BRB No. 99-0659 BLA


ULIS G. McCLAIN

                  Claimant-
Respondent

          v.

CONSOLIDATION COAL COMPANY

                  Employer-
Petitioner

DIRECTOR, OFFICE OF WORKERS' 
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR

               Party-in-
Interest)
)
)
     )
)   DATE
ISSUED:03/24/2000        
        )
)
)
)
)
)
)
)
)
)
)
)    DECISION AND ORDER
          Appeal of the Decision and Order - Awarding Benefits of Michael P.
     Lesniak, Administrative Law Judge, United States Department of Labor.

          Michael W. Zimecki (Strassburger, McKenna, Gutnick & Potter),
     Pittsburgh, Pennsylvania, for employer.

          Before:  HALL, Chief Administrative Appeals Judge, SMITH and
     McGRANERY, Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals the Decision and Order - Awarding Benefits (98-BLA-0612)
of Administrative Law Judge Michael P. Lesniak with respect to a claim filed
pursuant to the provisions of Title IV of the Federal Coal Mine Health and
Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the Act).[1]   In the Decision and Order with respect to
this claim, the administrative law judge credited claimant with at least twenty
years of coal mine employment and noted that the first issue before him was
whether the newly submitted evidence supported a finding of a material change in
conditions pursuant to 20 C.F.R. §725.309(d).  The administrative law judge
determined that inasmuch as the evidence submitted subsequent to the denial of
the prior claim was sufficient to establish that claimant is totally disabled
under 20 C.F.R. §718.204(c), claimant demonstrated a material change in
conditions.  The administrative law judge further found that the evidence of
record, as a whole, supported a finding of pneumoconiosis arising out of coal
mine employment pursuant to 20 C.F.R. §§718.202(a) and 718.203(b) and
total disability due to pneumoconiosis under 20 C.F.R. §§718.204(b)
and (c).  Accordingly, benefits were awarded.  Employer argues on appeal that
the administrative law judge did not properly weigh the evidence relevant to
Sections 718.202(a)(1), (a)(4), 718.204(b), 718.204(c)(4), and 725.309.[2]   Neither claimant nor the Director, Office of
Workers' Compensation Programs, has filed a brief in this appeal.

     The Board's scope of review is defined by statute.  The administrative law
judge's Decision and Order must be affirmed if it is supported by substantial
evidence, is rational, and is in accordance with applicable law.  33 U.S.C.
§921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a);
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359
(1965).

     Employer argues initially that the administrative law judge erred in
determining that claimant could establish a material change in conditions merely
by demonstrating that he is now totally disabled under the terms of Section
718.204(c).  We reject this argument.  The United States Court of Appeals for
the Third Circuit, within whose jurisdiction this case arises, has held that in
order to determine whether a material change in conditions has been established
pursuant to Section 725.309, the administrative law judge must consider all of
the new evidence, favorable and unfavorable, and determine whether the miner has
proven at least one of the elements of entitlement previously adjudicated
against him. Labelle Processing Co. v. Swarrow, 72 F.3d 308, 20 BLR 2-76
(3d Cir. 1995).  If the miner establishes the existence of that element, he has
demonstrated, as a matter of law, a material change sufficient to entitle him to
consideration of his claim on the merits. Id.  In the present case, the
prior denial was based upon claimant's failure to establish total disability due
to pneumoconiosis under Section 718.204.  Director's Exhibit 34.  This
prerequisite of entitlement actually encompasses two distinct elements:  Proof
of total respiratory or pulmonary disability, which is made under Section
718.204(c); and proof that pneumoconiosis is the cause of the total disability
pursuant to Section 718.204(b).  If the newly submitted evidence supports a
finding of total disability under Section 718.204(c), therefore, claimant has
established an element of entitlement previously adjudicated against him and a
material change in conditions pursuant to Section 725.309.

     With respect to the administrative law judge's consideration of the newly
submitted evidence under Section 718.204(c), employer argues that the
administrative law judge erred in finding that the medical opinions of Drs.
Fino, Cho, and Levine are sufficient to establish total disability under Section
718.204(c)(4).  This contention is without merit.  Contrary to employer's
assertion, the administrative law judge did not misconstrue Dr. Fino's opinion
in determining that Dr. Fino diagnosed a totally disabling respiratory
impairment.  In a report based upon his examination of claimant in December of
1997, Dr. Fino stated that, in contrast to his earlier finding based upon an
examination of claimant in January of 1991, claimant has a respiratory
impairment that prevents him from performing his usual coal mine job. 
Employer's Exhibits A1, K.  In addition, the administrative law judge acted
within his discretion in crediting, "in particular," Dr. Fino's opinion
regarding this issue based upon Dr. Fino's qualifications as a Board-certified
pulmonologist and internist and upon the thoroughness of his report.[3]   Decision and Order at 15; see
Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993); Clark v. Karst-Robbins Coal Co.,
12 BLR 1-149 (1989)(en banc); Worley v. Blue Diamond Coal Co., 12 BLR 1-20 (1988). 
Thus, even assuming that the administrative law judge erred in crediting the
opinions of Drs. Cho and Levine, substantial evidence supports the
administrative law judge's determination that claimant established total
disability under Section 718.204(c)(4) and a material change in conditions.
See Swarrow, supra; Budash v. Bethlehem Mines Corp., 9 BLR
1-48 (1986)(en banc), aff'd on recon. en banc, 9 BLR 1-104 (1986).

     Turning to the administrative law judge's findings on the merits of
entitlement, the administrative law judge determined that claimant established
the existence of pneumoconiosis under Section 718.202(a)(1), (a)(2), and
(a)(4).[4]   Decision and Order at 17-18.  The
administrative law judge also found that upon weighing all of the evidence
relating to pneumoconiosis in accordance with the Third Circuit's decision in
Penn Allegheny Coal Co. v. Williams, 114 F.3d 22, 21 BLR 2-104 (3d Cir.
1997), claimant established the existence of pneumoconiosis.[5]   Id.

     With respect to Section 718.202(a)(1), employer argues that the
administrative law judge did not provide a sufficient rationale for relying upon
two readings of a single film to determine that claimant established the
existence of pneumoconiosis under Section 718.202(a)(1).  The administrative law
judge weighed all of the x-ray readings of record and stated that he would
accord greater weight to the interpretations of films obtained between February
of 1996 and August of 1997, inasmuch as the record contained readings of films
dating from as early as 1984.  Decision and Order at 17.  The administrative law
judge further indicated that he would give more weight to readings performed by
physicians who are B readers or Board-certified radiologists and B
readers. Id.  The administrative law judge concluded that the two
positive interpretations of the film dated April 1, 1997, which were performed
by dually qualified physicians, outweighed Dr. Fino's negative readings of the
other films obtained during the relevant period. Id.  We affirm the
administrative law judge's finding, as the administrative law judge acted within
his discretion in treating the recent films as more probative of claimant's
condition and in according greater weight to the readings performed by dually
qualified physicians. See Edmiston v. F & R Coal Co., 14 BLR 1-65 (1990);
Clark, supra; Casella v. Kaiser Steel Corp., 9 BLR 1-131
(1986); Pate v. Alabama By-Products Corp., 6 BLR 1-636 (1983).

     Regarding Section 718.202(a)(2), employer asserts that the administrative
law judge erred in determining that the biopsy evidence of record establishes
the existence of pneumoconiosis.  Employer's contention has merit.  The record
contains a pathology report describing tissue samples taken from claimant's
right lung.  In this report, Dr. Kotwal noted the presence of anthracotic
pigment and fibrosis, but did not diagnose pneumoconiosis.  Director's Exhibit
33.  No other physician of record commented on the significance of Dr. Kotwal's
findings.  Under Section 718.202(a)(2), biopsy evidence of anthracotic
pigmentation is not sufficient, by itself, to establish the existence of
pneumoconiosis.  20 C.F.R. §718.202(a)(2).  In light of the administrative
law judge's reliance solely upon Dr. Kotwal's reference to anthracotic pigment
in stating that the biopsy evidence was sufficient to establish the existence of
pneumoconiosis at Section 718.202(a)(2), see Decision and Order at 17, we
must vacate the administrative law judge's finding.  We must also vacate the
administrative law judge's determination that claimant established the existence
of pneumoconiosis under Section 718.202(a)(1)-(4) in accordance with
Williams, inasmuch as on remand, upon applying the appropriate analysis
under Section 718.202(a)(2), the administrative law judge may rationally
determine that the biopsy report is the most probative evidence regarding the
existence of pneumoconiosis, which may alter his ultimate finding regarding this
issue. See Terlip v. Director, OWCP, 8 BLR 1-363 (1985); Fetterman v.
Director, OWCP, 7 BLR 1-688 (1985).

     With respect to Section 718.202(a)(4), employer asserts that the
administrative law judge erred in treating the opinions of Drs. Cho and Levine
as adequately documented and reasoned.  Employer also asserts that the
administrative law judge erred in discrediting Dr. Fino's opinion.  These
allegations of error have merit, in part.  Contrary to employer's suggestion,
the administrative law judge rationally determined that the opinions of Drs. Cho
and Levine were reasoned and documented, inasmuch as each physician based his
opinion upon a chest x-ray, a physical examination, objective studies, and
claimant's work and medical histories. See Clark, supra; Peskie
v. United States Steel Corp., 8 BLR 1-126 (1985).  In addition, the
administrative law judge was not required to accord less weight to these
opinions merely because Drs. Cho and  Levine are not Board-certified
pulmonologists. See McMath v. Director, OWCP, 12 BLR 1-6 (1988).

     In resolving the conflict between the opinions of Drs. Cho and Levine and
the opinion of Dr. Fino, however, the administrative law judge treated the
biopsy evidence as supportive of the diagnoses of pneumoconiosis offered by Drs.
Cho and Levine and contrary to Dr. Fino's determination that claimant does not
have pneumoconiosis.  Decision and Order at 17-18.  Because the administrative
law judge's determination that the biopsy evidence includes a diagnosis of
pneumoconiosis is not accurate, we vacate the administrative law judge's
weighing of the medical opinions of record under Section 718.202(a)(4) and
remand the case to the administrative law judge for reconsideration of his
findings under Section 718.202(a)(2) and (a)(4) and his determination that the
evidence of record, as a whole, is sufficient to establish the existence of
pneumoconiosis.[6] 

     Regarding the administrative law judge's finding under Section 718.204(b),
employer asserts that the administrative law judge erred in determining that the
opinions of Drs. Cho and Levine satisfy the standard adopted by the United
States Court of Appeals for the Third Circuit in Bonessa v. United States
Steel Corp., 884 F.2d 756, 13 BLR 2-23 (3d Cir. 1989), which requires
claimant to prove that pneumoconiosis is a substantial contributor to his total
disability under Section 718.204(b).  Employer also maintains that the
administrative law judge erred in relying upon the decision of the United States
Court of Appeals for the Fourth Circuit in Toler v. Eastern Associated Coal
Corp., 43 F.3d 109, 19 BLR 2-70 (4th Cir. 1995), to discredit Dr. Fino's
opinion.[7] 

     Employer's contentions have merit, in part.  The administrative law judge
rationally determined that Dr. Levine's opinion satisfied the Bonessa
standard, as Dr. Levine stated in his report that "exposure to coal dust
represent[s] a substantial factor in producing [claimant's] symptoms and the
disability."  Decision and Order at 18; Director's Exhibit 28; see
Bonessa, supra.  Concerning Dr. Cho's opinion, however, the
administrative law judge did not address whether Dr. Cho's acknowledgment that
claimant's 1997 chest surgery for a collapsed lung "may contribute, in some
degree" to claimant's disability, undermined Dr. Cho's apparent attribution of
claimant's impairment to pneumoconiosis.  Director's Exhibit 13; see
McMath, supra; Turner v. Director, OWCP, 7 BLR 1-419 (1984). 
In addition, as employer notes, the administrative law judge cited Toler
and indicated that Dr. Fino's opinion, that claimant's disability was unrelated
to coal dust exposure, was entitled to little weight on the ground that Dr. Fino
relied upon the premise, contradicted by the x-ray and biopsy evidence, that
claimant does not have pneumoconiosis.  Decision and Order at 18; Employer's
Exhibits A1, K.  In light of the fact that we have vacated the administrative
law judge's finding that claimant established the existence of pneumoconiosis,
we also vacate the administrative law judge's findings with respect to Dr.
Fino's opinion under Section 718.204(b).  On remand, however, if the
administrative law judge determines that the existence of pneumoconiosis has
been established, he may rationally accord less weight to Dr. Fino's opinion
regarding the source of claimant's disability based upon Dr. Fino's failure to
diagnose pneumoconiosis. See Trujillo v. Kaiser Steel Corp., 8 BLR 1-472
(1986).

     In summary, we affirm the administrative law judge's finding of a material
change in condition pursuant to Section 725.309(d) and his finding that the x-
ray evidence is positive for pneumoconiosis under Section 718.202(a)(1), but
vacate the administrative law judge's findings under Sections 718.202(a)(2),
(a)(4), and 718.204(b) and remand this case to the administrative law judge for
reconsideration.

     Accordingly, the administrative law judge's Decision and Order - Awarding
Benefits is affirmed in part and vacated in part and this case is remanded to
the administrative law judge for further proceedings consistent with this
opinion. 

     SO ORDERED.
     


                         
                                
                      
BETTY JEAN HALL, Chief
Administrative Appeals Judge




                                
                      
ROY P. SMITH     
Administrative Appeals Judge




                                
                      
REGINA C. McGRANERY
Administrative Appeals Judge


To Top of Document

Footnotes.
 1)The relevant procedural history of this case is as follows:
Claimant filed an application for benefits on August 8, 1989.  Director's
Exhibit 36.  The district director denied the claim on the grounds that claimant
did not establish any of the elements of entitlement.  Id.  Claimant
filed a second claim on June 30, 1989.  Director's Exhibit 35.  This claim was
eventually withdrawn at claimant's request on September 27, 1991. Id. 
Claimant subsequently filed a third application for benefits on May 26, 1995. 
Director's Exhibit 34.  The district director found that claimant established
the existence of pneumoconiosis arising out of coal mine employment, but did not
prove that he was totally disabled due to pneumoconiosis.  Benefits were,
therefore, denied. Id.  Claimant filed the claim for benefits that is the
subject of the present appeal on January 13, 1997.  Director's Exhibit 1.
 Back to Text

 2)The administrative law judge's findings under 20 C.F.R.
§718.204(c)(1)-(3) are affirmed, as they are not challenged on appeal.
See Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
 Back to Text

 3)The qualifications of Drs. Cho and Levine are not of
record.
 Back to Text

 4)20 C.F.R. §718.202(a)(3) is not applicable in the
present case, as there is no evidence of complicated pneumoconiosis in the
record and the relevant claim was filed by a living miner after January 1, 1982. 
20 C.F.R. §§718.202(a)(2), 718.304-306.
 Back to Text

 5)In Penn Allegheny Coal Co. v. Williams, 114 F.3d 22,
21 BLR 2-104 (3d Cir. 1997), the Third Circuit held that the evidence relevant
to 20 C.F.R. §718.202(a)(1)-(4) must be weighed together to determine
whether a claimant has established the existence of pneumoconiosis by a
preponderance of the evidence.
 Back to Text

 6)Inasmuch as we have vacated the administrative law judge's
finding that claimant established the existence of pneumoconiosis under 20
C.F.R. §718.202(a), we also vacate his finding under 20 C.F.R.
§718.203(b).
 Back to Text

 7)In Toler v. Eastern Associated Coal Corp., 43 F.3d
109, 19 BLR 2-70 (4th Cir. 1995), the Fourth Circuit held that an opinion
regarding causation must be discredited if the physician rests his conclusion
upon a disagreement with the administrative law judge as to either the existence
of pneumoconiosis or the presence of a totally disabling respiratory or
pulmonary impairment.
 Back to Text

To Top of Document