# Consolidation Coal Company v. James Sanati, Director, Office of Workers' Compensation Programs, United States Department of Labor > Court of Appeals for the Fourth Circuit · August 4, 1983 · 713 F.2d 480 URL: https://www.frixlaw.com/law-library/cases/9470937 ## Case - **Full name:** CONSOLIDATION COAL COMPANY, Petitioner, v. James SANATI, Director, Office of Workers’ Compensation Programs, United States Department of Labor, Respondents - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** August 4, 1983 - **Citations:** 713 F.2d 480; 1983 U.S. App. LEXIS 25184 - **Precedential status:** Published - **Opinion:** Dissent by Sprouse - **Judges:** Russell, Widener, Sprouse - **Cited by:** 20 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled in part by Stapleton v. Westmoreland Coal Co., 785 F.2d 424 (1986). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9470937 ## Opinion text SPROUSE, Circuit Judge, dissenting: I respectfully dissent. The majority opinion misconstrues the scheme of proof stated explicitly in 20 C.F.R. § 727.203 . It is true this misconstruction only relates to the burden of producing evidence and the sequence in which the evidence should be considered, but in the present case a correct application of the presumption provided in 20 C.F.R. § 727 .- *483 203(a)(4) requires an affirmance of the Board’s award of benefits. The ALJ and the Board held that the reasoned opinion of a single physician is sufficient evidence to invoke the presumption in favor of total disability due to pneumoconiosis. The majority’s disagreement with that holding is the linchpin of their opinion. My colleagues believe that all “other medical evidence,” as contemplated in section 727.203(a)(4), must be weighed and must preponderate in favor of the miner before the presumption can be invoked. In my mind, this approach turns the presumption upside down, and ignores the classic procedural distinction between the burden of proof and the burden of production. The Sixth Circuit in Prokes v. Mathews, 559 F.2d 1057 (6th Cir.1977), succinctly expressed its rationale for this difference as applied to black lung claims: The claimant has the burden of proving his entitlement to benefits, and the effect of the presumption is to assist him in carrying this burden. In effect, if the requirements of § 921(c)(4) are met, the claimant has made out a prima facie case of presumed pneumoconiosis, and the burden of going forward shifts to the Secretary to produce evidence sufficient under the same section to rebut the presumption. These are the usual functions of a statutory presumption — to assist one having the burden of proof and to shift the burden of going forward with evidence to the other party. Id. at 1060. In the instant case, Sanati unquestionably had the ultimate burden of proving total disability, but in presenting his evidence a presumption arose in his favor when he produced the favorable documented opinion of a physician exercising “reasoned medical judgment.” At that point it was incumbent upon the employer to offer evidence in rebuttal, as provided in 20 C.F.R. § 727 .-203(b). After the rebuttal, the ALJ must weigh the entire evidence and determine whether the claimant has established disability by a preponderance of the evidence. This was the exact procedure used by the ALJ and approved by a majority of the Board. In many cases, this procedural requirement amounts to little more than an evidentiary “minuet,” for once all the evidence is introduced, the order in which the parties have introduced it makes little difference. It is not weighed piecemeal, but in its entirety. Normally, then, my disagreement with the majority would have been over form rather than substance, requiring no formal expression of dissent. The majority’s resolution of the issue in this case, however, necessitates a remand and at least delays the miner’s benefits previously awarded him. The majority is correct in intimating that evidence of ventilatory studies or of blood gas studies must be weighed prior to invoking the presumptions provided in sections 727.203(a)(2) and (3), respectively. A review of the regulations defining those presumptions, however, buttresses the argument that it is incorrect to require a weighing of “other medical evidence” before invoking the section 727.203(a)(4) presumption. The requirements for establishing the presumption by presentation of ventilatory studies, blood gas studies, and “other medical evidence” are stated in 20 C.F.R. § 727 .-203(a)(2)-(4). Those sections provide: (2) Ventilatory studies establish the presence of a chronic respiratory or pulmonary disease ... as demonstrated by [FEVi,MVV] values which are equal to or less than the values specified in [a table]. (3) Blood gas studies which demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood as indicated by values [below certain arterial pC02 levels]. (4) Other medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establishes the presence of a totally disabling respiratory or pulmonary impairment. ... *484 Subparagraphs (2) and (3) explicitly require that all the ventilatory or blood gas “studies” establish the presumption. Sub-paragraph (4) is equally explicit in defining “the documented opinion of a physician” as sufficient to invoke the presumption that is the focus of our decision. Nor is the sufficiency of a single increment of medical evidence to invoke a statutory black lung presumption a novel concept. See Singleton v. Califano, 591 F.2d 383 (6th Cir.1979); Henson v. Weinberger, 548 F.2d 695 (7th Cir.1977); Bozwich v. Mathews, 558 F.2d 475 (8th Cir.1977). In the present case, the plain language of the regulation requires the same conclusion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9470937. Public record. Not legal advice.