RECENT SIGNIFICANT DECISIONS

Black Lung Benefits Act

Office of Administrative Law Judges
United States Department of Labor

MONTHLY DIGEST # 132
August - October 1997

James Guill
Associate Chief Judge for Longshore

Thomas M. Burke
Associate Chief Judge for Black Lung

    A. Circuit Courts of Appeal

   In Penn Allegheny Coal Co. v. Williams , ___ F.3d ___, Case No. 96-3464 (3d Cir. June 3, 1997), the Third Circuit stated the following with regard to establishing pneumoconiosis pursuant to the methods set forth at § 718.202(a):

We agree with the Director that although section 718.202(a) enumerates four distinct methods of establishing pneumoconiosis, all types of relevant evidence must be weighed together to determine whether the claimant suffers from the disease.' (citations omitted).

It is significant that the language of the regulation does not list the methods in the disjunctive. The word or' does not appear between the paragraphs enumerating the four approved means of determining the presence of pneumoconiosis. It follows that the Board erred when it found the presence of pneumoconiosis based on the x-ray evidence alone without evaluating the other relevant evidence.
In its brief before the Third Circuit, the Director argued the following:
The Act requires that all relevant evidence' must be considered in determining the validity of claims. (citations omitted). Thus, if a record contains both x-ray interpretations and biopsy reports relevant to the question, the Act prohibits the conclusion that the miner did or did not have pneumoconiosis based on the x-ray evidence alone. The biopsy evidence must also be weighed. Further extending this analysis, if the x-ray and biopsy evidence proves negative for clinical' pneumoconiosis, the Act requires that the record must then be evaluated for the adequacy of the physicians' opinions that the miner suffered from the broader category of legal' pneumoconiosis; that is, pneumoconiosis' as defined by the Act and section 718.201.

Our construction of section 718.202(a) to include consideration of all the relevant evidence also advances the intent of Congress to compensate victims of disabling pneumoconiosis caused by coal dust exposure.

[ VII(B), establishing pneumoconiosis under 20 C.F.R. Part 718 ]

    B. Benefits Review Board

   In Hite v. Eastern Associated Coal Co. , ___ B.L.R. ___, BRB No. 96-1584 BLA (July 29, 1997), the Board noted that "there are differing standards for the adult disabled child as an augmentee [Section 725.209] and the adult disabled child who seeks benefits in his/her own right [Section 725.221]." The provisions at § 725.221 provide the following:

For the purposes of determining whether a child was dependent upon a deceased miner, the provisions of § 725.209 shall be applicable, except that for purposes of determining the eligibility of a child who is under a disability as defined in section 223(d) of the Social Security Act, such disability must have begun before the child attained age 18, or in the case of a student, before the child ceased to be a student.
In this vein, the Board held that, "[a]fter considering the legislative history of the pertinent provisions of the Social Security Act . . . the child as a dependent and augmentee under 20 C.F.R. § 725.209 remains unfettered by the age cut-off requirement mandated in 20 C.F.R. § 725.221 for the disabled adult child who seeks benefits in his/her own right."

[ X(A), disabled surviving child/augmentee ]
   In Billings v. Harlan #4 Coal Co. , ___ B.L.R. ___, BRB No. 94-3721 BLA (June 19, 1997), the Board reiterated that "when an x-ray is not classified, and makes no mention of pneumoconiosis, the administrative law judge has discretion to infer whether or not the x-ray is negative for pneumoconiosis." Moreover, with regard to the etiology of a miner's totally disabling respiratory impairment, the Board stated the following:
Contrary to employer's argument, the issues of total disability and causation are independent; therefore, the administrative law judge was not required to reject Dr. Baker's August 23, 1991 opinion on causation simply because the doctor did not consider claimant's respiratory impairment at that time to be totally disabling.
[ silent x-ray interpretation; weighing medical opinion evidence ]