Dominion Coal Corporation v. James J. Gross

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2280
DOMINION COAL CORPORATION,
Petitioner,
versus
JAMES J. GROSS; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
---------------
JAMES PHEMISTER, Professor,
Amicus Supporting Respondent Gross.
On Petition for Review of an Order of the Benefits Review Board.
(03-118-BLA)
Argued: March 14, 2006 Decided: May 4, 2006
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Ronald Eugene Gilbertson, BELL, BOYD & LLOYD, Washington,
D.C., for Petitioner. Barry H. Joyner, UNITED STATES DEPARTMENT OF
LABOR, Office of the Solicitor, Washington, D.C.; Mary Varson
Cromer, WASHINGTON & LEE UNIVERSITY, School of Law, Lexington,
Virginia, for Respondents. ON BRIEF: Howard M. Radzely, Solicitor

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2
of Labor, Donald S. Shire, Associate Solicitor, Christian P.
Barber, Counsel for Appellate Litigation, UNITED STATES DEPARTMENT
OF LABOR, Office of the Solicitor, Washington, D.C., for
Respondent Director, Office of Workers’ Compensation Programs.
James M. Phemister, WASHINGTON & LEE UNIVERSITY, School of Law,
Lexington, Virginia, for Amicus Supporting Respondent Gross.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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1The court grants Gross’s motion to proceed in forma pauperis
on appeal.
2The Board properly determined that Gross’s request for
modification was timely received “prior to one year after the
rejection of [his] claim.” 33 U.S.C. § 922 (2000); see also 30
U.S.C. § 932(a) (2000); 20 C.F.R. § 725.310(a). The clock began to
run the day after the Board’s November 6, 1998 decision. See 20
C.F.R. § 725.311(c). Because November 6, 1999 was a Saturday, the
deadline was moved to the following Monday, November 8, 1999, see
id., the date on which Gross’s request was received.
3
PER CURIAM:
Dominion Coal Corporation seeks review of an order of the
Benefits Review Board affirming the award of benefits to James
Gross under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq.
(2000).1 We agree with the Board that substantial evidence
supports the decision of the administrative law judge, and we
therefore affirm.
Gross worked as a coal miner for thirty years, the final
twenty-four of them as a roof bolter for Dominion. He has
experienced respiratory difficulties, and in 1994, he applied for
black lung benefits. His claim was originally denied, and the
Board affirmed in an unpublished decision issued November 6, 1998.
Gross then submitted a request for modification of this
determination, see 20 C.F.R. § 725.310 (2005), which the district
director received on November 8, 1999. 2 An ALJ subsequently found
that Gross was entitled to benefits based on new evidence, and the
Board affirmed.

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On appeal, Dominion contends that Gross failed to carry the
burden of showing that chronic dust disease arising out of coal-
mine employment was “a substantially contributing cause” of his
disability. Id. § 718.204(c)(1). In particular, Dominion argues
that the ALJ erred in crediting the opinion of Gross’s expert, Dr.
Forehand, and in discrediting those of Dominion’s experts, Drs.
Castle and Branscomb, who opined that Gross’s disability was caused
by smoking cigarettes. The Board, however, has explained at some
length why it was permissible for the ALJ to weight the conflicting
expert opinions in this fashion, and on balance, we must show
deference to the decisionmaker who heard the evidence firsthand.
See, e.g., Stiltner v. Island Creek Coal Co., 86 F.3d 337, 342 (4th
Cir. 1996). We are thus persuaded, for the reasons given by the
Board, that substantial evidence exists to support the ALJ’s
factual determinations. See Boyd & Stevenson Coal Co. v. Dir.,
OWCP, 407 F.3d 663, 666 (4th Cir. 2005). The judgment of the Board
is therefore
AFFIRMED.

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