we're going to start off with c b mining and then this aggression when you're ready we'll hear from morning your honour's this involves the appeal of and word of black lung benefits to a miner who was employed in the coal mines for less than fifteen years so we're not dealing with the  fifteen year presumption which is engage this court quite a bit will last few years in this case the ministry of law judge at first accepted  into evidence the interpretations of three separate c t scans however in his decision he asserted that case law from the benefits review board only allowed one reading and then excluded the other two into a spontaneous chose which one was going to be allowed in on appeal we argued that that was improper that the decision of webber versus peabody coal company states that one interpretation of each piece of evidence under the section can be allowed and the entire board agreed however two of the members stated it was not harmful or was harmless error since we did not show how it would harm us judge bogs in dissent stated that that interpretation would mean that the improper exclusion of evidence would always to this excluded evidence in and of itself or in combination with any other alleged there your honor there really isn't any standard for that the core of the board case from the supreme court which did not adopt any new standard it just stated that all courts or and administrative bodies should apply the same rules that would courts would apply in a civil  was but instead was a disease known as either idiopathic pulmonary fibrosis or usual interstitial pneumonia which is not related to coal dust exposure particularly dr pheno reviewed a c best of those it's a little more more expensive and it's a little more invasive if you will because there is a lot more radiation involved not a terrible amount but there is some radiation ut yes that's the the regulations do state that in that section that other evidence is allowed and the only standard is that a doctor must a medical professional must state that not only scans supported their view point is that by excluding that chronological evidence gave less supporting weight to their opinions is that a fair characterization that is part of it and then of course under the compton decision from this court that all of the evidence related to makoni osis must be considered together the judge ruled or weighed the x rays one c t scan and then the medical opinions that he did not discuss or talk about the opinions they have guarding the progression of the of the abnormalities seen on the c t scan sort of to follow up  because i had a similar conceptual difficulty it was a little hard for me to understand what the c t scan showed that excluded the record in terms of demonstrating the progression right there on that that's your argument as to prejudice yes and one of those c t scans was done in two thousand and eight so it's two thousand and to two thousand and twelve and that was the progression the doctor recall interpreted a chest x ray but he only does what they call a quality reading he doesn't read it for the profusion of in other words he doesn't read it to say there's never diagnosed knew macone osis or well when he diagnosed chronic bronchitis never mentioned coal dust exposure or should say obstructive lung disease when he diagnosed a minor with smoker's disease he never mentioned coal dust exposure as a as a consideration there the the judge when he says i'm going to give great weight to dr forehand cites to parts of the preamble that talked about the additive effect of coal dust and cigarette smoking in chronic bronchitis and obstructive lung disease or the similar mechanisms that dust induced in physique and smoke induced emphysema half the problem is no one diagnosed in physio no one diagnosed chronic bronchitis and the only obstructive lung disease which dr for enjoying one found he found it due to shortness of breath and the pulmonary function instead never referred exposure played any role in this obstructive lung disease he found in fact he found the reason for the minor having an impairment was the chest x ray and the arterial blood guessed it and that's all he said we believe virginia he would necessarily lose on that issue idiopathic pulmonary fibrosis which he then stated there had been some studies that showed it occurred more often in heavy smokers and the judge then says oh well he didn't determin how smoking would have caused or coal dust would have caused this fibrosis because and then cites the be additive nature of coal dust and cigarette smoking and the similar mechanisms again dr pheno never diagnosed mistakes in his opinion that he improperly exploited private events that he selectively analyzed other evidence and relied on improper portions are relevant portions of the preamble to justify and otherwise arbitrary opinion and be fair to say is somewhat cursory and compared to dr pheno on the other physicians which are very very stances go into great detail opinion just happens to be more lengthy isn't necessarily an indicator of whether his their opinions are deserving of greater way that's absolutely correct but it would be correct if they a joined improperly characterized them and i think there's an argument to be made that jane did with respect for example to dr castle i believe they found that it was entitle too little weight because it was based on generalities and that's a that's a tough characterization to accept or it's questionable given the specific findings that dr cassell made that the l j didn't see will certainly didn't allude that although dr castle's opinion his medical opinion was very lengthy and included a great deal of kind of information backstory  and the medical history behind why he was saying what he was saying the facts still comes down to that he he wasn't really referencing the miners particular situation will he actually did well i think i mean it we didn't conduct any analysis it was just conclusory statement that's right well dr forehands opinion was not necessarily just a conclusive opinion i think what dr forehand was attempting to do was to the climate's medical history discussed the the factors that he was seeing as a result of his own physical examination of mr addison and i think more importantly he discussed the environmental factors that were an issue here dr pheno and dr cassell kind of sidestepped that just because the man worked in the water mark he didn't discuss it based on evidence reason he didn't look at those i would i would assume and not knowing straight off but just kind of knowing the process the department of labor doctors don't typically get other evidence kind of initially when they're doing their medical opinion and that at least is the trend that i have seen so when he was doing his medical evaluation that wasn't something that he necessarily had the benefit of seeing and the fact that he didn't necessarily that there was a progression that was inconsistent and goes to a pretty serious conclusions there hard evidence about what was found in the lungs and dr for in their address those he didn't but i think he meant he did the best medical opinion or medical evaluation that he could with the evidence that he had he did but then you have a judge looking at these opinions and concluding that forehands is better reason and the better conclusion and if you accept the fact he didn't have all this evidence he didn't address these additional factors which are fairly relevant piece of information it's hard to  for instance i pointed out some of the arguable discrepancies in the case analysis of dr his criticism of dr castle which do not appear opinion well i think basically what judge henley was trying to do and if you look he does kind of discuss in his opinion the fact that because i think employers argument is that excluding these two c t scans has somehow impacted the opinions of doctors and cassel in the way that they were given but it wasn't the c t scans that were the cause of their opinions to be discredited the fact that these do c t if you don't disagree that those were valid considerations and then dr forehand doesn't address those and anyway it basically becomes on rebutted evidence in favor of the employer i think the first thing to notice that you know all doctors are not required to review every piece of evidence in order for their opinions to be valid and but that doesn't address the state of the record in other words judge agee's question is how do you account for the balance of the evidence when of the evidence when it's not all taken into account that we're not here to blame whether forehand was justified in the excluded or not he didn't have it and in the address it well i think what we're really looking evidence which is classified as other evidence and stablished presence or not when viewed individually and it didn't this c t scan evidence the judge now did he didn't he the argument i don't know if it's legitimate or not you can address that but the argument is relevant evidence that is material to the determination i think when you start looking at the record and when you look at judge him please opinion i think we do get to that and he does know when he were is reviewing d most medical opinion and dr castle's opinion that they did use those when they were making their diagnoses so even though they weren't admitted into evidence under the c t scans or with the c t scans and or other evidence he does talk about the fact that both of those doctors use those who are making their diagnoses and then it was showing through the through the years as a progression in that things had changed and they had used this as a basis for their opinion his problem with dr phil is that when he diagnosed him with idiopathic pulmonary fibrosis which basically means i don't know what caused it he then said well but it could have been smoking but then he turned around and said would definitely couldn't have been called us to exposure but how do you get it could have been smoking but it definitely couldn't have been the souther thing passes he explained that he did but what do you know he didn't say is why it couldn't according to judge hilly he should have done in order to make it a complete opinion he was a void in talking about why it could not have been something to do with perhaps a more rare form if that's what it was  not a radiologist that he would find that the may twentieth x ray is overall positive that looks an awful lot like to me as a spear and simple head count there's no medical reason given to credit dr forehands opinion there is no evidence for a reasoned with and that's one more than the between the other two doctors there's no legal reason i think your honor when we when we start looking at it the question is did he fully explain himself and i think when you start looking at yes he did appear to be pretty cut and dry and when he started talking about the x ray evidence that it was you know that the doctor's credentials were they were either be readers or both be readers and board certified radiologists whether the x y or red is positive or negative but he went through because he is certified to rate that i think it's important to know that all are certified to read i agree i mean and i think when you look at honors he wasn't being asked to determine was there presence or was there not i think dr gazi i know reads all i think pretty much all of the department of labor exam x rays just to determine is that a decent x ray for use in determining error that it would have to be sent back down to the judge to get him to explain his opinion a little bit more thoroughly why he credited this last x ray as positive rather than negative i think that that would be the only option at that point if in fact but i understood the employers are going to be and and they're if the problem is that the evidence was in do i definitely don't think the evidence is an act of voice because i think the weight of the x ray evidence proves that there was presence of black lung and i think that's the big issue here now if if you believe judge henley failed to sufficiently explain himself and that would be grounds for remained to get him to fully explain his opinion but i think when you look at the x ray evidence as a whole and the reader's qualifications what the x rays actually said when they were read  b reader radiologist his tie breaking capability the fact that he was a b reader that it doesn't help i think it does i mean because he's still been fully trained to read these to determine if there's presence so even though he has some board certified he's still been fully trained by the department and they've signed off on his ability to determine whether there is presence of the disease and i ask you think pretty much the same the verdict in favor of and because of the failure of the point of to carry their burden of proof is there something different about a block long case that would change the ordinary working of  evidence and the way to the medical evidence you know is in judge family's discretion to determine who to give credit to who to give more weight to when making their decisions and you know he determined that dr forehanded talked about everything that needed to be discussed and dr pheno and dr cassell he felt that not so i think that was within his his purview conclusion your honour's we appreciate your time here today would ask that because the employer we feel the employer has failed to establish that there was any actual harm as a result of judge him least exclusion of the evidence  and because judge him least other determinations were rational and supported by evidence that your firm the order by the board fibrosis but then he doesn't go on to talk about dr phil knows actual statements that this rapid progression was was the factor which told him this man did not have coworkers knew it was stating that he dealt with generalities as opposed to the only thing he talked about with the generalities is dr castle made the statement that it would be very unusual for him to see a miner who is disabled from new macone osis without some obstruction and that's that's why he said that with those with generalities again he judge him lee failed to even talk about the c t scan which was very personal very specific to mr apps and yet he completely ignores that it's our position that the the scrutiny he gave to dr spinola and castle really at the first part of his decision goes through this fairly long discussion of how do you determine something's opinion is documented and reasoned and things like the doctors who have more medical evidence to review who reviewed more depth of who are better qualified all these things and then he just completely ignored it when he actually came down and discussed the individual reports we believe that th ere's no way the doctor forehands opinion in findings can be determined by a l j to out way and that's what has to be done it has to outweigh the these other opinions which he again because of our other arguments did not fully consider because he did not consider the opinions that they raised and made as far as the c t scan evidence was  just reversed but i believe it really is a remain and i believe the the exclusion of the evidence i do have a part i wanted to mention about this court in the past in talking about harmless error in federal lac necessary if the decision on remained is for ordained in other words if there's nothing else that could be done even if if that evidence was excluded or if properly excluded or or came back in the decision on remand would be exactly the same i don't think that happens here i think if the judge is or is directed to consider that evidence a different decision may be reached but again i think that would be the i