UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CLYDE M. COMPTON,

Petitioner,

v.

UNION CARBIDE CORPORATION;

No. 96-1944

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(96-110-BLA)

Submitted: March 18, 1997

Decided: April 22, 1997

Before MURNAGHAN and WILKINS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Roger D. Forman, FORMAN & CRANE, L.C., Charleston, West Virginia, for Petitioner. Mary Rich Maloy, JACKSON & KELLY,

Charleston, West Virginia, for Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Clyde Compton petitions for review of a decision of the Benefits

Review Board (Board) affirming the administrative law judge's (ALJ)

decision to deny his application for black lung benefits under the

Black Lung Benefits Act, 30 U.S.C. §§ 901-45 (1994). The responsible operator in this case, Union Carbide Corporation (employer), conceded at the administrative level that Compton suffers from

pneumoconiosis arising out of coal mine employment, and has a

totally disabling respiratory impairment. The ALJ denied benefits,

however, based on his determination that Compton failed to prove

that his coal dust exposure caused or contributed to his disabling respiratory or pulmonary impairment.

We must affirm the decision of the Board if the Board properly

decided that substantial evidence supports the ALJ's findings. See

Doss v. Director, Office of Workers' Compensation Programs, 53

F.3d 654, 658 (4th Cir. 1995). In this case, the ALJ's decision boiled

down to his decision to credit the opinions of Drs. Crisalli and

Kleinerman, finding no link between the miner's disability and his

coal mine employment, over the conflicting opinion of Dr. Rasmussen. Compton's primary contention on appeal is that the ALJ erred by

crediting the opinions of Drs. Crisalli and Kleinerman because those

opinions were premised on the view, discredited in our decision in

Warth v. Southern Ohio Coal Co., 60 F.3d 173 (4th Cir. 1995), that

coal dust exposure cannot cause or contribute to an obstructive disorder.

The ALJ specifically considered this issue and found that both Dr.

Crisalli and Dr. Kleinerman recognized that coal dust exposure can

cause obstruction, but could not have caused or aggravated Compton's particular obstructive impairment. We have reviewed Dr. Crisalli's hearing testimony and simply do not agree with Compton that Dr.

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Crisalli indicates a belief that coal dust exposure can never cause

obstruction. Rather, Dr. Crisalli explicitly testified that coal dust can

cause obstruction. While Compton identifies testimony provided by

Dr. Kleinerman which could support the conclusion that he holds

views which are contrary to the Act, Dr. Kleinerman also testified

later that coal dust exposure can cause obstruction. He also explicitly

denied that his opinion was dependent on the belief that coal workers'

pneumoconiosis cannot cause obstructive impairment.

Substantial evidence supports the ALJ's finding that the opinions

of Drs. Crisalli and Kleinerman rested on other grounds. The primary

cause of the miner's impairment in this case was a pneumonectomy

he underwent due to lung cancer. But all the physicians agreed that

he suffered at least a mild obstructive impairment even before the surgery. The physicians disagreed over whether that impairment was due

solely to smoking or to a combination of smoking and coal mine

employment. Biopsy evidence produced from Compton's removed

right lung revealed the presence of simple pneumoconiosis.

Drs. Crisalli and Kleinerman both examined the tissue slides, as

well as the remaining evidence of record, including pulmonary function studies, blood gas studies, X-rays, and chronicles of the miner's

work, smoking, and medical histories. They found that the pathology

evidence revealed the presence of very limited nodules reflecting a

degree of pneumoconiosis which was too mild to have caused any

impairment. Various pieces of evidence, in combination, pointed to

centrilobular emphysema as the basis of the miner's obstructive

impairment, and in the view of Drs. Crisalli and Kleinerman, coal

dust exposure does not cause this form of emphysema. Dr. Rasmussen

cited to medical studies and literature supporting his view that coal

dust exposure can cause centrilobular emphysema, but the ALJ was

persuaded by the rebuttal explanations of Drs. Crisalli and Kleinerman that Dr. Rasmussen misinterpreted or misstated the results of

some of the studies, and that some of the other studies were simply

flawed due to deficiencies in the data relied on by the researchers of

their failure to control for relevant variables such as smoking.

Because the ALJ provided rational reasons for his resolution of the

conflict between the physicians of record, we find that his weighing

of the evidence is supported by substantial evidence.

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We reject Compton's assertion that the opinions offered by Drs.

Crisalli and Kleinerman are not credible because they were compensated for their participation in this action. A medical opinion offered

in support of litigation is not inherently biased because the physician

receives a fee. See Richardson v. Perales, 402 U.S. 389, 403 (1971).

We also reject Compton's contention that the ALJ erroneously admitted cumulative and redundant evidence into the record in this case.

The ALJ was obligated to admit the evidence to which Compton

objects in order to permit the employer to respond to Compton's own

untimely submission of evidence. See 20 C.F.R. § 725.456(b)(3)

(1996). Moreover, even had the ALJ erred by admitting the evidence,

such error would be harmless since he did not rely on this evidence,

but on the reports of Drs. Crisalli and Kleinerman, in reaching his

decision.

Accordingly, we affirm the decision of the Board. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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