# William Neace v. Director, Office of Workers' Compensation Programs, U.S. Dept. Of Labor and Benefits Review Board

> Court of Appeals for the Sixth Circuit · January 30, 1989 · 867 F.2d 264

URL: https://www.frixlaw.com/law-library/cases/9478688

## Case

- **Full name:** William NEACE, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, U.S. DEPT. OF LABOR and Benefits Review Board, Respondents
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 30, 1989
- **Citations:** 867 F.2d 264; 1989 U.S. App. LEXIS 690; 1989 WL 5559
- **Precedential status:** Published
- **Opinion:** Dissent by Jones
- **Judges:** Jones, Wellford, Boggs
- **Cited by:** 28 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/9478688

## Opinion text

NATHANIEL R. JONES, Circuit Judge,
dissenting.
Because neither substantial evidence nor a proper administrative finding supports the conclusion that the Director has rebutted the disability presumption in this case, I respectfully dissent from the majority’s decision.
The ALJ in this case found that while Neace proved his entitlement to the interim presumption under 20 C.F.R. § 727.203 (b)(1), the Director successfully rebutted this presumption under subsection (b)(2). The latter provision states that the interim disability presumption is legally rebutted if the Director establishes that the claimant is “able to do his usual coal mine work or comparable and gainful work....” This court has held in York v. Benefits Review Board, 819 F.2d 134, 137-38 (6th Cir.1987), that rebuttal is not accomplished under subsection (b)(2) merely by showing that the claimant’s respiratory impairment does not prevent him from performing his past coal mine work. Rather, the Director must affirmatively prove that the claimant *270 is fully capable of performing the physical and cognitive tasks involved in his past coal mine work or comparable and gainful work. Id. at 138-39 (Celebrezze, J., concurring).
The record in the instant case contains evidence that Neace suffered from respiratory and psychoneurotic impairments. However, contrary to the clear teaching of York , the Board relied solely upon Neace’s respiratory impairment in holding that the Director had rebutted the (b)(1) presumption. The Board’s error is magnified by Dr. Williams’s report, which implies that but for the psychoneurotic problem, Neace could do his usual work. Appellee’s Br. at 9; J.App. at 21. Given the record evidence of Neace’s psychoneurosis, the Board’s reliance on his respiratory impairment alone is clearly in error under subsection (b)(2) as interpreted in York .
Further compounding the Board’s error is the AU’s failure to make a finding that Neace actually could perform his past coal mine work. Although the majority concludes that “the ALJ’s determination of no disabling respiratory impairment [is] the equivalent of a finding that Neace could perform his usual coal mine work,” this conclusion is contrary to the opinions of all of the examining physicians. As noted earlier, Dr. Williams’s report suggests that Neace cannot return to his past work or comparable work because of his psychoneurosis. Further, while Dr. Kerr’s report indicates that Neace does not suffer from a disabling respiratory impairment, Dr. Kerr opines that Neace is capable of performing only medium work activity. J.App. at 43. Since Neace’s past coal mine work involved constant heavy lifting and bending, Dr. Kerr’s report suggests that Neace could not return to this or comparable work. Finally, Drs. Wright, Clarke and Odum indicated that Neace suffered from pneumoco-niosis, and Drs. Clarke and Odum found that he was disabled from all work in a dusty environment due to this condition. Given that all of the physicians’ reports indicate that Neace is not capable of doing his past coal mine work or comparable gainful work, substantial evidence does not support the Board’s determination (assuming that such a determination was made) that Neace is capable of returning to his past work or performing comparable work.
For the foregoing reasons, I respectfully dissent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478688. Public record. Not legal advice.