# Henry Wright v. Island Creek Coal Company, Director, Office of Workers' Compensation Programs and United States Department of Labor

> Court of Appeals for the Sixth Circuit · July 29, 1987 · 824 F.2d 505

URL: https://www.frixlaw.com/law-library/cases/9476479

## Case

- **Full name:** Henry WRIGHT, Petitioner, v. ISLAND CREEK COAL COMPANY, Director, Office of Workers’ Compensation Programs; And United States Department of Labor, Respondents
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** July 29, 1987
- **Citations:** 824 F.2d 505; 1987 U.S. App. LEXIS 9989
- **Precedential status:** Published
- **Opinion:** Concurrence by Nelson
- **Judges:** Wellford, Milburn, Nelson
- **Cited by:** 29 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/9476479

## Opinion text

DAVID A. NELSON, Circuit Judge,
concurring.
I concur in the court’s opinion, but write separately to address what I perceive to be a conflict between the decision in this case and that in Roberts v. Benefits Review Board, 822 F.2d 636 (6th Cir.1987).
In Roberts , as here, an administrative law judge and the Benefits Review Board denied benefits to a coal miner who suffered both from pneumoconiosis and an unrelated medical condition. (Mr. Roberts had been disabled by a stroke.) The AU concluded in Roberts that the statutory presumption of entitlement to benefits had been rebutted under 20 C.F.R. §§ 727 .-203(b)(2) and (3), but he misread both sections; as far as (b)(3) was concerned, the AU treated the presumption as having been rebutted because the evidence established that the miner’s total disability did not arise “in whole” out of coal mine employment, whereas the regulation requires a finding that the total disability did not arise “in whole or in part” out of coal mine employment. A three-judge panel of this court reversed the decision and held that Mr. Roberts was entitled to benefits.
One member of the panel (myself, as it happens) dissented. Because the evidence in Roberts would have supported findings that Mr. Roberts’ stroke would have been totally disabling even without the pneumo-coniosis and that the pneumoconiosis would not have been disabling without the stroke, and because I thought such findings would have satisfied § 727.203(b)(3), I would have remanded the case to let the AU determine whether, in the words of (b)(3), “[t]he evidence established] that the total disability ... did not arise in whole or in part out of coal mine employment.” It seemed to me, as I said in my dissent, that “[i]f, 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 *510 the finding without ignoring the word “total” and repudiating our decision in Ramey [v. Kentland Elkhorn Coal Corp., 755 F.2d 485 (6th Cir.1985) ].”
There being no indication, in the case at bar, that the AU was misreading (b)(8), I do not see how we could reverse the finding here without repudiating our decision in Ramey. Conversely, I do not see how we can affirm the finding without repudiating our decision in Roberts . Believing Ra-mey right and Roberts wrong, I have no hesitancy about joining the court’s opinion in this case. I fully support the long-standing tradition of this court that one three-judge panel of the court is not to overrule a prior decision of another panel of the court, but where, as here, one is confronted with two prior decisions that appear inconsistent, I take it that he ought to resolve the dilemma by following the decision he believes to be correct.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476479. Public record. Not legal advice.