ONTHLY DIGEST # 147
Black Lung Benefits Act
April - May 2000
John M. Vittone
Chief Judge
Thomas M. Burke
Associate Chief Judge
II. Black Lung Benefits Act
A. Circuit Courts of Appeal
In Island Creek Coal Co. v. Compton , ___ F.3d ___, 2000 WL 524798 (4th Cir. 2000), the the administrative law judge concluded that the miner did not establish pneumoconiosis through chest x-ray evidence under § 718.202(a)(1), but he did find pneumoconiosis established via medical opinion evidence at § 718.202(a)(4). The Fourth Circuit vacated this finding of pneumoconiosis and held that the administrative law judge must weigh all evidence together under 20 C.F.R. § 718.202(a) to determine whether the miner suffered from the diseases. This is contrary to the Board's view that an administrative law judge may weigh the evidence under each subsection separately, i.e. x-ray evidence at § 718.202(a)(1) is weighed apart from the medical opinion evidence at § 718.202(a)(4). The circuit court cited to the Third Circuit's decision in Penn Allegheny Coal Co. v. Williams , 114 F.3d 22, 24-25 (3d Cir. 1997) which requires the same analysis and reasoned as follows:
- [W]eighing all of the relevant evidence together makes common sense. Otherwise, the existence of pneumoconiosis could be found even though the evidence as a whole clearly weighed against such a finding. For example, suppose x-ray evidence indicated that the miner had pneumoconiosis, but autopsy evidence established that the miner did not have any sort of lung disease caused by coal dust exposure. In such a situation, if each type of evidence were evaluated only within a particular subsection of § 718.202(a) to which it related, the x-ray evidence could support an award for benefits in spite of the fact that more probative evidence established that benefits were not due. See Griffith v. Director, OWCP , 49 F.3d 184, 187 (6th Cir. 1995) (noting that autopsy evidence is generally accorded greater weight than x-ray evidence).
Slip op. at 3. The Director took the position that x-ray evidence should not be weighed with medical opinion evidence as these two types of evidence measure different types of pneumoconiosis, i.e. clinical versus legal pneumoconiosis. The court agreed that there are two types of pneumoconiosis and stated that "[m]edical pneumoconiosis is a particular disease of the lung generally characterized by certain opacities appearing on the chest x- ray." The court further noted that legal pneumoconiosis encompasses a broader category of coal dust induced respiratory diseases and concluded the following:
- In that sense, the Director's point is well-taken: Evidence that does not establish medical pneumoconiosis, e.g. , an x-ray read as negative for coal workers' pneumoconiosis, should not necessarily be treated as evidence weighing against a finding of legal pneumoconiosis.
Slip op. at 4. However, the circuit court rejected the Director's position and held that it was not a reasonable interpretation of either the Act or the regulations:
- [A]lthough we recognize that there is a meaningful distinction between evidence of medical pneumoconiosis and evidence of legal pneumoconiosis, it cannot be said that evidence showing that a miner does not have medical pneumoconiosis is irrelevant to the question of whether the miner has established pneumoconiosis for purposes of a black lung claim. Further, nothing in the text of the regulation supports his position.
Slip op. at 4.
Turning to the weighing of the medical opinion evidence, the circuit court held that the administrative law judge erred in crediting a physician's opinion finding pneumoconiosis where that opinion was based solely upon a positive interpretation of an x-ray study which the administrative law judge later found to be negative. On the other hand, the circuit court held that the administrative law judge properly credited another physician's report which was based upon the miner's medical history, a physical examination, and a pulmonary function test. The court concluded that an administrative law judge "may choose to discredit an opinion that lacks a thorough explanation, but is not legally compelled to do so." Finally, the court held that it was proper for the administrative law judge to accord less weight to the opinions of physicians who did not consider pneumoconiosis as a possible cause of the miner's total disability where the administrative law judge found that pneumoconiosis was established on the record.
B. Benefits Review Board
In Stiltner v. Wellmore Coal Corp. , 22 B.L.R. 1-37 (2000) (en banc on recon.), the Board reiterated its holding in Selak v. Wyoming Pocahontas Land Co. , 21 B.L.R. 1-173 (1999) that an employer does not have an "absolute right," through the filing of a petition for modification, to compel the claimant to respond to discovery requests or attend a medical examination. Rather, the Board concluded that, pursuant to 20 C.F.R. § 725.404, it is within the administrative law judge's discretion to permit or deny additional discovery on modification. Employer argued that its right to develop additional evidence through discovery requests was a "'necessary corollary' of its right to obtain de novo consideration of the evidence" on modification. The Board found that the administrative law judge's rationale in denying Employer's discovery requests, i.e. that Employer had ample opportunity to develop evidence with the original claim and further evidentiary development on modification would be unduly burdensome to Claimant, constituted sufficient grounds upon which to deny Employer's discovery requests. The Board also rejected Employer's argument that the application of its holding in Selak placed an "'extra burden'" on Employer which required that Employer be given the opportunity to "'make the Selak showing.'" The Board stated that it was not convinced that Selak placed any additional burden on Employer.