PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN STILTNER,
Petitioner,

v.

ISLAND CREEK COAL COMPANY;
                                                                   No. 95-1192
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(93-0461-BLA)

Argued: March 8, 1996

Decided: June 7, 1996

Before HAMILTON and WILLIAMS, Circuit Judges, and
WILLIAMS, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Williams wrote the majority
opinion, in which Judge Hamilton joined. Senior Judge Williams
wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Lawrence Lee Moise, III, VINYARD & MOISE, P.C.,
Abingdon, Virginia, for Petitioner. Douglas Allan Smoot, JACKSON
& KELLY, Charleston, West Virginia, for Respondents.
OPINION

WILLIAMS, Circuit Judge:

In this appeal, we must decide whether substantial evidence sup-
ports the Administrative Law Judge's (ALJ) conclusion that the sole
cause of John E. Stiltner's total disability was his history of cigarette
smoking. Because we find substantial evidence does support the
ALJ's decision to deny benefits under the Black Lung Benefits Act
(the Act), 30 U.S.C.A. §§ 901-45 (West 1986 & Supp. 1995), we
affirm.

I.

Now seventy-seven years old, Stiltner worked as an underground
coal miner for approximately forty years until 1979. During his last
ten years as a miner, he worked for Island Creek Coal Company
(Island Creek). Concurrent with his coal mine employment, Stiltner
smoked one-half to one pack of cigarettes a day for thirty-seven years
until 1980, excluding a seven-year hiatus between the ages of thirty-
four and forty-one. About one year before he stopped working, Stilt-
ner began to experience shortness of breath, which made walking and
working difficult for him.

Stiltner filed a claim for benefits under the Act in 1979. Since then,
his case has developed a lengthy record and concomitant procedural
history. After conducting an exhaustive review of the extensive
record, the ALJ denied benefits, concluding in a detailed, twenty-page
decision that the sole cause of Stiltner's disability was his history of
cigarette smoking. Affirming, the BRB found substantial supporting
evidence in five medical reports submitted by Island Creek that rule
out Stiltner's coal mine employment as a contributing factor to his
disability. Stiltner now appeals, claiming that those medical reports
are flawed for various reasons, undermining their credibility as a mat-
ter of law. After carefully reviewing the pertinent regulations and the
record, we find that the ALJ's denial of benefits is in accordance with
law and supported by substantial evidence.

II.

A miner is entitled to disability benefits under the Act "if (a) he or
she is totally disabled, (b) the disability was caused, at least in part,

                     2
by pneumoconiosis, and (c) the disability arose out of coal mine
employment." Mullins Coal Co. v. Director, OWCP, 484 U.S. 135,
141 (1987). Under 20 C.F.R. § 727.203(a)(2) (1995), a miner is enti-
tled to a presumption that all three conditions are present if he "en-
gaged in coal mine employment for at least 10 years . . . [and] if . . .
[v]entilatory studies establish the presence of a chronic respiratory or
pulmonary disease . . . as demonstrated by values which are equal to
[those shown in the chart]." If he qualifies for this interim presump-
tion, the miner will be presumed to be totally disabled due to pneumo-
coniosis.

Under § 727.203(b)(3), however, the presumption is rebutted 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."
This rebuttal provision requires the employer to rule out any causal
relationship between the miner's disability and his coal mine employ-
ment by a preponderance of the evidence, a standard we call the
Massey rebuttal standard. See Bethlehem Mines Corp. v. Massey, 736
F.2d 120, 123 (4th Cir. 1984). Importantly, § 727.203(b)(3) does not
require the employer to controvert the evidence that the miner suffers
from pneumoconiosis or that he is totally disabled. Even if those con-
ditions exist, the miner is not entitled to benefits if there is no causal
relationship between the miner's total disability and his coal mine
employment.

The ALJ found that Stiltner qualified for the interim presumption
of total disability due to pneumoconiosis under§ 727.203(a)(2). Sup-
porting the interim presumption, the ALJ found as a fact that Stilt-
ner's pulmonary function studies (PFS) established that he had a
chronic respiratory or pulmonary disease, a finding which Island
Creek did not contest. After reviewing a vast amount of conflicting
medical evidence, however, the ALJ ultimately concluded that the
sole cause of Stiltner's disability was his history of cigarette smoking.
The ALJ therefore ruled that Island Creek had successfully rebutted
the interim presumption that pneumoconiosis caused Stiltner's dis-
ability.

In concluding that Island Creek's evidence ruled out a causal rela-
tionship between Stiltner's disability and coal mine employment, the
ALJ was persuaded primarily by the medical opinions of Drs. Renn

                     3
and Fino. Both physicians are board-certified in internal medicine and
in the subspecialty of pulmonary disease. Consistent with the factual
findings underlying the interim presumption, Drs. Renn and Fino, like
the other three doctors whose opinions Stiltner questions here, agreed
that Stiltner suffered from a chronic obstructive lung disease resulting
in Stiltner's disability. The physicians each concluded that Stiltner's
chronic obstructive impairment was due to cigarette smoking rather
than coal dust exposure.

Stiltner now claims that these medical opinions are not credible as
a matter of law and thus cannot constitute substantial evidence sup-
porting the denial of benefits. Independently reviewing the record as
in the place of the BRB, see Toler v. Eastern Associated Coal Co.,
43 F.3d 109, 114 (4th Cir. 1995), we conclude that the ALJ's findings
are supported by substantial evidence and are in accordance with law,
see Jewell Smokeless Coal Corp. v. Street, 42 F.3d 241, 243 (4th Cir.
1994). We shall assess in turn each of Stiltner's challenges to the five
medical opinions.

A.

Stiltner first argues that Dr. Renn's opinion must be discredited
because he incorrectly assumed that Stiltner had never exhibited
crackles, an indication of a restrictive ventilatory defect unrelated to
smoking and characteristic of pneumoconiosis. Stiltner notes that
three other physicians, Drs. Robinette, Abernathy, and Sargent,
recorded the presence of crackles. We note first that, despite their
observance of crackles, Drs. Abernathy and Sargent did not report a
restrictive impairment, only an obstructive one, which they opined did
not arise from Stiltner's coal mine employment. In addition, Dr. Renn
based his conclusion that Stiltner's disability was due solely to
smoking-induced obstruction on much more than just the absence of
crackles. He examined Stiltner's medical history, PFS, blood gas
tests, and x-ray readings performed by other physicians and diagnosed
chronic bronchitis with no restriction.

Dr. Renn's belief that Stiltner had never displayed crackles may
have been incorrect, but it did not diminish the reliability of his ulti-
mate conclusion.1 This is not a case where the medical opinion found-
_________________________________________________________________
1 Dr. Renn's initial medical report in 1987, which also opined that
exposure to coal mine dust did not contribute to Stiltner's chronic bron-

                    4
ers because of an erroneous assumption that contradicts the factual
findings underlying the interim presumption.2 To the contrary, Dr.
Renn's opinion identifies the chronic respiratory disease supporting
the interim presumption under § 727.203(a)(2) in this case.3 More-
over, Dr. Renn did not assume facts in conflict with the Black Lung
Benefits Act, which also would have cast doubt on his opinion.4

Stiltner generally contends that most of Island Creek's experts the-
orize that "coal dust exposure does not give rise to an obstructive
impairment." (Appellant's Br. at 29.) While we have rejected as inim-
_________________________________________________________________

chitis, in fact noted that three physicians previously had "auscultated bas-
ilar crackles" in Stiltner. (J.A. at 583.) The ALJ, however, relied on Dr.
Renn's testimony in a deposition taken four years later in which he stated
that Stiltner's records did not reveal "physical findings which are some-
times associated with coal workers' pneumoconiosis" such as crackles.
(J.A. at 567.)

2 See Curry v. Beatrice Pocahontas Coal Co., 67 F.3d 517, 521 (4th
Cir. 1995) (discounting physicians' opinions because they assumed the
miner did not have pneumoconiosis when in fact ALJ invoked interim
presumption based on x-ray evidence of pneumoconiosis under
§ 727.203(a)(1)); Grigg v. Director, OWCP , 28 F.3d 416, 419 (4th Cir.
1994) (same).

3 Cf. Dehue Coal Co. v. Ballard , 65 F.3d 1189, 1194 (4th Cir. 1995)
(holding physicians' opinions were probative because they were consis-
tent with ALJ's findings that the miner suffered from simple pneumoco-
niosis and was totally disabled; they simply ruled out any causal
relationship between the miner's disability and pneumoconiosis); Hobbs
v. Clinchfield Coal Co., 45 F.3d 819, 821-22 (4th Cir. 1995) (noting that
physicians' opinions were consistent with the ALJ's conclusion that
miner suffered from legal pneumoconiosis because physicians agreed
that miner exhibited respiratory impairment due to coal dust inhalation;
they concluded however that pneumoconiosis was not a contributing
cause of the miner's total disability).

4 See Warth v. Southern Ohio Coal Co., 60 F.3d 173, 174-75 (4th Cir.
1995) (holding that physicians' opinions were undermined by an errone-
ous assumption that coal mine employment cannot cause obstructive
lung disorders); Thorn v. Itmann Coal Co., 3 F.3d 713, 719 (4th Cir.
1993) (questioning conclusions of physician who erroneously assumed
that simple pneumoconiosis cannot cause total disability).

                    5
ical to the Act the premise that "obstructive disorders cannot be
caused by coal-mine employment," Warth v. Southern Ohio Coal Co.,
60 F.3d 173, 174 (4th Cir. 1995), the medical opinions challenged
here made no such claim. In Warth, we held that chronic obstructive
pulmonary disease (COPD) falls within the regulatory definition of
pneumoconiosis if the COPD is significantly related to or aggravated
by coal mine employment. Id. at 175. We therefore cautioned ALJs
not to rely on medical opinions that rule out coal mine employment
as a causal factor based on the erroneous assumption that pneumoco-
niosis causes a purely restrictive form of impairment, thereby elimi-
nating the possibility that coal dust exposure also can cause COPD.

Unlike the medical opinions we examined in Warth , none of the
challenged physicians here assumed that coal mine employment can
never cause COPD;5 they merely opined that Stiltner likely would
have exhibited a restrictive impairment in addition to COPD, if coal
dust exposure were a factor.6 Moreover, the doctors based their opin-
_________________________________________________________________
5 For example, Dr. Endres-Bercher, who examined Stiltner and
reviewed his medical history, testified in deposition that chronic bronchi-
tis can have

          two possible etiologies [coal dust exposure and tobacco smoke
          exposure]. . . . If we are going to say [Stiltner] has had enough
          coal dust exposure to cause chronic bronchitis, one would expect
          to see some restrictive changes take place, because coal dust
          exposure results in a restrictive lung disease and in interstitial
          lung problem. And he doesn't demonstrate that. He has no dimi-
          nution of lung volumes.

(J.A. at 459.) (emphasis added). In addition, Dr. Sargent observed in his
report that coal workers' pneumoconiosis, "causes a mixed obstructive
and restrictive ventilatory impairment, which is not the type of impair-
ment that Stiltner is suffering from. Cigarette smoking causes a pure
obstructive ventilatory impairment, which is the type of impairment Mr.
Stiltner is showing." (J.A. at 618.)
6 The dissent misreads these physicians' findings, stating that they "as-
sume that unless some restrictive impairment is present, the miner's lung
disease is not related to his coal mine employment." (Dissenting op. at
13 (emphasis added).) Only this characterization of the record could pro-
duce the sort of error in the medical reports that the dissent searches in
vain to find in order to grant black lung benefits to Stiltner.

                    6
ions not only on the absence of a restrictive impairment, but also on
their review of Stiltner's entire medical history, 7 including his PFS,
blood gas tests, and x-ray readings.8 In view of these thorough and
amply supported medical opinions, we cannot conclude that the ALJ's
finding of a (b)(3) rebuttal was not well reasoned.

Contrary to the dissent's concern that our holding in effect over-
rules Warth, we conclude that Warth does not preclude consideration
of opinions such as Dr. Renn's that are based on a thorough review
of all of the medical evidence, rather than an assumption that
_________________________________________________________________
7 That history includes more than thirty years of smoking at least one-
half to one pack of cigarettes a day, a history the ALJ described as a "sig-
nificant cigarette smoking exposure," (J.A. at 25), but which the dissent
characterizes as Stiltner's "sporadic light use of tobacco." (Dissenting op.
at 12, n.1).
8 For example, Dr. Fino explained in his report that the reversibility of
Stiltner's disease weighed against a finding that coal mine employment
caused it:

          Coal workers' pneumoconiosis is a disease which causes fixed
          fibrosis in the lungs. This fixed fibrosis does not improve with
          medications. Therefore, if [Stiltner's] lung disease was revers-
          ible, then it would be reasonable to conclude that it has nothing
          to do with coal workers' pneumoconiosis. Although[Stiltner]
          did have a significant exposure to coal dust based on the history
          in the medical file, he also was a very heavy cigarette smoker.
          If indeed [he] had obstructive lung disease that was reversible,
          then the obvious etiology would be cigarette smoking. There is
          no other evidence to support a diagnosis of coal workers' pneu-
          moconiosis. Specifically the numerous B readings on the chest
          x-rays were negative. Also, [Stiltner's] lung disease regardless of
          its etiology is minimal at best considering the fact that he has
          essentially normal pulmonary functions, and his arterial blood
          gases with rest and exercise do not show significant hypoxemia,
          arterial desaturation with exercise, nor a significant impairment
          in oxygen transfer with exercise.

(J.A. at 976.)



                    7
contravenes the Act and regulations.9 The dissent would "disregard
the opinions of Island Creek's physicians" and grant black lung bene-
fit. (Dissenting op. at 15.) This disposition would ignore the vast body
of medical evidence ruling out coal mine employment as a factor, and
it can be explained only by sympathy for an aging former miner who
has pressed his claim over many years. The evidence compels us to
conclude, however, that the ALJ did not err in crediting the conclu-
sion of Dr. Renn and others that coal mine employment neither
caused nor aggravated Stiltner's purely obstructive lung disease;
therefore we find that Dr. Renn's opinion constitutes substantial evi-
dence ruling out causation under the Massey rebuttal standard.

B.

For similar reasons, Dr. Fino's opinion also survives Stiltner's
challenge. Stiltner claims that Dr. Fino's opinion is not credible
because he believed that Stiltner was free of cough with mucus pro-
duction for two years after he left the coal mines. In fact, Stiltner con-
tends, three physicians recorded that he complained of a cough
beginning three to four years before he stopped working.10 However,
Dr. Fino did not base his opinion solely on the absence of a history
_________________________________________________________________
9 In addition to Warth, the dissent relies on dicta appearing in a foot-
note of Eagle v. Armco, Inc., 943 F.2d 509, 511 n.2 (4th Cir. 1991), to
support its conclusion that the instant medical reports contravene the Act
and regulations. (Dissenting op. at 12.) In Eagle, we cited a provision of
the Act that defines pneumoconiosis as "a chronic dust disease of the
lung and its sequelae, including respiratory and pulmonary impairments,
arising out of coal mine employment." Id. (citing 30 U.S.C. § 902(b)).
Based on this language, we commented that a physician's opinion that
non-smoking miners "show no evidence of obstruction from coal mine
employment" was bizarre. Id. This comment was dicta because it was not
essential to the holdings in Eagle regarding the nature of the miner's
work and a physician's familiarity with the miner's duties. Id. at 511-12.
While this dicta in Eagle may "underpin[ ] the holding of the Court in
Warth," (Dissenting op. at 13, n.2), Warth did not instill "full preceden-
tial value," id., in the comment in Eagle. Not only does the comment
therefore remain dicta, but it does not bear on our holding today.
10 Notably, of the three physicians, Dr. Abernathy alone indicated that
Stiltner complained of a productive cough, and Dr. Abernathy concluded
that Stiltner did not suffer from coal worker's pneumoconiosis.

                    8
of coughing. Like Dr. Renn, Dr. Fino reviewed Stiltner's medical
records, PFS, blood gas tests, and x-rays, recognized the presence of
a mild obstructive ventilatory abnormality, and concluded that it was
absolutely unrelated to Stiltner's coal mine employment.

Stiltner does not explain why evidence concerning his history of
coughing necessarily should have altered Dr. Fino's medical opinion.
Moreover, Stiltner has not expressed any other reason to discredit Dr.
Fino's opinion. Like the alleged factual flaw in Dr. Renn's report, Dr.
Fino's error, if any, regarding Stiltner's cough history does not reflect
the sort of unacceptable factual assumption that would compel rejec-
tion of his ultimate conclusion. Cf. Curry, 67 F.3d at 521; Warth, 60
F.3d at 174-75. In any event, the ALJ in fact considered Stiltner's
cough evidence, and he nevertheless credited the views of Drs. Renn
and Fino that coal dust exposure did not lead to Stiltner's impairment.
We defer to the ALJ's evaluation of the proper weight to accord con-
flicting medical opinions. See Doss v. Director, OWCP, 53 F.3d 654,
658 (4th Cir. 1995). Because the medical opinions of Drs. Renn and
Fino were not unworthy of the weight the ALJ ascribed to them, and
both attribute Stiltner's disability entirely to his smoking history, we
conclude that substantial evidence supports the finding that Stiltner's
total disability did not arise in whole or in part out of his coal mine
employment.

C.

Stiltner also challenges the credibility of several other physicians'
opinions to which the ALJ alluded in his decision and on which the
BRB relied in affirming the denial of benefits. Like Drs. Renn and
Fino, Drs. Endres-Bercher, Abernathy, and Sargent, all examining
physicians who are board-certified in internal medicine, concluded
that Stiltner's impairment was unrelated to his coal mine employment.
Stiltner contends the opinions of Drs. Endres-Bercher, Abernathy, and
Sargent are flawed and thus cannot constitute substantial evidence
supporting a determination that Island Creek satisfied the Massey
rebuttal standard as a matter of law.

Stiltner claims first that Dr. Endres-Bercher's opinion was equivo-
cal on the issue of whether coal mine employment caused Stiltner's
disability. On the contrary, Dr. Endres-Bercher's conclusion was

                     9
firm; he found that Stiltner suffered from early small airways disease
and chronic bronchitis resulting from tobacco smoke exposure. He
also rejected any hint of a restrictive disease process, strongly sug-
gesting that Stiltner's smoking-induced bronchitis was solely respon-
sible for his disability. The opinion of Dr. Endres-Bercher thus
constitutes probative evidence supporting Island Creek's rebuttal of
the interim presumption.

D.

Next, Stiltner contends that Dr. Abernathy failed to state an opinion
about the cause of Stiltner's disability. The record, however, reflects
Dr. Abernathy's clear conclusion that coronary artery disease alone
caused Stiltner's disability. Like Drs. Endres-Bercher and Sargent,
Dr. Abernathy examined Stiltner, conducted PFS and blood gas test-
ing, and diagnosed him with chronic bronchitis. Dr. Abernathy noted
a history of productive cough and the presence of crackles, but did not
report a restrictive disease process. Concluding that Stiltner's disabil-
ity was due to coronary artery disease, Dr. Abernathy indeed stated
his opinion that coal mine employment was not a contributing factor
to Stiltner's disability.

E.

Lastly, Stiltner contends that Dr. Sargent premised his conclusions
on the erroneous belief that pneumoconiosis is disabling only if x-rays
are positive for pneumoconiosis. Cf. Thorn v. Itmann Coal Co., 3 F.3d
713, 719 (4th Cir. 1993) (questioning the probative value of the opin-
ion of a physician whose "stated credo is that simple pneumoconiosis
does not `as a rule' cause total disability"). The record, however,
shows that Dr. Sargent considered not only the negative x-rays, but
also Stiltner's PFS and his own physical examination of Stiltner in
concluding that he suffered from a mild obstructive ventilatory
impairment, but not a restrictive impairment. Like Dr. Abernathy, Dr.
Sargent detected crackles but found no other indication of a restrictive
impairment. While acknowledging that a combination obstructive and
restrictive impairment may result from coal dust inhalation, Dr. Sar-
gent opined that Stiltner's disability was due entirely to a smoking-
induced obstructive defect, a finding consistent with those of at least
four other physicians.

                    10
III.

In conclusion, there were no defects in the opinions of Drs. Renn,
Fino, Endres-Bercher, Abernathy, and Sargent that required the ALJ
to discount their credibility. While Stiltner produced numerous medi-
cal opinions in support of his claim for benefits, the ALJ resolved the
questions raised by the conflicting medical evidence about the cause
of Stiltner's obstructive disorder in Island Creek's favor, a conclusion
that we must oblige so long as substantial evidence supports it. See
Hobbs v. Clinchfield Coal Co., 45 F.3d 819, 820 (4th Cir. 1995).
Indeed, the five opinions challenged here constitute substantial evi-
dence in support of the denial of benefits because they rule out coal
mine employment as a contributing factor to Stiltner's total disability
under § 727.203(b)(3).11 Island Creek thus met its ultimate burden of
proving that Stiltner's coal mine employment did not contribute to his
disability. See Mullins Coal Co., 484 U.S. at 141. Having concluded
that the ALJ did not err as a matter of law in crediting the opinions
of doctors who diagnosed an obstructive lung disease but attributed
it solely to Stiltner's lengthy history of cigarette smoking, we affirm
the denial of benefits.

AFFIRMED

WILLIAMS, Senior District Judge, dissenting:

I respectfully dissent from the majority's decision affirming the
finding by the Benefits Review Board that John Stiltner is not entitled
to benefits under the Black Lung Benefits Act (the"Act"), 30 U.S.C.
§§ 901-945. While I do not believe in any event that substantial evi-
dence supports the finding of the Benefits Review Board that Island
Creek Coal Company rebutted under 20 C.F.R. § 727.203(b)(3) the
presumption under 20 C.F.R. § 727.203(a)(2) that Stiltner is entitled
_________________________________________________________________
11 Because this is so, we shall not address Stiltner's remaining chal-
lenges to the opinions of other physicians on grounds similar to those
explained above. Nor shall we consider his argument, not addressed by
the BRB, that the ALJ erred in his alternative holding that Island Creek
also rebutted the interim presumption under another provision of the
same regulation, 20 C.F.R. § 727.203(b)(4) (1995).

                    11
to benefits,1 I write to address a more serious flaw in the majority's
opinion: it so narrowly construes Warth v. Southern Ohio Coal Co.,
60 F.3d 173 (4th Cir. 1995), as to in effect overrule it.

In Warth, the examining physician "based his opinion that Warth
does not suffer from pneumoconiosis on the assumption that obstruc-
tive disorders cannot be caused by coal-mine employment." Id. at
174. This Court held that such an assumption was erroneous under the
Act. The Act defines pneumoconiosis as "a chronic dust disease of the
lung and its sequelae, including respiratory and pulmonary impair-
ments, arising out of coal mine employment." 30 U.S.C. § 902(b);
accord 20 C.F.R. § 718.201 ("For purposes of the Act,
pneumoconiosis means a chronic dust disease of the lung and its
sequelae . . . 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." (Italics in origi-
nal)). "Chronic obstructive lung disease thus is encompassed within
the definition of pneumoconiosis for purposes of entitlement to Black
Lung benefits." Warth, 60 F.3d at 175. Consequently, any opinion to
the effect that chronic obstructive lung disease cannot be caused by
breathing coal mine dust "must be considered bizarre in view of a
[sic] Congress' explicit finding to the contrary." Eagle v. Armco, Inc.,
943 F.2d 509, 511 n.2 (4th Cir. 1991).2
_________________________________________________________________
1 In particular, the majority opinion virtually ignores Stiltner's forty
years of continuous work in the coal mines, preferring to focus on his
sporadic light use of tobacco.

2 The majority opinion attacks this dissent's reliance upon footnote 2
of Eagle on the grounds that the footnote constitutes dicta. See Majority
op. at 8 n.9. Dicta are "[e]xpressions in court's opinion which go beyond
the facts before court and therefore are individual views of author of
opinion and not binding in subsequent cases as legal precedent." Black's
Law Dictionary 454 (6th ed. 1990). Footnote 2 of Eagle does not go
beyond the facts of the case; on the contrary, it quotes the medical opin-
ion of the employer's expert and explains why its underlying assumption
is mistaken. Given that Eagle reversed the Benefits Review Boards find-
ing of a denial of benefits, one cannot definitively say that footnote 2
comprises an "[o]pinion[ ] of a judge which do[es] not embody the reso-

                    12
In the instant case, Stiltner argues that Island Creek's physicians
have operated under this "bizarre" assumption. The majority insists
that "the medical opinions challenged here made no such claim."
Majority op. at 6. Yet the majority opinion itself shows otherwise. In
discussing the medical opinions in the record, the majority writes that
Island Creek's doctors "opined that Stiltner likely would have exhib-
ited a restrictive impairment in addition to [chronic obstructive pul-
monary disease], if coal dust exposure were a factor." Majority op. at
6. In other words, these opinions assume that unless some restrictive
impairment is present, the miner's lung disease is not related to his
coal mine employment.

Warth precludes exactly this assumption. The majority reads Warth
as merely stating that the presence of an obstructive pulmonary
impairment does not foreclose coal mine employment as a causal fac-
tor in the miner's lung disease. Under the majority's interpretation of
Warth, the only opinions that may not be considered are those which
assume that "pneumoconiosis causes a purely restrictive form of
impairment." Majority op. at 6. This reading of Warth is overly nar-
row, and at odds with its clear import. As noted above, the statutory
_________________________________________________________________
lution or determination of the specific case before the court." Id. Conse-
quently, footnote 2 of Eagle does not embody dicta.

Even if footnote 2 of Eagle were dicta at the time it was written, it now
underpins the holding of the Court in Warth. Eagle was the only case
cited by the Court in Warth in holding that the assumption that coal mine
employment cannot cause chronic obstructive pulmonary disease under-
lying the physicians' opinions in that case was"erroneous." Warth, 60
F.3d at 175. And as that holding constitutes the central (and only) propo-
sition for which Warth stands, footnote 2 of Eagle is now unquestionably
the law of this circuit and has full precedential value.

Finally, the majority opinion asserts that footnote 2 of Eagle "does not
bear on our holding today." Majority op. at 8 n.9. If one follows the rea-
soning of the majority that Warth has no meaning at all, that statement
is true. If, on the other hand, as this dissent argues, Warth stands for the
proposition that the absence of an accompanying restrictive impairment
with chronic obstructive pulmonary disease does not rebut the presump-
tion that the miner has pneumoconiosis, then footnote 2 of Eagle does
not merely bear on the holding today: it is dispositive.

                     13
language and the accompanying regulations both define pneumoconi-
osis to include all pulmonary impairments, restrictive or otherwise.
Requiring a restrictive impairment to be present in order to find the
existence of pneumoconiosis runs counter to the broad definition of
pneumoconiosis enacted by Congress. Allowing consideration of
opinions which assume that a restrictive impairment is always present
in pneumoconiosis makes the inclusion of obstructive pulmonary
impairments within the scope of the statutory definition mere surplus-
age, in violation of the canon of statutory construction that "`all words
and provisions of statutes are intended to have meaning and are to be
given effect.'" West Virginia Div. of the Izaak Walton League of
America v. Butz, 522 F.2d 945, 948 (4th Cir. 1975) (quoting
Wilderness Soc'y v. Morton, 479 F.2d 842, 846 (D.C. Cir. 1973), cert.
denied, 411 U.S. 917 (1973)); accord Virginia v. Browner, 1996 WL
138507 (4th Cir. Mar. 26, 1996), at *5 ("A court should not -- and
we will not -- construe a statute in a manner that reduces some of its
terms to mere surplusage."); George Hyman Constr. Co. v. Occupa-
tional Safety and Health Review Commn, 582 F.2d 834, 841 (4th Cir.
1978) ("traditional axiom that courts should not interpret statutes in
a manner that renders terms of the statute superfluous").

The only interpretation of the statute which gives full effect to the
broad scope of its definition of pneumoconiosis, and the interpretation
adopted by this Court in Warth, is that medical opinions which
require some additional pulmonary impairment to be present in addi-
tion to chronic obstructive pulmonary disease in order for the COPD
to be related to coal mine employment must be disregarded as con-
trary to statutory intent. Congress has found that obstructive pulmo-
nary disease can be caused by coal mine employment and written the
statute accordingly. See Eagle at 511 n.2. Our job is to interpret and
enforce that statute, not to determine whether it comports with the lat-
est medical knowledge. Put another way, as a Court we are obliged
to follow the legal, not the medical, definition of pneumoconiosis.

This dissent does not require a physician to view the presence of
chronic obstructive pulmonary disease as an absolute indicator that
coal mine employment caused the miners disability. Following Warth,
all this dissent says is that the mere fact that the coal miners pulmo-
nary impairment is obstructive in nature is not a sufficient basis for
a physician to conclude that it is unrelated to his coal mine employ-

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ment. Under this interpretation of Warth, the employer may still rebut
the presumption of entitlement to benefits by showing that the miner's
lung disease is from a source other than his work in a coal mine, i.e.,
from cigarette smoking. All the employer may not do is use the
obstructive nature of the pulmonary impairment to so rebut. And that
is because Congress, in defining pneumoconiosis, included obstruc-
tive pulmonary impairments.

This case squarely puts the question. Does Warth merely stand for
the proposition that the presence of an obstructive pulmonary impair-
ment does not rule out pneumoconiosis? Or does Warth stand for the
proposition that the presence of an obstructive pulmonary impairment
by itself, without the concurrent presence of another type of pulmo-
nary impairment, does not rule out pneumoconiosis? The majority
adopts the former interpretation, ignoring the broad statutory defini-
tion of pneumoconiosis and so limiting Warth as to in effect overrule
it. Cf. Norfolk & Western Ry. v. Director, OWCP , 5 F.3d 777, 779
(4th Cir. 1993) (one three-judge panel may not overrule a prior pub-
lished opinion of another three-judge panel). I find that the latter
interpretation gives full effect to the express statutory language, fol-
lows the intent of Congress, and represents the clear import of Warth.

For the foregoing reasons, I would, following Warth, disregard the
opinions of Island Creek's physicians, find that the decision of the
Benefits Review Board that Island Creek has rebutted under 20
C.F.R. § 727.203(b)(3) the presumption of entitlement to benefits is
not supported by substantial evidence, and remand the case to the
Benefits Review Board for consideration of the Administrative Law
Judge's finding of rebuttal under 20 C.F.R. § 727.203(b)(4).

I dissent.3
_________________________________________________________________
3 I am also dismayed at the delay in the final adjudication of this case.
Congress set up an administrative system to evaluate black lung claims
so that they would be handled in an expeditious and inexpensive manner.
See Humphreville v. Mathews, 560 F.2d 347, 348 (8th Cir. 1977). Yet in
this case, the original claim was filed on November 8, 1979, and only
reaches final resolution (perhaps) with this opinion over sixteen years
later. Those entitled to benefits under a statutory scheme enacted by Con-
gress deserve better.

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