Fourth Circuit Summarily Affirms Three Black Lung Awards (McElroy Coal Co. v. Director, OWCP [Wnek], McElroy Coal Co. v. Director, OWCP [Kennedy] & Consolidation Coal Co. v. Varner)

Map of 4th Circuit Jurisdiction

In the past week, the U.S. Court of Appeals for the Fourth Circuit summarily affirmed awards of federal black lung benefits to two coal miners.  These decisions reminded me of another summary, per curiam decision by the Fourth Circuit from last month that wasn’t covered on this blog yet, so all three will be covered together.

The three summary decisions are fifteen-year presumption cases that are favorable to miners, but provide minimal precedential value.  In each case, the Fourth Circuit issued an unpublished, one-paragraph opinion using some version of its standard line:  “Our review of the record discloses that the ALJ’s decision is based on substantial evidence and that the Board’s decision is without reversible error.”  (Previous posts have covered the court’s use of this line.)

The three recent decisions are:

  • McElroy Coal Co. v. Director, OWCP [Wnek] (decision here) 2015 WL 67458732 (4th Cir. Nov. 5, 2015) (panel made up of Circuit Judges Gregory & Keenan, and Senior Circuit Judge Hamilton)
    • Holding that the Benefits Review Board (Board decision here) correctly rejected McElroy’s Coal’s arguments regarding the ALJ’s weighing of the evidence and application of the rule-out standard to a coal operator seeking to rebut a presumption of disability causation.
  • McElroy Coal Co. v. Director, OWCP [Kennedy] (decision here) (4th Cir. Dec. 11, 2015) (panel made up of Circuit Judges Wilkinson, Agee & Keenan)
    • Holding that the Benefits Review Board (Board decision here) correctly rejected McElroy Coal’s arguments regarding the ALJ’s weighing of the evidence and use of the preamble.
  • Consolidation Coal Co. v. Varner (decision here) (4th Cir. Dec. 17, 2015) (panel made up of Circuit Judges Wilkinson, Keenan & Diaz)
    • Holding that the Benefits Review Board (Board decision here) correctly rejected Consoliation Coal’s arguments related to the timeliness of Mr. Varner’s claim, the rebuttal standard applicable to coal operators, and the ALJ’s weighing of the rebuttal evidence.

The coal companies in all three cases were represented by attorneys from Jackson Kelly PLLC: Jeffrey R. Soukup in Wnek & Kennedy and William S. Mattingly in Varner.

Mr. Wnek and Mr. Varner were represented by Heath M. Long of Pawlowski, Bilonick & Long.

Mr. Kennedy was represented by Anne Megan Davis & Thomas E. Johnson of Johnson, Jones, Snelling, Gilbert & Davis P.C.

The Director, OWCP was represented by the Department of Labor’s Solicitor’s Office:  Gary K. Stearman & Ann Marie Scarpino in Wnek, Gary K. Stearman in Kennedy, and Maia S. Fisher & Sean G. Bajkowski in Varner.

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