# Roberts v. Benefits Review Board

> Court of Appeals for the Sixth Circuit · June 30, 1987 · 822 F.2d 636

URL: https://www.frixlaw.com/law-library/cases/8952186

## Case

- **Full name:** Leonard ROBERTS v. BENEFITS REVIEW BOARD Director, Office of Workers' Compensation Programs United States Department of Labor Island Creek Coal Company Republic Insurance Company
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** June 30, 1987
- **Citations:** 822 F.2d 636
- **Precedential status:** Published
- **Opinion:** Dissent by Nelson
- **Judges:** Enslen, Nelson, Ryan
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8952186

## Opinion text

DAVID A. NELSON, Circuit Judge,
dissenting.
I agree that the AU misapplied 20 C.F.R. § 727.203 (b)(2). It was not established that Mr. Roberts “is able to do his usual coal mine work” — the evidence established just the opposite — and under the plain language of (b)(2), as the court indicates, the cause of the individual’s inability to do his usual coal mine work is immaterial.
The question of causation does become pertinent, as the court also indicates, under (b)(3). That section provides that the interim presumption of 20 C.F.R. § 727.203 (a) “shall” be rebutted if “the evidence establishes that the total disability ... of the miner did not arise in whole or in part out of coal mine employment.”
The AU concluded that (b)(3) had been satisfied, and it seems to me that this conclusion would have been amply justified by the evidence in the record if the conclusion had been based on a correct reading of (b)(3). The evidence showed that Mr. Roberts suffered a disabling stroke in July of 1984 — a stroke that left him unable to walk — and Mr. Roberts admitted that “his stroke alone disabled him from returning to his last job at Island Creek Coal Company.” The evidence also established, arguably, that Mr. Roberts’ coal worker’s pneumoconiosis was not disabling. Mr. Roberts would still have been disabled without the pneumoconiosis, in other words, but he would not have been disabled without the stroke, despite the pneumoconiosis.
It seems to me that those facts, if established to the satisfaction of the AU, would necessarily have established that the presumption was rebutted under (b)(3); the “total disability” of Mr. Roberts could not have arisen, in part or in whole, out of the coal miner’s pneumoconiosis if the stroke was disabling by itself and the pneumoconiosis was not.
I see nothing to the contrary in Gibas v. Saginaw Mining Company, 748 F.2d 1112 (6th Cir.1984), cert. denied, 471 U.S. 1116 , 105 S.Ct. 2357 , 86 L.Ed.2d 258 (1985). In Gibas , as this court pointed out in Ramey v. Kentland Elkhorn Coal Corp., 755 F.2d 485, 492 (6th Cir.1985), the AU determined, on the basis of substantial evidence in the record, that the presumption had not been rebutted under (b)(3), the evidence having failed to establish that the total disability was not caused in part by black lung disease. The question, under (b)(3), is what caused the “total disability” — and in Gibas the AU found, and this court confirmed, that the miner’s pneumoconiosis was a contributing cause of his “total disability.” In Ramey , on the other hand, “the AU found that [the miner’s] cardiac condition was the sole cause of his total disability____” Ramey, 755 F.2d at 492 . The latter finding was supported by substantial evidence, and this court affirmed the denial of black lung benefits notwithstanding that the miner also suffered from coal worker’s pneumoconiosis.
If the AU had concluded here that the presumption was rebutted under (b)(3) as written, I think Ramey would require us to affirm the denial of benefits. The AU did not read (b)(3) correctly, however; relying on Jones v. New River Co., 3 B.L.R. 1-199, 1-209 (1981) — a decision rejected by Gibas —the AU treated (b)(3) as if it did not contain the words “in part.” I think this error of law on the part of the AU requires us to remand the case with instructions to determine whether Mr. Roberts’ “total disability” was or was not caused “in part” by the pneumoconiosis. If, on remand, the AU were to find that Mr. Roberts’ total disability was solely the result of his stroke, and that (b)(3) applied because the pneumoconiosis would not have been disabling in the absence of the stroke, I do not see how we could reverse the finding without ignoring the word “total” and repudiating our decision in Ramey .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8952186. Public record. Not legal advice.