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
]
