William F. CURRY, Petitioner, v. BEATRICE POCAHONTAS COAL COMPANY; Director, Office Of Workers’ Compensation Programs, United States Department Of Labor, Respondents.
No. 94-1780.
United States Court of Appeals, Fourth Circuit.
Argued April 7, 1995. Decided Oct. 23, 1995.
67 F.3d 517
The second fundamental error in the majority‘s decision is that the decision runs afoul of our recent en banc decision in Langley. In Langley, we held, with respect to the felony status element, the government need not establish that the defendant had knowledge of his felony status, but rather need only prove the defendant was convicted of a prior felony. Langley, 62 F.3d at 605-07. Here, the majority engrafts onto the felony status element a requirement that “when a defendant‘s status as a convicted felon turns on the possession of a particular type of firearm, a jury must be instructed that a defendant is not a convicted felon if, despite possessing such a firearm, he did not know it had the particular nature on which his ‘convicted’ status turns.” Ante at 514. Because Langley rejected the notion that proof of knowledge applied to the felony status element, the majority‘s decision is inconsistent with our decision in Langley.
For these reasons, I respectfully dissent.
Before WIDENER and LUTTIG, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
Reversed and remanded by published opinion. Senior Judge PHILLIPS wrote the majority opinion, in which Judge WIDENER joined. Judge LUTTIG wrote a dissenting opinion.
OPINION
PHILLIPS, Senior Circuit Judge:
William Curry, a retired coal miner, petitions for review of the decision of the Benefits Review Board (BRB) denying him benefits under the
I
After working in the coal mines for over twenty-seven years, William Curry filed for black lung benefits on May 26, 1978. The United States Department of Labor, through a district director, issued a preliminary finding of eligibility on March 9, 1979, which Beatrice Pocahontas Coal Co. (Beatrice Pocahontas), Curry‘s employer, contested. The Department of Labor then issued an initial determination of eligibility.
A formal hearing was held before ALJ Stuart Levin on October 11, 1979. At the hearing, Beatrice Pocahоntas stipulated to the fact that Curry was entitled to the interim presumption contained in
On January 10, 1985, Curry filed a second application for benefits.3 Because Curry had retired from his employment at Beatrice Po
Curry appealed this decision to the BRB, which reviewed the ALJ‘s determination en banc. Due to an illness of one of its members, only four members sat on the en banc Board. Stating their belief that (b)(4) is not available for rebuttal of an (a)(1) presumption, two members voted on that basis to reject the ALJ‘s determination that the (a)(1) presumption had been rebutted under (b)(4). Their lead opinion purported to “vacate” the ALJ‘s ruling of (b)(4) rebuttal. The other two members, however, disagreed with that rationale, opining in separate “concurring and dissenting” opinions that (b)(4) may be used to rebut a(a)(1) presumption under certain, limited circumstances. Neither of these two ALJs reached the merits of Beatrice Pocahontas‘s argument that (b)(4) rebuttal had been established in this case. All four members of the panel, however, agreed with the ALJ‘s determination that the (a)(1) presumption had been rebutted by (b)(3). Accordingly, the BRB affirmed the ALJ‘s denial of benefits.
Curry then filed this petition for review.
II
Curry and the Director of the Office of Workers’ Compensation Programs (Director) first contend that the BRB erred in affirming the ALJ‘s decision that the (a)(1) presumption had been rebutted under (b)(3). As did the BRB, we engage in an independent review of the record to determine whether there is substantial evidence in the record to support the ALJ‘s factual findings. Wilson v. Benefits Review Bd., 748 F.2d 198, 199-200 (4th Cir.1984). We review questions of law de novo. Applying these standards, we agree with Curry and the Director that the BRB erroneously concluded that the (a)(1) presumption had been rebutted under (b)(3).
[a] miner who engaged in coal mine employment for at least 10 years will be presumed to be totally disabled due to pneumoconiosis, or to have been totally disabled due to pneumoconiosis at the time of death, or death will be presumed to be due to pneumoconiosis, arising out of that employment, if ...
(1) A chest roentgenogram (X-ray), biopsy, or autopsy establishes the existence of pneumoconiosis.
Subsection (b)(3) then provides that an employer may rebut an (a)(1) interim presumption and thereby defeat the award of benefits if “[t]he evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment.”
Grigg held that Massey‘s “rigorous standard” for rebuttal under (b)(3) can only bе satisfied “where the relevant medical opinion states, without equivocation, that the [claimant] suffers no respiratory or pulmonary impairment of any kind.” Id. at 419. And it further held that where the (a)(1) presumption has been invoked by x-ray proof that the claimant has clinical pneumoconiosis, medical opinions of “no impairment” offered as (b)(3) rebuttal by physicians who believe the claimant does not in fact have pneumoconiosis are “not worthy of much, if any, weight” and cannot, standing alone, satisfy Massey‘s standard. Id.
Under Grigg, the three medical opinions solely relied on by the ALJ and the BRB for (b)(3) rebuttal here fail to support that ruling.6 Dr. Fino opined that Curry had normal lung function and was not disabled from a “functional standpoint” and that, so far as respiratory condition was concerned, he retained “the necessary functional capacity” to do certain heavy-duty coal mine work. J.A. 380-81. This was premised on his belief that Curry did not have pneumoconiosis. J.A. 380. Dr. Endres-Bercher expressly diagnosed no “significant pulmonary impairment” (emphasis supplied) and no “pulmonary disability” as revealed by clinical testing; he also opined that Curry “retain[ed] sufficient lung capacity” to carry on his coal mine work. J.A. 407. This was premised on his belief that Curry did not have pneumoconiosis. J.A. 406. Dr. Abernathy, by contrast, diagnosed “probable coal workers’ pneumoconiosis.” J.A. 433. But, he then concluded that “[i]t would appear from the studies that were done that [Curry] does have sufficient capacity to continue his regular work of operating the heavy equipment with broncitis (sic) and wheezing notwithstanding.” J.A. 433. None of the three physicians, therefore, opined, “without equivocation, that [Curry] suffer[ed] no respiratory or pulmonary impairment of any kind.” And the two who came closest to that necessary opinion believed, at odds with the established fact, that Curry did not have pneumoconiosis.
Because there was no other evidence before the ALJ to support his finding of rebuttal under (b)(3), the opinions of these three physicians do not suffice under Massey and Grigg to support that finding and it must be reversed.7
There remains the issuе whether the BRB‘s decision might yet be affirmed on the alternative basis that, as the ALJ found, the (a)(1) interim presumption had been rebutted under (b)(4)‘s provision for rebuttal if “[t]he evidence establishes that the miner does not, or did not, have pneumoconiosis.”8
Notwithstanding the logical force of this argument and its seeming acceptance by the members.” As indicated in our procedural recitation, three members did not vote affirmatively to “vacate” (nor in a way that commanded vacatur of) the ALJ‘s (b)(4) rebuttal ruling. On that issue they were, at most (since the “dissenters” did not actually indicate how they would havе applied their limited-rebuttal views), evenly divided. Arguably, then, there is no BRB action on this issue to be reviewed on the petition for review. But that is not so. Just as when appellate courts evenly divide on an issue, so when an administrative agency evenly divides in reviewing lower-tier rulings, the even division itself constitutes an affirmance-by-necessity which is then subject to judicial review as an effective affirmance. See, e.g., George Hyman Constr. Co. v. Occupational Safety and Review Comm‘n, 582 F.2d 834, 836-37 (4th Cir.1978); Pennsylvania Steel Foundry & Mach. Co. v. Secretary of Labor, 831 F.2d 1211, 1213-14 (3rd Cir.1987); Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1287-88 (9th Cir.1983).
The second problem is that Curry, as the party aggrieved by the ALJ‘s (b)(4) rebuttal ruling that was left standing by the BRB‘s even-division affirmance, did not in his brief in this court formally raise the issue. The normal rule of course is that failure to raisе an issue for review in the prescribed manner constitutes a waiver. See, e.g., Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 692 (4th Cir.1978). But the rule is not an absolute one and review may proceed (even completely sua sponte) when the equities require. See, e.g., Robinson v. Pickands Mather & Co./Leslie Coal Co., 914 F.2d 35, 36 n. 3 (4th Cir.1990). Here, generally recognized equities compel our review. Both immediate parties, not just Curry, were understandably confused by the ambiguous BRB order. Pocahontas as well as Curry assumed that the (b)(4) rebuttal ruling had effectively been “vacated.” This led Curry, favored by such a ruling, not to raise it as an issue; it led Pocahontas, whom it disfavored, to raise and challenge it as respondent. In consequence, the issue has been properly raised, briefed, and arguеd by Pocahontas who could not therefore be prejudiced by our review.
Pocahontas, interpreting the confusedly divided BRB decision on this point as having held that (b)(4) rebuttal is always precluded, argues against that view, asserting that the Supreme Court‘s statement in Mullins is dictum that does not preclude at least limited opportunity for (b)(4) rebuttal. And, Pocahontas contends that under that view the medical opinions of Drs. Fino and Endres-Bercher, being different in kind from the x-ray evidence used to invoke the (a)(1) presumptions, were properly considered by the ALJ as sufficient to “rebut” the existence of pneumoconiosis.
The Director, in general agreement with Pocahontas on the first point, argues for a highly sophisticated position of limited opportunity for (b)(4) rebuttal,9 but then contends, contrary to Pocahontas, that even if that position were accepted, the (b)(4) “rebuttal” evidence relied upon by Pocahontas (and the ALJ) here—the medical opinions of Drs. Fino and Endres-Bercher—did not suffice to “rebut” the proven (and conceded) existence of clinical pneumoconiosis. In the course of this argument, the Director urges that we take the opportunity to reject the position that (b)(4) may never be used to “rebut” following (a)(1) invocation, and that we adopt the “limited availability” position that office proposes.
We think the “never-or-sometimes” issue should be reserved for another day and a case with less of рrocedural awkwardness to becloud its resolution. We hold instead, in agreement with the Director, that even if the “sometimes” view were adopted, the (b)(4) rebuttal evidence here would not suffice because of its insubstantiality and its failure to meet any of the suggested limited bases for permitting (b)(4) rebuttal.
Dr. Fino, who did not examine Curry, based his opinion on his review of many of the chest x-rays, blood gas studies, pulmonary function studies, medical reports and hospital records in the administrative record. In the process, he re-read as negative for pneumoconiosis a number of x-rays previously read as positive by others that were considered by the ALJ in finding the (a)(1) presumptions invokеd. His ultimate opinion was that asthma, or cigarette smoking, or both, not pneumoconiosis from coal dust exposure, caused whatever lung disease Curry had, and that he in fact had no pulmonary impairment.
Dr. Endres-Bercher did examine Curry in 1989. He also considered an x-ray that had been read negative for pneumoconiosis by a Dr. McClunery, an arterial blood gas study that read normal, and a pulmonary function study that suggested obstructive small airways disease. From all these, he diagnosed chronic bronchitis with no significant pulmonary impairment and opined that Curry did not have pneumoconiosis. He did not opine
It is оbvious then that both of these physicians based their beliefs that Curry did not have clinical pneumoconiosis on the basis of negative x-ray readings by others or, in Dr. Fino‘s case, on re-readings as negative of positive readings by others. Their no-pneumoconiosis opinions therefore flatly contradict the ALJ‘s finding of clinical pneumoconiosis based on the same type of evidence. Neither opinion purports to reject that finding on the basis of later-developed and more accurate diagnostic techniques than those specifically authorized by
These two physicians’ no-pneumoconiosis opinions could not therefore suffice for (b)(4) rebuttal purposes even if the limited (b)(4) rebuttal positions urged by Pocahontas and the Director were adopted. As obviously they could not if, as two members of the BRB would hold, (b)(4) rebuttal is never possible following (a)(1) invocatiоn.
Because (b)(4) rebuttal is therefore unavailable on either view of the matter, the interim presumptions of (a)(1) have not been rebutted by that means, and the ALJ‘s contrary finding (as affirmed by the evenly-divided BRB decision) must be reversed.10
IV
Having concluded that the presumption of entitlement to award established by Curry‘s undisputed invocation of (a)(1) has not been rebutted under either (b)(3) or (b)(4), the BRB‘s decision affirming the ALJ‘s contrary decision must be reversed. Because entitlement is therefore established on the record before us—only one result being possible—we will remand to the BRB with directions to direct an award of appropriate benefits.
SO ORDERED.
LUTTIG, Circuit Judge, dissenting:
The court properly does not decidе whether an interim presumption under
The passage from Mullins into which the majority reads a “flat statement” by the Court that subsection (b)(4) rebuttals are “effectively closed” whenever the claimant successfully invokes a subsection (a)(1) presumption was not even a statement by the Court of its view of the regulation, but was rather the Court quoting the position of the Secretary of Labor. In the passage, the Court first describes the Secretary‘s position and then quotes the government‘s brief as follows: “‘after a Subsection (a)(1) invocation, the question of pneumoconiosis is effectively closed: the rebutting party cannot, as a practical matter, attempt to show that the miner does not suffer from some form of clinical pneumoconiosis.‘” Mullins, 484 U.S. at 150 n. 26 (quoting Br. for Fed.Resp. at 24, n. 22). The Court expressly stated three times in the single footnote that it was only stating the Secretary‘s position in the litigation, presumably so as not to be misunderstood as having placed its imprimatur on the Secretary‘s view.
Of course, the mere quotation of the Secretary‘s view is not tantamount to the embrace of that view. Even if it were, the Court at most could be understood as having said that it is not “practical” to rebut a subsection (a)(1) presumption under subsection (b)(4), not that such a rebuttal is unavailable as a matter of law.
Thus, when the occasion does arise to address the applicability of a (b)(4) rebuttal following the establishment of an (a)(1) interim presumption, our court will write on a clean slate, bound by neither Mullins nor by today‘s dicta that such rebuttal is not available.
On the merits of the issue that the court does properly have before it, I would affirm the ALJ‘s finding that Beatrice Pocahontas rebutted the interim presumption by showing that Curry‘s disability “did not arise in whole or in part out of coal mine employment.”
First, Dr. Endres-Bercher, who examined Curry and performed numerous tests on him, concluded that “[o]bjective testing ... does not demonstrate any significant pulmonary impairment” and that Curry “does not have any pulmonary disability.” J.A. at 407. Dr. Endres-Bercher further explained that any impairment he did detect was attributable to Curry‘s history of chronic bronchitis and multiple episodes of pneumonia. Thus, Dr. Endres-Bercher conclusively determined that there was no pulmonary impairment and that to the extent that there was any pulmonary impairment, it was unrelated to Curry‘s coal mine employment. See id.
The majority dismisses Dr. Endres-Bercher‘s testimony as not creditable under Grigg, which holds that medical opinions of no impairment premised on a finding that the claimant does not suffer from pneumoconiosis “are not worthy of much, if any, weight” when used to rebut an (a)(1) interim presumption of pneumoconiosis. Grigg, 28 F.3d at 419. The disregard of this testimony is error in two respects. First, Grigg does not prohibit consideration of opinions premised on the belief that a claimant does not suffer from pneumoconiosis; it merely directs that such testimony must be discounted. Second, Dr. Endres-Bercher never stated “that Curry did not have pneumoconiosis.” Ante at 521. Rather, Dr. Endres-Bercher concluded that “[i]f a disease process such as pneumoconiosis were present to any significant degree there would be diminution of the total lung capacity as well as the lung subdivisions.” J.A. at 406 (emphasis added). An opinion that pneumoconiosis is not present “to any significant degree” is not an opinion “premised ... on an erroneous finding that the claimant does not suffer from pneumoconiosis.” Grigg, 28 F.3d at 419. Thus, the ALJ could, consistent with Grigg, fully credit Dr. Endres-Bercher‘s testimony.
The ALJ‘s finding is also supported by the testimony of Dr. Fino, who opined that “[f]rom a functional standpoint, [Curry] is not disabled.” J.A. at 381. While Dr. Fino
In Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir.1995), we explained that a “physician‘s finding that the miner does not have coal workers’ pneumoconiosis is not necessarily inconsistent with an ALJ‘s decision that the miner suffers from pneumoconiosis as it is defined in
Finally, the majority rejects the testimony of Dr. Abernathy, and in part the testimony of Drs. Endres-Bercher and Fino, on the grounds that none of the doctors opined “that [Curry] suffer[ed] no respiratory or pulmonary impairment of any kind.” See ante at 521. The majority‘s rejection of this testimony is likewise in error. Neither Grigg nor any other interpretation of subsection (b)(3) requires a medical opinion to find “no respiratory or pulmonary impairment” in order successfully to rebut the subsection (a)(1) presumption under subsection (b)(3). Grigg merely addresses one method of (b)(3) rebuttal—where the claimant has no respiratory or pulmonary impairment. As we noted in Toler v. Eastern Associated Coal Co., 43 F.3d 109, 115 (4th Cir.1995), Grigg holds that “a medical opinion that a claimant does not have a respiratory or pulmonary impairment cannot rebut the interim presumption, raised by a chest x-ray showing pneumoconiosis, ... where the physician premised his opinion on a determination that the claimant does not have pneumoconiosis.” It is quite obvious that an employer can “establish[] that the total disability ... did not arise in whole or in part out of coal mine employment,”
Because the ALJ‘s determination that Curry‘s “total disability ... did not arise in whole or in part out of coal mine employ
Notes
[i]n the April, 1988 hospital consultation report, Dr. Byers notes the presence of chronic obstructive pulmonary disease, asthma, steroid responsive, and meningitis. Dr. Byers does not mention pneumoconiosis. Dr. Green‘s Discharge Statement agrees with Dr. Byers’ consultation report.J.A. 33. For reasons mentioned in conjunction with the opinions of Endres-Bercher and Fino, the reports of Byers and Green are not supportive of (b)(3) rebuttal. Neither Byers nor Green diagnosed Curry with pneumoconiosis.
For the purposes of the Act, pneumoconiosis means a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment. This definition includes, but is not limited to, coal workers’ pneumoconiosis, anthracosilicosis, anthracosis, anthrosilicosis, massive pulmonary fibrosis, progressive massive fibrosis, silicosis, or silicotuberculosis, arising out of coal mine employment.