Fourth Circuit issues Black Lung Benefits Opinion

In Perry v. Mynu Coal, Inc., the Fourth Circuit considered a claim for survivorship benefits under the Black Lung Act. The Court held that the Review Board erred by ignoring testimony that established an opacity of sufficient size in the lung that creates a conclusive presumption that complicated pneumoconiosis caused the miner's death. Hence, the panel vacated the Benefits Review Board's order denying benefits and remanded to the Board to enter an appropriate order awarding benefits.

Judge Williams dissented. Although she agreed that the decision was not supported by substantial evidence, she would have held that "it is for the agency, and the agency alone, to properly examine all the evidence in order to make the initial determination of whether the irrebuttable presumption should be triggered in favor of Perry. "