In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1430

FREEMAN UNITED COAL MINING CO.,

Petitioner,

v.

HERMAN E. SUMMERS,

Respondent.

Petition for Review from the Benefits Review Board
of the United States Department of Labor
BRB No. 00-0108 BLA

Argued SEPTEMBER 17, 2001--Decided November 15, 2001


  Before COFFEY, EASTERBROOK and WILLIAMS,
Circuit Judges.

  COFFEY, Circuit Judge. Petitioner
Freeman United Coal Mining Company
("Freeman") appeals an order of the Bene
fits Review Board of the United States
Department of Labor, which granted
Respondent Herman E. Summers’ ("Summers")
claim for relief under the Black Lung
Benefits Reform Act. We enforce the
decision of the Board.

I.   PROCEDURAL HISTORY

  This is the second time that Summers’
claim for benefits has come before the
court. Summers worked as a coal miner in
southern Illinois from 1948 to 1965 and
1974 to 1980. He retired and filed a
claim for black lung benefits October 9,
1980. After an administrative law judge
("ALJ") denied the request, the Board
remanded for further review and then
affirmed the denial. We upheld the
Board’s order. Summers v. Freeman United
Coal Mining Co., 

(7th Cir.
1994). Summers subsequently petitioned
the agency to modify its decision,
stating that he had obtained new medical
reports and data, which strengthened his
claim. An ALJ originally denied the
petition, but the Board reversed and
allowed Summers to supplement the record
with this additional information.
  The case was remanded for further
consideration before a new judge, Thomas
M. Burke. After considering the record as
a whole, ALJ Burke proceeded to award
benefits in an order dated September 2,
1999. The Board affirmed. Freeman
subsequently filed this appeal and argues
that the ALJ erred in: (1) invoking the
statutory presumption that Summers was
totally disabled by pneumoconiosis; and
(2) failing to find that this presumption
was rebutted by the medical evidence
submitted by the coal company, which
suggested that Summers’ disability is
wholly attributable to severe asthma and
is unrelated to his coal mining.

II.   FACTUAL BACKGROUND

  Summers was exposed to coal dust for
most of his 23 years in the mining
industry. Some of his exposure occurred
while he was stationed in underground
mines between May 1948 and November 1950
and April 1975 to August 1975. During the
former period, Summers hung electrical
wire and trolley wire in Old Ben Coal
Company’s #9 mine in West Frankfort, Ill.
During the latter period, Summers
upgraded the electrical equipment in the
bottom of Freeman’s #4 mine in Benton,
Ill. Black dust permeated the working
environment at Old Ben, and, according to
Summers, there was "substantial coal
dust" in the Benton mine as well.

  The majority of Summers’ exposure to
coal dust, however, occurred when he
worked inside the offices and shops that
were built above ground on the coal
company’s property. Summers worked at the
site of Freeman’s United Crown Mine in
Springfield, Ill., from November 1950 to
July 1960 and the site of Freeman’s #5
mine in Benton from July 1960 to April
1965. He was an unusually hard worker,
putting in a straight shift plus one hour
of overtime each weekday, and another
overtime shift each Saturday. Moreover,
he was on call around the clock. He left
the coal company to work at Southern
Illinois University in April 1965 but re
turned in September 1974 to help overhaul
the infrastructure of the #5 mine. After
several months, he was promoted and
transferred to Freeman’s central offices
in West Frankfort, where he was given
responsibility for maintaining and
repairing electrical equipment in all of
the area’s coal mines and processing
plants. Summers worked 5 days a week in
this position until he retired in October
1980.

  While in the central offices, Summers
spent portions of almost every weekday
inspecting Freeman’s coal preparation
plants and portions of one or two
additional weekdays maintaining Freeman’s
underground mines. He described how the
miners’ activities in the preparation
plants stirred up so much dust that he
regularly left work with coal tracings
all over his hair, eyebrows, and clothes.
In fact, he stated that he was "probably"
exposed to as much dust in the coal
preparation plants as he was in the
underground mines at Old Ben in the
1940s. Part of Summers’ deposition reads
as follows:

Q: Can you describe the coal preparation
plant?

A: Well, depending on the plant, they are
sometimes three, four, five stories high
and it has all kinds of shakers. When the
coal comes in, it’s usually run over
these shakers to size the coal to get the
different sizes. They sell coal on order.
Some companies want small coal, some want
large coal. So this coal is run over
these shakers so the small ones fall
through, and then as it goes on it gets
to the bigger ones, and there is a lot of
dust in these preparation plants because
they are handling coal all the time.

Q: Could you compare the dust generated at
the coal preparation plant with the dust
you were exposed to when you were working
underground at Old Ben?
A: It’s a difficult thing. I’d say it’s
pretty much the same . . . if you’re
around any of these shakers or if you’re
around where they are loading the coal in
the coal cars, I would say that you are
probably exposed to as much dust there as
you are working underground.

  Summers also explained that he was
exposed to substantial levels of dust
during his 15 years in Springfield and
Benton. He divided his time among the
coal preparation plants, the hoist rooms,
and the repair shops. He worked at least
once or twice a week for 15 minutes to
several hours in the preparation plants,
where the conditions mirrored those
described above. In the hoist rooms,
where he worked for 60 to 90 minutes on
weekdays and eight hours on Saturdays,
machine generators hummed away with
circulation fans stirring up coal dust
while Summers lowered men into the mine
shaft or performed routine maintenance
tasks. Finally, in the repair shops,
where Summers spent approximately 30 to
45 minutes a day, the dust so permeated
the air that he would "always" leave work
"covered with coal dust." The shops were
one-room, 300 square-foot hovels with
seven foot ceilings, a lone window, and
no exhaust fans. Summers used an air hose
to blow the coal dust off and out of the
machines he restored; dust collected on
the walls and the ceilings and needed to
be swept out periodically. The company
did not provide its employees with masks.


  Summers described the hoist rooms as
"very dusty areas" and the repair shops
as some of "the dustiest areas" on the
surface of the mine. Part of his
deposition discusses the extent of his
exposure as follows:

Q: What were the dustiest areas on the
surface at the Crown Mine when you worked
there?

A: The dustiest areas?

Q: Yes.

A: Well, the motor repair shop was one of
the dustiest areas. The hoist room was
certainly a dusty area, because in the
front of this building we had this large
hole where the two ropes went out that
were tied on to these buckets. And that
window was about, I’d say, five feet
across and four feet up and down, and
we’re sitting there while they are
loading coal cars right out in front of
this building, and the prevailing winds
would also blow it right into the hoist
room. It was a very dusty area.

  ALJ Burke took Summers’ claim for black
lung benefits under submission in 1998.
The voluminous record included scores of
x-rays, dozens of pulmonary function and
blood gas tests, 11 reports from
physicians, and several depositions and
affidavits. The underlying facts were
undisputed: the parties agreed that
Summers has severe asthma and such
obstructive lung diseases as emphysema,
chronic obstructive pulmonary disease
("COPD"), and bronchitis. The parties
strongly disagreed, however, about the
cause of these ailments. Two x-rays were
positive for pneumoconiosis, but 15 were
negative. Several doctors believed that
Summers was totally disabled by asthma or
COPD, but other experts concluded that
his disability was substantially caused
by his exposure to coal dust. The coal
company relied mainly on the opinions of
Dr. Gregory J. Fino; Summers bolstered
his claim primarily with the reports of
Dr. Robert A.C. Cohen and Dr. David M.
Hinkamp. ALJ Burke concluded that
Summers’ own testimony raised an
inference of disability caused, at least
in part, by coal dust. The judge then
turned to the medical evidence proffered
by the coal company in an attempt to
rebut this inference. He found this
evidence unconvincing and, therefore,
granted Summers’ petition for benefits.

III.    STANDARD OF REVIEW

  We review questions of law de novo, but
we give the ALJ’s factual findings
considerable deference. We ask
onlywhether the ALJ’s decision is
rational, supported by substantial
evidence, and in accordance with the law.
Peabody Coal Co. v. Helms, 

,
489 (7th Cir. 1988). "Substantial
evidence is ’such relevant evidence as a
rational mind might accept as adequate to
support a conclusion.’" 

v. Perales, 

, 401
(1971)). We do not reweigh the evidence,
resolve inconsistencies in the record,
make credibility determinations, or
substitute our inferences for those drawn
below. Blakley v. Amax Coal Co., 

, 1322 (7th Cir. 1995); Amax Coal Co.
v. Beasley, 

, 327 (7th Cir.
1992).

IV.    DISCUSSION

A.    The 15-Year Presumption

  The landmark Federal Coal Mine Health
and Safety Act of 1969, as amended, is
remedial legislation that is liberally
construed to effectuate its purpose of
improving the well-being of coal
miners./1 One component of this
legislation, the Black Lung Benefits
Reform Act, 30 U.S.C. sec. 911 et seq.,
aids miners who are totally disabled by
black lung disease and establishes
certain statutory presumptions that help
remove the obstacles facing miners who
seek to obtain such aid.

  Because Summers’ claim was filed prior
to January 1, 1982, we apply what is
known as the "15-year presumption"
imposed by 30 U.S.C. sec. 921(c)(4). That
is to say, we presume that Summers is
disabled by pneumoconiosis if he can
demonstrate that: (1) x-ray evidence is
inconclusive; (2) but he has a totally
disabling respiratory or pulmonary
impairment; (3) and he is a coal miner;
(4) who was employed for 15 years or more
in either (a) an underground coal mine;
or (b) it is determined that the
conditions of his employment in a coal
mine were substantially similar to
conditions in an underground mine.
Peabody Coal Co. v. Spese, 

,
1010 (7th Cir. 1997) (en banc). The miner
is entitled to benefits unless the coal
company overcomes this presumption with
rebuttal evidence, the nature of which we
discuss later in Part IV.B.

  Freeman concedes the first two elements.
The experts all agreed that Summers is
totally disabled, and although the
classic form of complicated black lung
disease is usually discernible on chest
x-rays, all but two of Summers’ x-ray
results were repeatedly negative. See
Ziegler Coal Co. v. OWCP, 

,
1239 (7th Cir. 1994) (reversing award
based on evidence "consisting solely of
five negative x-ray readings and two
positive readings"). Similarly, there is
no serious dispute that Summers is a
"coal miner," as defined by the relevant
regulations./2 As part of his usual
course of business, he worked directly on
the coal company’s property, either
within or above the underground coal
mines, maintaining or repairing machines
that were indispensable to the extraction
or preparation of coal. See Mitchell v.
Director, OWCP, 

, 490 (7th
Cir. 1988); Amigo Smokeless Coal Co. v.
Director, OWCP, 

, 70 (4th Cir.
1981). Cf. Director, OWCP v. Ziegler Coal
Co., 

, 537 n.11 (7th Cir.
1988).

1.   Conditions of employment

  The next issue we address is whether
Summers proved that he worked for at
least 15 years in an underground coal
mine or in a coal mine with conditions
substantially similar to those in an
underground coal mine. Freeman contends
that the record is barren of any
objective facts from which the ALJ could
have determined the conditions of
Summers’ workplace. Freeman argues that
"even the most generous reading of
Claimant’s comparable work experience
amounts to two years and nine months of
actual work underground, and seven years
of comparable surface work." We disagree.
  The ALJ’s finding of similarity was
supported by Summers’ unrefuted testimony
about his employment conditions. In
Director, OWCP v. Midland Coal Co., 

(7th Cir. 1988), we held that a
surface or "strip" miner was not required
to directly compare his work environment
to conditions underground. Rather, the
miner could establish similarity simply
by proffering "sufficient evidence of the
surface mining conditions in which he
worked." It would then be "the function
of the ALJ, based on his expertise and,
we would expect, certain appropriate
objective factors . . . to compare the
surface mining conditions established by
the evidence to conditions known to
prevail in underground mines." 

We conclude that Midland Coal’s
evidentiary framework logically applies
in this case. "Coal mines" include all of
the structures, facilities, and real or
personal property "upon, under or above
the surface" of land that is used for
extracting or preparing coal. 20 C.F.R.
sec. 725.101(a)(12). Summers
intermittently labored underground or in
buildings located atop subterranean coal
mines, performing tasks inexorably
intertwined with coal production.
Therefore, he is a miner, according to
the regulations, and we will not require
him to prove similarity in a different
manner merely because he did not wield a
pickaxe and a shovel while he worked. The
evidentiary burdens are the same for all
miners covered under the Act. See
Battaglia v. Peabody Coal Co., 

, 110 (7th Cir. 1982) ("[t]he
regulations draw no distinction between
underground miners and aboveground
miners.")

  This is not to say, as the claimant
asserted at oral argument, that a miner
can prove similarity simply by showing
that he was in or around a coal mine for
at least 15 years, without any further
discussion of his employment conditions.
Such a scintilla of evidence would not
discharge the claimant’s burden of proof.
Yet on this record, we readily conclude
that the ALJ’s invocation of the
presumption was proper. We find no merit
to the coal company’s claim that Summers
simply made conclusory assertions such
as, "The rooms were very dusty." To the
contrary, we believe that Summers clearly
delineated, in objective terms, the awful
conditions on the surface of the mine. As
we noted in Part II, Summers clearly and
most vividly described how the tasks he
performed in the repair shops, hoist
rooms, and preparation plants resulted in
dust exposure. He described how the wind
and the exhaust fans aggravated that
exposure, and he discussed the extent of
that exposure. This unrebutted testimony,
on its own terms, would have been
sufficient for the ALJ, with his
expertise and knowledge of the industry,
to compare Summers’ working conditions to
those prevalent in underground mines. See

. Furthermore, we
note that Summers gave additional,
convincing, and undisputed testimony that
his job conditions above and below ground
were "pretty much the same." The ALJ was
bound to find similarity after receiving
such testimony, for one cannot rationally
ignore credible, uncontested evidence.
See Peabody Coal Co. v. Lowis, 

, 276 (7th Cir. 1983).

  Freeman tells us that the ALJ
erroneously analyzed the work environment
because the judge mistakenly believed
that Summers worked within 50 feet of the
mine’s tipple. In response, we remind the
petitioner that just as the ALJ cannot
mischaracterize testimony or take
statements out of context, 

company should not distort the record on
appeal. Summers was asked, "How far was
[the repair shop] from the tipple?" and
he responded, "It was closer to the other
shaft where the men went up and down. If
you want to talk about that tipple, it
was within 50 or 75 feet."/3 Our review
convinces us that the ALJ drew rational
inferences from this portion of the
record and, indeed, the record as a
whole. The judge then determined that
Summers labored in conditions
substantially similar to those
underground. We will not disturb those
findings. See 

.
2.   The 125-day rule

  Given the findings of substantial
similarity, the issue becomes whether
Summers’ work in the coal mines totaled
15 years, as that figure is defined by
the Act and its enabling regulations.
Summers clocked in five or six days a
week over the course of 23 years. He
worked in underground coal mines from May
1948 to November 1950 and April to August
1975, and he worked at underground coal
mines inside miserable workrooms and
processing plants from November 1950 to
April 1965 and from August 1975 to
October 1980.

  In arguing that Summers cannot invoke
the 15-year presumption, Freeman assumes
that an individual working above ground
must prove that he was exposed to
substantial coal dust for the same number
of working hours that an underground
miner would spend in subterranean
conditions over the course of 15 years of
full-time employment. Using Freeman’s
figures, this would be at least 28,800
working hours or 3,600 eight-hour working
days./4 The company added up the total
number of hours that Summers spent
working underground and working in the
surface repair shops, hoist rooms, and
coal preparation plants. The company then
divided that figure by eight in order to
calculate Summers’ total daily exposure
to coal dust. Because this number does
not equal 3,600, the company believes
that the ALJ improperly invoked the 15-
year presumption./5 We are sure this is
wrong. See 20 C.F.R. sec. 718.301.

  For purposes of calculating a miner’s
length of employment, a year is defined
as one calendar year, or partial periods
totaling one year, during which the miner
has worked "in or around a coal mine or
mines for at least 125 ’working days.’"

"A ’working day’
means any day or part of a day for which
a miner received pay for work as a miner,
but shall not include any day for which
the miner received pay while on an
approved absence, such as vacation or
sick leave." 

evidence
establishes that the miner worked in or
around coal mines at least 125 working
days during a calendar year or partial
periods totaling one year, then the miner
has worked one year in coal mine
employment for all purposes under the
Act." 

Thus,
Summers was not required to establish
that he worked underground for more than
125 days per annum. See Landes v. OWCP,

, 1198 (7th Cir. 1993)
(quoting Yauk v. Director, OWCP, 

, 195 (8th Cir. 1989)). Nor did he
have to prove that he was around surface
coal dust for a full eight hours on any
given day for that day to count towards
the 125-day total. See Griffith v.
Director, OWCP, 

, 849 (6th
Cir. 1989). All that Summers had to show
was that he worked "in or around a coal
mine" for any part of 125 days in a
calendar year, for a total of 15 years.
This he unquestionably did, by
demonstrating that he was exposed to
work-related dust five or six days each
week from May 1948 to April 1965 and from
April 1975 to October 1980. The ALJ then
rationally determined that Summers was
exposed to substantially the same
conditions as underground miners. On this
record, we conclude that the ALJ properly
invoked the 15-year presumption. As a
result, the burden shifted to the coal
company to demonstrate either that: (1)
Summers does not have pneumoconiosis; (2)
is not totally disabled; or (3) is not
disabled by pneumoconiosis. Peabody Coal
Co. v. Director, OWCP, 

,
1128 (7th Cir. 1999); Amax Coal Co. v.
Burns, 

, 500 (7th Cir. 1988).

B.   The Rebuttal Burden

  Legal pneumoconiosis (as opposed to
clinical pneumoconiosis) is defined as a
chronic dust disease of the lung and its
sequelae, including chronic, restrictive,
or obstructive respiratory and pulmonary
impairments arising out of coal mine
employment. Underhill v. Peabody Coal
Co., 

, 223 n.10 (7th Cir.
1982); 30 U.S.C. sec. 902(b). Coal-
induced dust diseases arising from mine
employment include all chronic pulmonary
diseases or respiratory or pulmonary
impairments that are significantly
related to, or substantially aggravated
by exposure to coal dust during coal mine
employment. 20 C.F.R. sec. 718.201.
  Freeman attempted to prove that Summers
does not have, or is not disabled by
pneumoconiosis. "The proper causation
standard requires that black lung disease
be a necessary, though it need not be a
sufficient, condition of the miner’s
total disability." Shelton v. Old Ben
Coal Co., 

, 508 (7th Cir.
1991). In other words, at this juncture,
the coal company must prove that Summers
would have been able to continue working
in the mines had it not been for
pneumoconiosis. Peabody Coal Co. v.
Director, OWCP, 

, 1128 (7th
Cir. 1999); Freeman United Coal Mining
Co. v. Anderson, 

, 518 (7th
Cir. 1992). The ALJ determined that
Freeman did not carry its burden, and we
agree.

  On appeal, Freeman relies on the
testimony of Dr. Gregory J. Fino, who
observed that Summers has a long history
of allergies and severe asthma. Dr. Fino
testified that Summers’ FEV1 values
fluctuated on various tests, which he
said is consistent with asthma but not
dust-related respiratory ailments. Dr.
Fino recognized that bronchodilator
therapy failed to completely reverse
Summers’ asthmatic symptoms and
acknowledged that this lack of
reversibility is unusual. However, he
discounted this evidence because 10
percent of asthmatics fail to respond to
such treatment. Dr. Fino concluded that
Summers: (1) does not have black lung
disease or any other occupationally-
acquired pulmonary condition; and (2) is
totally disabled due to asthma. He says
Summers "would be as disabled as I find
him now had he never stepped foot in the
mines."

  Dr. Robert A.C. Cohen and Dr. David M.
Hinkamp disagreed. Dr. Cohen deemed it
significant that much of Summers’ two
decades of exposure occurred before the
enactment of federal dust control
standards. He agreed that Summers’ FEV1
values fluctuated, but he testified that
Summers’ consistently subnormal FEV1/FVC9
values were symptomatic of a coal-induced
obstructive disease other than asthma.
Dr. Cohen added that Summers’ poor
response to bronchodilators further
indicated that a coal-related disease
significantly contributed to his
respiratory impairments. Dr. Cohen,
therefore, attributed Summers’ disability
to a combination of factors, including
coal dust exposure, asthma, and several
years of smoking prior to 1971. Dr.
Hinkamp similarly concluded that coal was
an important contributing factor to
Summers’ disability. Dr. Hinkamp
determined that Summers’ x-ray and
pulmonary function tests indicated a
large amount of air trapping and
reversible bronchospasms that could not
be attributable solely to adult onset
asthma.

  The ALJ discussed this evidence, made a
finding that Dr. Cohen and Dr. Hinkamp
had performed sound medical analyses,
and, in turn, expressly gave their
testimony greater weight than Dr. Fino’s.
The ALJ was impressed with their command
of medical literature, as well as Dr.
Cohen’s extensive training, experience at
black lung clinics across the nation,
directorship of the Black Lung Clinics
Program at Cook County Hospital, and
advisory capacity with the National
Coalition of Black Lung and Respiratory
Disease Clinics. The ALJ explained that
Dr. Cohen’s report "is well reasoned,
discusses the pertinent medical records,
and shows a great level of knowledge
regarding the medical literature as it
pertains to coal-induced lung disease."
Dr. Cohen "elaborated on these opinions
during [his] deposition testimony in a
well reasoned and knowledgeable manner,"
and was supported by Dr. Hinkamp, who
performed his own independent analysis of
the record. We are convinced that the ALJ
had a rational, substantial basis to find
that Dr. Cohen "creditably" rebutted Dr.
Fino’s opinions, particularly with
respect to the inferences that may be
drawn from Summers’ response to
bronchodilator therapy./6

  Freeman argues that the ALJ "erred by
preferring Dr. Cohen’s unfounded claims
to the well-reasoned analysis of Dr.
Fino, which makes clear that Claimant’s
mining work was not a contributing cause
of his long-standing asthmatic
condition." Whether a medical opinion is
reasoned, however, is a decision that
rests ultimately with the ALJ, not with
us. Freeman United Coal Mining Co. v.
Cooper, 

, 448 (7th Cir.
1992); Migliorini v. Director, OWCP, 

, 1296 (7th Cir. 1990); Arch
Mineral Corp. v. OWCP, 

, 221
(7th Cir. 1987). It was rational to give
great weight to Dr. Cohen’s views,
particularly in light of his remarkable
clinical experience and superior
knowledge of cutting-edge research. See

. It also was
rational to discount Dr. Fino’s opinions,
based on a finding that they were not
supported by adequate data or sound
analysis./7 See Dempsey v. OWCP, 

, 1162 (7th Cir. 1987); see also
Piney Mountain Coal Co. v. Mays, 

, 763 (4th Cir. 1999) ("the
reliability of a given opinion is not
necessarily revealed by the forcefulness
of the speaker’s language.")

  Even if Dr. Cohen’s testimony is fully
credited, Freeman claims to have
successfully rebutted the presumption
that it caused Summers’ black lung
disease, because Dr. Cohen stated that he
could not determine with any precision
what percentage of Summers’ impairment
was caused by asthma, cigarette smoking,
or coal mine dust. We have held, however,
that doctors need not make such
particularized findings. The ALJ needs
only to be persuaded, on the basis of all
available evidence, that pneumoconiosis
is a contributing cause of the miner’s
disability. Compton v. Inland Steel Coal
Co., 

, 483 (7th Cir. 1991);
Hawkins v. Director, OWCP, 

,
701 (7th Cir. 1990). We note,
furthermore, that the ALJ relied on more
than simply the testimony of Dr. Cohen.
The judge based his ruling on "the
opinions of Dr. Cohen and Dr. Hinkamp,
and . . . the totality of the evidence,
including all of the medical opinions,
test results, and hospital records."/8
The ALJ specifically noted his review of
two x-rays that indicated black lung
disease and statements from two doctors,
who examined Summers in 1982 and 1994,
and determined that coal dust either
aggravated or contributed to Summers’
respiratory problems./9 This evidence,
which the coal company does not contest
on appeal, further supports the ALJ’s
findings. See 

(affirming decision; noting that judge
"did not limit his review of the evidence
to one study or witness").

V.   CONCLUSION

  This case forced ALJ Thomas M. Burke to
resolve complex issues on the basis of a
voluminous record that is full of
conflicting opinions. The judge did
exactly what he was supposed to do: give
these varying opinions more or less
weight based on his view of the
credibility of the witnesses, the
reliability of their medical analyses,
and the depth of support for their
conclusions. See Peabody Coal Co. v.
McCandless, 

, 469 (7th Cir.
2001) (offering guidance to
administrative factfinders). Herman E.
Summers was a healthy young man when he
first stepped into the coal mines of
southern Illinois. Today, he is a feeble
octogenarian whose lungs are full of
poison. Freeman United Coal Mining
Company is legally responsible. The time
to pay up is now--more than 21 years
after this claim was first filed. Judge
Burke’s decision to award black lung
benefits is lawful, rational, and
supported by substantial evidence. The
order of the Board is AFFIRMED.

FOOTNOTES

/1 Although the medical community has recognized the
relationship between coal mining and debilitating
respiratory illnesses for more than a century,
"[t]he human and economic burden of occupational
disease in general and dust diseases in particu-
lar was often ignored in the process of industri-
alization." Michael Gochfeld, M.D., Books, 25 J.
Health Pol. Pol’y & L. 782, 782 (2000) (reviewing
Alan Derickson, Black Lung: Anatomy of a Public
Health Disaster (1998)). "[T]he first fifty years
of the twentieth century saw a systematic attempt
by the coal producers to downplay, misrepresent,
or discredit the evidence [of mine-related health
risks]. Their cause was abetted by a number of
industry-supported physicians who managed to
dominate the literature and professional discus-
sion with claims that coal dust was relatively
harmless and did not damage miners’ lungs." 

/2 "Miner or coal miner means any individual who
works or has worked in or around a coal mine or
coal preparation facility in the extraction or
preparation of coal. The term also includes an
individual who works or has worked in coal mine
construction or transportation in or around a
coal mine, to the extent such individual was
exposed to coal mine dust as a result of such
employment (see sec. 725.202). . . ." 20 C.F.R.
sec. 725.101(a)(19).

  "Coal preparation means the breaking, crushing,
sizing, cleaning, washing, drying, mixing, stor-
ing and loading of bituminous coal, lignite or
anthracite, and such other work of preparing coal
as is usually done by the operator of the mine."

/3 Summers’ Dep. at 9.
/4 8 hours/day x 5 days/week x 48 weeks/year x 15
years = 28,800 hours.

/5 Pet’r Br. at 14-15.

/6 September 2, 1999 Order ("Order") at 17.

/7 Dr. Fino stated in his written report of August
30, 1998 that "there is no good clinical evidence
in the medical literature that coal dust inhala-
tion in and of itself causes significant obstruc-
tive lung disease." (Br. Supp. Pet. Modif’n at 23
(March 10, 1999)). During a rulemaking proceed-
ing, the Department of Labor considered a similar
presentation by Dr. Fino and concluded that his
opinions "are not in accord with the prevailing
view of the medical community or the substantial
weight of the medical and scientific literature."
65 Fed. Reg. 79,920, 79,939 (Dec. 20, 2000).

/8 Order at 18.

/9 

14-15.