# Charles R. Sexton v. Director, Office of Workers' Compensation Programs

> Court of Appeals for the Sixth Circuit · January 11, 1985 · 752 F.2d 213

URL: https://www.frixlaw.com/law-library/cases/9473026

## Case

- **Full name:** Charles R. SEXTON, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, Respondent
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 11, 1985
- **Citations:** 752 F.2d 213; 1985 U.S. App. LEXIS 27743
- **Precedential status:** Published
- **Opinion:** Dissent by Kennedy
- **Judges:** Edwards, Kennedy, Phillips
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9473026

## Opinion text

CORNELIA G. KENNEDY, Circuit Judge,
dissenting.
I respectfully dissent.
Claimant worked only three years in the mines and accordingly is not entitled to any presumption. The AU found that claimant had not established that he suffers from pneumoconiosis or has a disabling respiratory or pulmonary complaint arising out of his brief period of coal mine employment in the early 1940’s. He was engaged in other employment until 1974. The Benefits Review Board determined that the AU’s decision is supported by substantial evidence. I agree.
The AU found that claimant did no.t establish pneumoconiosis by x-ray. The x-rays on which he relied, and upon which Dr. Penman relied for his diagnosis, were reread by a “B” reader and found completely negative for pneumoconiosis. The AU was entitled as the factfinder to accord more weight to the “B” reader. Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797, 802 (7th Cir.1977).
The AU was also entitled to give little or no weight to Dr. Penman’s conclusion that claimant is disabled from pneumoconiosis. Dr. Penman was not shown to be an attending physician. The record reflects only that he examined claimant on two occasions. Blood gas studies and pulmonary function studies were normal. The only objective findings he made were that claimant had minor wheezes at both lung bases and some coarse rales, and some airway obstruction. It was not until five months later, without examining claimant again, that Dr. Penman stated that he was totally disabled by black lung disease. The ALJ as the factfinder was entitled to find that Dr. Penman’s reports were inconsistent.
Although I might as the factfinder have accepted Dr. Penman’s opinion, I cannot say that the AU was compelled to accept it.
Accordingly, I would affirm the decision of the Benefits Review Board.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473026. Public record. Not legal advice.