PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CLINCHFIELD COAL COMPANY,
Petitioner,

v.

DEBRA ANN FULLER, widow of
                                                                    No. 98-1949
Elmer L. Fuller, deceased;
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(97-1204-BLA)

Argued: March 5, 1999

Decided: June 25, 1999

Before TRAXLER and KING, Circuit Judges, and
LEE, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Petition for review granted, award vacated, and claim remanded by
published opinion. Judge King wrote the opinion, in which Judge
Traxler and Judge Lee joined.

_________________________________________________________________

COUNSEL

ARGUED: Timothy Ward Gresham, PENN, STUART, ESKRIDGE
& JONES, Abingdon, Virginia, for Clinchfield Coal. Edward Wald-
man, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Director. Daniel H. Sachs, WIESENFELD & WALDMAN,
P.C., Hyattsville, Maryland, for Fuller. ON BRIEF: Marvin Krislov,
Deputy Solicitor for National Operations, Donald S. Shire, Associate
Solicitor, Christian P. Barber, Counsel for Appellate Litigation,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Director.

_________________________________________________________________

OPINION

KING, Circuit Judge:

Clinchfield Coal Company petitions for review of the Decision and
Order of the Benefits Review Board (BRB) upholding an award of
black lung survivors' benefits to the respondent, Debra Ann Fuller,
the widow of deceased coal miner Elmer Fuller.1 An Administrative
Law Judge (ALJ) determined that Mr. Fuller had been afflicted with
pneumoconiosis arising out of his coal mine employment, and that the
disease had hastened his death.

We conclude that the ALJ improperly evaluated the competing evi-
dence regarding the extent to which Mr. Fuller's pneumoconiosis
affected the pulmonary condition that contributed to his death. The
BRB placed its imprimatur upon the ALJ's reasoning, but we cannot.
We therefore grant the petition for review, vacate the award of bene-
fits, and remand for further proceedings.

I.

A.

Black lung benefits may be paid to eligible survivors of a miner
_________________________________________________________________
1 The Director of the Office of Workers' Compensation Programs for
the Department of Labor participates in this appeal as co-respondent,
pursuant to 30 U.S.C. § 932(k), which provides that "[t]he Secretary [of
Labor] shall be a party in any proceeding relative to a claim for benefits
under this part [of the Black Lung Benefits Act]."

                    2
whose death was "due to pneumoconiosis," 20 C.F.R. § 718.205(a)
(1998), i.e., where pneumoconiosis is "a substantially contributing
cause or factor leading to the miner's death[.]" § 718.205(c)(2). The
claimant will recover upon proving, by a preponderance of the evi-
dence, that pneumoconiosis "actually hastened the miner's death."
Shuff v. Cedar Coal Co., 967 F.2d 977, 979-80 (4th Cir. 1992).

Ms. Fuller filed her claim for survivors' benefits about a month
after her husband's death in 1994 from "a final episode of respiratory
and cardiac failure." Mr. Fuller had worked in the coal mines for over
twenty years. X-rays taken during his lifetime never read positive for
pneumoconiosis, but an autopsy revealed the presence of moderate
anthracosis and numerous carbonaceous macules in both lungs.

The District Director denied the claim on initial review, and again
upon Ms. Fuller's request for modification. The matter was subse-
quently referred to the Office of Administrative Law Judges for hear-
ing, in anticipation of which an informal conference was scheduled
to define the scope of the dispute. Ms. Fuller attended the conference
with her attorney. Clinchfield, which had earlier controverted its lia-
bility for the claim, was also represented by counsel.2

At the conference, the parties were asked to respond to a "Stipula-
tion of Uncontested and Contested Issues." The claims examiner pro-
duced a checklist of facts potentially in dispute and asked the parties
to indicate whether they agreed or disagreed with the truth of each
particular assertion. During this process, Clinchfield stipulated that
Mr. Fuller "had pneumoconiosis (black lung) as defined by the Act
and regulations," and that Mr. Fuller's affliction "was caused by coal
mine employment." The parties could not agree, however, as to
whether Mr. Fuller's death was "due to pneumoconiosis." The case
proceeded before the ALJ to decide that precise question.
_________________________________________________________________

2 Clinchfield did acknowledge that it would be responsible if benefits
were awarded. See 20 C.F.R. § 725.493(a)(1) (1998) (imposing liability
for benefits on the mine operator or other qualifying employer with
which the miner has had the most recent periods of cumulative employ-
ment of not less than one year).

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B.

Ms. Fuller presented the statement of her husband's treating cardi-
ologist, Dr. Harrison Turner, who opined that Mr. Fuller's "autopsy-
proven" pneumoconiosis "increased the breathing workload of a heart
already compromised by significant left ventricular dysfunction, fur-
ther reducing air exchange and increasing the cardiac workload." At
his deposition, Dr. Turner retreated from this position somewhat.
Although he reiterated that death had come sooner to Mr. Fuller as the
result of the latter's breathing impairment, Dr. Turner hesitated to
attribute the poor condition of his patient's lungs to coal dust expo-
sure, expressing his belief that such a diagnosis was better left to pul-
monologists.

Dr. J. Randolph Forehand, who, some years earlier, had twice
examined Mr. Fuller in connection with the miner's claim for black
lung benefits, was considerably less equivocal. Upon reviewing his
records and the autopsy report, Dr. Forehand concluded that

          [Mr. Fuller's] respiratory difficulties in life were due in part
          to coal workers' pneumoconiosis. . . . Because of the small
          residual ventilatory capacity remaining, he was unable to
          compensate for the effects of cardiac failure[,] thus his death
          was due to a combination of cardiac and respiratory factors
          including coal workers' pneumoconiosis.

Dr. Forehand acknowledged that cigarette smoking had adversely
affected Mr. Fuller's respiratory capacity. He nonetheless held firm
in his belief that pneumoconiosis was also to blame, stating that
"[b]oth his coal workers' pneumoconiosis and pulmonary emphysema
from cigarette smoking were . . . the cause of lack of respiratory com-
pensation during terminal events in the hospital preceding death."

Clinchfield's experts took a different view. The company had four
pathologists and three pulmonary specialists review the pertinent
records; all concluded that Mr. Fuller had suffered from, at most,
"mild" or "minimal" simple pneumoconiosis. None believed the dis-
ease to have contributed to his death. To the extent that these experts
recognized Mr. Fuller to have a pulmonary disorder, it was attributed
solely to cigarette smoking.

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II.

A.

The ALJ credited Ms. Fuller's evidence, giving determinative
weight to Dr. Turner's opinion. The opinions of Clinchfield's experts
were deemed to be less probative, largely because the ALJ thought
them contradictory to the company's stipulation that Mr. Fuller had
pneumoconiosis "as defined by the Act and regulations." That defini-
tion states:

         For the purpose of the Act, pneumoconiosis means a chronic
         dust disease of the lung and its sequelae, including respira-
         tory and pulmonary impairments, arising out of coal mine
         employment . . . . For purposes of this definition, a disease
         "arising out of coal mine employment" includes any chronic
         pulmonary disease resulting in respiratory or pulmonary
         impairment significantly related to, or substantially aggra-
         vated by, dust exposure in coal mine employment.

20 C.F.R. § 718.201 (1998) (emphases added). The ALJ construed the
words "including" and "includes" as words of limitation, i.e., as
restricting the condition known as pneumoconiosis to those diseases
that result in "impairment."

Because Clinchfield stipulated that Mr. Fuller had pneumoconiosis,
the ALJ reasoned, it must also have stipulated that his pneumoconio-
sis was impairing. Insofar, then, as Clinchfield's experts had opined
that Mr. Fuller's pneumoconiosis had not impaired his pulmonary
function, those opinions were considered by the ALJ to be unworthy
of credence. Cf. Warth v. Southern Ohio Coal Co. , 60 F.3d 173, 175
n.* (4th Cir. 1995) (expert opinions in direct conflict with the regula-
tions promulgated under the Black Lung Benefits Act entitled to little,
if any, weight).3
_________________________________________________________________
3 Although the BRB's Decision and Order only addressed at length its
approval of the ALJ's reasons for crediting the opinion of Dr. Turner, the
Board also implicitly endorsed the ALJ's analysis in discounting the
opinions of Clinchfield's experts.

                    5
B.

The culprit in this case is a familiar one. The origin of this dispute
can be traced to the failure of the parties and the ALJ to sufficiently
distinguish between pneumoconiosis in its "clinical" and "legal"
sense. Section 718.201 provides the legal definition of pneumoconio-
sis. It encompasses a wide variety of conditions; among those are dis-
eases whose etiology is not the inhalation of coal dust, but whose
respiratory and pulmonary symptomatology have nonetheless been
made worse by coal dust exposure. See, e.g., Warth, 60 F.3d at 175
(remanding for potential award of benefits where exposure to coal
dust may have aggravated the miner's chronic obstructive lung dis-
ease). The plain language of the regulation demands that these dis-
eases result in some sort of respiratory or pulmonary impairment
before they can be considered "pneumoconiosis."

The definition, however, also includes diseases that are or can be
caused by coal dust inhalation. Any "chronic dust disease of the lung
and its sequelae . . . arising out of coal mine employment" will qual-
ify. Many of these diseases are specifically listed in the regulation.
One is "coal workers' pneumoconiosis" -- often referred to as "clini-
cal" or "medical" pneumoconiosis. Another is anthracosis. The
autopsy revealed the presence of both of these diseases in Mr. Fuller's
lungs, and this is what Clinchfield fairly stipulated to when it agreed
that Mr. Fuller had pneumoconiosis "as defined by the Act and regu-
lations."

Section 718.201 nowhere requires these coal dust-specific diseases
to attain the status of an "impairment" to be classified as "pneumoco-
niosis." The definition is satisfied whenever one of these diseases is
present in the miner at a detectable level; whether the particular dis-
ease exists to such an extent as to be compensable is a separate ques-
tion.

It follows, then, that what Clinchfield stipulated to is not necessar-
ily inconsistent with what its experts perceived. Although other rea-
sons were recited for discounting the opinions of those experts, the
imagined inconsistency played such a prominent role in the ALJ's
analysis as to undermine our confidence in the correctness of his deci-
sion. We are, of course, bound to affirm the ALJ's ruling if it is in

                    6
accordance with law, and is supported by substantial evidence. Piney
Mountain Coal Co. v. Mays, No. 97-2560, 1999 WL 274066, at *1
(4th Cir. May 5, 1999) (citations omitted). Here, though, the ALJ
interpreted and applied the law incorrectly, casting doubt on whether
substantial evidence supports the benefit award. We are therefore con-
strained to remand this matter to be considered anew.

It may be the case that, on remand, the opinions of Dr. Turner and
Dr. Forehand will again carry the day for Ms. Fuller. The law none-
theless requires that these opinions be fairly and scrupulously mea-
sured against the competing views of Clinchfield's experts.

III.

The petition for review is accordingly granted. The award of bene-
fits to Ms. Fuller is vacated, and this claim is remanded to the Bene-
fits Review Board for further proceedings consistent with this
opinion.

PETITION FOR REVIEW GRANTED;
AWARD VACATED AND CLAIM REMANDED
FOR FURTHER PROCEEDINGS

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