UNPUBLISHED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Petition denied by unpublished per curiam opinion.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.
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Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

We will refer to Four L Coal Company and Old Republic

Insurance Company collectively as Four L.

2Lester is now deceased.

3The final award determination was based on, inter alia, x-ray

and medical opinion evidence evincing the existence of

pneumoconiosis.

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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
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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.
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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.
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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.
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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
4COPD 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).

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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,
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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
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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
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.

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“‘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
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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
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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
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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
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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
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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