Roscoe Denny, Petitioner, v. Norfolk & Western Railway, Director, Office of Workerscompensation Programs, United States Department Oflabor, Respondents, 908 F.2d 966 (4th Cir. 1990)

This case presents another situation evocative of some sympathy for someone claiming to be a miner asserting disability benefits. The status of a miner is asserted on the basis of appellant Roscoe Denny's employment by the Norfolk & Western Railway Company. His job was to repair railroad tracks in the vicinity of coal production with concomitant exposure to substantial amounts of coal dust. It is, however, not incumbent on us to determine whether Denny was a coal miner since the ALJ's determination that disability had not been adequately shown, affirmed by the Benefits Review Board, disposed of the case.

Denny and the railroad presented conflicting medical testimony. Dr. Haikal found significant chronic obstructive pulmonary disease directly relating to occupational exposure to coal dust. Dr. Haikal further concluded that Denny was permanently and totally disabled.

Norfolk and Western Railroad Company produced a report of Dr. Zaldivar, who concluded on the other hand that Denny did not have pneumoconiosis and was not totally disabled. The ALJ, therefore, had a classic case of conflicting testimony. Since there was testimony either way, our duty is to defer to the trier of fact "if supported by substantial evidence on the record considered as a whole." Banks v. Chicago Grain Trimmers Association, 390 U.S. 459, 467 (1968).

We have found the briefs and record adequate to permit us to reach the decision without recourse to oral argument. The determination of the Benefits Review Board is consequently

AFFIRMED.