Living Miners' Claims: Entitlement Under Part 410
I. Applicability of Part 410, generally
Under Title IV of the Federal Coal Mine Health and
Safety Act of 1969, Congress authorized the Social Security Administration to
promulgate regulations regarding entitlement to benefits for miners totally
disabled due to coal workers' pneumoconiosis. These regulations are codified
at 20 C.F.R. Part 410, subpart D. Part 410 applies to claims filed on or
before December 31, 1973. 20 C.F.R. § 410.231.
Since its promulgation, the Board broadened
applicability of Part 410 by holding that a claim, which is reviewed and
subsequently denied under interim regulations at § 410.490 (a § 415 transition
claim), must also be analyzed under the regulations at 20 C.F.R. Part 410. Wells
v. Peabody Coal Co., 3 B.L.R. 1‑85 (1981).
Finally, in Muncy v. Wolfe Creek Collieries Coal
Co., 3 B.L.R. 1‑627 (1978), the Board set forth the third category of
cases to be reviewed under Part 410. Citing to 20 C.F.R. § 727.203(d), the
Board held that Part 410 applied to all Part C claims filed prior to the
effective date of the permanent Department of Labor regulations at Part 718
(which is March 31, 1980), where the claimant failed to establish entitlement
under Part 727. However, five circuit courts of appeal disagreed with the
Board's holding in this regard and concluded that Part 718, and not Part 410,
applies to claims filed prior to March 31, 1980, but adjudicated and
denied under Part 727 after March 31, 1980. Terry v. Director, OWCP,
956 F.2d 251 (11th Cir. 1992); Oliver v. Director, OWCP, 888
F.2d 1239 (8th Cir. 1989); Knuckles v. Director, OWCP, 869
F.2d 996 (6th Cir. 1989); Caprini v. Director, OWCP, 824 F.2d
283 (3rd Cir. 1987); Strike v. Director, OWCP, 817 F.2d 395
(7th Cir. 1987).
II. Elements of entitlement
Benefits are provided under the Act "to coal
miners who are totally disabled due to pneumoconiosis arising out of employment
in one or more of the Nation's coal mines." 20 C.F.R. § 410.410(a). To
establish entitlement to benefits, a claimant must establish, by a
preponderance of the evidence, that the miner: (1) suffers from
pneumoconiosis; (2) the pneumoconiosis arose out of coal mine employment; (3)
the miner is totally disabled; and (4) the total disability is due to
pneumoconiosis. 20 C.F.R. §410.410(b). Failure to establish any one of these
elements will result in a denial of benefits. Hall v. Director, OWCP, 2
B.L.R. 1‑998 (1980).
III. The existence of pneumoconiosis
A. "Pneumoconiosis" defined
A finding of pneumoconiosis may be made through any
one of the following methods: (1) chest roentgenogram (x‑ray) evidence;
(2) autopsy or biopsy; (3) by operation of presumption; or (4) by "other
relevant evidence." 20 C.F.R. § 410.414(a)‑(c). The regulations at
§ 410.401(b) define "pneumoconiosis" as follows:
(1) a chronic dust disease of the lung arising out
of coal mine employment in the Nation's coal mines, and includes coal workers'
pneumoconiosis, anthracosilicosis, anthracosis, anthrosilicosis, massive
pulmonary fibrosis, progressive massive fibrosis, silicosis, or
silicotuberculosis, arising out of such employment; or (2) any other chronic
respiratory or pulmonary impairment when the conditions are met for the
application of the presumption described in § 410.414(b).
20
C.F.R. §§ 410.401(b)(1) and (b)(2).
B. Chest
roentgenogram evidence
A chest x‑ray will indicate the existence of
pneumoconiosis if it is classified as Category 1, 2, 3, A, B, or C in
accordance with 20 C.F.R. § 410.428(a)(1)(i‑iii). An x‑ray which
is classified as Category 0 (0/‑, 0/0, or 0/1) does not constitute
evidence of pneumoconiosis. 20 C.F.R. § 410.428(1). Section 410.428(3)(b)
details the criteria for a valid x‑ray study conducted in conformance
with accepted medical standards.
C. Autopsy or
biopsy
An autopsy or biopsy constitutes highly probative
evidence regarding the existence of pneumoconiosis. Terlip v. Director,
OWCP, 8 B.L.R. 1‑363 (1985). Subsection 410.428(a)(3) provides a
detailed discussion of the specific information that must be included in the
autopsy or biopsy report, such as a macroscopic and microscopic description of
the lungs. 20 C.F.R. § 410.428(c).
D. Rebuttable
presumptions regarding
the existence of pneumoconiosis
1.
Fifteen years or more of
coal mine employment
Where the existence of pneumoconiosis is not
established through a chest x‑ray, biopsy, or autopsy under § 410.414(a),
but "other relevant evidence" demonstrates the existence of a totally
disabling chronic respiratory or pulmonary impairment, it may be presumed, in
the absence of evidence to the contrary, that a miner is totally disabled due
to pneumoconiosis. 20 C.F.R. § 410.414(b)(1). This presumption applies where
a miner was employed for 15 or more years in one or more of the Nation's
underground coal mines, or in one or more of the Nation's other coal mines
where the environmental conditions were "substantially similar" to
those in an underground coal mine. 20 C.F.R. § 410.414(b)(3).
a. "Substantially
similar"
working conditions
The question of whether working conditions are "substantially
similar" to the condition of an underground mine only arises when the
situs of a miner's employment is a surface mine rather an
underground mine. It is the mine site, and not the individual miner's work,
that must meet the "substantially similar" requirement of § 410.414(b)(3).
Thus, an above‑ground worker at an underground mine site is not required
to show comparability of environmental conditions to take advantage of the
presumption. Alexander v. Freeman United Coal Mining Co., 2 B.L.R. 1‑497
(1979). However, to find that the conditions of a miner's employment at a
surface mine are "substantially similar" to those of an underground
mine, the administrative law judge must render a specific opinion regarding the
issue of "substantially similar" with supporting rationale. Luker
v. Old Ben Coal Co., 2 B.L.R. 1‑304 (1979).
b. Medical
evidence
The existence of a totally disabling respiratory or
pulmonary impairment must be established through medical evidence, Mendis v.
Director, OWCP, 7 B.L.R. 1‑855 (1985); it cannot be established
through lay testimony alone. Peabody Coal Co. v. Director, OWCP, 581
F.2d 121 (7th Cir. 1978); Centak v. Director, OWCP, 6 B.L.R. 1‑1072
(1984); Wozny v. Director, OWCP, 2 B.L.R. 1‑141 (1979); Casias
v. Director, OWCP, 2 B.L.R. 1‑259 (1979). The Board has held that
the minimum standard of proof of a totally disabling respiratory impairment
comprises documentation submitted by an examining physician together with
credible and probative testimony by the claimant and another lay person
familiar with the claimant's condition. Skursha v. U.S. Steel Corp., 2
B.L.R. 1‑518 (1979); Sparkman v. Director, OWCP, 2 B.L.R. 1‑488
(1979).
c. Rebuttal
of the presumption
The presumption may be rebutted only if it is
established that the miner does not have pneumoconiosis or that his respiratory
impairment did not arise out of, or in connection with, employment in a coal
mine. 20 C.F.R. § 410.414(b)(2). Negative x‑ray evidence alone is
insufficient to demonstrate the absence of pneumoconiosis and will not rebut
the presumption under § 410.414. 20 C.F.R. § 410.414(c). However, while
negative x‑rays alone are insufficient to rebut the presumption, medical
opinions based on negative x‑rays may support a finding of rebuttal. Aimone
v. Morrison Knudson Co., 8 B.L.R. 1‑32 (1985); Maynard v. Central
Coal Co., 2 B.L.R. 1‑985 (1980). Rebuttal may also be accomplished
by demonstrating that the totally disabling chronic respiratory or pulmonary
impairment did not arise out of, or in connection with, coal mine employment.
The Board interpreted this method of rebuttal as requiring a showing that, "to
a reasonable degree of medical certainty," the claimant's totally
disabling impairment was caused by something other than coal mine employment. Martinez
v. Director, OWCP, 2 B.L.R. 1‑231 (1979); Legate v. Island Creek
Coal Co., 1 B.L.R. 1‑902 (1978); Rogers v. Ziegler Coal Co., 1
B.L.R. 1‑897 (1978).
2. The "many
years" presumption
The provisions of the 15 year presumption also
apply where evidence demonstrates a work history reflecting "many years"
of coal mine employment (although less than 15), as well as a severe lung
impairment. 20 C.F.R. § 410.414(b)(4). See Clegg v. Director, OWCP,
1 B.L.R. 1‑433 (1978).
a. "Many
years" defined
The Board has defined "many years" to
mean at least 10, but less than 15, years of coal mine employment. Williamson
v. Director, OWCP, 6 B.L.R. 1‑1020 (1984).
b. Severe
lung impairment required
In addition to proving "many years" of
coal mine employment, the claimant must prove a severe lung impairment pursuant
to §§ 410.412, 410.422, or 410.424, which is beyond a mere showing of a
respiratory or pulmonary impairment. 20 C.F.R. § 410.414(b). See also
Parsons v. Director, OWCP, 6 B.L.R. 1‑272 (1983). Lay testimony
alone is insufficient to invoke this presumption. Romero v. Director, OWCP,
2 B.L.R. 1‑531 (1979); Miller v. Director, OWCP, 2 B.L.R. 1‑447
(1979).
The Board has held that a "severe lung
impairment" need not be a totally disabling lung impairment. Martinez
v. Director, OWCP, 2 B.L.R. 1‑177 (1979). As a result, the claimant
may trigger the presumption on the strength of evidence sufficient to invoke
the "other relevant evidence" provisions of §§ 410.414(c) and
410.426(d). Martinez v. Director, OWCP, 2 B.L.R. 1‑231 (1979).
E. Other relevant
evidence
Even though the existence of pneumoconiosis is not
established under § 410.414(a) by x‑ray, autopsy, or biopsy evidence, or
under § 410.414(b) by evidence demonstrating a totally disabling chronic
respiratory impairment, a finding of total disability due to pneumoconiosis may
be made if "other relevant evidence" establishes (1) the existence of
a totally disabling chronic respiratory or pulmonary impairment, and (2) that
such impairment arose out of employment in a coal mine. 20 C.F.R. § 410.414(c).
Indeed, the administrative law judge is required to consider the provisions at
§ 410.414(c) where the claimant has failed to meet his or her burden by chest x‑ray,
autopsy, biopsy, or by operation of presumption. See, e.g., Green
v. Director, OWCP, 7 B.L.R. 1‑276 (1984).
1. Elements to be
considered
The Board holds that "other relevant evidence"
is not limited to the items listed in the regulations. The administrative law
judge may also consider the following: positive x‑rays not classified
according to the requirements of § 410.428, Watson v. Director, OWCP, 4
B.L.R. 1‑186 (1981); lay testimony, Yendall v. Director, OWCP, 4
B.L.R. 1‑467 (1981); ventilatory studies that fail to meet the quality
standards of § 410.430, Gibson v. Ryan's Creek Coal Co., 4 B.L.R. 1‑591
(1982); and non-qualifying ventilatory studies and blood gas studies that
nonetheless reveal some degree of impairment. Bain v. Old Ben Coal Co.,
2 B.L.R. 1‑1219 (1981); Honaker v. Jewell Ridge Coal Co., 2 B.L.R.
1‑947 (1980); Marshall v. The Youghiogheny & Ohio Coal Co., 2
B.L.R. 1‑746 (1979). Medical reports based on nonqualifying test results
may also be considered "other relevant evidence." Ovies v.
Director, OWCP, 3 B.L.R. 1‑610 (1981); Brown v. U.S. Steel Corp.,
2 B.L.R. 1‑97 (1979).
2. Totally
disabling respiratory condition
Under the second prong of § 410.414(c), the
claimant must establish that the miner's totally disabling respiratory
condition arose out of coal mine employment. Spisok v. Director, OWCP,
4 B.L.R. 1‑225 (1981). In establishing a causal relationship between the
miner's condition and his coal mine employment, "where a significant
discrepancy exists between the administrative law judge's finding as to the
claimant's length of coal mine employment and the assumption by the physicians
regarding the claimant's length of coal mine employment, the administrative law
judge must note this discrepancy and explain how the discrepancy affects the
credibility of the physicians' opinions." Fitch v. Director, OWCP,
9 B.L.R. 1‑45, 1‑46 (1986).
IV. Etiology of the pneumoconiosis
Where a miner is credited with ten or more years of
coal mine employment and is suffering from pneumoconiosis, it will be presumed,
in the absence of persuasive evidence to the contrary, that the pneumoconiosis
arose out of such employment. 20 C.F.R. § 414.416(a).
A miner with less than ten years of coal mine
employment bears the burden of proving the causal relationship between
pneumoconiosis and the coal mine employment. 20 C.F.R. § 410.416(b); Fly v.
Peabody Coal Co., 1 B.L.R. 1‑713 (1978).
In Lewandowski v. Director, OWCP, 1 B.L.R. 1‑180
(1978), the claimant failed to carry this burden of demonstrating coal workers'
pneumoconiosis where he had an employment history of two years of coal mine
work, 17 years in foundries and steel works, and an 18 to 20 year smoking
history. The Board concluded that substantial evidence supported the administrative
law judge's finding that the pneumoconiosis did not arise out of the claimant's
coal mining. The Board agreed that, where a physician merely noted that the
claimant worked in the mines for "some time," the necessary causal
relationship was not established because the opinion was too equivocal and
vague. Windom v. Director, OWCP, 7 B.L.R. 1‑52 (1984). Moreover,
without benefit of competent medical proof, the claimant's testimony alone
cannot support a finding that his pneumoconiosis arose out of coal mine
employment, where the miner's pneumoconiosis could have arisen from 20 years of
employment in a foundry and construction work subsequent to his two years of
work in the mines. Id.
V. Total disability and its etiology
A. "Total
disability" defined
The regulations at 20 C.F.R. § 410.412(a) provide
the definition for "total disability" and read, in part, as follows:
(1) A miner shall be considered to be totally
disabled due to pneumoconiosis if his pneumoconiosis prevents (or, in the case
of a deceased miner, prevented) him from engaging in gainful work in the
immediate area of his residence requiring the skills and abilities comparable
to those of any work in a mine or mines in which he previously engaged with
some regularity and over a substantial period of time . . .; and
(2) His impairment can be (or was) expected to
result in death, or (did last), has lasted, or can be expected to last for a
continuous period of not less than 12 months.
20
C.F.R. § 410.412(a).
There are similar provisions for the establishment
of total disability due to pneumoconiosis at the time of death or death due to
pneumoconiosis in survivors' claims. 20 C.F.R. § 410.412(b).
1. Methods of
establishing total disability
The regulations provide four means of establishing
total disability under Part 410: (1) through medical factors listed in the
Appendix at § 410.424(a), or their medical equivalent, where the impairment
meets the duration requirement of 12 months at § 410.412(a); (2) by
demonstrating that the severity of the impairment not only prevents the miner
from performing his usual coal mine employment, but also renders him unable to
engage in comparable or gainful work in light of his age, education, and work
experience pursuant to § 410.426(a); (3) through "other relevant evidence"
as described at § 410.426(d); or (4) by operation of presumption at 20 C.F.R. §
410.418.
2. Rebuttal
Once it is determined that a miner is totally
disabled due to pneumoconiosis, then the party opposing entitlement bears the
burden of establishing by affirmative evidence that conditions other than
pneumoconiosis are the cause of the miner's disability. Smith v. Director,
OWCP, 7 B.L.R. 1‑370 (1984); Sauders v. Director, OWCP, 7
B.L.R. 1‑186 (1984).
A finding of total disability may be overcome if
the party opposing entitlement establishes that the miner continued to perform
his usual coal mine work. In Williamson v. U.S. Steel Corp., 2 B.L.R. 1‑470
(1979), although the record contained a qualifying blood gas study, a finding
that the claimant was not disabled was affirmed by the Board, since the
evidence demonstrated that the claimant continued to work effectively in his
usual coal mine job for almost three years following the qualifying blood gas
test. See also Kimick v. National Mines Corp., 2 B.L.R. 1‑221
(1979).
B. Pneumoconiosis
is the impairment involved
The regulations provide that total disability
cannot be established under Part 410 unless pneumoconiosis is the impairment
involved. 20 C.F.R. § 410.422(b).
1. Complicated
pneumoconiosis
Upon finding complicated pneumoconiosis, the
regulations at § 410.418 provide an irrebuttable presumption of total
disability due to pneumoconiosis. If, however, the presumption at § 410.418
does not apply, then it is the claimant's burden to establish that the miner's
pneumoconiosis is, in and of itself, totally disabling. Castle v. Director,
OWCP, 4 B.L.R. 1‑237 (1981); Burks v. Hawley Coal Mining Corp.,
2 B.L.R. 1‑223 (1979); Rogers v. Ziegler Coal Co., 1 B.L.R. 1‑847
(1978). If the record shows that the claimant is totally disabled, and there
is no evidence attributing this impairment to any cause other than
pneumoconiosis, it may be presumed that pneumoconiosis is the primary cause of
the claimant's disability. Kurimak v. U.S. Steel Corp., 2 B.L.R. 1‑75
(1979); Stiltner v. Island Creek Coal Co., 2 B.L.R. 1‑120 (1979);
Collins v. U.S. Steel Corp., 1 B.L.R. 1‑654 (1978).
2. Multiple
disabling conditions
The fact that a claimant's total disability may be
due to other conditions, i.e. heart disease or cancer, will not negate
entitlement so long as the record shows that the claimant's pneumoconiosis is
also totally disabling. Hughes v. Heyl & Patterson Inc., 1 B.L.R. 1‑604
(1978). If, however, the claimant is totally disabled due to a breathing
impairment, and the evidence is in conflict as to whether the cause of that
impairment is pneumoconiosis, the administrative law judge must weigh the
evidence, resolve the conflicts, and make a finding supported by adequate rationale.
Kurimak, supra; Rasel v. Bethlehem Mines Corp., 1 B.L.R. 1‑918
(1978).
Where it is established that a condition other than
pneumoconiosis is the primary cause of the miner's total disability, then the
presumption of total disability due to pneumoconiosis is rebutted. Maurizio
v. Director, OWCP, 2 B.L.R. 1‑16 (1979). In Casuas v. Director,
OWCP, 1 B.L.R. 1‑518 (1978), the Board affirmed the administrative
law judge's finding that a qualifying blood gas study was rebutted by evidence
that the claimant's breathing impairment was primarily related to a cardiac
problem, and was not related to coal mine employment. See also Maurizio,
supra; Stevens v. Director, OWCP, 1 B.L.R. 1‑386 (1978).
C.
Establishing total
disability;
medical evidence listed in the Appendix
The regulations provide that medical considerations
alone shall justify a finding that a miner is totally disabled where (1) the
impairment is listed in the Appendix to Part 410, or its medical equivalent,
and (2) there is no evidence to establish that the miner is engaged in
comparable or gainful work. 20 C.F.R. § 410.424(a). See Dunlap v.
Director, OWCP, 8 B.L.R. 1‑375 (1985). The Appendix to Part 410 lists
the following medical criteria:
(1) arterial oxygen tension at rest or during exercise
and simultaneously determined arterial PCO2 equal to or less than
the values specified in the table; or
(2) cor pulmonale with right‑sided congestive
failure, with:
(A) right ventricular enlargement or outflow
prominence on x‑ray or fluoroscopy; or
(B) ECG showing QRS duration less than 0.12 second
and R of 5 mm. or more in V1 and R/S of 1.0 or more in V1 and transition zone
(decreasing R/S) left of V1; or
(3) congestive heart failure with signs of vascular
congestion such as hepatomegaly or peripheral pulmonary edema with:
(A) cardiac‑thoracic ratio of 55 percent or
greater; or
(B) extension of the cardiac shadow.
20
C.F.R. § 410.424(a).
With respect to the establishment of congestive
heart failure, an abnormal EKG alone is insufficient to establish either cor
pulmonale with right‑sided congestive heart failure or congestive heart
failure with signs of vascular congestion. The EKG must meet the
specifications listed after each criterion before it will be deemed sufficient
to establish the existence of cor pulmonale. Childress v. Harmon Mining
Corp., 2 B.L.R. 1‑644 (1979). Similarly, an autopsy listing
pulmonary edema, congestions, and congestive hepatomegaly, with no associated
finding of congestive heart failure, is insufficient to establish congestive
heart failure. McGhee v. Westmoreland Coal Co., 2 B.L.R. 1‑607
(1979).
D. Total
disability established; factors not
in the Appendix
Section 410.426 provides an alternative means of
establishing total disability and reads, in part, as follows:
(a) Pneumoconiosis which constitutes neither an
impairment listed in the appendix . . . nor the medical equivalent thereof,
shall nevertheless be found totally disabling if because of the severity of
such impairment, the miner is (or was) not only unable to do his previous coal
mine work, but also cannot (or could not), considering his age, his education,
and work experience, engage in any other kind of comparable and gainful work .
. . available to him in the immediate area of his residence.
20
C.F.R. § 410.426(a).
Total disability is defined in terms of work
capacity and, therefore, evidence of the miner's continued employment may be
used to prove that he is not totally disabled. However, in rare instances,
where a miner continues to work, but there is evidence of a reduced ability to
perform as a result of the miner's pneumoconiosis, the miner may be considered
totally disabled. Kinnick v. National Mines Corp., 2 B.L.R. 1‑221
(1979); Kurimcak v. U.S. Steel Corp., 2 B.L.R. 1‑75 (1979); Mondragon
v. C.F. & I. Steel Corp., 1 B.L.R. 1‑323 (1977). For a
discussion of factors to be considered in determining whether miner is able to
perform "comparable and gainful work," see Chapter 9.
E. Other relevant
evidence
Under § 410.414(c), the miner may establish total
disability due to pneumoconiosis using "other relevant evidence."
The regulation specifies that "other relevant evidence" includes the
following:
[M]edical tests such as blood gas studies,
electrocardiogram, pulmonary function studies, or physical performance tests,
and any medical history, evidence submitted by the miner's physician, his
spouse's affidavits, and in the case of a deceased miner, other appropriate
affidavits of persons with knowledge of the individual's physical condition and
other supportive materials.
20
C.F.R. §§ 410.414(c) and 410.426(d).
The provisions at §§ 410.414 and 410.426 apply
where a ventilatory study and/or a physical performance test is medically
contraindicated, or cannot be obtained, or where evidence obtained as a result
of the study and/or test does not establish that the miner is totally
disabled. Under the regulations, pneumoconiosis may nevertheless be found
totally disabling if other relevant evidence establishes that the miner has a
chronic respiratory impairment, the severity of which prevents him not only
from doing his previous coal mine work, but also comparable and gainful work
considering his age, his education, and work experience. 20 C.F.R. § 410.426(d).
1. Burden of
proof
In Fletcher v. Central Appalachian Coal Co.,
1 B.L.R. 1‑980 (1978), aff'd sub. nom., Central
Appalachian Coal Co. v. BRB, 679 F.2d 1086 (4th Cir. 1982), the
Board held that the claimant's burden of proof under this section was similar
to the burden required under § 410.412. In particular, the Board held that the
claimant establishes a prima facie case of total disability if s/he
establishes the existence of a chronic respiratory or pulmonary disability,
which prevents him from engaging in his usual coal mine employment. The burden
then shifts to the party opposing entitlement to show that the claimant can
nonetheless perform comparable and gainful work in the immediate area of his
residence.
The Board noted that this section is designed to
permit the use of discretion by the administrative law judge who must use his
or her experience and judgment in weighing all the evidence pertaining to the
issue total disability. Roetter v. Peabody Coal Co., 1 B.L.R. 1‑957
(1978). However, the Board may set aside the judge's inferences if they are
not supported by substantial evidence. Hall v. Director, OWCP, 8 B.L.R.
1‑193 (1985).
2. Use of lay
testimony
Lay testimony alone is insufficient to establish
total disability; rather, there must be some medical evidence showing that the
lung impairment in question is of such severity that it is totally disabling. Lynn
v. Director, OWCP, 3 B.L.R. 1‑125 (1981); Wozny v. Director, OWCP,
2 B.L.R. 1‑141 (1979); Casias v. Director, OWCP, 2 B.L.R. 1‑259
(1979).
3. Pulmonary
function studies
Pneumoconiosis shall be found disabling if it is
established that the miner has a respiratory impairment, because of
pneumoconiosis, demonstrated on the basis of a ventilatory study in which the
MVV and the FEV1 are equal to or less than the values specified in
the table. 20 C.F.R. § 410.426(b). The quality standards for ventilatory
studies are found at 20 C.F.R. § 410.430.
Even though the administrative law judge credits a
ventilatory study, which qualifies under the table, this does not mandate a finding
that the miner's pneumoconiosis is totally disabling. Rather, as noted above,
it creates a presumption. The presumption may be rebutted by evidence that,
based on the impairment, age, education and work experience, the miner can do
his or her usual coal mine work or comparable, gainful work. Thus, in Vance
v. Buffalo Mining Co., 1 B.L.R. 1‑555 (1978), the Board held that
even though presumptive total disability was established by the results of
qualifying ventilatory studies, the presumption was rebutted by evidence that,
despite the established impairment, the miner continued to perform his usual
coal mine work. See also Caudill v. Director, OWCP, 9
B.L.R. 1‑174 (1986); Fletcher v. Central Appalachian Coal Co.,
1 B.L.R. 1‑980 (1978), aff'd. sub. nom., Central
Appalachian Coal Co. v. BRB, 679 F.2d 1986 (4th Cir. 1982).
4. Physical
performance tests
Where the values are not met for ventilatory
studies, pneumoconiosis may nevertheless be found disabling if a physical
performance test establishes a chronic respiratory or pulmonary impairment,
which is medically the equivalent of the values specified in the table for
ventilatory studies. 20 C.F.R. § 410.426(c).
F. Irrebuttable
presumption; complicated
pneumoconiosis
The regulations create an irrebuttable presumption
that a miner is totally disabled due to pneumoconiosis if s/he suffers from
complicated pneumoconiosis as described in 20 C.F.R. § 410.418. Although x‑rays
may serve as evidence of complicated pneumoconiosis, the quality standards at
20 C.F.R. § 410.428(b) do not apply to x‑rays diagnosing complicated
pneumoconiosis. Swartz v. U.S. Steel Corp., 8 B.L.R. 1‑481
(1986). The Board in Swartz stated that "Section 410.428(a), the
section governing proof of complicated pneumoconiosis, does not require that x‑rays
introduced to prove complicated pneumoconiosis meet any quality standards other
than they be classified as showing pneumoconiosis of Category A, B, or C under
the specified classification systems." If the record contains any
evidence indicating the existence of complicated pneumoconiosis, the
administrative law judge must specifically address it and, if it is rejected,
provide a legitimate explanation. Shultz v. Borgman Coal Co., 1 B.L.R.
1‑233 (1977).
If it is determined that the record supports a
finding of complicated pneumoconiosis, the miner is entitled to an irrebuttable
presumption of total disability due to pneumoconiosis. Consequently, this
presumption is not rebutted by the fact that the miner continued to work after
being diagnosed as suffering from complicated pneumoconiosis. Truitt, supra;
Namec v. Lehigh Valley Anthracite, Inc., 1 B.L.R. 1‑514
(1978). However, the claimant must still prove that his pneumoconiosis arose
out of coal mine employment.
1. Conflicting
evidence
Where the record contains evidence of simple and
complicated pneumoconiosis, as well as evidence of no pneumoconiosis, the
administrative law judge must resolve the conflicts and make a finding. Truitt
v. North American Coal Corp., 2 B.L.R. 1‑199 (1979), aff'd
sub nom, Director, OWCP v. North American Coal Corp., 626
F.2d 1137 (3rd Cir. 1980). For example, where the record contains
only a single x‑ray reading indicating complicated pneumoconiosis, while
more numerous x‑rays indicate only simple pneumoconiosis or lung cancer,
the Board affirmed the administrative law judge's finding of simple
pneumoconiosis. Rose v. Clinchfield Coal Co., 2 B.L.R. 1‑13
(1979); Spangler v. Director, OWCP, 1 B.L.R. 1‑698 (1978); Travis
v. Peabody Coal Co., 1 B.L.R. 1‑314 (1977).
2. Autopsy
evidence
Concerning autopsy evidence of complicated
pneumoconiosis, the Third Circuit has held that an administrative law judge is
permitted to make an equivalency determination, if the record contains a proper
evidentiary basis. An equivalency determination is necessary when there is a
question about whether nodules found in the lung on autopsy or biopsy would
correspond to opacities viewed on an x‑ray indicating complicated
pneumoconiosis. Clites v. Jones & Loughlin Steel Corp., 663 F.2d 14
(3rd Cir. 1981). In Clites, a physician testified that
nodules found on autopsy, if viewed radiographically, would amount to opacities
over one centimeter. Thus, the court upheld the administrative law judge's
finding of the existence of complicated pneumoconiosis.
In subsequent cases, the Board has not defined what
evidence forms a proper evidentiary basis for complicated pneumoconiosis. In Lohr
v. Rochester & Pittsburgh Coal Co., 6 B.L.R. 1‑1264 (1984), the
Board concluded that the evidence did not support a finding of complicated
pneumoconiosis, even though a doctor indicated that "the lung parenchyma
also has underspread black modules which vary up to 0.9 to 1.2 centimeters."
Similarly, the evidentiary basis was found lacking in Smith v. Island Creek
Coal Co., 7 B.L.R. 1‑734 (1985), where the doctor who performed the
autopsy indicated that the lungs revealed two nodular areas measuring 1.2 to
1.3 centimeters, but no attempt was made to equate the nodules found with the
size of x‑ray opacities. See also Reilly v. Director,
OWCP, 7 B.L.R. 1‑139 (1984). See Chapter 11 for further
discussion of "equivalency" determinations as related to finding
complicated pneumoconiosis under 20 C.F.R. Part 718.
VI. Applicability of § 410.490 and Parts 727 and
718
Because, in most cases, claims adjudicated under
Part 410 have been reviewed and denied under the interim regulations at § 410.490
or Part 727, it would seem that a claim denied under Part 410 need not be
considered under Part 718. See e.g. Ezell v. Illinois Central Gulf Railroad,
BRB No. 88-0760 BLA (Mar. 30, 1993) (unpub.).