Notice: Fourth Circuit I.O.P. 36.6 States that Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit. Milburn Colliery Company, Petitioner, v. Charlie R. Woodson; Director, Office of Workers Compensation Program, United States Department of Labor, Respondents., 905 F.2d 1530 (4th Cir. 1990)

Docket Number: 89-3318

Linked as:

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On Petition for Review of an Order of the Benefits Review Board. (BRB No. 85-542 BLA).

Douglas Allan Smoot, Jackson & Kelly, Charleston, W.V., (Argued), for petitioner; Ann B. Rembrandt, Jackson & Kelly, Charleston, W.V., on brief.

Thomas Hammond Zerbe, Charleston, W.V. (Argued), for respondents; Eileen McCarthy, Office of the Solicitor, United States Department of Labor, Washington, D.C., on brief.

Ben.Rev.Bd.

AFFIRMED.

Before MURNAGHAN, Circuit Judge, BUTZNER, Senior Circuit Judge, and FRANK A. KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

PER CURIAM:

The Milburn Colliery Company ("Employer") has appealed an affirmance by the Benefits Review Board ("Board") of the decision of an Administrative Law Judge ("ALJ") to award benefits to former coalminer Charlie Woodson. The award was made pursuant to Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. Secs . 901 et seq. The ALJ had before him several physician evaluations of Woodson, some of which suggested that Woodson was entitled to benefits and some of which suggested he was not.

The Employer asks us to find error in the Board's treatment of the opinion of Dr. D.L. Rasmussen. The Employer points out that the ALJ evaluated Dr. Rasmussen's report before our decision in Sykes v. Director, OWCP, 812 F.2d 890 (4th Cir.1987), which clarified the manner in which employers are to rebut, under 20 C.F.R. Sec. 727.203(b)(2), a presumption of total disability due to pneumoconiosis arising out of coal mine employment. For the reasons ably set forth by the Board in both its original Decision and Order and its Decision and Order on Motion for Reconsideration, we find the Employer's argument to be without merit and, accordingly, affirm.

AFFIRMED.