Larry E. Howell v. The Marshall County Coal Company and Murray Energy Corporation Trust (Board decision, December 22, 2025)

BRB final decision. The Benefits Review Board affirmed the administrative law judge's black lung benefits award. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Larry Howell sought black lung benefits after 35 years of coal mine work, including more than 15 qualifying years. The judge found a totally disabling respiratory impairment and applied the statutory presumption of disability due to pneumoconiosis. The employer relied on a doctor's opinion attributing the impairment to paralysis of one side of Howell's diaphragm. The Board held that the judge could discount that opinion because it did not adequately explain why coal mine dust could not also have contributed. It affirmed the benefits award.

Decision snapshot

• Authority: Fifteen year presumption under 30 U.S.C. § 921(c)(4); rebuttal under 20 C.F.R. § 718.305(d)(1).
• Outcome: Benefits award affirmed.
• Key point: An alternative cause did not rebut legal pneumoconiosis without an adequate explanation excluding a coal dust contribution.

Full text (BRB public release)

U.S. Department of Labor Benefits Review Board 200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 25-0064 BLA

LARRY E. HOWELL
)
)
Claimant-Respondent
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v. )
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THE MARSHALL COUNTY COAL
)
COMPANY
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)
and
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NOT-PUBLISHED
)
MURRAY ENERGY CORPORATION
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TRUST c/o SMART CASUALTY CLAIMS
) DATE ISSUED: 12/22/2025
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Party-in-Interest
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DECISION and ORDER
Appeal of the Decision and Order Awarding Benefits of Drew A. Swank, Administrative Law Judge, United States Department of Labor.

Heath M. Long and Matthew A. Gribler (Pawlowski, Bilonick & Long), Ebensburg, Pennsylvania, for Claimant.

Aimee M. Stern (Dinsmore & Shohl, LLP), Wheeling, West Virginia, for Employer.

Before: GRESH, Chief Administrative Appeals Judge, JONES, Administrative Appeals Judge, ULMER, Acting Administrative Appeals Judge.

PER CURIAM:

Employer appeals Administrative Law Judge (ALJ) Drew A. Swank’s Decision and Order Awarding Benefits (2024-BLA-05285) rendered on a claim filed on March 29, 2023, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act).

The ALJ credited Claimant with thirty-five years of combined above- and belowground coal mine employment based on the parties’ stipulation and therefore determined Claimant established more than fifteen years of qualifying coal mine employment for purposes of invoking the presumption of total disability due to pneumoconiosis at Section 411(c)(4) of the Act, 30 U.S.C. §921(c)(4) (2018). 1 He also found that Claimant established a totally disabling respiratory or pulmonary impairment, 20 C.F.R. §718.204(b)(2), and thus invoked the Section 411(c)(4) presumption. Further, he found Employer did not rebut the presumption and awarded benefits.

On appeal, Employer argues the ALJ erred in finding it did not rebut the Section 411(c)(4) presumption.2 Claimant responds in support of the award of benefits. The Acting Director, Office of Workers’ Compensation Programs, did not file a substantive response.

The Benefits Review Board’s scope of review is defined by statute. We must affirm the ALJ’s Decision and Order if it is rational, supported by substantial evidence, and in

1 Section 411(c)(4) provides a rebuttable presumption that a miner is totally disabled

due to pneumoconiosis if he has at least fifteen years of underground or substantially similar surface coal mine employment and a totally disabling respiratory or pulmonary impairment. 30 U.S.C. §921(c)(4) (2018); 20 C.F.R. §718.305.
2 We affirm, as unchallenged on appeal, the ALJ’s finding that Claimant established

thirty-five years of coal mine employment, with more than fifteen years qualifying under Section 411(c)(4), and a totally disabling respiratory or pulmonary impairment and thus invoked the Section 411(c)(4) presumption. See Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983); Decision and Order at 4, 6-7.

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accordance with applicable law.3 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C.
§932(a); O’Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359 (1965).

Rebuttal of the Section 411(c)(4) Presumption

Because Claimant invoked the Section 411(c)(4) presumption, the burden shifted to Employer to establish he has neither legal nor clinical pneumoconiosis, 4 or “no part of [his] respiratory or pulmonary total disability was caused by pneumoconiosis as defined in [20 C.F.R.] § 718.201.” 20 C.F.R. §718.305(d)(1)(i), (ii); Minich v. Keystone Coal Mining Corp., 25 BLR 1-149, 1-155 n.8 (2015). The ALJ found Employer failed to establish rebuttal by either method.5 Decision and Order at 13-14, 20-22.

Legal Pneumoconiosis

To disprove legal pneumoconiosis, Employer must establish Claimant does not have a chronic lung disease or impairment “significantly related to, or substantially aggravated by, dust exposure in coal mine employment.” 20 C.F.R. §§718.201(a)(2), (b), 718.305(d)(1)(i)(A); Va. CWP Fund v. Director, OWCP [Smith], 880 F.3d 691, 695 (4th Cir. 2018); Minich v. Keystone Coal Mining Corp., 25 BLR 1-149, 1-155 n.8 (2015).

Employer relies on Dr. Fino’s medical opinion that Claimant does not have legal pneumoconiosis. Decision and Order at 14. Dr. Fino noted Claimant’s history of “diaphragmatic paralysis on the right side” and observed that “there is obviously disruption to the nerve that controls the diaphragm and therefore the right lung is not expanding

3 The Board will apply the law of the United States Court of Appeals for the Fourth

Circuit because Claimant performed his last coal mine employment in West Virginia. See Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989) (en banc); Director’s Exhibit 15.
4 “Legal pneumoconiosis” includes any chronic lung disease or impairment and its sequelae arising out of coal mine employment. 20 C.F.R. §718.201(a)(2). The definition includes “any chronic pulmonary disease or respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment.” 20 C.F.R. §718.201(b). “Clinical pneumoconiosis” consists of “those diseases recognized by the medical community as pneumoconioses, i.e., the conditions characterized by permanent deposition of substantial amounts of particulate matter in the lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust exposure in coal mine employment.” 20 C.F.R. §718.201(a)(1).
5The ALJ found Employer disproved clinical pneumoconiosis. 20 C.F.R.
§718.305(d)(1)(i)(B); Decision and Order at 13.

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properly.” Employer’s Exhibit 1 at 3-4. He then opined Claimant suffers from “a restrictive respiratory impairment present due to the diaphragmatic paralysis [of unknown etiology]” and unrelated to coal dust exposure. Id. at 4. Employer contends the ALJ erred in discrediting Dr. Fino’s opinion.6 Employer’s Brief at 10. We disagree.

Contrary to Employer’s assertion, the ALJ permissibly discredited Dr. Fino’s opinion because he determined that Dr. Fino did not adequately explain why coal mine dust, in addition to the diaphragmatic paralysis, could not have contributed to Claimant’s respiratory impairment. See Westmoreland Coal Co. v. Stallard, 876 F.3d 663, 673-74 n.4 (4th Cir. 2017); Harman Mining Co. v. Director, OWCP [Looney], 678 F.3d 305, 316-17 (4th Cir. 2012) (it is the duty of the ALJ to make findings of fact and to resolve conflicts in the evidence); Island Creek Coal Co. v. Compton, 211 F.3d 203, 211 (4th Cir. 2000) (it is the province of the ALJ to evaluate the physicians’ opinions and the ALJ is not required to accept the opinion or theory of any medical expert); Decision and Order at 14. Employer’s argument is a request to reweigh the evidence, which we are not authorized to do. Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-113 (1989). Therefore, we affirm the ALJ’s finding that Employer did not rebut the presumption of legal pneumoconiosis. 20 C.F.R. §718.305(d)(1)(i)(A). Employer’s failure to disprove legal pneumoconiosis precludes a rebuttal finding that Claimant does not have pneumoconiosis. See 20 C.F.R. §718.305(d)(1).

Disability Causation

The ALJ next considered whether Employer established “no part of [Claimant’s] respiratory or pulmonary total disability was caused by pneumoconiosis as defined in [20 C.F.R.] § 718.201.” 20 C.F.R. §718.305(d)(1)(ii); Decision and Order at 20-22. He discredited Dr. Fino’s opinion because he did not diagnose legal pneumoconiosis, contrary to the ALJ’s finding that Claimant has the disease. See Hobet Mining, LLC v. Epling, 783 F.3d 498, 505 (4th Cir. 2015); Toler v. E. Assoc. Coal Corp., 43 F.3d 109, 116 (4th Cir. 1995) (such an opinion “may not be credited at all” on disability causation absent “specific

6 Employer also argues the ALJ erred in crediting Dr. Posin’s opinionas it is not well reasoned. Employer’s Brief at 10. However, it is Employer’s burden to rebut the presumption and, as the ALJ correctly noted, Dr. Posin diagnosed legal pneumoconiosis; thus, his opinion does not support its burden. 20 C.F.R. §§718.201(a)(2), (b), 718.305(d)(1)(i); see Minich v. Keystone Coal Mining Corp., 25 BLR 1-149, 1-155 n.8 (2015); Decision and Order at 13-14; Director’s Exhibit 21. Therefore, we need not address Employer’s argument regarding the credibility of Dr. Posin’s opinion. See Shinseki v. Sanders, 556 U.S. 396, 413 (2009) (appellant must explain how the “error to which [it] points could have made any difference”).

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and persuasive reasons” for concluding the physician’s view on disability causation is independent of his or her erroneous opinion on pneumoconiosis); Decision and Order at 21.

Employer does not challenge this finding apart from its contention that Claimant does not have legal pneumoconiosis, an argument we have rejected. Employer’s Brief at

10. We thus affirm the ALJ’s finding that Employer failed to prove that no part of
    Claimant’s total disabling respiratory impairment is due to legal pneumoconiosis. See Sarf v. Director, OWCP, 10 BLR 1-119, 1-120-21 (1987); Skrack v. Island Creek Coal Co., 6 BLR 1-710, 1-711 (1983); 20 C.F.R. §718.305(d)(1)(ii); Decision and Order at 22.

    Accordingly, we affirm the ALJ’s Decision and Order Awarding Benefits.

    SO ORDERED.

                                     DANIEL T. GRESH, Chief
                                     Administrative Appeals Judge
    
                                     MELISSA LIN JONES
                                     Administrative Appeals Judge
    
                                     GLENN E. ULMER
                                     Acting Administrative Appeals Judge
    
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