PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEWIS COAL COMPANY; OLD REPUBLIC 

INSURANCE COMPANY,

Petitioners,

v.  No. 03-1425 DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR;

HERSHEL U. MCCOY,

Respondents. 

On Petition for Review of an Order

of the Benefits Review Board.

(01-953-BLA)

Argued: February 25, 2004

Decided: June 24, 2004

Before WIDENER and DUNCAN, Circuit Judges, and

William D. QUARLES, Jr., United States District Judge

for the District of Maryland, sitting by designation.

Petition denied by published opinion. Judge Duncan wrote the opinion, in which Judge Widener and Judge Quarles joined. 

COUNSEL

ARGUED: Mark Elliott Solomons, GREENBERG TRAURIG,

L.L.P., Washington, D.C., for Petitioners. Gary K. Stearman, Office
of the Solicitor, UNITED STATES DEPARTMENT OF LABOR,

Washington, D.C., for Respondents. ON BRIEF: Laura Metcoff

Klaus, GREENBERG TRAURIG, L.L.P., Washington, D.C., for Petitioners. Howard M. Radzely, Acting Solicitor of Labor, Allen H.

Feldman, Associate Solicitor for Special Appellate and Supreme

Court Litigation, Nathaniel I. Spiller, Deputy Associate Solicitor,

UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,

for Federal Respondent. Susan D. Oglebay, Castlewood, Virginia, for

Respondent McCoy.

OPINION

DUNCAN, Circuit Judge: 

Lewis Coal Company, Inc. and its insurer, Old Republic Insurance

Company, petition for review of the final Decision and Order of the

Benefits Review Board ("BRB") directing them to pay medical benefits to Respondent Hershel McCoy. McCoy is a former coal miner and

employee of Lewis Coal adjudged to be totally disabled due to pneumoconiosis, a pulmonary condition commonly referred to as "black

lung disease." The BRB directed that Lewis Coal reimburse McCoy

for approximately $1800 in medical expenses that it concluded were

related to his disability, based in large part on the presumption in this

circuit that a miner applying for medical benefits may demonstrate his

eligibility by showing that he has been adjudged to be disabled by

pneumoconiosis. Because we find the challenges to the legal and evidentiary underpinnings of the BRB’s Order to be meritless, the petition for review is denied.

I.

The essential facts underlying McCoy’s medical benefits claim are

as follows. McCoy ended his roughly twenty-year career as a coal

miner in 1972, at the age of forty-three, due to "chest problems" he

began experiencing in 1971. Before ending his employment with

Lewis Coal, McCoy filed a disability claim with the Social Security

Administration ("SSA") under Part B of the antecedent to the Black

Lung Benefits Act (codified as amended at 30 U.S.C. § 901 et seq.)

2 LEWIS COAL CO. v. DIRECTOR, OWCP
("the BLBA").1

 Part B of the BLBA established a federally funded

program administered by the SSA to provide monthly disability payments to miners who claimed to be totally disabled due to pneumoconiosis within the meaning of the BLBA on or before June 30, 1973.

See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 8-11 (1976)

(discussing statutory history and organization of BLBA). Based on

McCoy’s claim and supporting medical evidence, the SSA concluded

McCoy was totally disabled and awarded disability payments under

Part B. 

In 1978, Congress amended Part C of the BLBA, which established

an industry-funded disability program administered by the Department of Labor ("DoL") for all BLBA claims filed on or after July 1,

1973. Id. As part of its 1978 amendments to Part C, Congress permitted miners with a Part B disability determination to file claims for

"medical benefits only" under Part C.2See Doris Coal Co. v. Director, Office of Workers’ Comp. Programs, 938 F.2d 492, 494 (4th Cir.

1991). The DoL designated Lewis Coal as the mine operator responsible for McCoy’s disability, and thus responsible for covering

McCoy’s medical benefits payments. Although Lewis Coal initially

contested McCoy’s claim, it withdrew its challenge in 1981 and

entered into a settlement agreement with McCoy. Significantly, the

agreement stated that Lewis Coal "agrees to accept the . . . initial

determination that the claimant, Herschel U. McCoy, meets the standards of total disability under the [BLBA]," and that it understood

that the agreement "may be the basis for the issuance of an Award of

Medical Benefits and Order to Pay Medical Benefits in this claim."

J.A. 18. 

1McCoy filed his application under the Federal Coal Mine Health and

Safety Act of 1969, Pub. L. No. 91-173, 83 Stat. 792-98 (1969) ("the

FCMHSA"). In 1972, Congress amended the FCMHSA and renamed it

the Black Lung Benefits Act. See Black Lung Benefits Act of 1972, Pub.

L. No. 92-303, 86 Stat. 150 (1972). 

2The regulations governing Part C of the BLBA apply to all claims

filed on or after July 1, 1973, whether for a disability determination or

for medical benefits only. However, for the purposes of this appeal, references to Part C should be understood to be synonymous with a "medical benefits only" claim. 

LEWIS COAL CO. v. DIRECTOR, OWCP 3
Lewis Coal paid McCoy’s medical bills pursuant to the agreement

until 1986, at which point Lewis Coal and its workers’ compensation

insurer, Old Republic Insurance Co. (collectively "Lewis Coal"), took

the position that the bills reflected unnecessary treatment. Specifically, Lewis Coal alleged that McCoy’s condition reflected "[n]o

CWP [coal workers’ pneumoconiosis] or Very Minimal Disease," and

that pneumoconiosis present at those levels "rarely requires medical

attention or interacts to exacerbate other health problems." J.A. 19.

McCoy filed a complaint with the DoL regarding Lewis Coal’s denial

of benefits, which the DoL referred to an administrative law judge

("ALJ") for a hearing. At the hearing, McCoy presented evidence that

the medical treatments for which he sought compensation under Part

C were related to the disabling conditions on which his Part B award

was based. In response, Lewis Coal presented medical evidence from

several sources suggesting that McCoy no longer suffered from a Part

B disability and that the pulmonary conditions for which he sought

compensation were attributable to cigarette smoking rather than disabling pneumoconiosis. Applying this court’s presumption in Doris

Coal that "most pulmonary disorders are going to be related or at least

aggravated by the presence of pneumoconiosis," 938 F.2d at 496, the

ALJ concluded that Lewis Coal’s medical evidence did not provide

a basis for denying McCoy’s continuing requests for medical benefits,

and the BRB affirmed the ALJ’s determination on that basis. Lewis

Coal timely petitioned this Court for review.

II.

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

decision to assess whether substantial evidence supports the factual

findings of the ALJ and whether the legal conclusions of the BRB and

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) (internal quotation marks omitted). As

presented in its petition for review, Lewis Coal’s claims require once

again that we assess whether the BRB "properly applied our precedent in Doris Coal to the facts at hand." Gulf & Western Indus. v.

Ling, 176 F.3d 226, 231 (4th Cir. 1999).

4 LEWIS COAL CO. v. DIRECTOR, OWCP
A.

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 under Part B may sustain a claim for medical benefits under Part C. 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 (emphasis added). In establishing this regime, this

court presumed 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. 

In practice, the Doris Coal presumption permits a miner to satisfy

his initial burden of production regarding his eligibility for Part C

benefits by presenting his underlying Part B award, which specifies

the conditions and symptoms that were found to be disabling, and the

expenses he claims are related to those conditions and symptoms.

Doris Coal, 938 F.2d 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." Ling, 176 F.3d at 233. Throughout the process, however,

the burden of persuasion as to relatedness remains with the miner.

Gen. Trucking Corp. v. Salyers, 175 F.3d 322 (4th Cir. 1999). 

As we have often stated, the Doris Coal presumption precludes a

mine operator from attempting to rebut the presumption of relatedness

by attacking the underlying Part B award. Permitting a mine operator

to contest a Part C claim by requiring the miner to prove his qualifying disability would "place a significant burden on the Black Lung

benefits system, increase litigation costs for all of the parties

involved, and further delay important medical benefits that a miner

LEWIS COAL CO. v. DIRECTOR, OWCP 5
suffering from pneumoconiosis needs." Doris Coal, 938 F.2d at 497;

see also Ling, 176 F.3d at 233-34. Consequently, "mine operators can

only use subsequent proceedings to challenge the necessity of certain

medical charges for the treatment of a pneumoconiosis related disorder or challenge medical charges not related to pneumoconiosis"; they

may not "require the miner to prove again that he has pneumoconiosis

each time he makes a claim for health benefits." Doris Coal, 938 F.2d

at 497.

B.

In accordance with Doris Coal, McCoy presented evidence regarding his 1973 Part B disability determination and the treatment for

which he sought reimbursement under Part C. Although neither

McCoy nor Lewis Coal introduced a copy of McCoy’s actual Part B

award from the SSA that discussed the conditions and symptoms the

SSA found to be totally disabling, see Ling, 176 F.3d at 233 (noting

that "[i]n every such case, the specific symptoms associated with

these disorders will be a matter of record, for it is these symptoms—

shortness of breath, coughing, loss of stamina, etc.—that render the

miner disabled to begin with"), the ALJ found that a copy of the

award was unnecessary. Evidence submitted by both parties confirmed that doctors diagnosed McCoy as having chronic bronchitis as

well as pneumoconiosis in 1971, immediately prior to his award of

Part B benefits. Two evaluating physicians (including one of Lewis

Coal’s experts, Dr. Castle) confirmed this diagnosis. Furthermore, the

medical evidence introduced by both parties indicated that chronic

bronchitis could be precipitated by exposure to coal dust. 

Based on evidence that McCoy’s Part B award was predicated on

both the presence of pneumoconiosis and McCoy’s chronic bronchitis, the ALJ concluded that McCoy was entitled to reimbursement for

any expenses related to either condition. After reviewing reports from

several doctors identifying which office visits, treatments, and medications were necessary to treat chronic bronchitis or pneumoconiosis,

the ALJ awarded McCoy benefits for some, but not all, of the medical

expenses for which McCoy sought compensation under Part C.3

3There was ample evidence in the record that allowed the ALJ to attribute certain doctor visits and treatments to particular conditions and

6 LEWIS COAL CO. v. DIRECTOR, OWCP
III.

Lewis Coal’s first objection to the ALJ’s reliance on Doris Coal

concerns the effect of its settlement agreement with McCoy, through

which Lewis Coal agreed to accept the "initial determination that

[McCoy] meets the standards of total disability." J.A. 41. Lewis Coal

argues that the settlement agreement does not give rise to the Doris

Coal presumption because the agreement does not amount to a stipulation that McCoy has "legal" pneumoconiosis. In response, McCoy

and the DoL argue that the agreement demonstrates both that Lewis

Coal recognized McCoy’s "legal" pneumoconiosis for purposes of his

eligibility for Part C benefits and that further relitigation of this issue

is foreclosed by the Doris Coal presumption. We agree.

A.

As a threshold matter, we note that Lewis Coal’s argument misapprehends the concept of "legal" pneumoconiosis. We have observed

on several occasions that "legal" pneumoconiosis is a statutory term

referring to any "‘chronic pulmonary disease resulting in respiratory

or pulmonary impairment significantly related to, or substantially

aggravated by, dust exposure in coal mine employment.’" Ling, 176

F.3d at 231 (quoting and adding emphasis to 20 C.F.R. § 718.201

(2003)). The term is thus broader than "medical" or "clinical" pneumoconiosis, as "legal" pneumoconiosis also encompasses "diseases

whose etiology is not the inhalation of coal dust, but whose respirasymptoms, and therefore to parse which treatments were attributable to

covered conditions and which were not. Specifically, Dr. Sherman

reviewed a list of each of McCoy’s claims and identified which reflected

treatment for disabling pneumoconiosis that manifested as "‘chronic

bronchitis with recurrent infection, chronic cough and sputum production, and bronchial reactivity.’" J.A. 93. Additionally, Dr. Kurtz Alderman, McCoy’s treating physician, stated that "‘[y]ou can tell by the

prescriptions given on each visit that certain medicines are for lung disease and other prescriptions for other problems,’" and listed specific

medications as indicative of treatment for pulmonary conditions. J.A. 79.

Where there was disagreement over whether a particular medication was

appropriate for the treatment of McCoy’s covered conditions, the ALJ

accepted the evaluation of Lewis Coal’s expert, noting that it appeared

to conform with the description of that drug’s purpose in medical texts.

LEWIS COAL CO. v. DIRECTOR, OWCP 7
tory and pulmonary symptomatology have nonetheless been made

worse by coal dust exposure." Clinchfield Coal Co. v. Fuller, 180

F.3d 622, 625 (4th Cir. 1999). When the SSA determines that a miner

is totally disabled by pneumoconiosis, it can only be because the

miner has a form of "legal" pneumoconiosis that is disabling. See id.

(noting that while the mere presence of clinical pneumoconiosis

meets the statutory definition of "legal" pneumoconiosis, "whether the

particular disease exists to such an extent as to be compensable is a

separate question"); Hobbs v. Clinchfield Coal Co., 917 F.2d 790, 791

n.1 (4th Cir. 1990). 

Consequently, Lewis Coal’s attempts to contest whether McCoy’s

chronic bronchitis is compensable by arguing that it may still contest

the issue of "legal" pneumoconiosis is unavailing. In the settlement

agreement, Lewis Coal conceded both that McCoy "meets the standards of total disability under the [BLBA]" and that the agreement

"may be the basis for the issuance of an Award of Medical Benefits."

J.A. 41. Because a miner cannot be found to be totally disabled under

the BLBA without satisfying one of the statutory or regulatory definitions of pneumoconiosis, see 20 C.F.R. §§ 410.110(n); 410.490(b)

(2003), the admission that McCoy "meets the standards of total disability," effectively establishes that all of the conditions and symptoms on which McCoy’s Part B disability determination were based

qualify as "legal" pneumoconiosis. Cf. Island Creek Coal Co. v.

Compton, 211 F.3d 203, 209 (4th Cir. 2000) (noting that because the

alternative regulatory definitions of "pneumoconiosis" are "various

bases which may be sufficient for a finding of [‘legal’] pneumoconiosis," it is the evidence in each particular case that is determinative of

whether the miner has "legal" pneumoconiosis).

B.

The Doris Coal presumption is usually triggered when the miner

presents his Part B award, but McCoy did not do so here. As we

stated in Ling, "[i]n each case where a miner seeks an award of medical benefits, there will be a prior adjudication of disability as the

result of legal pneumoconiosis, comprising one or more pulmonary

disorders"; as a result, the specific, compensable symptoms associated

with these disorders will be a matter of record, as it is these symptoms

"that render the miner disabled to begin with." 176 F.3d at 233.

8 LEWIS COAL CO. v. DIRECTOR, OWCP
Although the ALJ called the absence of McCoy’s Part B award to the

parties attention, neither McCoy nor Lewis Coal introduced a copy of

the award. We must therefore determine whether there was an adequate factual basis for the presumption to arise. 

We conclude that because McCoy produced sufficient evidence

from which the ALJ could reasonably conclude that both medical

pneumoconiosis and chronic bronchitis figured in the SSA’s disability

determination, the award itself was unnecessary. It is undisputed that

x-rays taken prior to the SSA’s disability determination under Part B

revealed the presence of medical pneumoconiosis, and McCoy’s medical records reflect a diagnosis of chronic bronchitis in 1971, also

prior to the SSA’s determination that he was totally disabled under

Part B. The doctors representing McCoy and Lewis Coal stated that

this chronic bronchitis was probably caused by McCoy’s exposure to

coal dust. The conclusion that McCoy’s Part B award was based in

part on his chronic bronchitis finds further support in the fact that

Lewis Coal paid for treatments related to chronic bronchitis following

its settlement with McCoy. 

The medical evidence as well as the settlement agreement thus reasonably support the ALJ’s conclusion that McCoy was totally disabled under the BLBA and that chronic bronchitis figured in that

determination. Because the evidence qualifies as a predicate for the

Doris Coal presumption, which forecloses relitigation of the underlying disability determination, Lewis Coal is limited to rebutting the

presumption that attaches to McCoy’s medical expenses related to

chronic bronchitis by showing that the expenses were actually

incurred to treat separate pulmonary disorder, were unnecessary, or

were not for a pulmonary disorder at all. See Ling, 176 F.3d at 233.

Lewis Coal offered no such rebuttal, however, arguing instead that

McCoy’s chronic bronchitis was not a pulmonary condition to which

the Doris Coal presumption could attach. This amounts to an attack

on the SSA’s apparent finding that chronic bronchitis comprised part

of McCoy’s "legal" pneumoconiosis as a categorical matter, and as

we have previously stated, a proceeding under Part C for medical benefits is not an opportunity to require that the miner again prove that

he has disabling "legal" pneumoconiosis. Doris Coal, 938 F.2d at

497. Moreover, the threshold creating the entitlement to Part C beneLEWIS COAL CO. v. DIRECTOR, OWCP 9
fits, "that the pulmonary condition treated be merely aggravated by

the miner’s pneumoconiosis," is low enough to permit the inclusion

of most disorders and symptoms as compensable under Part C even

if there is not perfect identity with those found to be disabling by the

SSA under Part B. Ling, 176 F.3d at 233 (emphasis added). We therefore find that the ALJ properly found Lewis Coal’s evidence incompetent to rebut the presumption that McCoy’s treatments for chronic

bronchitis were related to his Part B disability and thus compensable

under Part C.

IV.

Lewis Coal’s second objection offers a broader challenge to the

Doris Coal presumption by arguing that the presumption constitutes

an abuse of the doctrine of offensive collateral estoppel. Offensive

collateral estoppel arises when a plaintiff attempts to prevent a defendant from relitigating issues previously litigated and lost by the defendant in an action brought by a different plaintiff. See In re Microsoft

Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir. 2004). Recognizing

the unfairness that can result to a defendant in that context, including

the possibility that the defendant may not have fully litigated the issue

of which the plaintiff seeks to preclude further litigation, the Supreme

Court has circumscribed a plaintiff’s ability to invoke the doctrine by

admonishing district courts to foreclose its use where: 1) the plaintiff

could have easily joined in the action against the defendant in the earlier action, (2) the defendant lacked an incentive in the prior action

to defend the action fully and vigorously; (3) other decisions in different cases resolved the issue in the defendant’s favor; or (4) the second

action affords greater procedural opportunities to the defendant than

the first, and the difference could be dispositive. Parklane Hosiery

Co. v. Shore, 439 U.S. 322, 330-31, 332 (1979). Hence, a plaintiff’s

recourse to the doctrine must be limited to preventing a defendant

from "relitigating a fact actually found against the defendant in prior

litigation when the fact was critical and necessary to the judgment in

the prior litigation, [provided] . . . application of the doctrine would

not be unfair to the defendant." In re Microsoft, 355 F.3d at 326-27.

Lewis Coal contends that it had no legal interest in McCoy’s Part

B proceeding at the time it was decided because any award would be

paid by the federal government. It therefore follows, according to

10 LEWIS COAL CO. v. DIRECTOR, OWCP
Lewis Coal, that it should not be precluded from challenging the merits of that proceeding now that its interests will be adversely affected

by it. 

Lewis Coal’s characterization of the Doris Coal presumption as

violative of the strictures on non-mutual offensive collateral estoppel,

however, is a thinly veiled attempt to circumvent the consequences of

the settlement to which it agreed. Contrary to its current assertions,

Lewis Coal understood at the time it entered into the settlement agreement that it might form "the basis for the issuance of an Award of

Medical Benefits and Order to Pay Medical Benefits in this claim."

J.A. 41.4 To the extent that Lewis Coal’s current reluctance to pay

McCoy’s medical benefits stems from its concern regarding the validity of McCoy’s Part B award, we note that the governing regulations

would have permitted it to challenge the award before it began denying McCoy’s requests for Part C benefits. See 20 C.F.R. §§ 410.473,

410.490(d) (2003). 

Finally, Lewis Coal’s insistence that the Doris Coal presumption

implicates the fairness considerations limiting recourse to offensive

collateral estoppel is misplaced. As we have noted above, the Doris

Coal presumption is rebuttable; the burden of proof remains at all

times with the miner. A mine operator who was not a party to the Part

B proceeding may rebut the presumption of relatedness arising from

a threshold showing of disability by demonstrating that the current

expenses are unrelated to, or were unnecessary for, treating the disability. Lewis Coal’s complaint that the Doris Coal presumption is

irrebuttable as applied by the ALJ is inapposite, as in this particular

case, Lewis Coal’s evidence was almost exclusively and improperly

focused upon challenging the existence of McCoy’s disability vel

non, rather than rebutting the presumption that McCoy’s medical

expenses were related to his medical pneumoconiosis and chronic

bronchitis. In such a context, the fairness concerns implicit in the limitations on offensive collateral estoppel simply do not arise.5

4The fact that Lewis Coal initially paid McCoy’s medical bills further

supports this conclusion. 

5As part of its offensive collateral estoppel discussion, Lewis Coal suggests that application of the Doris Coal presumption would be particuLEWIS COAL CO. v. DIRECTOR, OWCP 11
V.

Finally, we find little merit to Lewis Coal’s contention that the

ALJ’s decision was not supported by substantial evidence because the

ALJ failed to consider all relevant evidence. As indicated above, the

ALJ considered all of Lewis Coal’s evidence, but rejected any evidence suggesting that McCoy was no longer disabled, as it was

required to under Doris Coal. See 938 F.2d at 497. Lewis Coal’s

experts opined that McCoy’s clinical pneumoconiosis was "asymptomatic," and that his current chronic bronchitis could not be attributable to the inhalation of coal dust. However, little weight can be given

to medical findings that conflict with the BLBA’s implementing regulations, see Warth v. S. Ohio Coal Co., 60 F.3d 173, 175 n.* (4th Cir.

1995), such as a finding that a miner’s previously disabling clinical

pneumoconiosis, which is a "progressive disease," 20 C.F.R.

§ 718.210 (2003), had become "asymptomatic." 

Contrary to Lewis Coal’s assertions, it is clear that the ALJ did not

arbitrarily disregard or discount all of Lewis Coal’s medical evidence.

For example, in resolving a conflict regarding whether a particular

medication, Vanceril, reflected treatment for a compensable condition, the ALJ noted that "[t]he 1988 [Physician’s Desk Reference]

substantiates Dr. Castle’s statement. Thus the rebuttal is sufficient on

the use of Vanceril." J.A. 32. Because we find the ALJ gave proper

weight to all of the medical evidence present in the record, we find

the determination that McCoy was eligible to receive reimbursement

for medical expenses related to clinical pneumoconiosis and chronic

bronchitis to be supported by substantial evidence.

larly unfair given that McCoy may have benefitted from the "interim

presumption" that his pneumoconiosis arose from his exposure to coal

dust, a presumption created by the "interim" regulations of 20 C.F.R.

§§ 727.1 to 727.405 (1984). These regulations apply to BLBA claims

filed before 1978 in which the miner has worked in coal mines for ten

or more years. However, we have already resolved this issue. McCoy’s

claim, like that of the claimant in Doris Coal, was adjudicated under 20

C.F.R. § 410.490 (2003), which applies to claims filed before July 1,

1973, see Doris Coal, 938 F.3d at 434; see also 20 C.F.R. § 727.1(a).

Hence, this circumstance does not distinguish McCoy’s case from that in

Doris Coal. 

12 LEWIS COAL CO. v. DIRECTOR, OWCP
VI.

Because we conclude that Lewis Coal’s objections to the BRB’s

Decision and Order lack merit, Lewis Coal’s petition for review is 

DENIED.

LEWIS COAL CO. v. DIRECTOR, OWCP 13