Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 124
February 1996 - April 1996
A. Circuit courts of appeals
In Scott v. Mason Coal Co., ___ F.3d ___, Case No.
93-2067 (4th Cir. 1995), the Fourth Circuit Court of Appeals held
that an administrative law judge may not reject physical
limitations noted in a doctor s report as being nothing more than
mere notations of the patient s descriptions unless there is
explicit evidence contained in the report that the
limitations are not the physician s opinion. The Third and the
Eleventh Circuits reached the same conclusion in Kowalchick v.
Director, OWCP, 893 F.2d 615, 623 (3d Cir. 1990) and
Jordan v. Benefits Review Board, 876 F.2d 1455, 1460 (11th
Cir. 1989).
[ VI - 22, limitations noted in physician's report ]
In Plesh v. Director, OWCP, 71 F.3d 103 (3d Cir.
1995), the court reaffirmed that § 727.203(b)(3) rebuttal is
accomplished where pneumoconiosis is "ruled out" as a
contributing factor to the miner's total disability and an
equivocal physician's opinion is insufficient to sustain this
burden.
Moreover, the Third Circuit held that a letter, wherein the
miner stated, "I am appealing this as of now,"
constituted a formal hearing request, thus triggering the
district director's duty to refer all contested issues to the
Office of Administrative Law Judges for resolution. This is so,
according to the court, even where the hearing request is
"premature." Specifically, in Plesh, Claimant
submitted the hearing request after issuance of an order to show
cause but prior to entry of the district director's proposed
decision and order. The court found that the letter preserved
Claimant's right to a hearing such that it was unnecessary that
he file a second request upon issuance of the district director's
final determination.
[ III - 8, formal hearing request ]
B. Benefits Review Board
In Church v. Eastern Assoc. Coal Corp., 20 B.L.R. 1-
__, BRB No. 95-0516 BLA (Jan. 24, 1996), the Board held that it
was proper to accord greater weight to a medical report "on
the grounds that the doctor specifically identified the studies
upon which he relied and the conclusion he reached was consistent
with the underlying objective evidence of record."
Moreover, the administrative law judge correctly assigned greater
weight to a treating physician's opinion whose diagnosis was
based upon "'extensive medical information gathered over a
period of many years.'" Further, the Board rejected
Employer's argument that a judge is compelled to discredit a
physician's opinion that the miner suffered from pneumoconiosis
where the physician based his findings, in part, upon x-ray
evidence which the judge ultimately concluded did not support a
finding of the disease. In so holding, the Board noted that the
physician also based his opinion upon observations gathered
during the time he physically examined Claimant.
