UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BADGER COAL COMPANY,
Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'
                                                                       No. 95-1694
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
DOYLE KITTLE,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(90-2143-BLA)

Argued: March 6, 1996

Decided: April 30, 1996

Before HALL, HAMILTON, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Steele Mattingly, JACKSON & KELLY, Mor-
gantown, West Virginia, for Petitioner. Eileen Mary McCarthy,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondents. ON BRIEF: Thomas S. Williamson, Jr., Solicitor
of Labor, Donald S. Shire, Associate Solicitor, Christian P. Barber,
Counsel for Appellate Litigation, UNITED STATES DEPARTMENT
OF LABOR, Washington, D.C., for Respondent Director.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Badger Coal Company petitions for review of an order of the
Department of Labor's Benefits Review Board (BRB) upholding the
award of black lung benefits to former miner Doyle Kittle. We affirm.

I.

Doyle Kittle was born on November 1, 1918. He worked in the
coal mines for 35 years, all underground in dusty conditions. His last
job was shuttle car operator for Badger Coal. In addition to coal dust,
Kittle's lungs were subjected to approximately 40 years of cigarettes
(one-half to one pack per day). Moreover, he has a rare genetic condi-
tion that causes a deficiency in a blood protein, alpha-1-antitrypsin.
This protein protects the lungs, and persons with low levels of it are
particularly susceptible to emphysema. For one or more of these rea-
sons, Kittle has developed a totally disabling respiratory condition.

Kittle filed this claim seventeen years ago, in December 1978. It
is therefore subject to the interim regulations at 20 C.F.R. Part 727.
The claim has had a slow and tortuous history.

A claims examiner initially found Kittle eligible for benefits and so
notified Badger Coal. Badger Coal pointed out that Kittle was still
working. On October 31, 1979, approval of the claim was made con-
tingent on Kittle's retirement, which occurred the following March.
Badger Coal requested a hearing.

The hearing was held on June 5, 1980, and an administrative law
judge (ALJ) issued a decision awarding benefits on September 16,
1980. Badger Coal requested review.

                    2
On July 23, 1982, a badly split BRB panel remanded the claim. On
remand, the ALJ denied benefits, based largely on a then-new BRB
decision1 that rebuttal under 20 C.F.R. § 727.203(b)(3) could be
established by proof that the miner's pneumoconiosis was not dis-
abling "in and of itself."

Kittle filed a notice of appeal and a motion for reconsideration. The
BRB dismissed the appeal as premature, and the motion was later
denied. Kittle made a timely request for modification of the denial. A
four-year lull then occurred, the cause of which is not apparent in the
record. Meanwhile, we rejected the BRB's "in and of itself" standard
for (b)(3) rebuttal in Bethlehem Mines Corp. v. Massey, 736 F.2d 120
(4th Cir. 1984).2

On October 27, 1988, the district director denied modification. Kit-
tle requested a hearing, which was held October 19, 1989. Before the
ALJ issued his decision, this court held that rebuttal under 20 C.F.R.
§ 727.203(b) was "more restrictive" than rebuttal under the regula-
tions at 20 C.F.R. § 410.490, in violation of 30 U.S.C. § 902(f)(2),
and that § 727.203(b) was consequently invalid in part. Taylor v.
Clinchfield Coal Co., 895 F.2d 178 (4th Cir. 1990).

The ALJ awarded benefits on August 13, 1990. He made alterna-
tive holdings: first, under Taylor, the only form of rebuttal offered by
the employer was unavailable; second, if Taylor were wrongly
decided, he would nonetheless find that the employer had not estab-
lished (b)(3) rebuttal. Badger Coal again appealed to the BRB, and,
while the appeal was pending, the Supreme Court reversed Taylor.
Pauley v. BethEnergy Mines, 501 U.S. 680 (1991).

On February 9, 1993, the BRB issued an odd sort of advisory opin-
ion. It affirmed the ALJ's finding of no (b)(3) rebuttal, and contin-
gently the award of benefits, but it remanded for reconsideration of
whether modification was available at all. This remand never hap-
pened. The Director of the Office of Workers' Compensation Pro-
_________________________________________________________________
1 Jones v. The New River Company , 3 BLR 1-199 (1981).
2 Meeting similar disapproval from other circuits, the en banc BRB
quickly overruled Jones. Borgeson v. Kaiser Steel Corp., 8 BLR 1-312
(1985).

                     3
grams requested reconsideration; meanwhile, this court adopted the
Director's interpretation of the modification process. Jessee v. Direc-
tor, OWCP, 5 F.3d 723 (4th Cir. 1993). In light of Jessee, the BRB
granted the Director's motion and affirmed the award of benefits out-
right.

Badger Coal petitions for review.

II.

Within one year of the denial of a black lung claim, the claimant
may request modification. 20 C.F.R. § 725.310(a). Modification is
available if there has been a change in conditions or there were a mis-
take of fact in the prior denial. Id. Badger Coal asserts that modifica-
tion was unavailable here. We disagree.

Until the year expires, the district director (or, if the claim is con-
tested, the ALJ) has the authority to simply change his mind about a
prior determination of fact, including the ultimate fact of entitlement.
Jessee, 5 F.3d at 724-725; O'Keeffe v. Aerojet-General Shipyards,
404 U.S. 254, 256 (1971) (per curiam) (decided under Longshore and
Harbor Workers Compensation Act). We will therefore review the
decision on the merits.

III.

A.

The standard governing our review is familiar: the administrative
decision must be affirmed if it is in accordance with the law and is
supported by substantial evidence. Amigo Smokeless Coal Co. v.
Director, OWCP, 642 F.2d 68 (4th Cir. 1981). The employer faces a
difficult task here, and not only because of the deferential standard of
review. The burden of proof on the pivotal issue-- (b)(3) rebuttal --
is on the employer, and it must make the strict showing required by
Massey. Under Massey, the employer must rule out any contribution
to or aggravation of the claimant's impairment by coal mine employ-
ment. The uncertain state of medical knowledge thus works to the
miner's benefit. Id., 736 F.2d at 123-124. In sum, Badger Coal's only

                    4
prospect for success is to prove that all of Doyle's disabling impair-
ment arises from a cause or causes other than coal mine employment.

B.

Badger Coal concedes that the interim presumption was properly
invoked. All of the pulmonary function studies produced qualifying
values, establishing the presumption under 20 C.F.R.§ 727.203(a)(2).
In addition, every physician's opinion in the record diagnoses a
totally disabling respiratory condition. Hence, the interim presump-
tion could have been appropriately invoked under (a)(4) as well.3

C.

Though it relied on both § 727.203(b)(3) and (b)(4) rebuttal below,
Badger Coal has abandoned the latter. On this record, (b)(3) rebuttal
can be established, if at all, only with physicians' opinions.

Dr. Jerome Arnett examined Kittle in 1979. He diagnosed pneumo-
coniosis and with resulting total disability. Though he noted Kittle's
smoking history, he did not explain his diagnosis in any detail.

Dr. Joseph Renn also examined Kittle in 1979. Relying on the
report of a radiologist (whom he believed to be a B-reader, but who
was not), Dr. Renn diagnosed simple pneumoconiosis. In addition, he
found chronic obstructive pulmonary disease (COPD) resulting from
chronic bronchitis and "marked" emphysema. Though he attributed all
of Kittle's impairment to COPD, and opined that there was no con-
nection between COPD and "pneumoconiosis," Dr. Renn did not state
whether the COPD was contributed to or aggravated by Kittle's coal
mine employment.

Dr. George Kress reviewed the record and rendered a report in
1980. He conceded the likely presence of pneumoconiosis, but, like
Dr. Renn, attributed Kittle's impairment to COPD due to emphysema.
_________________________________________________________________
3 Kittle fell short of invoking the presumption in the other two available
manners. The x-ray evidence neither proved nor disproved the presence
of pneumoconiosis, and the clear majority of the blood gas studies were
not qualifying.

                    5
He stated that cigarettes are the "primary" cause of obstructive
emphysema, and he observed that "coal miners with many years of
coal mine experience, with or without evidence of pneumoconiosis,
may indeed develop a mild degree of respiratory impairment[,] but
they do not develop advanced diffuse obstructive type of emphysema
unless they are cigarette smokers." Kress thus concedes a possible
contribution or aggravation from "coal mine experience," though not
from clinical "pneumoconiosis."

Dr. Gary Craft examined Kittle in 1982. He diagnosed pneumoco-
niosis and moderate obstructive emphysema. He found Kittle totally
disabled "secondary to" pneumoconiosis. His report fails to note Kit-
tle's smoking history, so it is impossible to tell whether he was aware
of it.

Dr. William Rom of the National Institute of Health examined Kit-
tle in 1984. He stated:

          [I]t was felt that Mr. Kittle had extensive coal mine dust
          exposure and cigarette smoking experience that has resulted
          in severe obstructive lung disease. Because of his rare phe-
          notypic abnormality resulting in a lower alpha-1-antitrypsin
          level than normal, it was felt that dust and dust gases and
          fumes from work or cigarette smoking could result in the
          severe obstructive lung disease observed.

Dr. Donald Rasmussen also examined Kittle in 1984. He noted Kit-
tle's mine employment and cigarette smoking, and found Kittle to be
totally disabled, but he did not state the etiology of the impairment.

Hospital records were also in evidence. Pneumoconiosis is regu-
larly diagnosed on these records. For example, in a 1985 admission
at Elkins Memorial, Drs. Schofield and Becerra diagnosed chronic
bronchitis, COPD, cor pulmonale,4 and pneumoconiosis.
_________________________________________________________________

4 Cor pulmonale is right-side congestive heart failure brought about by
pulmonary dysfunction.

                    6
Dr. William San Pablo, Kittle's treating physician in the late 1980s,
wrote a letter to "Whom It May Concern" in 1989. He stated that Kit-
tle had severe obstructive lung disease and deserves benefits. Dr. San
Pablo did not expressly attribute Kittle's disease to coal mine employ-
ment, however.

Dr. Renn examined Kittle again in 1989. In the 10-year lapse since
his prior exam, Dr. Renn had become a B-reader himself, so he no
longer relied on an x-ray reading by another. He read a new x-ray as
0/1, which is officially "negative" for clinical pneumoconiosis but
which indicates the presence of some opacities, too few in number to
constitute category 1 pneumoconiosis.5 He was very impressed by the
"reversibility" (that is, improvement) in Kittle's lung function after
the administration of bronchodilators. To Dr. Renn, this improvement
showed that Kittle's impairment has a significant obstructive compo-
nent, unlike the restrictive impairment caused by clinical pneumoco-
niosis. Dr. Renn concluded:

          Mr. Doyle E. Kittle has chronic bronchitis-emphysema com-
          plex. He does not have pneumoconiosis. He has a very
          severe, significantly bronchoreversible, obstructive ventila-
          tory defect of sufficient degree to prevent him from being
          able to perform his last known coal mining job of shuttlecar
          operator or any similar work effort. It is with a reasonable
          degree of medical certainty his obstructive ventilatory defect
          resulted from his years of tobacco smoking rather than
          exposure to coal dust.

Dr. Fino reviewed the medical record and issued two reports, both
in 1989, which attributed Kittle's disability to smoking, with no con-
tribution from coal mine employment.

The ALJ took this mixed bag of reports and held that the employer
had failed to satisfy its burden of ruling out any connection between
coal mine employment and some part of Kittle's disability. Though
he conceded the impressive credentials of Drs. Renn, Fino, and Kress,
the ALJ reasoned:
_________________________________________________________________
5 See N. LeRoy Lapp, "A Lawyer's Medical Guide to Black Lung Liti-
gation," 83 W. Va. Law Rev. 721, 729-730 (1981).

                    7
(1) Fino and Kress, unlike all the other physicians, failed to exam-
ine Kittle;

(2) Renn had "flip-flopped" on his diagnosis of pneumoconiosis,
entitling his opinion to less weight;

(3) Renn's demonstration that Kittle's impairment was partially
reversible with bronchodilators did not rule out contribution from a
restrictive defect, because the pulmonary function results, even after
bronchodilators, were still well within the qualifying range;

(4) the opinion of Dr. Craft, while entitled to"somewhat less
weight" because it failed to note Kittle's smoking history, was none-
theless well-reasoned and well-documented;

(5) the opinions finding some contribution or aggravation from
coal mine employment were more consistent with the long duration
(35 years) and dusty conditions of that employment; and

(6) the progressively worsening pulmonary function tests and Kit-
tle's credible complaints of worsening dyspnea suggested contribu-
tion or aggravation from pneumoconiosis.6

The ALJ's findings are not indisputable, but they are supported by
substantial evidence.

Badger Coal relies most heavily on Dr. Renn's opinion. In his
deposition, Dr. Renn did state flatly that coal dust exposure did not
cause Kittle's impairment; however, he based this opinion on his prior
explanation of why Kittle did not have "coal worker's pneumoconio-
sis." That prior explanation was insufficient to compel a finding of
rebuttal as a matter of law, for these reasons: (i) Dr. Renn discussed
"coal worker's pneumoconiosis" in only its clinical sense;7 (ii) he then
_________________________________________________________________
6 The ALJ found that Kittle had quit smoking in the late 1970s or early
1980s.
7 The disease clinicians call"coal workers' pneumoconiosis" is com-
pensable under the Act, but so are many other chronic respiratory dis-
eases caused or aggravated by exposure to coal dust. See 30 U.S.C.

                    8
posited that pneumoconiosis can cause only restrictive impairment;
(iii) and, finally, because Kittle has a demonstrable obstructive
impairment, Renn concluded that he must not have"pneumoconio-
sis." This court has recently rejected opinions that categorically
exclude obstructive impairments from the legal definition of "pneu-
moconiosis":

          The evidence shows that [the doctor] based his opinion
          that [the miner] does not suffer from pneumoconiosis on the
          assumption that obstructive disorders cannot be caused by
          coal-mine employment. . . . We agree with [the miner] that
          these assumptions are erroneous. . . .

          Chronic obstructive lung disease thus is encompassed
          within the definition of pneumoconiosis for purposes of
          entitlement to Black Lung benefits.

Warth v. Southern Ohio Coal Co., 60 F.3d 173, 174 (4th Cir. 1995).
Dr. Renn's opinion rests on the same assumption. Moreover, Dr.
Renn did not explain how the pulmonary function tests demonstrated
only an obstructive defect. Even after bronchodilators, Kittle's test
results were well within qualifying range. It may be that this irrevers-
ible impairment is also purely obstructive, but Dr. Renn did not
explain why he deems it so.

The award of benefits is affirmed.

AFFIRMED
_________________________________________________________________
§ 902(b); 20 C.F.R. § 718.201. Unfortunately, the Act uses the clini-
cians' word "pneumoconiosis" to cover all of these compensable condi-
tions, which has caused and continues to cause difficulty in evaluating
the legal significance of a physician's use of the word. See Barber v.
Director, OWCP, 43 F.3d 899, 901 (4th Cir. 1995); Robinson v. Pic-
kands Mather & Co., 914 F.2d 35, 39 (4th Cir. 1990).



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