medical evidence AU considered the Part 727. and held record disabling Crisp’s totally prove that failed II. arise “in impairment did not respiratory reject- considered Although the AU employment. Pe- his coal mine part” from *6 in 20 C.F. provisions all of the rebuttal ed Crisp dispute not that suffers does titioner challenges 727.203(b), the R. § disabling lung disease. totally a from under sub- find rebuttal refusal to only the that Rather, Company contends the the (b)(3), provides: section interpreted the medical improperly AU (a) of this paragraph in presumption The Company to an “im- testimony and held the if ... evi- shall be rebutted [t]he section disprove to causation possible” standard that the total dence establishes (b)(3). disagree. We under subsection in did arise the miner not death of or mine em- of coal part out or in whole affirm the must of course AU’s We ployment. supported by if it is determination factual added). This (emphasis evidence. 727.203(b)(3) Wright, See substantial 824 Id. subsec- under is “such evidence rele court has considered Substantial at 507. occasions, and we might mind a on several evidence as reasonable vant provision support a adequate conclu accept held that the Perales, 402 U.S. Richardson v. prove sion.” the chance employer the grants 1420, 1427, 28 L.Ed.2d arise, 91 S.Ct. disability did not that the miner’s time, however, we (1971). At the same mine from his coal part, or in whole decision to deter the AU’s to must review employer is able If an employment. overstep his AU did not mine that the played no pneumoconiosis prove that reviewing medical evidence. disability, bounds causing the miner’s enabling violating conclusion, Secretary was along that the recognize We that by promulgating the Part Warren, legislation not means prior decision our Secretary the 1977 of Re- within four months promulgation of Labor’s Moreover, find no indication Act. was not form Part A of Act Con- history Reform Act that the 1977 The Com- by any limitation. time constrained regulations authorized gress the final intended have been could not pany that this maintains note, 402(f)(1)(D) promulgated in by Congress. We result envisioned Secretary period. it took regulatory specific time Since however, during the time that at no regulations, develop years to of two periods did most comment process and the various wholly justified. Petitioner, appears Congress’ action including assert party, any interested (citation omitted). original) express his need not testifying physician A believe this conclusion was well “reasonable de- We in terms of a conclusions finder, province as fact by within certainty” to be credited AU’s medical gree of reject and we Petitioner’s contention accept a AU; must instead the AU the AU substituted his improperly medical physician exercis- opinion of a “documented judgment ques- of Dr. Mitchell. In judgment.” Moseley, ing reasoned tioning “presumption” Dr. Mitchell’s standard Although this F.2d at 360. Crisp’s “only disability was related to discretion to the AU’s necessarily restricts smoking,” the AU did no more than in- unequivocal medi- reject uncontradicted quire report doctor’s whether was “suf- Peabody testimony, see Underhill cal reasoned,” ficiently documented cred- Cir.1982), (7th 687 F.2d ibility expressly left decision we have AU of his essential deprive it does Moseley, the AU. 769 F.2d at 360. fact-finding testimo- function when medical “presumption” no- Since the doctor’s dispute: conflicting or otherwise in ny is explained, we hold that the AU’s where physician’s whether “Determinations reject decision to Dr. Mitchell’s causation and rea- sufficiently documented report is supported by conclusion as unreasoned was left the trier credibility matter soned is substantial evidence. 360; F.2d at Moseley, 769 of fact.” Rowe, Director, 710 F.2d O.W.C.P. testimony Gilley presents The of Dr. (6th Cir.1983). slightly question. more difficult Crisp Gilley smoking history, told Dr. of his opin- dispute here is the evidence breath, fatigue, shortness of and chronic testimony physicians, from two Drs. ion cough. Gilley physical Dr. conducted a ex Mitchell, examined Gilley who each amination and other medical tests. He di report noted Crisp. Dr. Mitchell’s written agnosed “chronic obstructive pack of history smoking one Crisp’s disease, His discussion in severe.” forty years, and the per day for cigarettes espe report condition is written The doc- physical of a examination. results pertinent: cially diagnosed obstructive and bul- tor “Severe patient’s major problem is chronic only related emphysema presumably lous lung proba- disease. obstructive all Mitch- smoking” (emphasis Dr. smoking major is a bility cigarette *7 response also checked the “No” box ell etiological pollution Air factor. whether, opinion, question his to the may coal mines have contributed [to] to dust diagnosed “the condition related development lung dis- aggravated patient’s employ- coal mine exposure patient is considered ease. The disabled Crisp’s impair- Finally, he assessed ment.” any type occupation because of for “severe.” ment as lung chronic obstructive disease. There rejected Dr. Mitchell’s The AU little, very any, objective if evidence of is finding un grounds for opinion as pneumoconiosis. coal workers’ (b)(3): der (emphasis presumed that Dr. Mitchell Claimant’s Gilley expanded Dr. on his conclusions in emphysema impairment and obstructive testimony. The doctor deposition stated ap- smoking. It related were Crisp “severe chronic obstructive that had that, presumption, on this pears based commonly pulmonary or what is disease the medi- checked the box on Dr. Mitchell Gilley again Dr. emphysema.” as known indicating condi- that Claimant’s cal form disability: Crisp’s discussed the cause expo- of coal did not arise out dust Doctor, opinion Q: you have an within do is not presumption Dr. Mitchell’s sure. degree certainty of medical a reasonable certainty to be cred- of sufficient Crisp Mr. as to whether or not disabled Accordingly, his conclusions as to itable. pneumoconiosis? because respiratory im- origin of Claimant’s put it on you I could that presumption A: don’t think do not rebut the pairment 727.203(b)(3). I he’s disabled because of basis. think to 20 pursuant C.F.R. § “major” cause of disease, smoking to be the rette chronic obstructive disability, did but doctor percent his no one that could I think a “con- exposure to coal dust as degree of rule out or what percentage say what AU’s words: tributing factor.” atmospheric pollutions exposure to his these mine contributed the coal ciga- Gilley probably stated that Dr. guess lungs. I would changes in major cause of smoking was a rette say you would liberal you if were He respiratory impairment. Claimant’s percent than probably no more pollution in the to state that air went on attributed lungs could be changes in the aggra- may contributed to or mines have pollution. atmospheric to the development of Claimant’s vated words, Doctor, your is it Q: In other per- lung He wasn’t sure what disease. Mr. percent of at least 90 opinion that lung problems centage was of Claimant’s other emphysema was due Crisp’s exposures, coal mine but attributable ciga- mine, such besides (10) factors percent. at no more than ten guessed smoking? rette welding expo- He also stated fume smoking. cigarette likely the area could contrib- A: Most a closed have sure in problem. to the uted cross- revisited on then was question Gilley’s testimony establishes that Dr. examination: lung impairment arise in did Claimant’s Q: contribution would What employment. mine of coal out to Mr. have environment mine Therefore, does not serve as rebuttal it emphy- had Crisp if Mr. had emphysema effect under 20 C.F.R. degree? What a lesser sema mine environment the coal [have] omitted) (footnote and citation condition? upon that had Gilley’s original original). In view of Dr. know, already is, Well, you I’ve A: “may dust contrib- diagnosis that coal by all rea- I think to this. alluded Crisp’s disabling pulmonary dis- uted” contributing major odds sonable deposition testimo- subsequent ease and lung dis- degree of chronic to his effect, correctly the AU ny to the same factor disease, lung ease, primarily obstructive Gilley’sopinion to rule held Dr. insufficient certain predisposed or may first be he exposure as a occupational coal dust out devel- predisposed to who are individuals Crisp’s respiratory “contributing cause” to degree and greater oping this with Gibas, at 1120. disability. 748 F.2d atmosphere, and in the same frequency rebuttal set the standard Under may That’s a not. other individual some cases, therefore, hold prior forth our smoking, cigarette But fact. known un- refusal to find rebuttal that the AU’s welding indeed, exposed to if, he was 727.203(b)(3) supported der section area, could have in a closed fumes evidence. substantial *8 in itself I think coal dust a role. played conclusion, objects to this how- Petitioner rule, scarring a lung not cause does ever, imposes impossible an arguing that it change on the enough not there’s disprove causa- employer to burden that me believe that would lead to x-ray miner’s takes the when played significant per se a dust coal respiratory pulmonary or dis- form of a you gave the benefit if him Even role. testimony, the Echoing Gilley’s Dr. ease. doubt, maybe percent or some- of the no doctor deter- Company asserts that can know. That that. I don’t thing like in such cases with mine causation 100% guess. abe deduces accuracy. Company then be that Q: right. But there could All read that assertion we should from this contribution? percent 727.203(b)(3) literally require Possible, yes. A: part” in the play “no be shown dust disability, Gibas, 748 F.2d miner’s total medi- ostensibly beyond standard statements, to con- at it fair From these from the miner suffers expertise when Crisp's ciga- cal Gilley found Dr. clude Gilley’s that Dr. disease, should We do not believe inabil that rebuttal be lung but (b)(3)if medi- ity similarly unequivocal opinion to offer a under subsection allowed exposure that coal dust cal evidence shows on causation here is sufficient reason to “significant” or “substantial” is not a depart regulatory language from the clear (b)(3) cause. precedent in subsection and our inter not, preting provision. This is as the however, that the liter agree, cannot We claims, Company a case which the doctor (b)(3) in the application of subsection al merely recognized on cross-examination the under that case renders rebuttal instant possibility theoretical of an alternative sug as Petitioner provision “impossible” Rather, disability. origi cause of the in his course, regulations, of do not gests. The diagnosis Crisp’s condition, nal Dr. Gil- given in testimony to be require medical ley explicitly pollution “Air stated that certainty.4 We have inter terms of 100% may the coal mines or contributed permit rebuttal preted aggravated development lung dis satisfy physicians’s conclusions where Although deposition ease.” testimo standard of a “doc the much more lenient ny put possible Gilley Dr. tried to the best physician exercising opinion of a umented conclusion, light merely he on this conclud judgment.” Moseley, 769 reasoned medical Crisp’s x-ray did not gives us little rea ed that show that F.2d at 360. Petitioner per played significant se role” that medical doctors are “coal dust son to conclude lung strongly in the disease—a conclusion satisfy this standard establish unable pulmonary implying x-ray a miner’s did show some ef ing the cause of Indeed, agree respiratory exposure.5 disease. fects of coal dust We has cited us to cases which its brief the AU and the Board that this testi dis that the claimant’s mony satisfy Company’s doctor has testified does not bur due “clearly unequivocally ability Crisp’s disability proving den of did cigarette smoking and not part” expo “in from coal dust not arise [claimant’s] employment.” Peabody circumstances, his coal mine Coal these rebuttal sure. Under Lowis, (7th Cir. v. Co. appropriate. is not under subsection 1983); v. Review see also Welch Benefits (6th Cir.1986) (two

Board, 808 F.2d III. physicians state that claimant’s Accordingly, decision of the Benefits exposure; coal dust disease unrelated to is AFFIRMED. Review Board (b)(3)); allowed under Drummond (11th Freeman, 733 F.2d 1523 Coal Co. WELLFORD, Judge, Circuit Cir.1984)(remand sim for AU to consider dissenting. proper expert testimony under stan ilar majority opin- Co., My disagreement with the dard); Peabody Underhill cf. tangled Cir.1982) analysis its of the (7th (finding ion is not with F.2d 217 similar (b)(4) procedural regarding in this case testimony prove situation sufficient interim rebuttal). applicability arising employ- Gilley’s concerning inability impairments, out of coal mine 4. Dr. statement addition, accuracy may regulation to determine causation with 100% states: “For ment.’ given explained part by the fact that it was 'arising definition, purposes a disease response question by to a Petitioner’s counsel in asking employment’ includes out of coal mine *9 "opinion the within a reason- doctor’s resulting respira- pulmonary chronic disease degree certainty,” medical a standard we able of impairment signficantly tory pulmonary re- or rejected. specifically have to, exposure aggravated by, lated or coal dust (empha- employment.” mine Id. 727.202 coal appears proper avenue for rebuttal 5. It added). Because Petitioner chose not to sis argu- in cases where the claimant’s ably is appeal denial of rebuttal under the ALJ’s "significantly” related to coal dust is 20 not court, express no to either the BRB or this 727.203(b)(4), permits C.F.R. rebuttal opinion before the AU whether the evidence pneumoconiosis. did not have of the miner require subsec- was sufficient to rebuttal under defined in section 727.202 "Pneumoconiosis" is (b)(4). lung its as “a chronic dust disease of the sequelae, and including respiratory doubt,” on the ing claimant Act. Lung Benefits the Black 727 of “benefit of in Part examination, there Gilley Dr. felt that opin- II cross of Rather, from I dissent pos- “maybe percent ... may have been Tennessee Consolidat- I believe ion because mine of coal “environ- sible (TCC) pre- contribution” did rebut ed Coal prac- For all Crisp’s the stat- Crisp under ment” on condition. to applicable sumption hypertechnical in 20 a provisions purposes, absent tical of rebuttal by ute reason testimo- 727.203(b)(3). proof, medical reading of the this C.F.R. § sufficient to establish ny would (ALJ) Judge Law Administrative Crisp’s prove that to failed held that TCC did not arise ailment disabling respiratory in this proof otherwise under To hold I believe employment.1 his coal mine literal, from unrealistic read- to utilize case is case establish this evidence that medical ignore prac- regulation ing of judgment” medical by “reasoned es agree TCC that use I with tical realities. persistent his from arose Crisp’s condition approach imposes an almost type of of this of smoking by not reason heavy cigarette upon employer impossible burden indi Dr. Mitchell employment. mine coal minimal cau- insignificant or disprove even on the form checking the box by cated Co., Saginaw Mining sation. Gibas condi “diagnosed provided him Cir.1984), held, (6th among dust did not relate “to emphysema tion” of Lung Black Bene- things, that other “[T]he employ coal mine patient’s exposure only of requires payment benefits fits Act indicated He earlier ment.” had pneumoconio- disability due to for total “presumably” condition related added) It later indicated sis." there and the Board smoking. The AU shown pneumoconiosis must be Mitchell’s rejected Dr. improperly fore “contributing cause” of to be claimant Crisp; it examination opinion after an Id. at 1120. disability. total claimed certainty” not sufficient was “of conditions coal mine environmental That out that set but only to be credible brought about may possibly due to was not Crisp’s condition origin of enough not to establish en- emphysema employment. mining conditions titlement. Peabody Moseley view, my the inter TCC rebutted I find that Cir.1985), (6th is not a basis F.2d 357 It should not in this presumption im case. authori position, nor claimant’s support for upon to demonstrate 100% be called opinion.2 Dr. Mitchell’s ty ignore coal mine environment could accuracy that exami- thorough Gilley Dr. conducted in an em a factor possibly have been con- Crisp tests on before nation made “little, any, if where there is physema case problem is Crisp’s “major cluding that pneumoconiosis.”3 objective evidence of disease,” which he lung chronic obstructive respectfully dissent. I therefore “ma- smoking cigarette attributed “little, if He found etiological jor factor.” of coal workers’ evidence any, objective Gilley amplified Dr.

pneumoconiosis.” testimony about

report by deposition emphysema, and he

Crisp’s condition he was not response that

made a direct pneumoconiosis. Giv- because

disabled Deputy 3.According Com- to the decision Crisp dispute suffers from but that is no 1. There case, only other doctor disabling respiratory in this totally condition. missioner Cole, record, W.S. "denies in the Dr. referred employer whether Moseley for the held Deputy of Pneumoconiosis." the existence "contributing cause" exposure awas coal mine "emphy- Crisp had found that Commissioner sema, physi- *10 disability despite from five evidence pneumoconiosis ... relatable pneumoconio- suffered from cians that claimant smoking.” cigarette years many sis.