employer’s burden is to effectively rule out the causal relationship between disability and coal mine employment
How later courts described this case
- employer’s burden is to effectively rule out the causal relationship between disability and coal mine employment
- medical opinion "was improper rebuttal evidence because it was partly based upon . . nonqualifying tests"
Written by the judges who cited it.
The opinion
WIDENER, Circuit Judge,
dissenting:
I respectfully dissent.
The majority holds here that a testifying physician may not consider nonqualifying disability tests in forming his expert opinion in this type of case. This holding I think is contrary to the applicable regulations, to the law of this circuit, and to the rules of evidence.
The majority’s basis for its decision is the well recognized proposition that a miner need satisfy only one of the medical tests listed in the regulations in order to create an interim presumption of total disability due to black lung disease. 20 C.F.R. § 727.203 (a) (1981). As we said in Whitman v. Califano, 617 F.2d 1055, 1057 (4th Cir. 1980), “The failure of [the claimant] to satisfy other interim criteria does not establish that he is able to work in coal mines or do comparable work.”
Nowhere, however, is it provided that a physician, or even an administrative officer, may not consider nonqualifying tests in arriving at an overall conclusion as to whether the miner has black lung disease or the effect thereof. On the contrary, the applicable regulation, in its very next subsection, .203(b) states:
(b) Rebuttal of interim presumption. In adjudicating a claim under this subpart, all relevant medical evidence shall be considered. The presumption [of total disability due to black lung disease] shall be rebutted if: [one of listed circumstances is met]
20 C.F.R. § 727.203 (b) (italics added). Aside from the fact that the holding of the majority is directly contrary to the command of the very regulation upon which it relies for its presumption of disability, the effect of the decision is, without statutory or other authority, to make it unjustifiably difficult to rebut an interim presumption of disability due to black lung disease by denying to an examining physician access to nonqualifying tests.
Our decision in Hubbard v. Califano, 596 F.2d 623 (4th Cir. 1979), while holding invalid a regulatory inference that nondisability arises from the existence of certain non-qualifying tests, adds:
Our decision does not imply that a trier of fact . .. might not take any negative inference from the failure of X-rays or ventilatory tests to establish total disability under the interim criteria. These facts might be considered by a trier of fact along with all the other evidence in the ease and any justifiable inferences taken.
Id. at 626, n.2 . The only difference in Hubbard and the case at hand is that Hubbard was decided under the 15-year presumption of 30 U.S.C. § 921 (c)(4).
The evidence in question in this case, the results of ventilatory and blood gas studies, of course, is highly relevant. There can be no dispute about this. The physician whose opinion is now in question partly based it upon such studies. Nothing in any regulation or statute that I can find forbids an examining physician from using any relevant physical fact concerning a claimant’s *509 physical condition in arriving at his opinion with regard to that condition.
I suggest that I have thus demonstrated that the holding of the majority is contrary to the applicable regulation, .203(b); to a decision of this circuit; and to the general rules of evidence. 1
Even the majority opinion implicitly acknowledges that the opinion of the physician involved is substantial evidence to support the denial of liability absent the evidence ruling discussed in its and in this opinion. If that is true, I would be inclined to hold there is substantial evidence to support the decision of the Board and affirm. The very best the claimant can come up with in this case is a remand to ascertain whether his case should be held to have been rebutted under .203(b)(2) or .203(b)(3).
. FRE 402 provides that all relevant evidence is admissible except as otherwise provided by the Constitution, Act of Congress, or rule.