                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-10-2008

Consolidation Coal v. Director OWCP
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3944




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                                                       NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                            No. 07-3944




              CONSOLIDATION COAL COMPANY,
                                   Petitioner
                           v.

     JOHN R. MCGREEVY; BENEFITS REVIEW BOARD;
    DIRECTOR, OFFICE OF WORKERS' COMPENSATION
  PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
                                  Respondents




 On Petition for Review of a Decision of the Benefits Review Board,
                  United States Department of Labor
                  District No. BRB-1: 06-0680-BLA


             Submitted Under Third Circuit LAR 34.1(a)
                         October 27, 2008

        Before: SLOVITER, GREENBERG, Circuit Judges,
                and IRENAS,* Senior District Judge

                    (Filed: November 10, 2008)




                             OPINION



         *
          Honorable Joseph E. Irenas, Senior United States District
  Judge for the District of New Jersey, sitting by designation.
SLOVITER, Circuit Judge.

      Consolidation Coal Company (“Consolidation”) petitions for review of the

decision of the Benefits Review Board (“Board”) affirming an award of disability

benefits to John McGreevy, a retired coal miner, under the Federal Coal Mine Health and

Safety Act of 1969, as amended, known as the Black Lung Benefits Act (“BLBA”). 30

U.S.C. §§ 901 et seq. We will deny the petition.

                                           I.

      McGreevy is an eighty-one year-old man who worked as a coal miner for

Consolidation for twenty-eight years and claims that he suffers from pneumoconiosis

caused from exposure to “coal mine dust and asbestos during his mining career.” Resp’t

Br. at 10. McGreevy filed an unsuccessful claim with the Department of Labor (“DOL”)

for federal black lung benefits in 1993. In 2001, he filed a second claim, which was

denied in 2002, and McGreevy’s case was forwarded to an Administrative Law Judge

(“ALJ”).

      Before the ALJ, McGreevy testified that he started smoking cigarettes when he

was seventeen or eighteen years old, smoked between two and three packs per day before

quitting in 1989, but still smoked “small cigars once or twice a day.” App. at 376. The

ALJ also considered deposition testimony and medical examination records from four

doctors engaged in connection with McGreevy’s claim, as well as records from other

physicians who had treated McGreevy or examined his records.



                                            2
       Numerous doctors found irregularities in McGreevy’s lungs, but disagreed as to

the diagnosis. Dr. Warfield Garson, who practiced preventative medicine, diagnosed

McGreevy with coal worker’s pneumoconiosis and found that he “was totally disabled

from his last coal mine work.” App. at 436. Two pulmonologists, Drs. Joseph Renn and

Gregory Fino, disagreed: Dr. Fino concluded that McGreevy’s lung ailments were related

to neither smoking nor coal mining, and Dr. Renn concluded that they were smoking

related, but also found that McGreevy did not have the capacity to perform his job.

Several other doctors who reviewed McGreevy’s chest x-rays disagreed among

themselves whether the x-rays were consistent with coal worker’s pneumoconiosis.

Based on this evidence, the ALJ found that McGreevy was “totally disabled” due to

pneumoconiosis and awarded him benefits.

       On appeal, the Board vacated the ALJ’s findings that McGreevy established the

existence of pneumoconiosis, that McGreevy’s medical condition had changed since the

denial of his first black lung claim, and that McGreevy was totally disabled. The Board

remanded the case to the ALJ to reconsider the medical opinions of Drs. Garson, Fino,

and Renn, with consideration to whether Dr. Garson’s opinion was “merely a restatement

of an x-ray opinion.” App. at 416.

       On remand, the ALJ again awarded benefits, explaining that Dr. Garson’s opinion

was still the most persuasive. The Board affirmed the award on June 29, 2007, and this

petition followed.



                                            3
                                              II.

       We have jurisdiction under 33 U.S.C. § 921(c), as incorporated by 30 U.S.C. §

932(a). We review the decisions of the Board for errors of law and to “decide whether

the [Administrative Law Judge’s] findings are supported by substantial evidence.”

Walker v. Universal Terminal & Stevedoring Corp., 645 F.2d 170, 172 (3d Cir. 1981).

       To establish black lung benefit eligibility, a claimant must establish that he suffers

from pneumoconiosis that arose from coal mine employment, that the affliction from

which he suffers results in total disability, and that he is no longer able to perform his job.

20 C.F.R. §§ 718.1(a), 718.202-204.

                                             III.

       Petitioner argues that the ALJ erred in crediting Dr. Garson’s opinion over

conflicting medical opinions and in failing adequately to consider whether the evidence

rebutted the presumption that coal dust exposure resulted from coal mine employment.

Both arguments fail.

       Petitioner contends that the ALJ’s decision to credit the opinion of Dr. Garson was

not supported by substantial evidence because he ignored the findings of Drs. Fino and

Renn, both of whom were pulmonologists. However, an “ALJ is not bound to accept the

opinion or theory of any medical expert, but may weigh the medical evidence and draw its

own inferences.” Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986).

Here, the ALJ weighed the conflicting medical diagnoses and determined that Dr.



                                               4
Garson’s opinion was the most persuasive. He states:

       Dr. Garson fully takes into account the Claimant’s exposure to asbestos,
       tobacco smoke, and coal mine dust, rendering a conclusion which is
       consistent with the histories given by the Claimant, the objective laboratory
       testing, and the results of his own observations on physical examination of
       the Claimant and his review of the records herein.”

App. at 440.

       Contrary to Consolidation’s argument, Dr. Garson did have the opportunity to

consider the conflicting reports of other doctors. For example, Dr. Garson reviewed Dr.

Fino’s report prior to his deposition. Also contrary to Consolidation’s contention, Dr.

Garson did not underestimate the significance of McGreevy’s smoking history.

Moreover, Consolidation is also incorrect that substantial evidence did not support the

ALJ’s finding that Dr. Garson’s opinion took into consideration McGreevy’s exposure to

asbestos. Dr. Garson’s testimony is to the contrary. See App. at 79. Therefore, we find

that the ALJ’s decision was based on substantial evidence because Dr. Garson’s opinion

took into account the various factors that contributed to McGreevy’s medical condition.

       Consolidation also argues that the ALJ failed to address whether evidence rebutted

the presumption that McGreevy’s coal dust exposure resulted from his employment. A

petitioner may not raise an issue before this court that was not raised in agency

proceedings, absent unusual circumstances. See Bernando v. Director, Office of

Workers’ Comp. Program, 790 F.2d 351, 353 (3d Cir. 1986). Because Consolidation

failed to raise this issue before the Board in this appeal we will not address it. We briefly



                                              5
note, however, that this argument is without merit because there was no evidence that

McGreevy was exposed to coal dust anywhere except in the mine where he worked.

                                           IV.

      For the above-stated reasons, we will deny the petition for review.
