USDOL/OALJ - Judges' Black Lung Benchbook - Chapter 11 - Living Miner's Claims: Entitlement Under Part 718 (2003)

United States Department of Labor

May 9, 2009

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Judges' Benchbook of the Black Lung Benefits Act (2003)
Prepared by the U.S. Department of Labor
Office of Administrative Law Judges
Washington, D.C.

Chapter 11
Living Miner's Claims: Entitlement Under Part 718

Check Supplement
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Applicability of Part 718, generally
Elements of entitlement
The existence of pneumoconiosis
Etiology of the pneumoconiosis
1. Ten years or more coal mine employment
2. Less than ten years of coal mine employment
Establishing total disability
Entiology of total disability
Applicability of Parts 410 and 727 and §410.490

I. Applicability of Part 718, generally
[ VII(A) ]

Section 718 applies to all claims filed after March 31, 1980. Moreover, because the Part 727 regulations were written as interim regulations, the permanent regulations at Part 718 should apply to a claimant who fails to meet the requirements of entitlement under Part 727. Section 727.203(d) provides that "[w]here eligibility is not established under this section, such eligibility may be established under Part 718 of this subchapter as amended from time to time." 20 C.F.R. §727.203(d). The Part 727 regulations became effective in March 1978. Since the permanent Part 718 regulations had not been written as of March 1978, the Part 410 regulations became applicable for claims adjudicated prior to March 31, 1980, where a claimant failed to meet the requirements of entitlement under Part 727.

After the Part 718 regulations were written, if a claimant failed to meet the requirements of entitlement under Part 727, the Part 718 regulations were applicable. However, in Muncy v. Wolfe Creek Collieries Coal Co., 3 B.L.R. 1-627 (1981), the Board held that the language in the regulations making Part 718 applicable "as amended from time to time," violated statutory intent. Therefore, under Muncy, the new Part 718 regulations do not apply to any claim filed prior to March 31, 1980 in cases that do not arise in the Third, Sixth, Seventh, Eighth, and Eleventh Circuits.

Five circuit courts of appeals have disagreed with the Board's position regarding the applicability of Part 718. The Third, Sixth, Seventh, Eighth, and Eleventh Circuits hold that the regulations at Part 718, not Part 410, apply to Part C claims filed prior to March 31, 1980, yet adjudicated after March 31, 1980. Terry v. Director, OWCP, 956 F.2d 251 (11^th Cir. 1992); Oliver v. Director, OWCP, 888 F.2d 1239 (8^th Cir. 1989); Knuckles v. Director, OWCP, 869 F.2d 996 (6^th Cir. 1989); Caprini v. Director, OWCP, 824 F.2d 283 (3^rd Cir. 1987); Strike v. Director, OWCP, 817 F.2d 395 (7^th Cir. 1987). Thus, if a claimant cannot meet the requirements of entitlement under Part 727 in these circuits, the claim must be considered under Part 718.

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II. Elements of entitlement
[ VII(A)(3) ]

Claims adjudicated prior to the effective date of the regulations. The claimant bears the burden of establishing the following elements by a preponderance of the evidence: (1) the miner suffers from pneumoconiosis, (2) the pneumoconiosis arose out of coal mine employment, (3) the miner is totally disabled, and (4) the miner's total disability is caused by pneumoconiosis. Gee v. W.G. Moore and Sons, 9 B.L.R. 1-4 (1986)(en banc); Baumgartner v. Director, OWCP, 9 B.L.R. 1-65 (1986)(en banc).

The amended regulations. The amended regulations, at 20 C.F.R. §725.202(d)(2) (2001), specifically provide that a miner meets the requirements for entitlement by establishing that s/he: (1) has pneumoconiosis; (2) the pneumoconiosis arose out of coal mine employment; (3) is totally disabled; and (4) the pneumoconiosis contributes to the total disability. 20 C.F.R. §725.202(d)(2) (2001).

A miner's total disability may be due to a number of factors. Setting aside disabilities due to accidents and injuries, a miner's total pulmonary disability may be due to the effects of cigarette smoking, or from other non-coal dust related pulmonary diseases such as emphysema, bronchitis, asthma, or lung cancer. Moreover, the miner who experiences shortness of breath on exertion may have a heart condition such as hypertension or arteriosclerotic heart disease.

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III. The existence of pneumoconiosis
[ VII(B)(1) ]

A. "Pneumoconiosis" defined

1. Prior to applicability of 20 C.F.R. Part 718 (2001)

Pneumoconiosis under the Act is defined as both clinical pneumoconiosis and/or any respiratory or pulmonary condition significantly related to or significantly aggravated by coal dust exposure (legal pneumoconiosis):

For the purpose of the Act, "pneumoconiosis" means a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment. This definition includes, but is not limited to, coal workers' pneumoconiosis, anthracosilicosis, anthracosis, anthrosilicosis, massive pulmonary fibrosis, progressive massive fibrosis, silicosis or silico-tuberculosis, arising out of coal mine employment. For purposes of this definition, a disease "arising out of coal mine employment" includes any chronic pulmonary disease resulting in respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment. 20 C.F.R. §718.201.

Note that the definition appears to combine the first two elements of entitlement, pneumoconiosis and cause of pneumoconiosis. However, the claimant bears the burden of establishing both that s/he has pneumoconiosis and that the pneumoconiosis arose out of coal mine employment.

Legal versus clinical pneumoconiosis. A pulmonary disease may constitute statutory pneumoconiosis if it is significantly related to or aggravated by dust exposure in coal mine employment. The legal definition of pneumoconiosis is broad and may encompass more respiratory or pulmonary conditions than those specifically, clinically diagnosed in a medical opinion. For example, a physician may conclude that the miner suffers from asthma, which is related to his coal dust exposure. Although the physician did not specifically state that the miner suffered from pneumoconiosis or black lung disease, the respiratory condition that he diagnoses is related to coal dust exposure and, therefore, is supportive of a finding of legal pneumoconiosis.

The Fourth Circuit has issued a number of decisions addressing broad definition of pneumoconiosis in the regulation. "Pneumoconiosis" is a legal term defined by the Act and the judge "must bear in mind when considering medical evidence that physicians generally use 'pneumoconiosis' as a medical or clinical term that comprises merely a small subset of the afflictions compensable under the Act." Thus, an administrative law judge should review evidence in light of the much broader legal definition. Barber v. Director, OWCP, 43 F.3d 899 (4^th Cir. 1995). See also Dehue v. Director, OWCP, 65 F.3d 1189 (4^th Cir. 1995); Hobbs v. Clinchfield Coal Co., 45 F.3d 819 (4^th Cir. 1995) ("a medical diagnosis of no pneumoconiosis is not equivalent to a legal finding of no pneumoconiosis"). In Richardson v. Director, OWCP, 94 F.3d 164 (4^th Cir. 1996), the court reiterated that "[c]linical pneumoconiosis is only a small subset of the compensable afflictions that fall within the definition of legal pneumoconiosis under the Act" and that "COPD, if it arises out of coal mine employment, clearly is encompassed within the legal definition of pneumoconiosis, even though it is a disease apart from clinical pneumoconiosis." See also Cornett v. Benham Coal, Inc., 227 F.3d 569 (6^th Cir. 2000) (the court emphasized the distinction between legal and medical pneumoconiosis; a miner's exposure to coal mine employment must merely contribute "at least in part" to his pneumoconiosis); Kline v. Director, OWCP, 877 F.2d 1175, 1178 (3^rd Cir. 1989); Brown v. Director, OWCP, 851 F.2d 1569 (11^th Cir. 1988), app. dismissed, 864 F.2d 120 (11^th Cir. 1989); Phipps v. Director, OWCP, 16 B.L.R. 1-100 (1992) (recognizing the distinction between legal and clinical pneumoconiosis); Biggs v. Consolidation Coal Co., 8 B.L.R. 1-317, 1-322 (1985).

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2. After applicability of 20 C.F.R. Part 718 (2001)

The new regulatory provisions at 20 C.F.R. §718.201(2001) codifies certain case law arising under the pre-amendment definition of "pneumoconiosis" and the amendments provide the following:

(a) For the purposes of the Act, 'pneumoconiosis' means a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment. This definition includes both medical, or 'clinical', pneumoconiosis and statutory, or 'legal', pneumoconiosis.

(1) Clinical Pneumoconiosis. 'Clinical pneumoconiosis' consists of those diseases recognized by the medical community as pneumoconioses, i.e., the conditions characterized by permanent deposition of substantial amounts of particulate matter in the lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust exposure in coal mine employment. This definition includes, but is not limited to, coal workers' pneumoconiosis, anthracosilicosis, anthracosis, anthrosilicosis, massive pulmonary fibrosis, silicosis or silicotuberculosis, arising out of coal mine employment.

(2) Legal Pneumoconiosis. 'Legal pneumoconiosis' includes any chronic lung disease or impairment and its sequelae arising out of coal mine employment. This definition includes, but is not limited to, any chronic restrictive or obstructive pulmonary disease arising out of coal mine employment.

(3) For purposes of this section, a disease 'arising out of coal mine employment' includes any chronic pulmonary disease or respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment.

(c) For purposes of this definition, 'pneumoconiosis' is recognized as a latent and progressive disease which may first become detectable only after the cessation of coal mine dust exposure.

20 C.F.R. §718.201 (2001). According to 20 C.F.R. §718.2 (2001), this amended definition applies to all Part 718 claims, regardless of their filing dates. See National Mining Ass'n., et al. v. Dep't. of Labor, 292 F.3d 849 (D.C. Cir. 2002) (upholding validity of the amended regulation).

Challenge to "progressivity" fails-a case study. In Consolidation Coal Co. v. Director, OWCP [Kramer], 305 F.3d 203 (3^rd Cir. 2002)^{^[1]}, Employer challenged that a finding that pneumoconiosis was progressive because the miner's pulmonary function and blood gas studies, up to two and one-half years preceding his death, were within normal limits such that pneumoconiosis could not have hastened the miner's death. Employer noted that the miner was diagnosed with colon cancer, which had metastasized to his liver and lungs and which caused the miner's death. The court stated that "the tenet that pneumoconiosis is non-progressive is simply inconsistent with the 'assumption of [disease] progressivity that underlies much of the statutory regime.'" Moreover, the court stated that, even assuming that the disease was not progressive, the absence of a "clinically significant" pulmonary impairment two and one-half years prior to the miner's death "certainly does not establish that Kramer had incurred no damage to his lung tissue and no pulmonary burden of any degree whatsoever as a result of his occupational exposure." The court further noted that "nothing in the evidence that Consolidation points to would negate the conclusion that a preexisting pulmonary burden, albeit insufficient standing alone to result in measurable loss of lung function, could nonetheless in combination with a further affront to the pulmonary system through advancing cancer have decreased to some degree the lungs' ability to continue to compensate."

For additional cases involving "progressivity," see Chapter 24.

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3. Evidence relevant to finding pneumoconiosis

Some examples of findings and data, relevant to the existence of pneumoconiosis, are as follows:

a. Anthracosis and anthracotic pigment

The prosector may observe black pigment or anthracotic pigment in the lungs on autopsy. This pigment is generally the result of coal deposits embedded in the miner's lungs. In order for a diagnosis to qualify as "pneumoconiosis," there must be evidence that the lung tissue has reacted to the embedded coal deposits. Consequently, black pigment in the lungs, standing alone, does not constitute a finding of pneumoconiosis. On the other hand, observations of black pigment with associated fibrosis would qualify as a diagnosis of the disease. As another example, a finding of anthracotic pigment with associated fibrosis is the same as finding anthracosis, which satisfies the legal definition of pneumoconiosis.

In Hapney v. Peabody Coal Co., 22 B.L.R. 1-106 (2001)(en banc), the Board addressed a diagnosis of anthracosis under the amended regulations. Specifically, the Board noted that 20 C.F.R. §718.202(a)(2) (2001) contained an amendment to the prior version of the regulation "to add that a finding on autopsy or biopsy of anthracotic pigmentation shall not be sufficient, by itself, to establish the existence of pneumoconiosis." On the other hand, the Board agreed with the ALJ that a diagnosis of anthracosis on biopsy or autopsy fell within the definition of pneumoconiosis at 20 C.F.R. §718.201(a)(1) (2001).

Diagnoses of pulmonary anthracosis have been held to be the equivalent of a diagnosis of pneumoconiosis. Dagnan v. Black Diamond Coal Mining Co., 994 F.2d 1536 (11^th Cir. 1993); Bueno v. Director, OWCP, 7 B.L.R. 1-337 (1984); Smith v. Island Creek Coal Co., 2 B.L.R. 1-1178 (1980); Luketich v. Bethlehem Mines Corp., 2 B.L.R. 1-393 (1979). The Sixth Circuit held that the administrative law judge must also consider biopsy evidence which indicates the presence of anthracotic pigment. Lykins v. Director, OWCP, 819 F.2d 146 (6^th Cir. 1987). However, in Griffith v. Director, OWCP, 49 F.3d 184 (6^th Cir. 1995), the Sixth Circuit held that a finding of pigmentation described as "yellow-black consistent with coal pigment" was insufficient, standing alone, to support a finding of pneumoconiosis.

By unpublished decision in Taylor v. Director, OWCP, BRB No. 01-0837 BLA (July 30, 2002) (unpublished), the Board noted that a physician concluded, on autopsy, that no coal workers' pneumoconiosis was present and, yet he also stated that there was "minimal anthracosis in the mediastinal lymph nodes." As a result, the Board remanded the case to the ALJ to determine whether the legal definition of pneumoconiosis at 20 C.F.R. §718.201 (2001), which includes anthracosis, was satisfied. The Board held that "anthracosis found in lymph nodes may be sufficient to establish the existence of pneumoconiosis."

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b. Asthma, asthmatic bronchitis, or emphysema

Asthma, asthmatic bronchitis, or emphysema may fall under the regulatory definition of pneumoconiosis if they are related to coal dust exposure. Robinson v. Director, OWCP, 3 B.L.R. 1-798.7 (1981); Tokarcik v. Consolidation Coal Co., 6 B.L.R. 1-666 (1983). In Hughes v. Clinchfield Coal Co., 21 B.L.R. 1-134, 1-139 (1999), the Board held that chronic bronchitis and emphysema fall within the definition of pneumoconiosis if they are related to the claimant's coal mine employment.

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c. Blood gas studies

In Morgan v. Bethlehem Steel Corp., 7 B.L.R. 1-226 (1984), the Board held that, while blood gas studies are relevant primarily to the determination of the existence or extent of impairment, such evidence "also may bear upon the existence of pneumoconiosis insofar as test results indicate the absence of any disease process, and by implication, the absence of any disease arising out of coal mine employment."

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d. Chronic obstructive pulmonary disease

Before the Part 718 regulations were amended, the Fourth Circuit held, in Warth v. Southern Ohio Coal Co., 60 F.3d 173 (4^th Cir. 1995), that chronic obstructive lung disease is encompassed in the legal definition of pneumoconiosis. Thus, the assumption by a physician that pneumoconiosis causes only a restrictive impairment, rather than an obstructive impairment, is erroneous and undermines his conclusions. But see Stiltner v. Island Creek Coal Co, 86 F.3d 337 (4^th Cir. 1996)(a physician's opinion should not be discredited merely because he states that coal dust exposure would "likely" cause a restrictive, as opposed to obstructive, impairment). The Board has held that an obstructive impairment, without a restrictive component, may be considered regulatory pneumoconiosis. Heavilin v. Consolidation Coal Co., 6 B.L.R. 1-1209 (1984).

The amended regulations specifically provide that "a disease 'arising out of coal mine employment' includes any chronic pulmonary disease or respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment."

20 C.F.R. §718.201(b) (2001). Moreover, the definition of "legal pneumoconiosis" specifically "includes, but is not limited to, any chronic restrictive or obstructive pulmonary disease arising out of coal mine employment." 20 C.F.R. §718.201(a)(2) (2001).

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e. Pulmonary function studies not diagnose presence of pneumoconiosis

The Board has held that pulmonary function studies are not diagnostic of the presence or absence of pneumoconiosis. Burke v. Director, OWCP, 3 B.L.R. 1-410 (1981). In Cornett v. Benham Coal, Inc., 227 F.3d 569 (6^th Cir. 2000), the circuit court held that a medical opinion attributing the miner's respiratory impairment to his smoking history on grounds that pulmonary function testing produced a purely obstructive defect was not well-reasoned. The court stated the following:

Each of the three doctors unfavorable to Cornett reported that his respiratory problems were caused by his smoking habit only. If this is so, Cornett's ailments do not qualify as statutory pneumoconiosis. See 20 C.F.R. §718.201. But, of the three, only Dr. Fino attempted to explain his rationale for completely excluding Cornett's exposure to coal dust as an aggravating factor. Dr. Fino attributed Cornett's obstructive lung disease solely to cigarette smoking because, in his opinion, the pulmonary function tests were not consisted with 'fibrosis as would be expected in simple coal workers' pneumoconiosis.' What the ALJ did not consider in his opinion is that, although 'fibrosis' is generally associated with 'medical' pneumoconiosis, it is not a required element of the broader concept of 'legal' pneumoconiosis. Cf. Hobbs, 45 F.3d at 821. The legal definition does not require 'fibrosis' but instead requires evidence that coal dust exposure aggravated the respiratory condition. See Southard, 732 F.2d at 71-72. Unlike Dr. Fino, Drs. Broudy and Dahhan make no attempt to explain on what basis they believe that coal dust exposure did not contribute to Cornett's respiratory problems. By contrast, the opinions of Drs. Vaezy and BakerBwhich, as noted, were discredited by the ALJ as having an inadequate basisBclearly address the statutory requirements by acknowledging that coal dust, while not conclusively the cause of Cornett's condition, was certainly an aggravating factor, contributing to Cornett's respiratory impairment.

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f. Stipulations

Stipulation binding regardless of underlying evidence. In Richardson v. Director, OWCP, 94 F.3d 164 (4^th Cir. 1996), the Director stipulated to the existence of coal workers' pneumoconiosis with regard to the living miner's claim. The court held that it was error, therefore, for the administrative law judge to find that the record did not support a finding of the disease in the survivor's claim. The court further stated that the stipulation was binding even though presence of the disease was not "manifest from the medical records." The court then remanded the case to the administrative law judge for a determination of whether coal workers' pneumoconiosis hastened the miner's death.
Stipulation to presence of disease not constitute stipulation to etiology. In the survivor's claim of Clinchfield Coal Co. v. Fuller, 180 F.3d 622 (4^th Cir. 1999), Employer stipulated to the presence of coal workers' pneumoconiosis, but argued that it did not hasten the miner's death. In weighing the autopsy evidence of record, the administrative law judge credited Claimant's physicians' opinions over physicians' opinions offered by Employer who found only a "'mild' or 'minimal" level of simple coal workers' pneumoconiosis. The administrative law judge reviewed the definition of pneumoconiosis as "a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment . . .." 20 C.F.R. §718.201 (emphasis added). From this, the administrative law judge concluded that "[b]ecause Clinchfield stipulated that Mr. Fuller had pneumoconiosis, . . . it must also have stipulated that his pneumoconiosis was impairing . . .." The court disagreed to state that §718.201 does not contain a requirement that "coal dust-specific diseases . . . attain the status of an 'impairment' to be classified as 'pneumoconiosis.'" The court further noted that the definition of pneumoconiosis is satisfied "whenever one of these diseases is present in the miner at a detectable level; whether the particular disease exists to such an extent as to be compensable is a separate question." As a result, the case was remanded to the administrative law judge to re-weigh the autopsy evidence to determine whether the disease hastened the miner's death.

With regard to the effect of stipulations and uncontested issues in subsequent claims under 20 C.F.R. §725.309, see Chapter 24.

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B. Regulatory methods of establishing pneumoconiosis
[ VII(B) ]

The existence of pneumoconiosis may be established through the following four methods: (1) chest x-rays; (2) autopsy or biopsy; (3) the presumptions contained at '§718.304, 718.305, or 718.306; or (4) a physician exercising sound medical judgment based on objective medical evidence. 20 C.F.R. §718.202(a) (2000) and (2001). For claims filed on or after January 19, 2001, see Chapter 4 regarding limitations on evidence imposed by the amended regulations.

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1. Chest roentgenogram (x-ray) evidence

Under §718.202(a)(1), a chest x-ray conducted and classified in accordance with §718.102, may form the basis for a finding of the existence of pneumoconiosis. In general, where two or more x-ray reports are in conflict, consideration shall be given to the radiological qualifications of the physicians interpreting such x-rays. The following list contains some principles for evaluating x-ray evidence under Part 718. For additional principles of weighing medical evidence, see Chapter 3.

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a. Negative readings

Pneumoconiosis was not established, where the record contained a negative interpretation by a B-reader and board-certified radiologist who was the most qualified physician of record. Roberts v. Bethlehem Mines Corp., 8 B.L.R. 1-211 (1985). Moreover, the x-ray evidence did not support a finding of the disease, where a majority of the most-qualified physicians of record found no pneumoconiosis. Dixon v. North Camp Coal Co., 8 B.L.R. 1-344 (1985).

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b. The "Tobias rule" and rereading chest x-rays

Section 413(b) of the Act prohibits the Director from rereading certain positive x-rays in claims filed before January 1, 1982. 30 U.S.C. §923(b), implemented at 20 C.F.R. §718.202(a)(1)(i). In Tobias v. Republic Steel Corp., 2 B.L.R. 1-1277 (1981), the Board set forth the threshold requirements of §413(b), which are as follows: (1) there is other evidence of a pulmonary or respiratory impairment; (2) the x-ray was taken by a radiologist or qualified technician and it is of a quality sufficient to demonstrate the presence of pneumoconiosis; (3) the physician who first interpreted the x-ray is a board-certified radiologist; and (4) no evidence exists that the claim has been fraudulently represented. Id. at 1-1279. If these requirements are satisfied, then the Director must accept the initial interpretation of the x-ray and cannot have the x-ray reread. Id. Under the "Tobias rule," the administrative law judge must exclude re-readings submitted by the Director from consideration. Section 413(b) also applies to positive x-rays obtained by the Social Security Administration. Coburn v. Director, OWCP, 7 B.L.R. 1-632 (1985). See also Arnold v. Peabody Coal Co., 41 F.3d 1203 (7^th Cir. 1994) (the rereading prohibition was applicable to evidence submitted by the claimant on modification).

Other evidence of impairment in existence by time of hearing. There is no requirement that the other evidence of a pulmonary or respiratory impairment be in existence at the time the Director seeks to reread the x-ray. Other evidence need only be in existence at the time of the hearing. Hyle v. Director, OWCP, 8 B.L.R. 1-512 (1986). For a discussion of evidence that constitutes sufficient "other evidence" to establish a pulmonary or respiratory impairment, see Coburn v. Director, OWCP, 7 B.L.R. 1-632 (1985), and Bobbitt v. Director, OWCP, 8 B.L.R. 1-380 (1985).

No prohibition on re-reading a study that is interpreted as negative. Section 413(b) does not prohibit the rereading of x-rays originally read as negative. Rankin v. Keystone Coal Mining Corp., 8 B.L.R. 1-54 (1985). Section 413(b) also does not prohibit the Director from having the x-ray reread to determine the quality of the x-ray, i.e., whether it is unreadable for pneumoconiosis.

Initial interpretation must be made by a board-certified radiologist. The physician who first interprets the x-ray must be a board-certified radiologist. If the record does not establish the qualifications of the physician who first interprets the x-ray, the rule does not apply, and the Director may have the x-ray study reread. Vance v. Eastern Associated Coal Corp., 8 B.L.R. 1-68 (1985); Pulliam v. Drummond Coal Co., 7 B.L.R. 1-846 (1985).

The "Tobias rule" does not apply to an employer. Section 413(b) does not prohibit an employer from rereading positive x-rays. Horn v. Jewell Ridge Coal Corp., 6 B.L.R. 1-933 (1984). However, in Tobias, the Board held that if §413(b) prohibits the Director from admitting an x-ray rereading, the employer cannot introduce the same x-ray rereading. Tobias, 2 B.L.R. at 1-1286.

The "Tobias rule" does not apply to claims filed after January 1, 1982. The §413(b) prohibition was eliminated by the 1981 Amendments to the Act. Consequently, the prohibition does not apply to claims filed after January 1, 1982. 20 C.F.R. §718.202(a)(1)(i).

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2. Autopsy or biopsy

A biopsy or autopsy conducted and reported in compliance with §718.106 may constitute the basis for a finding of the existence of pneumoconiosis. 20 C.F.R. §718.202(a)(2). Section 718.106 sets forth the quality standards for autopsies and biopsies. However, the Board, in Dillon v. Peabody Coal Co., 11 B.L.R. 1-113 (1988), held that the quality standards are not mandatory and failure to comply with the standards goes to the reliability and weight of the evidence. In Dagnan v. Black Diamond Coal Mining Co., 994 F.2d 1536 (11^th Cir. 1993), the Eleventh Circuit held that a biopsy need only be in "substantial compliance" with the quality standards at §718.106 to be admissible. Specifically, the court held that a biopsy report diagnosing anthracosis that does not include the surgical report is in "substantial compliance" with the regulations. See Chapter 3 for further discussion of autopsy evidence and quality standards.

The prosector may observe black pigment or anthracotic pigment in the lungs on autopsy. This pigment is generally the result of coal deposits embedded in the miner's lungs. In order for a diagnosis to qualify as "pneumoconiosis," there must be evidence that the lung tissue has reacted to the embedded coal deposits. Consequently, black pigment in the lungs, standing alone, does not constitute a finding of pneumoconiosis. On the other hand, observations of black pigment with associated fibrosis would qualify as a diagnosis of the disease. As another example, a finding of anthracotic pigment with associated fibrosis is the same as finding anthracosis, which satisfies the legal definition of pneumoconiosis.

In Hapney v. Peabody Coal Co., 22 B.L.R. 1-106 (2001)(en banc), the Board addressed a diagnosis of anthracosis under the amended regulations. Specifically, the Board noted that 20 C.F.R. §718.202(a)(2) (2001) contained an amendment to the prior version of the regulation "to add that a finding on autopsy or biopsy of anthracotic pigmentation shall not be sufficient, by itself, to establish the existence of pneumoconiosis." On the other hand, the Board agreed with the ALJ that a diagnosis of anthracosis on biopsy or autopsy fell within the definition of pneumoconiosis at 20 C.F.R. §718.201(a)(1) (2001).

Diagnoses of pulmonary anthracosis have been held to be the equivalent of a diagnosis of pneumoconiosis. Dagnan v. Black Diamond Coal Mining Co., 994 F.2d 1536 (11^th Cir. 1993); Bueno v. Director, OWCP, 7 B.L.R. 1-337 (1984); Smith v. Island Creek Coal Co., 2 B.L.R. 1-1178 (1980); Luketich v. Bethlehem Mines Corp., 2 B.L.R. 1-393 (1979). The Sixth Circuit held that the administrative law judge must also consider biopsy evidence which indicates the presence of anthracotic pigment. Lykins v. Director, OWCP, 819 F.2d 146 (6^th Cir. 1987). However, in Griffith v. Director, OWCP, 49 F.3d 184 (6^th Cir. 1995), the Sixth Circuit held that a finding of pigmentation described as "yellow-black consistent with coal pigment" was insufficient, standing alone, to support a finding of pneumoconiosis.

By unpublished decision in Taylor v. Director, OWCP, BRB No. 01-0837 BLA (July 30, 2002) (unpublished), the Board noted that a physician concluded, on autopsy, that no coal workers' pneumoconiosis was present and, yet he also stated that there was "minimal anthracosis in the mediastinal lymph nodes." As a result, the Board remanded the case to the ALJ to determine whether the legal definition of pneumoconiosis at 20 C.F.R. §718.201 (2001), which includes anthracosis, was satisfied. The Board held that "anthracosis found in lymph nodes may be sufficient to establish the existence of pneumoconiosis."

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3. Weighing evidence together versus weighing evidence separately

Benefits Review Board. Over the years, the Board has held that pneumoconiosis may be established by operation of presumption, or by a preponderance of the evidence at any one of the individual subsections at §718.202(a)(1), (a)(2), or (a)(4). For example, in Jones v. Badger Coal Co., 21 B.L.R. 1-103 (1998) (en banc), the Board held that it was proper for the administrative law judge to separately evaluate the x-ray evidence at §718.202(a)(1) and find no evidence of pneumoconiosis, but find that the medical opinion evidence at §718.202(a)(4) did support a finding of the disease. Employer had argued that, under §718.202(a), "all relevant evidence must be weighed together to determine whether claimant suffers from the disease," and it cited to the Third Circuit's holding in this regard in Penn Allegheny Coal Co. v. Williams, 114 F.3d 22 (3^rd Cir. 1997). The Board countered to note that Jones did not arise within the Third Circuit such that the Williams decision was not controlling. Moreover, it stated that the circuit court failed to distinguish between clinical and legal pneumoconiosis. In this vein, the Board reasoned that legal pneumoconiosis "is a broader category which is not dependent upon a determination of clinical pneumoconiosis, and the absence of clinical pneumoconiosis does not necessarily influence a physician's diagnosis of legal pneumoconiosis."^{^[2]}

Again, in Furgerson v. Jericol Mining, Inc., 22 B.L.R. 1-216 ( 2002)(en banc), a case arising in the Sixth Circuit, the Board declined to apply the Fourth Circuit's holding in Island Creek Coal Co. v. Compton, 211 F.3d 203 (4^th Cir. 2000), which required that a determination of the presence of pneumoconiosis be based on weighing all types of evidence under 20 C.F.R. §718.202 together. Rather, the Board noted that "the Sixth Circuit has often approved the independent application of the subsections of Section 718.202(a) to determine whether claimant has established the existence of pneumoconiosis."

Third Circuit. In Penn Allegheny Coal Co. v. Williams, 114 F.3d 22 (3^rd Cir. 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.

Fourth Circuit. In Island Creek Coal Co. v. Compton, 211 F.3d 203 (4^th Cir. 2000), 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 disease. 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 (3^rd Cir. 1997) that requires the same analysis and the Fourth Circuit 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 (6^th Cir. 1995) (noting that autopsy evidence is generally accorded greater weight than x-ray evidence).

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.

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.

See also Consolidation Coal Co. v. Director, OWCP [Held], 314 F.3d 184 (4^th Cir. 2002).

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C. Presumptions related to the existence of pneumoconiosis
[ VII(B)(4) ]

The regulations at 20 C.F.R. §718.202(a)(3) (2001) provide that "[i]f the presumptions described in '§718.304, 718.305 or 718.306 are applicable, it shall be presumed that the miner is or was suffering from pneumoconiosis." 20 C.F.R. §718.202(a)(3) (2001).

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1. Complicated pneumoconiosis

Under 20 C.F.R. §718.304 (2001), there is an irrebuttable presumption that a miner is totally disabled due to pneumoconiosis, if the miner is suffering from complicated pneumoconiosis. Complicated pneumoconiosis is established by x-rays classified as Category A, B, or C, or by an autopsy or biopsy, which yields evidence of massive lesions in the lung or nodules in the lung that would equate to a one centimeter or greater opacity on x-ray. The determination of whether the miner has complicated pneumoconiosis is a finding of fact, and the administrative law judge must consider and weigh all relevant evidence. Melnick v. Consolidation Coal Co., 16 B.L.R. 1-31 (1991); Maypray v. Island Creek Coal Co., 7 B.L.R. 1-683 (1985).

Equivalency determination required. An equivalency determination is necessary when there is a question about whether nodules found in the lung upon medical examination (autopsy or biopsy) would correspond to opacities viewed on an x-ray indicating complicated pneumoconiosis. In particular, there is dispute over whether a one centimeter nodule or lesion on an autopsy would equate to a one centimeter opacity on a chest x-ray. Some physicians maintain that a chest x-ray will record only the central part of the actual lesion and, therefore, a lesion must be larger than one centimeter on autopsy to constitute a one centimeter opacity on a chest x-ray. Other physicians argue that technological advances have resulted in increased accuracy on chest x-rays such that a one centimeter lesion on autopsy would equal a one centimeter opacity on chest x-ray.

The Board and courts have held that the fact-finder must make an equivalency determination based on medical evidence in the record to determine whether the miner has complicated pneumoconiosis on autopsy.

Benefits Review Board. 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).

On the other hand, in Braenovich v. Cannelton Industries, Inc., 22 B.L.R. 1-236 (2003), the Board upheld the ALJ's "equivalency determination" that a 1.5 centimeter lesion on autopsy would constitute a 1.0 centimeter or greater opacity on a chest x-ray, thus establishing the presence of complicated pneumoconiosis under 20 C.F.R. §718.304. In support of the ALJ's finding, the Director argued that the autopsy prosector and a reviewing pathologist found a lesion larger than one centimeter in the miner's lungs. The Director stated that, although another reviewing pathologist, Dr. Naeye, found a 0.9 centimeter lesion on the slides, this would not "disprove the existence of a nodule larger than one centimeter in the miner's lungs." The Director noted that one of Employer's experts, Dr. Kleinerman, "acknowledged that a tissue sample shrinks by about 10 - 15% when prepared for a slide . . .." See also Hawker v. Zeigler Coal Co., 22 B.L.R. 1-168 (2000).

By unpublished decision in Keene v. G&A Coal Co., BRB No. 96-1689 BLA-A (Sept. 27, 1996), the Board affirmed a finding of complicated pneumoconiosis under 20 C.F.R. §718.304. It held that the ALJ properly found that a chest x-ray, in conjunction with CT-scan findings, was sufficient to find complicated pneumoconiosis. The ALJ specifically noted that physicians reviewing a CT-scan "confirm(ed) the presence of a large irregular density or mass greater than one centimeter in diameter." The Board further held that a finding of complicated pneumoconiosis need not be accompanied by findings of Category 2 or Category 3 simple pneumoconiosis, contrary to Employer's argument. The Board also found that the ALJ properly concluded that "Dr. Wheeler's opinion, that claimant's large opacity is compatible with tuberculosis, (did) not negate its compatibility with complicated pneumoconiosis."

Third Circuit. In Clites v. Jones & Loughlin Steel Corp., 663 F.2d 14 (3^rd Cir. 1981), 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.

Fourth Circuit. In Eastern Associated Coal Corp. v. Director, OWCP [Scarbro], 220 F.3d 250 (4^th Cir. 2000), the circuit court affirmed the administrative law judge's finding that the x-ray and autopsy evidence of record supported invocation of the presumption at 20 C.F.R. §718.304 (complicated pneumoconiosis). The court held that there was no evidence to demonstrate that the 1.7 centimeter nodules on the autopsy would not equate to the 1.0 centimeter opacity on a chest x-ray. Some additional holdings in Scarbro are as follows:
- normal pulmonary function study values at the end of the miner's coal mine employment does not preclude a finding of complicated pneumoconiosis at the time of his death;
- the most objective measure of the presence of complicated pneumoconiosis is by chest x-ray and x-ray evidence of complicated pneumoconiosis "can lose force only if other evidence affirmatively shows that the opacities are not there or are not what they seem to be, perhaps because of an intervening pathology, some technical problem with the equipment used, or incompetence of the reader";
- it is error to accord greater weight to the opinion of the prosector solely because s/he conducted the autopsy and observed the miner's entire respiratory system (see also Bill Branch Coal Corp. v. Sparks, 213 F.3d 186 (4^th Cir. 2000));
- The fact that a physician states that the 1.7 centimeter nodules observed on the autopsy slides did not constitute complicated pneumoconiosis in the medical sense is insufficient to exclude presence of the disease in the legal sense; the physician failed to state whether the lesions met the statutory definition of the disease, not merely the pathological or medical definition; and
- the administrative law judge properly found that the prosector's report supported a finding of massive lesions in the lungs based on a dictionary definition of "massive" as meaning "extensive or severe.

In Double B Mining, Inc. v. Blankenship, 177 F.3d 240 (4^th Cir. 1999), a case involving the issue of complicated pneumoconiosis, the court stated that a diagnosis of "massive lesions" on autopsy or biopsy is the same as requiring a finding of A, B, or C opacities on chest x-ray. In this vein, the court found that a physician's finding of "massive fibrosis" on biopsy, which included a lesion or nodule which was 1.3 centimeters in diameter, was insufficient to determine whether Claimant suffered from complicated pneumoconiosis. Rather, it concluded the following:

To determine whether Blankenship's condition meets the statutory criteria, we must remand this case to the Board for remand to the ALJ to find whether the 1.3-centimeter lesion would, if x-rayed prior to removal of that portion of Blankenship's lung, have showed as a one-centimeter opacity.

It may be necessary for an ALJ to make a separate equivalency determination each time a miner presents evidence of massive lesions diagnosed by biopsy. On the other hand, it may be possible for the Department of Labor to engage in a single fact-finding exercise to determine how large a lesion must be in order to appear on an x-ray as a greater-than-one-centimeter opacity and thereafter to promulgate a rule imposing this finding on all future cases. Either way, however, an equivalency determination must be made.

The court noted that, in some cases, the Board and medical community have determined that the lesion found on biopsy or autopsy must measure at least two centimeters in diameter in order to support a finding of complicated pneumoconiosis because nodules are larger on autopsy or biopsy than they appear on a chest x-ray. The court declined to follow this bright-line rule, however, and reasoned that "[t]he statute does not mandate the use of the medical definition of complicated pneumoconiosis." See also Gollie v. Elkay Mining Co., 22 B.L.R. 1-306 (2003) (in a case arising in the Fourth Circuit the Board held that a physician's opinion that a 12 mm nodule viewed on a lobectomy and 2 cm lesions on autopsy slides "would look like complicated pneumoconiosis on x-ray" fell short of the required equivalency finding).

Sixth Circuit. In Gray v. SLC Coal Co., 176 F.3d 382 (6^th Cir. 1999), the court held that a miner who died of a self-inflicted gunshot wound may nevertheless be awarded black lung benefits if it is determined that he suffered from complicated pneumoconiosis and, therefore, invoked the irrebuttable presumption of total disability due to the disease. The court then reviewed the record to determine whether it supported a finding of complicated pneumoconiosis. It noted that a diagnosis of the disease may be made based upon chest x-ray evidence revealing opacities which are greater than one centimeter in diameter or autopsy or biopsy evidence which demonstrates "massive lesions." The court then determined that x-ray evidence of opacities measuring at least one centimeter does not, alone, trigger the irrebuttable presumption where conflicting autopsy evidence exists. Moreover, the "one-centimeter standard applicable to x-rays simply does not apply to autopsy evidence." The court stated that x-rays are the "least accurate method" of diagnosing complicated pneumoconiosis such that "all relevant evidence" must be weighed prior to invocation of the presumption. In this vein, the court concluded that the autopsy evidence did not support a finding of complicated pneumoconiosis as Dr. Kleinerman testified "that the lesions on the lung-tissue slides would not appear as opacities of greater than one centimeter on an x-ray" and the nodules observed in the miner's lung on autopsy did not constitute "massive lesions" as required by the regulation.

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2. Fifteen years of coal mine employment

Under 20 C.F.R. §718.305 (2000) and (2001), if a miner was employed for fifteen years or more in one or more underground coal mines, and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis. 20 C.F.R. §718.305(a) (2000) and (2001). A spouse's affidavit or testimony may not be used by itself to establish the applicability of the presumption. 20 C.F.R. §718.305(a) (2000) and (2001). The presumption may be rebutted by establishing that the miner does not have pneumoconiosis or that his or her respiratory or pulmonary impairment did not arise out of coal mine employment. The presumption can never be rebutted, however, on the basis of evidence demonstrating the existence of a totally disabling obstructive respiratory or pulmonary disease of unknown origin. 20 C.F.R. §718.305(d) (2000) and (2001). This presumption is not applicable to any claim filed on or after January 1, 1982. 20 C.F.R. §718.305(e) (2000) and (2001).

Must have 15 years of underground or "substantially similar" employment. In Blakley v. Amax Coal Co., 54 F.3d 1313 (7^th Cir. 1995), the Seventh Circuit held that, under §725.305(a), the claimant must demonstrate that "he worked for fifteen years in an underground mine or in a surface mine with dust conditions substantially similar to those found in underground mines." In this vein, the court further held that the claimant "-bears the burden of establishing comparability' but 'must only establish that he was exposed to sufficient coal dust in his surface mine employment.'" The court stated that it will generally defer to the expertise of the judge in determining the similarity of surface and underground mine conditions.

In Freeman United Coal Mining Co. v. Summers, 272 F.3d 473 (7^th Cir. 2001), the court held that the ALJ properly invoked the 15 year presumption at 30 U.S.C. §921(c)(4) having found that the miner's work at the surface of the mine was under "conditions substantially similar to those in an underground coal mine." The ALJ found "similarity" based on the miner's un-refuted testimony about his employment conditions. The miner worked as an electrician in the mines during some of his coal mine employment, but most of his work "occurred when he worked inside the offices and shops that were built above ground on the coal company's property." The court found that the miner described, in detail, the dusty conditions in his work areas and it noted the following:

Summers intermittently labored underground or in buildings located atop subterranean coal mines, performing tasks inexorably intertwined with coal production. Therefore, he is a miner, according to the regulations, and we will not require him to prove similarity in a different manner merely because he did not wield a pickaxe and a shovel while he worked.

Id.

Unknown origin insufficient to rebut presumption. In Barber v. Director, OWCP, 43 F.3d 899 (4^th Cir. 1995), the court reiterated that, under §718.305, "[o]n claims filed before January 1, 1982, where a miner has fifteen years of employment and a totally disabling respiratory impairment, it is presumed that pneumoconiosis is a contributing cause of his impairment." Rebuttal was not established in Barber where, as noted by the court, the autopsy report and related opinions "do not identify the origin of (the miner's) diseases" in light of the broad legal definition of pneumoconiosis.

Establishing rebuttal. Once invoked, the presumption at 20 C.F.R. §725.305(a) (2000) and (2001) may be rebutted if the employer demonstrates, by a preponderance of the evidence, that either (1) the miner does not, or did not, have pneumoconiosis, or (2) his respiratory or pulmonary impairment did not arise out of his coal mine employment. Citing to Shelton v. Director, OWCP, 899 F.2d 690 (7^th Cir. 1990), the court stated that, with regard to the second avenue of rebuttal, if the employer establishes that the miner would have been disabled notwithstanding his exposure to coal dust, then his disability did not arise out of coal mine employment. Moreover, although the experts in Blakley did not conclusively "rule out" coal workers' pneumoconiosis as a possible factor in the claimant's condition, rebuttal of the presumption was nevertheless accomplished by the Employer as the record evidenced that the miner would have been disabled notwithstanding any complications arising from his exposure to coal mine dust.

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3. Presumption in survivors' claims

Under 20 C.F.R. §718.306 (2000) and (2001), death due to pneumoconiosis or total disability at the time of death will be presumed in certain cases. This presumption is applicable to a claim for survivor's benefits and is discussed in Chapter 16.

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D. Reasoned medical opinions

A determination of the existence of pneumoconiosis may also be made if a physician, exercising sound medical judgment, notwithstanding a negative x-ray, finds that the miner suffers from pneumoconiosis as defined in §718.201. 20 C.F.R. §718.202(a)(4) (2000) and (2001). Thus, even if the x-ray evidence is negative, medical opinions may establish the existence of pneumoconiosis. Taylor v. Director, OWCP, 9 B.L.R. 1-22 (1986). The medical opinions must be reasoned and supported by objective medical evidence such as blood gas studies, electrocardiograms, pulmonary function studies, physical performance tests, physical examination, and medical and work histories. 20 C.F.R. §718.202(a)(4) (2001).

Quality standards. Quality standards for reports of physical examinations are found at 20 C.F.R. §718.104 (2001).

Medical opinion must be based on more than chest x-ray. In Cornett v. Benham Coal, Inc., 227 F.3d 569 (6^th Cir. 2000), the circuit court held that, if a physician bases his or her finding of coal workers' pneumoconiosis only upon the miner's history of coal dust exposure and a positive chest x-ray, then the opinion "should not count as a reasoned medical judgment under §718.202(a)(4)." However, the court found that the opinions of Drs. Veazy and Baker were not, as characterized by the administrative law judge, based only on the miner's exposure to coal dust. Rather, in addition to consideration of coal mine employment and chest x-rays, the physicians "considered their examinations of Cornett, his history in the mines, his history as a smoker and pulmonary functions studies."

Must provide rationale when weighing opinions. Under §718.202(a)(4), "the administrative law judge must consider and weigh all relevant medical evidence to ascertain whether or not claimant has established the presence of pneumoconiosis by a preponderance of the evidence . . .." Perry v. Director, OWCP, 9 B.L.R. 1-1, 1-2 (1986). Where the medical opinions are in conflict, the administrative law judge must discuss the conflicting evidence and provide a rationale for choosing one physician's opinion over another. McGinnis v. Freeman United Coal Mining Co., 10 B.L.R. 1-4 (1987).

Employer not required to present "cohesive theory". The Board has held that the employer is not required to establish a "cohesive theory" with regard to whether the miner suffers from coal workers' pneumoconiosis. In Bentley v. Kentucky Elkhorn Coal, Inc., BRB No. 00-0140 BLA (Apr. 6, 2001) (unpub.), the ALJ noted that Employer's three physicians "disagreed as to the possible contribution of factors such as cigarette smoking, a predisposition to asthma, and hereditary factors, as well as the extent to which the symptoms were related to emphysema, asthma, bronchitis, or asthmatic bronchitis." The ALJ found that "'it would be absurd to suggest that the credibility of the three physicians retained by the [e]mployer is not undermined at all by the fact that they disagree with each other on the material issues.'" The Board disagreed to state that a finding regarding whether a physician's opinion is well-reasoned and well-documented "requires analysis of the document within its four corners." As a result, the Board remanded the case for further analysis of the evidence.

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IV. Etiology of the pneumoconiosis
[ VII(C) ]

Once it is determined that the miner suffers (or suffered) from pneumoconiosis, it must be determined whether the miner's pneumoconiosis arose, at least in part, out of coal mine employment. 20 C.F.R. §718.203(a) (2000) and (2001).

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A. Ten years or more coal mine employment

If a miner who is suffering from pneumoconiosis was employed for ten years or more in one or more coal mines, there is a rebuttable presumption that the pneumoconiosis arose out of such employment. 20 C.F.R. §718.203(b) (2001).

The ten year presumption cannot be used as a bootstrap to prove the existence of pneumoconiosis. A miner with ten years of coal mine employment is not presumed to have pneumoconiosis; rather, s/he must establish the existence of pneumoconiosis by a preponderance of the evidence. Once the existence of pneumoconiosis is established, however, the causal connection between the pneumoconiosis and the coal mine employment is presumed if the miner has ten years of coal mine employment or more. Because pneumoconiosis can be defined as a lung disease significantly related to or substantially aggravated by dust exposure in coal mine employment (§718.201), the existence of pneumoconiosis and the cause of the pneumoconiosis are sometimes merged in the definition. The claimant, however, still bears the burden of establishing both that he or she has pneumoconiosis and that the pneumoconiosis arose out of coal mine employment.

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B. Less than ten years of coal mine employment

Claimant's burden. If a miner suffers from pneumoconiosis and was employed less than ten years in the Nation's coal mines, it shall be determined that such pneumoconiosis arose out of that employment only if competent evidence establishes such a relationship. 20 C.F.R. §718.203(c). See also Stark v. Director, OWCP, 9 B.L.R. 1-36 (1986); Hucker v. Consolidation Coal Co., 9 B.L.R. 1-137 (1986).

Benefits Review Board. Specifically, the burden of proof is met under §718.203(c) when "competent evidence establish[es] that his pneumoconiosis is significantly related to or substantially aggravated by the dust exposure of his coal mine employment." Shoup v. Director, OWCP, 11 B.L.R. 1-110, 1-112 (1987).

Sixth and Eleventh Circuits. The Sixth and Eleventh Circuits apply a more relaxed standard to state that the miner need only establish that his pneumoconiosis arose "in part" from his coal mine employment. See Stomps v. Director, OWCP, 816 F.2d 1533, 10 B.L.R. 2-107 (11^th Cir. 1987); Southard v. Director, OWCP, 732 F.2d 66, 6 B.L.R. 2-26 (6^th Cir. 1984).

Inference that disease is coal dust related if no other exposure established. In Wisniewski v. Director, OWCP, 929 F.2d 952 (3^rd Cir. 1991), the court held that an inference that the miner's pneumoconiosis was caused by coal dust exposure may be raised "if the record [affirmatively] indicates [that there was] no other potential dust exposure."

Medical evidence required. The record must contain medical evidence establishing the relationship between pneumoconiosis and coal mine employment. The Board has held that "the administrative law judge could not reasonably infer a relationship based merely upon claimant's employment history." Baumgartner v. Director, OWCP, 9 B.L.R. 1-65, 1-66 (1986). In another case the Board concluded that "the Judge's sole reliance on lay testimony to find §718.203(c) satisfied . . . is erroneous." Tucker v. Director, OWCP, 10 B.L.R. 1-35, 1-39 (1987).

Inaccurate employment history renders opinion less probative. Medical opinions, which are predicated upon an erroneous coal mine employment history, may be given little weight with regard to etiology of the miner's disease. In Barnes v. Director, OWCP, 19 B.L.R. 1-71 (1995)(en banc on reconsideration), the Board reiterated that a judge may accord an opinion less weight based upon a discrepancy in the administrative law judge's finding of coal mine employment and that relied upon by the physician. In so holding, the Board stated that "the administrative law judge should . . . consider whether the record contains any documentary or testimonial evidence to suggest that any causal factors other than coal dust exposure as a cause of claimant's pneumoconiosis."

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V. Establishing total disability
[ VII(D) ]

A. Prior to applicability of 20 C.F.R. Part 718 (2001)

A miner shall be considered totally disabled if s/he has complicated pneumoconiosis (§718.304 - irrebuttable presumption) or if pneumoconiosis prevents him or her from doing his usual coal mine employment or comparable and gainful employment (§718.204(b) - rebuttable presumption). For a discussion of the factors to consider in determining whether a miner is able to perform "comparable and gainful employment," see Chapter 10.

Section 718.204(c) provides that, in the absence of contrary probative evidence, evidence which meets the quality standards of the subsection shall establish a miner's total disability. The administrative law judge cannot merely weigh like/kind evidence. Specifically, it is error to look at all the pulmonary function studies and conclude that the miner is totally disabled, or to look at all the blood gas studies to conclude that the miner is totally disabled. The administrative law judge must consider all the evidence of record and determine whether the record contains "contrary probative evidence." If so, the administrative law judge must assign this evidence appropriate weight and determine "whether it outweighs the evidence supportive of a finding of total respiratory disability." Troup v. Reading Anthracite Coal Co., 22 B.L.R. 1-11 (1999) (en banc); Fields v. Island Creek Coal Co., 10 B.L.R. 1-19, 1-21 (1987); Shedlock v. Bethlehem Mines Corp., 9 B.L.R. 1-195, 1-198 (1986).

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B. After applicability of 20 C.F.R. Part 718 (2001)

Under the new regulations, the definition of total disability and its etiology have been modified. For this reason, the D.C. Circuit Court, in National Mining Ass'n. v. Dep't. of Labor, 292 F.3d 849 (D.C. Cir. 2002), held that the amendments at §718.204 are valid, but amended provisions addressing the etiology of the miner's total disability cannot be applied to claims filed on or before January 19, 2001. The court reasoned that, because these amended provisions codify the Fourth Circuit's holding in Jewel Smokeless Coal Corp. v. Street, 42 F.3d 241, 243 (4^th Cir. 1994) over the contrary holding of the Seventh Circuit in Peabody Coal Co. v. Vigna, 22 F.3d 1388 (7^th Cir. 1994), the regulation would be impermissibly retroactive. Section 718.204 provides, in relevant part, the following:

(a) General. Benefits are provided under the Act for or on behalf of miners who are totally disabled due to pneumoconiosis, or who where totally disabled due to pneumoconiosis at the time of death. For purposes of this section, any nonpulmonary or nonrespiratory condition or disease, which causes independent disability unrelated to the miner's pulmonary or respiratory disability, shall not be considered in determining whether a miner is totally disabled due to pneumoconiosis. If, however, a nonpulmonary or nonrespiratory condition or disease causes a chronic respiratory or pulmonary impairment, that condition or disease shall be considered in determining whether the miner is or was totally disabled due to pneumoconiosis.

20 C.F.R. §718.204(a) (2001).

In its comments to this regulatory amendment, the Department rejected the concept of compensation based upon a "whole person disability" and stated the following:

[O]nly respiratory and pulmonary impairments are relevant in determining whether the miner is totally disabled for purposes of the Black Lung Benefits Act, and identifying the causes of that disability.

. . .

The Department has consistently taken the position that proof of a totally disabling respiratory or pulmonary impairment is an essential element of a miner's claim for black lung benefits. (citations omitted). Adoption of a 'whole person' definition of total disability would greatly expand the black lung benefits program and transform it into a general disability program for coal miners.

Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, 65 Fed. Reg. 79,947 (Dec. 20, 2000). The Department specifically noted that the amended regulatory provisions constituted a departure from the Seventh Circuit's holding in Peabody Coal Co. v. Vigna, 22 F.3d 1388 (7^th Cir. 1994) wherein the court held that Claimant's entitlement to benefits was precluded because he suffered from a disabling stroke, which was unrelated to coal mine employment and which occurred before there was evidence of disability due to pneumoconiosis in the record.

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C. Methods of demonstrating total disability

Benefits are provided under the Act for or on behalf of miners who are totally disabled due to pneumoconiosis. 20 C.F.R. §718.204(a) (2000) and (2001). The regulations at §718.204(b) provide the following five methods to establish total disability: (1) pulmonary function (ventilatory) studies; (2) blood gas studies; (3) evidence of cor pulmonale with right-sided congestive heart failure; (4) reasoned medical opinions; and (5) lay testimony. 20 C.F.R. §718.204(b) (2000) and (2001). However, it is noted that in a living miner's claim, lay testimony "is not sufficient, in and of itself, to establish total disability." 20 C.F.R. §718.204(d) (2000) and (2001); Tedesco v. Director, OWCP, 18 B.L.R. 1-103 (1994). For the use of lay testimony in a survivor's claim, see Chapter 17.

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1. Pulmonary function (ventilatory) studies

The quality standards for pulmonary function studies are found at 20 C.F.R. §718.103 (2000) and (2001). The standards require that the studies be accompanied by three tracings of each test performed, FEV₁, FVC, and MVV. The standards also require that a statement signed by the physician or technician indicate the following: (1) date and time of test; (2) name, claim number, age, height, and weight of the claimant; (3) name of the technician; (4) signature of the physician supervising the test; (5) the claimant's ability to understand the instructions, ability to follow directions, and degree of cooperation in performing the tests; (6) paper speed; (7) name of the instrument used; (8) whether a bronchodilator was used; and (9) that the test is in compliance with the quality standards. 20 C.F.R. §718.103(b) (2000) and (2001).

The quality standards under the amended regulations at 20 C.F.R. §718.103(b) (2001) also require the submission of a flow-volume loop. Tests conducted after January 19, 2001 are required to meet this additional quality standard. 20 C.F.R. §718.101(b) (2001).

It is noteworthy that the Board and some circuit courts have emphasized that pulmonary function and blood gas testing measure different types of impairment. In Tussey v. Island Creek Coal Co., 982 F.2d 1036, 1040-41 (6^th Cir. 1993), the court noted that the Board has held that the results of blood gas and pulmonary function testing "may consistently have no correlation since coal workers' pneumoconiosis may manifest itself in different types of pulmonary impairment.'" The court cited to Gurule v. Director, OWCP, 2 B.L.R. 1-772, 1-777 (1979), aff'd., 653 F.2d 1368 (10^th Cir. 1981). See also Sheranko v. Jones and Laughlin Steel Corp., 6 B.L.R. 1-797, 1-798 (1984) (blood gas studies and ventilatory studies measure different types of impairment).

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2. Blood gas studies

The quality standards for blood gas studies are found at 20 C.F.R. §718.105 (2000) and (2001). The standards require that no blood gas study shall be performed if medically contraindicated. 20 C.F.R. §718.105(a) (2000) and (2001). A blood gas study shall initially be administered at rest and in a sitting position. If the results of the blood gas test at rest do not satisfy the requirements of Appendix C, an exercise blood gas test shall be offered unless medically contraindicated. 20 C.F.R. §718.105(b) (2000) and (2001). The report of the blood gas study shall specify: (1) date and time of test; (2) altitude and barometric pressure; (3) name and claim number of the claimant; (4) name and signature of the physician; (6) recorded values for PCO₂, PO₂, and pH collected at rest and if performed, during exercise; (7) duration and type of exercise; (8) pulse rate; (9) time between drawing of sample and analysis of sample; and (10) whether the equipment was calibrated before and after each test. 20 C.F.R. §718.105(c) (2000) and (2001).

The Board and some circuit courts have emphasized that pulmonary function and blood gas testing measure different types of impairment. In Tussey v. Island Creek Coal Co., 982 F.2d 1036, 1040-41 (6^th Cir. 1993), the court noted that the Board has held that the results of blood gas and pulmonary function testing "may consistently have no correlation since coal workers' pneumoconiosis may manifest itself in different types of pulmonary impairment.'" The court cited to Gurule v. Director, OWCP, 2 B.L.R. 1-772, 1-777 (1979), aff'd., 653 F.2d 1368 (10^th Cir. 1981). See also Sheranko v. Jones and Laughlin Steel Corp., 6 B.L.R. 1-797, 1-798 (1984) (blood gas studies and ventilatory studies measure different types of impairment).

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3. Cor pulmonale with right-sided congestive heart failure

As the pulmonary disease progresses to produce greater pulmonary functional derangement, it produces dysfunction of the pulmonary blood vessels. The resistance to blood flow in the pulmonary vessels rises, causing an elevation in the pressure in the pulmonary artery, putting severe stress on the right ventricle of the heart, which eventually fails. Heart disease, which is secondary to chronic lung disease, is known as cor pulmonale and this form of failure of the circulation is known as congestive heart failure. A miner's total disability may be established where the miner has pneumoconiosis and has been shown by the medical evidence to be suffering from cor pulmonale with right-sided congestive heart failure. 20 C.F.R. §718.204(c)(3) (2000) and §718.204(b)(2)(iii) (2001).

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4. Reasoned medical opinions

Where total disability cannot be established by pulmonary functions studies, blood gas studies, or by evidence of cor pulmonale, or where pulmonary function tests and/or blood gas studies are medically contraindicated, total disability may nevertheless be found if a physician exercising reasoned medical judgment, based on medically acceptable clinical and laboratory diagnostic techniques, concludes that a miner's respiratory or pulmonary condition prevents the miner from engaging in his usual or comparable coal mine employment. 20 C.F.R. §718.204(c)(4) (2000) and §718.204(b)(1) (2001). Under this section, "all the evidence relevant to the question of total disability due to pneumoconiosis is to be weighed, with the claimant bearing the burden of establishing by a preponderance of the evidence the existence of this element." Mazgaj v. Valley Camp Coal Co., 9 B.L.R. 1-201, 1-204 (1986).

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a. Burden of proof

In assessing total disability under 20 C.F.R. §718.204(c)(4) (2000) and §718.204(b)(2)(iv) (2001), the administrative law judge, as the fact-finder, is required to compare the exertional requirements of the claimant's usual coal mine employment with a physician's assessment of the claimant's respiratory impairment. Cornett v. Benham Coal, Inc., 227 F.3d 569 (6^th Cir. 2000) (a finding of total disability may be made by a physician who compares the exertional requirements of the miner's usual coal mine employment against his physical limitations); Schetroma v. Director, OWCP, 18 B.L.R. 1-19 (1993) (a qualified opinion regarding the miner's disability may be given less weight). See also Scott v. Mason Coal Co., 14 B.L.R. 1-37 (1990)(en banc on recon.).

Once it is demonstrated that the miner is unable to perform his or her usual coal mine work, a prima facie finding of total disability is made and the party opposing entitlement bears the burden of going forth with evidence to demonstrate that the miner is able to perform "comparable and gainful work" pursuant to 20 C.F.R. §718.204(c)(2) (2000) or 20 C.F.R. §718.204(b)(1)(ii) (2001). Taylor v. Evans & Gambrel Co., 12 B.L.R. 1-83 (1988).

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b. Nonrespiratory, nonpulmonary impairments

In Jewell Smokeless Coal Corp. v. Street, 42 F.3d 241 (4^th Cir. 1994), the Fourth Circuit concluded that "nonrespiratory and nonpulmonary impairments have no bearing on establishing total disability due to pneumoconiosis." Rather, the miner must demonstrate that he "has a totally disabling respiratory and pulmonary condition . . . and show that his pneumoconiosis is a contributing cause to this total disability."

Similarly, the Board has held that nonrespiratory and nonpulmonary impairments are irrelevant to establishing total disability under §718.204(c). Beatty v. Danri Corp., 16 B.L.R. 1-11 (1991), aff'd. 49 F.3d 993 (3^rd Cir. 1995). It is noted that, in Carson v. Westmoreland Coal Co., 20 B.L.R. 1-64 (1996), mod'g. on recon., 19 B.L.R. 1-16 (1994), the Board concluded that the following holding was an error and struck the language from its prior decision:

The disabling loss of lung function due to extrinsic factors, e.g., loss of muscle function due to stroke, does not constitute respiratory or pulmonary disability pursuant to 20 C.F.R. §718.204(c).

The amended regulations at 20 C.F.R. §718.204(a) (2001) codified the Fourth Circuit's position and provide that non-respiratory and non-pulmonary impairments, which cause an independent disability unrelated to the miner's pulmonary or respiratory condition, "shall not be considered in determining whether the miner is totally disabled due to pneumoconiosis." As previously noted at subsection V(B) of this Chapter, the D.C. Circuit Court in National Mining Ass'n. v. Dep't. of Labor, 292 F.3d 849 (D.C. Cir. 2002) held that the amended regulations relating to etiology of the miner's total disability can only be applied to claims filed after January 19, 2001.

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5. Lay testimony

In a living miner's claim, lay testimony cannot support the finding of a totally disabling respiratory impairment in the absence of corroborating medical evidence. For example, in Madden v. Gopher Mining Co., 21 B.L.R. 1-122 (1999), the administrative law judge properly found no "material change in conditions" in a miner's claim filed after 1982 under 20 C.F.R. §725.309 (2000). In so holding, the Board rejected Claimant's argument that the administrative law judge's failure to consider and weigh Claimant's testimony regarding the miner's extreme difficulty in "'performing even the simplest of tasks'"was error. Rather, the Board held that "lay testimony offered by claimant at the hearing . . . is generally insufficient to establish total disability unless it is corroborated by at least a quantum of medical evidence." Moreover, in Milburn Colliery Co. v. Director, OWCP [Hicks], 138 F.3d 524 (4^th Cir. 1998), the court held that "[w]hile relevant to the issue of whether there is a totally disabling respiratory impairment, a miner's own statements about his history of coal mine employment or symptoms of pneumoconiosis are not conclusive in resolving conflicting medical opinion evidence." The court then stated that "the length of a miner's coal mine employment does not compel the conclusion that the miner's disability was solely respiratory" and the "mere presence of pneumoconiosis (by x-ray) is not synonymous with a totally disabling respiratory condition."

In a case involving a deceased miner in which a claim was filed prior to January 1, 1982, and where there is no medical or other relevant evidence, affidavits from persons knowledgeable of the miner's physical condition shall be sufficient to establish total disability. 20 C.F.R. §718.204(c)(5) (2000); 20 C.F.R. §718.204(d)(1) (2001); Fields v. Island Creek Coal Co., 10 B.L.R. 1-19, 1-22 (1987). The medical or other relevant evidence refers to evidence "relevant to the existence of, or disability due to, a respiratory or pulmonary impairment." Gessner v. Director, OWCP, 11 B.L.R. 1-1, 1-3 (1987). The use of lay testimony alone is available only on claims filed prior to January 1, 1982, and only in the case of a deceased miner. In the case of a living miner's claim, a finding of total disability shall not be made solely on the miner's statements or testimony. 20 C.F.R. §718.204(d)(2) (2000). For further discussion of the use of lay testimony in survivors' claims, see Chapter 16. See also 20 C.F.R. §718.204(d)(5) (2001).

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VI. Etiology of total disability
[ VII(E) ]

Unless one of the presumptions at 20 C.F.R. '§718.304, 718.305, or 717.306 (2000) and (2001) is applicable, a miner with less than 15 years of coal mine employment, must establish that his or her total disability is due, at least in part, to pneumoconiosis. The Board has held that "[i]t is [the] claimant's burden pursuant to §718.204 to establish total disability due to pneumoconiosis . . . by a preponderance of the evidence." Baumgartner v. Director, OWCP, 9 B.L.R. 1-65, 1-66 (1986); Gee v. Moore & Sons, 9 B.L.R. 1-4, 1-6 (1986)(en banc).

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A. "Contributing cause" standard

1. Prior to applicability of 20 C.F.R. Part 718 (2001)

The following list of cases are those which set forth variations of the "contributing cause" standard delineated by the Board and circuit courts:

Benefits Review Board. The Board requires that pneumoconiosis be a "contributing cause" to the miner's disability. Scott v. Mason Coal Co., 14 B.L.R. 1-37 (1990) (en banc), overruling Wilburn v. Director, OWCP, 11 B.L.R. 1-135 (1988). It is noteworthy that, in Billings v. Harlan #4 Coal Co., BRB No. 94-3721 BLA (June 19, 1997)(en banc)(unpublished), 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.
Third Circuit. The Third Circuit requires that pneumoconiosis be a "substantial contributor" to the miner's total disability. Bonessa v. U.S. Steel Corp., 884 F.2d 726, 734 (3^rd Cir. 1989).

Fourth Circuit. Pneumoconiosis must be a "contributing cause" to the miner's disability. Hobbs v. Clinchfield Coal Co., 917 F.2d 790, 792 (4^th Cir. 1990); Robinson v. Pickands Mather & Co., 914 F.2d 35, 38 (4^th Cir. 1990). In Jewell Smokeless Coal Corp. v. Street, 42 F.3d 241 (4^th Cir. 1994), the Fourth Circuit concluded that "nonrespiratory and nonpulmonary impairments have no bearing on establishing total disability due to pneumoconiosis." Rather, the miner must demonstrate that he "has a totally disabling respiratory or pulmonary condition . . . and show that his pneumoconiosis is a contributing cause to this total disability." See also Milburn Colliery Co. v. Director, OWCP [Hicks], 138 F.3d 524 (4^th Cir. 1998).

Failure to diagnose clinical (medical) or legal pneumoconiosis. In Scott v. Mason Coal Co., 289 F.3d 263 (4^th Cir. 2002), the court held that the ALJ erroneously accorded greater weight to the opinions of Drs. Castle and Dahhan, who found that the miner's disability was not caused by coal workers' pneumoconiosis, because the physicians concluded that the miner did not suffer from the disease contrary to the ALJ's findings. Citing to Toler v. Eastern Assoc. Coal Co., 43 F.3d 109 (4^th Cir. 1995) and Grigg v. Director, OWCP, 28 F.3d 416 (4^th Cir. 1994), the court stated the following:

[A]n ALJ who has found (or has assumed arguendo) that a claimant suffers from pneumoconiosis and has total respiratory disability may not credit a medical opinion that the former did not cause the latter unless the ALJ can and does identify specific and persuasive reasons for concluding that the doctor's judgment on the questions of disability causation does not rest upon her disagreement with the ALJ's finding as to either or both of the predicates in the causal chain.

The fact that Drs. Dahhan and Castle stated that their opinions would not change even if the miner suffered from pneumoconiosis did not alter the court's position that the opinions could carry little weight pursuant to its holding in Toler:

Both Dr. Dahhan and Dr. Castle opined that Scott did not have legal or medical pneumoconiosis, did not diagnose any condition aggravated by coal dust, and found no symptoms related to coal dust exposure. Thus, their opinions are in direct contradiction to the ALJ's finding that Scott suffers from pneumoconiosis arising out of his coal mine employment, bringing our requirements in Toler into play. Under Toler, the ALJ could only give weight to those opinions if he provided specific and persuasive reasons for doing so, and those opinions could carry little weight, at most.

Indeed, the court found that the opinions of Drs. Dahhan and Castle could not outweigh a contrary "poorly documented" opinion linking the miner's disability to his pneumoconiosis, because the contrary opinion was based on a finding of coal workers' pneumoconiosis consistent with the ALJ's findings.

Sixth Circuit. The Sixth Circuit requires that total disability be "due at least in part" to pneumoconiosis. Adams v. Director, OWCP, 886 F.2d 818, 825 (6^th Cir. 1989); Zimmerman v. Director, OWCP, 871 F.2d 564, 566 (6^th Cir. 1989); Roberts v. Benefits Review Board, 822 F.2d 636, 639 (6^th Cir. 1987). However, in Peabody Coal Co. v. Smith, 127 F.3d 504, 507 (6^th Cir. 1997), the Sixth Circuit held that, although pneumoconiosis need only be a "contributing cause" to the miner's total disability, a claimant must demonstrate that the disease was more than a de minimus or "infinitesimal" factor in the miner's total disability.

Seventh Circuit. Pneumoconiosis must be a "simple contributing cause" of the miner's total disability (pneumoconiosis must be a necessary, but need not be a sufficient, cause of miner's total disability). Hawkins v. Director, OWCP, 907 F.2d 697, 707 (7^th Cir. 1990); Shelton v. Director, OWCP, 899 F.2d 690, 693 (7^th Cir. 1990).

Tenth Circuit. The Tenth Circuit requires that the pneumoconiosis be "at least a contributing cause." Mangus v. Director, OWCP, 882 F.2d 1527, 1531 (10^th Cir. 1989) (emphasis added). By unpublished decision in Pittsburgh & Midway Coal Mining Co. v. Sanchez, 2001 WL 997947, Case No. 00-9538 (10^th Cir. Aug. 31, 2001), the court declined to apply the causation standard set forth in the amended regulations at 20 C.F.R. §718.204(c)(1) (2001) and stated, in a footnote, that "[a]s petitioners concede, . . . we apply the Mangus causation standard that was in effect when Sanchez filed for benefits in 1988."^{^[3]}

Eleventh Circuit. The Eleventh Circuit requires that pneumoconiosis be a "substantial contributor" to the miner's total disability. Lollar v. Alabama By-Products, Corp., 893 F.2d 1258, 1265 (11^th Cir. 1990).

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2. After applicability of 20 C.F.R. Part 718 (2001)

The amended regulations at 20 C.F.R. §718.204(c) (2001) contain a standard for determining whether total disability is caused by the miner's pneumoconiosis and provides the following:

(c)(1) Total disability due to pneumoconiosis defined. A miner shall be considered totally disabled due to pneumoconiosis if pneumoconiosis, as defined in Sec. 718.201, is a substantially contributing cause of the miner's totally disabling respiratory or pulmonary impairment. Pneumoconiosis is a 'substantially contributing cause" of the miner's disability if it: (i) Has a material adverse effect on the miner's respiratory or pulmonary condition; or (ii) Materially worsens a totally disabling respiratory or pulmonary impairment which is caused by a disease or exposure unrelated to coal mine employment.

(2) Except as provided in Sec. 718.305 and paragraph (b)(2)(iii) of this section, proof that the miner suffers or suffered from a totally disabling respiratory or pulmonary impairment as defined in paragraphs (b)(2)(i), (b)(2)(ii), (b)(2)(iv) and (d) of this section shall not, by itself, be sufficient to establish that the miner's impairment is or was due to pneumoconiosis. Except as provided in paragraph (d), the cause or causes of a miner's total disability shall be established by means of a physician's documented and reasoned medical report.

20 C.F.R. §718.204(c) (2001) (emphasis added).

In its comments, the Department noted that addition of the word "material" or "materially" to the foregoing provisions reflects the view that "evidence that pneumoconiosis makes only a negligible, inconsequential, or insignificant contribution to the miner's total disability is insufficient to establish that pneumoconiosis is a substantially contributing cause to that disability." Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, 65 Fed. Reg. 79,946 (Dec. 20, 2000).

Application of the amended regulation-a case study. In Tennessee Consolidated Coal Co. v. Director, OWCP [Kirk], 264 F.3d 602 (6^th Cir. 2001), the Sixth Circuit interpreted the "materially worsens" standard at 20 C.F.R. §718.204(c) (2001). Under the facts of the case, Employer argued that the miner's chronic obstructive pulmonary disease "was primarily, if not entirely, a consequence of the estimated quarter-of-a-million cigarettes he had smoked." Said differently, Employer maintained that "there is no substantial evidence that Kirk's total disability, which was not caused by pneumoconiosis in 1988, had suddenly become caused by this disease in 1992." The court found that, under the amended regulatory provisions, the mere fact that Claimant's non-coal dust related respiratory disease would have left him totally disabled even without exposure to coal dust, this would not preclude entitlement to benefits. The court held that Claimant "may nonetheless possess a compensable injury if his pneumoconiosis 'materially worsens' this condition."

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B. Blood gas and ventilatory studies irrelevant

With respect to the use of blood gas studies and pulmonary function (ventilatory) studies, "the Board consistently has held that pulmonary function studies and blood gas studies are not diagnostic of the etiology of the respiratory impairment, but are diagnostic only of the severity of the impairment." Tucker v. Director, OWCP, 10 B.L.R. 1-35, 1-41 (1987). As a result, the Board concluded that "a claimant who establishes the existence of total disability pursuant to subsections (c)(1) or (c)(2) of 20 C.F.R. §718.204 (2000) and 20 C.F.R. §718.204(b)(2) (2001) with pulmonary function studies or blood gas studies . . ., has not also established that the total disability is due to pneumoconiosis." Id. at 1-41 and 1-42. The claimant must also establish, by a preponderance of the evidence, that the impairment evidenced by pulmonary function studies and blood gas studies was caused by pneumoconiosis.

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C. Weighing medical opinion evidence

In reviewing the medical opinion evidence regarding etiology, opinions wherein the physicians did not diagnose the miner as suffering from pneumoconiosis may be accorded little probative value. The fact-finder must determine, however, whether the opinion merely finds no medical (clinical) pneumoconiosis or whether it finds no legal pneumoconiosis as well. Said differently, if an administrative law judge concludes that the miner suffers from coal workers' pneumoconiosis, the opinion of a physician who concludes that the miner does not suffer from medical (clinical) pneumoconiosis may nevertheless be considered in determining the etiology of the miner's impairment. This is because that physician has not necessarily concluded that the miner does not have legal pneumoconiosis. See subsection VI(A)(1) of this Chapter.

In Toler v. Eastern Assoc. Coal Co., 43 F.3d 109 (4^th Cir. 1995), the court held that, where the administrative law judge determines that a miner suffers from pneumoconiosis or is totally disabled or both, then a medical opinion wherein the miner is determined not to suffer from pneumoconiosis or is not totally disabled "can carry little weight" in assessing the etiology of the miner's total disability "unless the ALJ can and does identify specific and persuasive reasons for concluding that the doctor's judgment on the question of disability causation does not rest upon her disagreement with the ALJ's finding as to either or both of the predicates (pneumoconiosis and total disability) in the causal chain." Moreover, in Hobbs v. Clinchfield Coal Co., 45 F.3d 819 (4^th Cir. 1995), the court held that the administrative law judge's finding that the miner's total disability was not due to pneumoconiosis was supported by substantial evidence as "[t]he medical opinions upon which he relied most strongly were not tainted by underlying conclusions of no pneumoconiosis pursuant to the broad legal definition contained in 20 C.F.R. §718.201."

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VII. Applicability of Parts 410 and 727 and §410.490

As Part 718 contains the permanent black lung regulations for the Department of Labor, a case which is properly adjudicated and denied under Part 718 need not be considered under any other regulatory scheme.

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^{^[1]} The court noted that the parties stipulated in briefs before the ALJ that the miner was last employed in the coal mines in West Virginia, which falls within the jurisdiction of the Fourth Circuit. However, Employer appealed in the Third Circuit based on Claimant's previous coal mine employment in Pennsylvania. The Third Circuit considered the appeal on the merits, but cited to Fourth Circuit, as well as its own, case law.

^{^[2]} The Board has also held that all evidence relevant to the existence of pneumoconiosis must be considered and weighed. In Mabe v. Bishop Coal Co., 9 B.L.R. 1-67 (1986), the Board upheld a finding that the claimant had not established the existence of pneumoconiosis even where the x-ray evidence of record was positive. The Board concluded that the "administrative law judge's assignment of less weight to the record's positive x-rays was rational and based on substantial evidence, "where "the weight of other medical evidence indicat[ed] that claimant's impairment was due to interstitial fibrosis of unknown etiology." Id. at 1-68.

^{^[3]} Mangus v. Director, OWCP, 882 F.2d 1527, 1531-32 (10^th Cir. 1989).

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