IN THE MATTER OF: CONSOLIDATION COAL COMPANY, Responsible Operator/Petitioner v. George Kushak

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-2854
___________
IN THE MATTER OF:
CONSOLIDATION COAL COMPANY,
Responsible Operator/Petitioner
v.
GEORGE KUSHAK,
Claimant/Respondent
and
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
United States Department of Labor,
Party-In-Interest
___________
On Petition for Review of Decision and Order of the
Benefits Review Board dated May 16, 2001
entered in Agency Nos. 0090-1 and 00-0830 BLA
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 1, 2002
Before ROTH and FUENTES, Circuit Judges, and KATZ, District Judge.
(Opinion Filed: March 26, 2002)
________________________
OPINION OF THE COURT
________________________
FUENTES, Circuit Judge:
This is a petition for review sought by the Consolidation Coal Company
("CONSOL") of the Decision and Order of the Benefits Review Board (the "Board")
which affirmed the order of the Administrative Law Judge ("ALJ") awarding black lung
benefits to claimant George Kushak.
Because we agree that the findings of the ALJ were supported by substantial
evidence, we will deny the petition for review.
I.
We state the facts and extensive procedural history of this case only in summary.
George Kushak, who worked over 34 years in and about the coal mines of Pennsylvania,
first filed for Black Lung benefits on January 15, 1980. Since then, his case has been

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before the Board four times.
In his initial Decision and Order, the ALJ found that Kushak failed to establish that
his work at a repair shop for CONSOL constituted the work of a coal miner.
Accordingly, the ALJ dismissed CONSOL as the responsible operator. The Board,
however, later vacated the ALJ’s finding with respect to Kushak’s status as a coal miner
and instructed the ALJ to reconsider Kushak’s eligibility for benefits. On remand, the
ALJ found that Kushak qualified as a coal miner with CONSOL and that CONSOL was
the responsible operator. Further, the ALJ credited Kushak with 34 years of coal mine
employment and found that he established invocation of the interim presumption of total
disability due to pneumoconiosis pursuant to 20 C.F.R. 727.203(a)(4) and that
CONSOL failed to establish rebuttal pursuant to 20 C.F.R. 727.203(b). Based on these
findings, the ALJ awarded benefits to Kushak.
After several subsequent appeals to the Board and remands to the ALJ, the ALJ
affirmed the award of benefits again on April 28, 2000. CONSOL then appealed that
decision to the Board, contending that the ALJ erred in finding that the evidence was
sufficient to establish invocation of the interim presumption pursuant to 727.203(a)(4)
and in finding that the evidence was insufficient to establish rebuttal of the interim
presumption pursuant to 727.203(b)(3) and (b)(4). More specifically, CONSOL argued
that the ALJ failed to state an adequate rationale for finding the opinion of one doctor,
who diagnosed total disability due to pneumoconiosis, more persuasive than the contrary
opinions of four other doctors, who found no respiratory impairment.
In its Decision and Order dated March 16, 2001, the Board found that the ALJ
weighed all of the medical opinions and rationally concluded that the preponderance of
the evidence established the existence of a totally disabling respiratory or pulmonary
impairment due to pneumoconiosis. Accordingly, it affirmed the ALJ’s Decision and
Order on Remand denying modification and awarding benefits. On July 12, 2001,
CONSOL filed a notice of appeal with this Court. It maintains that the ALJ failed to rely
on substantial evidence in finding that the opinion of Kushak’s treating physician
established the presence of a totally disabling pulmonary disease.
II.
We have appellate jurisdiction over this matter pursuant to Section 21(c) of the
Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 921(c), as incorporated
by Section 422(a) of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as
amended, 30 U.S.C. 932(a). We review decisions of the Benefits Review Board for
errors of law and adherence to the Board’s statutory scope of review. See Nelson v.
American Dredging Co., 143 F.3d 789, 792 (3d Cir. 1998).
When factual findings are at issue, "we make an independent factual review to
determine whether the administrative law judge’s findings were supported by substantial
evidence." Sea-Land Service, Inc. v. Rock, 953 F.2d 56, 59 (3d Cir. 1992) (citing
Janusziewicz v. Sun Shipbuilding & Dry Dock Co., 677 F.2d 286, 290 (3d Cir.1982)).
"Substantial evidence" is defined as "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401,
91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (citing Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)).
III.
To be entitled to the interim presumption of total disability due to pneumoconiosis,
an individual with over ten years of coal mine employment must produce evidence in
accordance with 20 C.F.R. 727.203(a), which provides:
A miner who engaged in mine employment for at least 10 years will be
presumed to be totally disabled due to pneumoconiosis . . . arising out of
that employment if one of the following medical requirements is met:
(1) x-ray, biopsy, or autopsy established existence of
pneumoconiosis . . . or
(2) ventilatory studies which demonstrate the presence of an
impairment in the transfer of oxygen from the lung . . . or
(3) blood gas studies which demonstrate the presence of an
impairment in the transfer of oxygen from the lung . . . or
(4) other medical evidence, including the documented opinion of a

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physician exercising reasoned medical judgment, establishes the
presence of a totally disabling respiratory or pulmonary impairment.
The ALJ found that Kushak is entitled to the presumption of total disability under
727.203(a)(4) based upon the documented opinion of Dr. Naresh Bhatt, who diagnosed
Kushak with pneumoconiosis after treating and examining him several times. In making
his diagnosis, Dr. Bhatt stated that he relied upon Kushak’s coal mine employment
history, his complaints of shortness of breath, wheezes in the lungs, and x-ray
interpretations showing the presence of fibrosis in the lungs.
Because we conclude that a reasonable mind could accept Dr. Bhatt’s medical
report as adequate to support a conclusion that Kushak has been suffering from
pneumoconiosis, we find that the ALJ’s finding that Kushak is entitled to the presumption
of total disability under 727.203(a)(4) is supported by substantial evidence.
Once an individual invokes the interim presumption under 727.203(a), the
presumption can be rebutted pursuant to 727.203(b) if:
(1) the evidence establishes that the individual is doing his usual coal mine
work . . . or
(2) in light of all relevant evidence it is established that the individual is
able to do his usual coal mine work . . . or
(3) the evidence establishes that the total disability . . . did not arise in
whole or in part from coal mine employment . . . or
(4) evidence establishes that the miner does not or did not have
pneumoconiosis.
CONSOL contends that several laboratory test results and the opinions of Drs. Fino,
Morgan, Renn, and Packovich, who all found no signs of disabling pulmonary disease,
are sufficient to establish rebuttal of the interim presumption under subsections (b)(3) and
(b)(4).
The ALJ cited several reasons for rejecting CONSOL’s argument with respect to
subsection (b)(3). He observed that Drs. Fino and Morgan could not provide an
alternative cause for Kushak’s symptoms. He dismissed Dr. Renn’s opinion, which
attributed Kushak’s symptoms to depression, because it was not documented elsewhere in
the record and because none of the other examining physicians had made that diagnosis.
After weighing the evidence, the ALJ finally concluded that Dr. Bhatt’s opinion is the
most persuasive on the causation issue.
The ALJ also found that the preponderance of the evidence does not support
rebuttal under subsection (b)(4). He explained that negative chest x-ray evidence alone
does not establish rebuttal and, again, that he found the opinion of Dr. Bhatt more
persuasive than those of Drs. Renn, Morgan, Fino and Packovich. He noted that Drs.
Fino and Morgan had never actually examined Kushak and that Drs. Renn and Packovich
only examined Kushak once. Dr. Bhatt, in contrast, had examined Kushak on several
occasions over a three year period. Further, the ALJ found that Dr. Bhatt provided a
reasoned opinion supporting his conclusion that a causal nexus exists between Kushak’s
respiratory or pulmonary impairment and his coal mine dust exposure.
Because we agree with the Board’s finding that the ALJ weighed all of the medical
opinions and test results and reasonably concluded that the evidence was insufficient to
establish rebuttal of the interim presumption pursuant to subsections (b)(3) and (b)(4), we
find that his decision was supported by substantial evidence. We have also carefully
considered CONSOL’s remaining arguments in this appeal and conclude that they lack
merit.
IV.
For the reasons stated above and in the Benefits Review Board’s well-reasoned
opinion, we will deny CONSOL’s petition for review of the Board’s decision.
_____________________________
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.

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/s/ Julio M. Fuentes
Circuit Judg

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