PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GENERAL TRUCKING CORPORATION;

OLD REPUBLIC INSURANCE COMPANY,

Petitioners,

v.

No. 98-1009

WILLIAM SALYERS; DIRECTOR, OFFICE

OF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order of the

Benefits Review Board.

(No. 95-1469-BLA)

Argued: December 3, 1998

Decided: April 27, 1999

Before NIEMEYER and KING, Circuit Judges, and

MICHAEL, Senior United States District Judge for the

Western District of Virginia, sitting by designation.

_________________________________________________________________

Petition for review granted and claim remanded by published opinion.

Judge King wrote the opinion, in which Judge Niemeyer and Senior

Judge Michael joined.

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COUNSEL

ARGUED: Mark Elliott Solomons, ARTER & HADDEN, Washington, D.C., for Petitioners. Christian P. Barber, Counsel for Appellate
Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent Director;

Lawrence Lee Moise, III, VINYARD & MOISE, Abingdon, Virginia,

for Respondent Salyers. ON BRIEF: Laura Metcoff Klaus, ARTER

& HADDEN, Washington, D.C., for Petitioners. Marvin Krislov,

Deputy Solicitor for National Operations, Donald S. Shire, Associate

Solicitor, Gary K. Stearman, Office of the Solicitor, UNITED

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

Respondent Director.

_________________________________________________________________

OPINION

KING, Circuit Judge:

General Trucking Corporation and Old Republic Insurance Co.

petition for review of the final Decision and Order of the Benefits

Review Board (BRB) directing them to pay medical benefits to the

respondent, William Salyers.1 Mr. Salyers, a former miner adjudged

disabled in 1973 due to coal workers' pneumoconiosis, has incurred

expenses for the treatment of infirmities said to be related to his disability. The BRB issued a subsequent order denying the petitioners'

motion for reconsideration, from which review is also sought.

The BRB's directive affirmed, on the strength of our opinion in

Doris Coal Co. v. Director, OWCP, 938 F.2d 492 (4th Cir. 1991), a

prior finding by an Administrative Law Judge that Mr. Salyers was

entitled to the contested benefits. Recently, however, in Gulf & Western Indus. v. Ling, No. 97-2107, 1999 WL 149851 (4th Cir. Mar. 19,

1999), we addressed the continuing vitality of Doris Coal in light of

the Supreme Court's decision in Director, OWCP v. Greenwich

Collieries, 512 U.S. 267 (1994). Our analysis and discussion of the

salient issue in Ling informs the result in this case.

_________________________________________________________________

1 The Director of the Office of Workers' Compensation Programs for

the Department of Labor participates in this appeal as co-respondent,

pursuant to 30 U.S.C. § 932(k), which provides that "[t]he Secretary [of

Labor] shall be a party in any proceeding relative to a claim for benefits

under this part [of the Black Lung Benefits Act]."

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I.

Based on the record before us in Ling, and confirmed by the representations of counsel for the Director, it appeared that the Office of

Workers' Compensation Programs had been applying the evidentiary

presumption we fashioned in Doris Coal2 to shift the burden of proof

in medical benefit cases from the claimant to the employer. We have

now made clear that such a practice contravenes the explicit mandate

of Greenwich Collieries. See Ling at *6 ("The BRB . . . construed the

Doris Coal presumption as shifting the burden of proof to the

employer, which, under Greenwich Collieries, it may not do.").

We are, frankly, unable to ascertain precisely how the Doris Coal

presumption was applied in Mr. Salyers's case, either from our examination of the ALJ's Decision and Order, or from the BRB's interpretation thereof. Moreover, it does not appear that the BRB considered

the possibility that the presumption might be rebutted by "credible

evidence that the treatment rendered is for a pulmonary disorder apart

from those previously associated with the miner's disability." Ling at

*5.

The BRB concluded that the Doris Coal presumption could be

rebutted only by a showing "that (1) the expenses in question were

not reasonable for the treatment of any of claimant's pulmonary diseases . . . or (2) the treatment is for a condition completely unrelated

to claimant's pulmonary condition (e.g., treatment for a heart condition, broken bone, or bad back)." BRB's Decision and Order of

March 27, 1997, at 2 (citation omitted).

It is certainly true that if the treatment at issue is found to be "beyond that necessary to effectively treat a covered disorder, or is not

for a pulmonary disorder at all," then the presumption "shall not carry

the day." Ling at *5. It does not follow, however, that proof of these

two circumstances is the exclusive means of rebutting the presumption.

_________________________________________________________________

2 See Doris Coal, 938 F.2d at 496-97 ("[W]hen a [disabled] miner

receives treatment for a pulmonary disorder, a presumption arises that

the disorder was caused or at least aggravated by the miner's pneumoconiosis, making the employer liable for the medical costs.").

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An employer contesting an award of medical benefits may also

rebut the presumption by adducing sufficient credible evidence that

the claimant was treated for "a pulmonary condition that had not manifested itself, to some degree, at the onset of his disability," or for "a

preexisting pulmonary condition adjudged not to have contributed to

his disability." Ling at *4. Proof of either scenario could demonstrate

the existence of a pulmonary disorder apart from those previously

associated with the miner's disability, and plainly be within the contemplation of Doris Coal that mine operators be permitted to "challenge medical charges not related to pneumoconiosis." 938 F.2d at

497.

II.

Although we are reluctant to leave unresolved a dispute of such

ancient vintage, we are constrained to remand Mr. Salyers's claim to

the BRB for reconsideration in light of our opinion in Ling. We

express our hope that, on remand, the matter will be resolved expeditiously.

The petition for review is granted, and the claim is remanded to the

Benefits Review Board for further proceedings consistent with this

opinion.

PETITION FOR REVIEW GRANTED, AND CLAIM REMANDED 

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