                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-2442



FOUR L COAL COMPANY; OLD REPUBLIC INSURANCE
COMPANY,

                                                            Petitioners,

          versus


DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR;
JACK LESTER (deceased),

                                                            Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(02-693-BLA)


Argued:   September 20, 2005                 Decided:   October 20, 2005


Before WILKINSON and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Petition denied by unpublished per curiam opinion.


ARGUED: Mark Elliott Solomons, GREENBERG TRAURIG, L.L.P.,
Washington, D.C., for Petitioners.     Sarah Marie Hurley, UNITED
STATES DEPARTMENT OF LABOR, Office of the Solicitor, Washington,
D.C., for Respondents. ON BRIEF: Laura Metcoff Klaus, GREENBERG
TRAURIG, L.L.P., Washington, D.C., for Petitioners.      Howard M.
Radzely, Solicitor of Labor, Donald S. Shire, Associate Solicitor,
Christian P. Barber, Counsel for Appellate Litigation, UNITED
STATES DEPARTMENT OF LABOR, Office of the Solicitor, Washington,
D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                             - 2 -
PER CURIAM:

           Four L Coal Company and its insurer, Old Republic Insurance

Company, petition for review of the final decision and order of the

Benefits Review Board (the Board) directing them to pay medical

benefits on behalf of Jack Lester to the Black Lung Disability

Trust Fund (the Trust Fund).1             For reasons that follow, the

petition is denied.



                                      I

        Lester worked approximately twenty-eight years in the coal

mines, spending approximately twenty-seven of them underground. He

ended his mining career with Four L in 1976 at the age of fifty.2

       Lester filed a claim for black lung benefits on March 10,

1980.      After almost sixteen years of litigation, an award of black

lung benefits in his favor became final on March 26, 1996, when

Four       L   elected   not   to   appeal   the   Board’s   final   award

determination.3

       Following the Board’s March 26, 1996 decision, the Department

of Labor (the DOL) asked Four L to reimburse the Trust Fund the sum



       1
      We will refer to Four L Coal Company and Old Republic
Insurance Company collectively as Four L.
       2
        Lester is now deceased.
       3
      The final award determination was based on, inter alia, x-ray
and   medical   opinion   evidence  evincing   the   existence   of
pneumoconiosis.

                                    - 3 -
of $14,103.09 for Lester’s medical treatment expenses paid by the

Trust Fund.    The DOL later reduced this request to $7,407.97.    Four

L declined to reimburse the Trust Fund, so the dispute went before

an ALJ, who issued a decision and order directing Four L to

reimburse the Trust Fund in the amount of $7,407.97.

     On appeal, the Board affirmed the ALJ’s finding that Lester

was entitled to the presumption that the conditions for which he

sought treatment were caused or aggravated by his pneumoconiosis,

see Doris Coal Co. v. DOWCP, 938 F.2d 492 (4th Cir. 1991), but

vacated the award of benefits and remanded the case. Specifically,

the Board directed the ALJ to reconsider the medical reports of Dr.

Gregory Fino and Dr. Michael Sherman, the only two doctors who

reviewed   the    medical   opinion   evidence   in   terms   of    the

compensability of the contested medical treatment expenses.         In

light of its remand, the Board further instructed the ALJ to

determine whether the medical reports of Drs. Robert Baxter,

Bradley Berry, and Vinod Modi were credible in light of their fraud

convictions.

     On remand, the ALJ reexamined the record, observed that Four

L failed to rebut the Doris Coal presumption, and concluded that

the DOL met its evidentiary burden through the medical opinion

evidence provided by Dr. Sherman.     Accordingly, Four L once again

was directed to reimburse the Trust Fund.     Four L appealed to the

Board, and on May 30, 2003, the Board affirmed the ALJ’s decision.


                                - 4 -
Four L moved for reconsideration, which the Board summarily denied.

Four L then timely petitioned this court for review.



                                          II

                                           A

         Our review of the Board’s order is limited.                   We review the

Board’s decision to assess whether substantial evidence supports

the factual findings of the ALJ and whether the legal conclusions

of   the    Board    and   the    ALJ    are   rational     and   consistent     with

applicable law.        Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528

(4th Cir. 1998).       Substantial evidence “is such relevant evidence

as   a    reasonable    mind     might   accept      as   adequate     to   support    a

conclusion.”        Bill Branch Coal Corp. v. Sparks, 213 F.3d 186, 190

(4th Cir. 2000) (citation and internal quotation marks omitted).

         A miner is entitled to medical benefits to pay the cost of

medical treatment incurred as a result of his pneumoconiosis.                         20

C.F.R. § 725.701(a). The medical benefits encompass “such medical,

surgical, and other attendance and treatment, nursing and hospital

services, medicine and apparatus, and any other medical service or

supply,      for    such   periods       as    the    nature      of    the   miner’s

pneumoconiosis and disability requires.”                  Id. § 725.701(b).

         Through Doris Coal and its progeny, this court has clarified

the process by which a miner whose lung disease has been adjudged

to be totally disabling may sustain a claim for medical benefits.


                                         - 5 -
In order to demonstrate his eligibility, the miner must show that

the mine operator was responsible for his pneumoconiosis and that

the particular medical expenses for which he seeks reimbursement

were necessary to treat his disabling condition.                Doris Coal, 938

F.2d    at   495.      An    expense     is    deemed   necessary     to        treat

pneumoconiosis if the treatment “relates to any pulmonary condition

resulting      from   or    substantially      aggravated      by   the    miner’s

pneumoconiosis.”      Id. at 496.      In establishing this framework, we

presume that “most pulmonary disorders are going to be related or

at least aggravated by the presence of pneumoconiosis.”                   Id.    As a

result, “when a miner receives treatment for a pulmonary disorder,

a presumption arises that the disorder was caused or at least

aggravated by the miner’s pneumoconiosis.”              Id. at 496-97.

       Thus, the Doris Coal presumption permits a miner to satisfy

his initial burden of production regarding his eligibility for

medical benefits by presenting his underlying award of black lung

benefits, which specifies the conditions and symptoms that were

found to be disabling and the expenses he claims are related to

those conditions and symptoms.          Id. at 496.     The mine operator may

then   rebut    the   presumption   of    relatedness     by   showing      that    a

particular expense is actually: (1) “for a pulmonary disorder apart

from those previously associated with the miner’s disability”; (2)

“beyond that necessary to effectively treat a covered disorder”; or

(3) “not for a pulmonary disorder at all.”              Gulf & Western Indus.


                                       - 6 -
v. Ling, 176 F.3d 226, 231, 233 (4th Cir. 1999).                 Throughout the

process, however, the burden of persuasion as to relatedness

remains with the miner.       Lewis Coal Co. v. DOWCP, 373 F.3d 570,

575 (4th Cir. 2004).



                                        B

     In this case, the record contains evidence that three of

Lester’s treating physicians, Drs. Baxter, Berry, and Modi, were

convicted of “fraudulent billing practices.”                (J.A. 15a).     Each of

these physicians opined, during their treatment of Lester, that

Lester    suffered    from,     among       other     things,    coal      workers’

pneumoconiosis.

     The record also reflects that Dr. Dale Sargent saw Lester five

times between October 1994 and June 1996.                 Dr. Sargent found that

Lester suffered from mild to moderate obstructive lung disease due

to previous cigarette smoking and possibly due to asthma.                       Dr.

Sargent also observed that Lester’s respiratory symptoms may have

been related to left ventricular function and congestive heart

failure, not to any “obtained airways disease.”                 (J.A. 308).     Dr.

Sargent did note, however, that Lester had “some airways disease.”

(J.A. 308).   He further observed that Lester’s pulmonary function

tests showed moderate obstruction.

     Dr. Sherman reviewed Lester’s medical records, the contested

medical   treatment    bills,    and    Four        L’s    reasons   for    denying


                                   - 7 -
responsibility for the payment of those bills. Based on Lester’s

coal mine employment history of twenty-eight years, his respiratory

symptoms, his pulmonary function test results showing moderate

obstructive       lung    disease,     his    chest      x-ray    consistent        with

pneumoconiosis, and his blood gas study results revealing a widened

arterial-alveolar         oxygen       gradient,       Dr.      Sherman     diagnosed

“obstructive chronic bronchitis (a form of chronic obstructive lung

disease or COPD), which is a known pulmonary complication of

exposure to coal dust, and therefore meets the legal criteria for

coal workers’ pneumoconiosis (CWP).”                  (J.A. 107).4        Dr. Sherman

also acknowledged that Lester suffered from other medical problems

including diabetes mellitus and coronary artery disease.                              He

reasoned that medications, office visits, and diagnostic tests

prescribed for COPD were reimbursable, “as were antibiotics when

they were clearly given for COPD flares.”                 (J.A. 107).       According

to    Dr.   Sherman,     the   Trust   Fund     was    entitled    to     receive    the

$7,407.97 it requested from Four L.

       Dr. Gregory Fino also reviewed Lester’s medical records and

the    disputed     medical     bills.        He      assumed    that     Lester    had

pneumoconiosis, which he defined as including all diseases caused

or aggravated by the inhalation of coal dust.                           In his view,



       4
      COPD is an acronym for chronic obstructive pulmonary disease,
which includes asthma, chronic bronchitis, certain types of
emphysema, and other conditions. Glen Coal Company v. Seals, 147
F.3d 502, 509 n.6 (6th Cir. 1998).

                                        - 8 -
however, none of Lester’s pulmonary function studies revealed an

obstruction.      Dr. Fino acknowledged Dr. Sargent’s 1994 diagnosis

of mild to moderate obstructive lung disease “due to previous

cigarette smoking and possible asthma,” but Dr. Fino observed that

“clinical     obstructive   lung     disease        requiring    treatment     with

bronchodilators was clearly not present in the 1980s when this

man’s lung function was normal.”              (J.A. 80).        According to Dr.

Fino, Lester developed chronic obstructive pulmonary disease with

bronchospasm     long     after     he       left    coal   mine        employment.

Consequently, Dr. Fino found that Lester’s pulmonary disease could

not be attributable to coal dust inhalation.                Rather, he opined

that Lester must have developed asthma.



                                         C

      In his decision, the ALJ concluded that Four L failed to rebut

the Doris Coal presumption and that the DOL carried its burden of

proof.      In finding that Four L failed to rebut the Doris Coal

presumption, the ALJ found Dr. Fino’s opinion to be inadequate.

The   ALJ   discredited   Dr.     Fino’s     opinion    because    he    failed   to

indicate how Lester’s disabling pneumoconiosis manifested itself.

Moreover, the ALJ discredited Dr. Fino’s opinion because his

conclusion, that the pulmonary conditions complained of by Lester

in 1994 could not have been the result of coal dust exposure

because Lester left coal mine employment in 1976, was inconsistent


                                     - 9 -
with 20 C.F.R. § 718.201(c), which notes that pneumoconiosis is

recognized as a latent and progressive disease which may first

become detectable only after cessation of coal dust exposure.                                  In

rendering his decision, the ALJ found that the criminal convictions

of   Drs.    Baxter,       Berry,     and    Modi    did    not        necessarily      render

fraudulent the treatment they provided.                    The ALJ reasoned that, in

1994,    Dr.     Sargent        had   diagnosed      Lester       as    suffering       from    a

pulmonary impairment of undetermined etiology and that his opinion

lent credence to the diagnoses and treatment provided by the three

other physicians.

       In our view, the ALJ correctly concluded that Four L failed to

meet its evidentiary burden under the Doris Coal presumption.                                 The

ALJ understandably was troubled by the fact that, although Dr. Fino

acknowledged that Lester was totally disabled by pneumoconiosis

(the    premise       of   Lester’s      medical      benefits          award),       Dr.    Fino

identified       no      physical      manifestations         of        this     disability.

Moreover, the ALJ rightfully was troubled by Dr. Fino’s opinion

because his opinion was based in part on the flawed premise that a

miner with no apparent pulmonary impairment upon leaving the coal

mines    could     never         thereafter    develop        a        coal    dust    related

impairment.       We have consistently recognized that little weight

should      be   given     to    medical     findings      that        conflict       with   the

implementing regulations of the Black Lung Benefits Act (BLBA),

which recognize that clinically disabling pneumoconiosis is a


                                            - 10 -
“‘progressive disease.’”     Lewis Coal Co., 373 F.3d at 580 (quoting

20 C.F.R. § 718.201(c)); see also Roberts & Schaefer Co. v. DOWCP,

400 F.3d 992, 999 (7th Cir. 2005) (affirming the ALJ’s decision to

discount   the    doctor’s   opinion     because     it   conflicted    with

“§ 718.201(c)’s recognition that pneumoconiosis can be latent and

progressive”).5



                                    D

     Four L also argues that the Doris Coal presumption is no

longer good law in light of the Supreme Court’s decisions in Black

& Decker Disability Plan v. Nord, 538 U.S. 822 (2003), Ragsdale v.

Wolverine World Wide, Inc., 535 U.S. 81 (2002), and DOWCP v.

Greenwich Collieries, 512 U.S. 267 (1994).           We disagree.

     Initially, it should be noted that we have applied the Doris

Coal presumption after the Supreme Court decided Nord, Ragsdale,

and Greenwich Collieries.    See Lewis Coal Co., 373 F.3d at 576-80.

In   any   event,   an   analysis       of   these    cases   makes    their

inapplicability pellucid.

     In Nord, the Court declined to extend to ERISA benefits claims

the treating physician rule applicable in Social Security cases,

under which deference is due to the opinion of a claimant’s regular


     5
      We also note that, in finding in favor of the DOL, the ALJ
correctly placed the ultimate burden of persuasion on the DOL. In
holding that the DOL met its burden of proof, the ALJ decided to
credit Dr. Sherman’s opinion over that of Dr. Fino’s, and we
certainly cannot say that the ALJ erred in this regard.

                                - 11 -
treating physician.       538 U.S. at 831-34.               Initially, the Court

noted that no agency deference was required because the Secretary

of Labor opposed the application of the treating physician rule to

ERISA benefits claims.       Id. at 831-32.           The Court next observed

that whether a treating physician rule would increase the accuracy

of ERISA determinations was a question for the “Legislature or

superintending      administrative        agency”      because       “[i]ntelligent

resolution of the question . . . might be aided by empirical

investigation of the kind courts are ill equipped to conduct.” Id.

at 832.   Finally, the Court relied on the “critical differences”

between the Social Security disability program and ERISA benefits

plans.    Id.       The   Court    noted      that    the   former       involves   an

obligatory, nationwide program and the latter involves a company’s

voluntary establishment of an ERISA benefits plan.                       Id. at 833.

Understandably,     the    Court    stressed         the    need    to    give   plan

administrators the most flexibility possible because a claim for

ERISA benefits will likely turn on the interpretation of the terms

of the ERISA benefits plan.             Id.    In contrast, an           ALJ applies

uniform   federal    criteria      in    adjudicating        a     social   security

disability claim, so the need for flexibility was not evident. Id.

Moreover, in contrast to ERISA, the treating physician rule grew

out of the need to administer a large benefits program efficiently

and fostered “uniformity and regularity in Social Security benefits




                                    - 12 -
determinations     made       in   the    first      instance    by    a     corps   of

administrative law judges.”           Id.

     Nord is of no help to Four L.            Unlike the ERISA benefits plans

at issue in Nord, we see no need to give ALJs in the black lung

medical benefits context greater flexibility to adjudicate claims.

This certainly would not foster “uniformity and regularity” in the

administration of these claims in which a uniform set of federal

criteria is applied.          Furthermore, unlike Nord, the administrative

agency,    here   the   DOL,       supports    the    Doris     Coal       presumption.

Finally, we do not agree with Four L’s position that we are

“ill-equipped” to engage in the kind of “empirical investigation

necessary to validate” the Doris Coal presumption.                         Petitioner’s

Br. at 28.     As we noted in Ling, the threshold creating entitlement

to black lung medical “benefits--that the pulmonary condition

treated be merely aggravated by the miner’s pneumoconiosis--is low

enough    to   permit     a     rational      conclusion      that     a    particular

respiratory infirmity will likely be covered.”                  176 F.3d at 233.

     In Ragsdale, after taking thirty weeks of leave to recover

from cancer, the employee requested additional leave.                       535 U.S. at

84-85.    Her employer denied the request for an extension and fired

her after she failed to return to work.                 Id. at 85.         Because her

employer had never notified her that twelve weeks of absence would

count as her Family Medical Leave Act (FMLA) leave, the employee

subsequently sued under the FMLA, alleging that as the result of


                                         - 13 -
her employer’s failure to comply with certain DOL regulations she

was entitled to twelve weeks of FMLA leave in addition to the

thirty weeks she had already taken.                Id.   The specific provision

the employee relied on was 29 C.F.R. § 825.700(a), which provided

that, “[i]f an employee takes paid or unpaid leave and the employer

does not designate the leave as FMLA leave, the leave taken does

not count against an employee’s FMLA entitlement.”                    The Supreme

Court    invalidated     29    C.F.R.   §   825.700(a),       holding    that    the

regulation “effects an impermissible alteration of the statutory

framework.”      Ragsdale, 535 U.S. at 96. In so ruling, the Court

noted    that   29    C.F.R.   §   825.700(a)      automatically      required    an

employer to give an employee an additional twelve weeks of leave in

the     event   the    employer    failed     to     comply   with     the   notice

regulations, whether or not the employee was able to prove “any

real impairment of their rights and resulting prejudice[,]” thus,

fundamentally altering the FMLA cause of action.                     Ragsdale, 535

U.S. at 90.     The Court further reasoned that mandating additional

leave in the event of a notice violation even if the employee

suffered no harm “amends the FMLA’s most fundamental substantive

guarantee--the employee’s entitlement to ‘a total of 12 workweeks

of leave in any 12-month period.’”             Id. at 93 (quoting 29 U.S.C.

§ 2612(a)(1)).        The Court thus affirmed summary judgment in favor

of the employer, finding that the employee’s FMLA rights were not

prejudiced by the lack of notice, Ragsdale, 535 U.S. at 90, and


                                     - 14 -
that the FMLA guaranteed the employee only twelve weeks of leave,

not twelve weeks in addition to the thirty she had already taken.

Ragsdale, 535 U.S. at 96.

     In our case, the Doris Coal presumption has none of the

deficiencies the Court found in the Ragsdale regulation.           Most

importantly, the Doris Coal presumption is rebuttable.        Once the

employer marshals credible rebuttal evidence that the treated

pulmonary problem is not related to the miner’s pneumoconiosis, the

presumption evaporates.     Further, the Doris Coal presumption does

not alter the remedial scheme in a manner contrary to the BLBA.

Consistent with the BLBA, the burden of persuasion remains at all

times with the miner.     Lewis Coal Co., 373 F.3d at 575.

     Turning   to   the   Supreme   Court’s   decision   in   Greenwich

Collieries, we have specifically rejected the argument that the

Doris Coal presumption is no longer good law in light of the

Court’s decision in Greenwich Collieries, where the Court held that

the DOL’s true doubt rule, which required an ALJ to find in favor

of the claimant when the evidence was evenly balanced, violated § 7

of the Administrative Procedures Act.     See Ling, 176 F.3d at 234

(“In as much as the presumption does not shift the burden of proof

in medical benefit cases from the claimant to the party opposing

the claim, it is not contrary to the Supreme Court’s decision in

Greenwich Collieries.”).     Obviously, as a panel of this court, we

have no authority to overrule a prior panel’s decision; only an en


                                - 15 -
banc court has such authority.    Jones v. Angelone, 94 F.3d 900, 905

(4th Cir. 1996).



                                  III

     For the reasons stated herein, the petition for review is

denied.

                                                     PETITION DENIED




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