RECENT SIGNIFICANT DECISIONS
MONTHLY DIGEST # 144
Black Lung Benefits Act
October 1999 - November 1999

John M. Vittone
Chief Judge

Thomas M. Burke
Associate Chief Judge


II. Black Lung Benefits Act

   A. Circuit Courts of Appeal

   In Betty B Coal Co. v. Director, OWCP , ___ F.3d ___, Case No. 98- 2731 (4th Cir. Oct. 21, 1999), the circuit court rejected Employer's argument that a petition for modification "is available for one year after the first rejection of a claim" and that multiple petitions for modification are not permitted. The court held, to the contrary, that the "modification procedure is flexible, potent, easily invoked, and intended to secure 'justice under the act.'" It determined that multiple modification petitions may be filed in a single claim.

    B. Benefits Review Board

    In Troup v. Reading Anthracite Coal Co. , ___ B.L.R. ___, BRB No. 98-0143 BLA (Nov. 15, 1999) (en banc), the Board rejected Employer's argument that the Third Circuit's standard in LaBelle Processing Co. v. Swarrow , 72 F.3d 308 (3d Cr. 1995) for establishing a "material change in conditions" violated the Supreme Court's holdings in Metropolitan Stevedore Co. v. Rambo [Rambo II] , 521 U.S. 121 (1997) and Director, OWCP v. Greenwich Collieries [Ondecko] , 512 U.S. 267 (1994). Specifically, the court in Swarrow held that a miner could establish a material change in condition by presenting evidence sufficient to establish one element of entitlement previously adjudicated against him. Employer maintained that this standard impermissibly provided Claimant with an irrebuttable presumption of material change in violation of Section 7(c) of the Administrative Procedure Act, which requires that Claimant establish a material change by a preponderance of the evidence. The Board held to the contrary and noted that the one-element standard does not create an irrebuttable presumption; rather, if a claimant establishes one element of entitlement previously adjudicated against him, then the ALJ may find that the standard has been met. The Board further held that the Court's decision in Rambo II was inapplicable as it did not address the proper standard to be applied in a duplicate black lung claim. In addition, the Board concluded that the Supreme Court's decision in Onderko was not applicable because, while the standard set forth in Swarrow increases the burden imposed on a claimant, the employer's evidentiary burden or the type of evidence relevant to the issue did not change.

   The Board did, however, remand the case for further consideration as it concluded that the ALJ did not weigh all of the evidence of pneumoconiosis under § 718.202(a), as required by Penn Allegheny Coal Co. v. Williams , 114 F.3d 22 (3d Cir. 1997), prior to finding existence of the disease based upon medical opinions alone. Moreover, the Board held that, on remand, the ALJ must weigh "contrary probative evidence" under § 718.204(c) in determining whether the miner has established total disability as mandated in Shedlock v. Bethlehem Mines Corp. , 9 B.L.R. 1-195 (1986), aff'd on recon. en banc , 9 B.L.R. 1-236 (1987).

[ multiple claims; weighing evidence under Part 718 ]

   In Cranor v. Peabody Coal Co. , ___ B.L.R. ___, BRB No. 97-1668 BLA (Oct. 29, 1999) (en banc on recon.), the Board held that it was proper for the administrative law judge to consider a physician's x-ray interpretation "as positive for the existence of pneumoconiosis pursuant to Section 718.202(a)(1) without considering the doctor's comment." In particular, the interpreting physician's comment that the Category 1 pneumoconiosis found on the chest x-ray was not coal workers' pneumoconiosis did not affect his diagnosis of the disease under § 718.202(a)(1), "but merely addresses the source of the diagnosed pneumoconiosis." The Board also concluded that the administrative law judge properly accorded greater weight to the interpretations of dually-qualified physicians over that of a B-reader. Further, the Board held that it was proper for the administrative law judge to give greater weight to the more recent evidence of record as the Sixth Circuit, in which jurisdiction the case arose, has held that pneumoconiosis is a "'progressive and degenerative disease.'" See Woodward v. Director, OWCP , 991 F.2d 314 (6th Cir. 1993). The Board also cited to Mullins Coal Co. of Virginia v. Director, OWCP , 483 U.S. 135 (1987), reh'g. denied , 484 U.S. 1047 (1988) wherein the Supreme Court stated that pneumoconiosis is a "'serious and progressive pulmonary condition.'" Finally, the Board concluded that it was proper for the administrative law judge to give less weight to the report of Dr. Fino because his opinion was based upon a CT-scan which was not in the record and he did not have the benefit of reviewing the two most recent qualifying pulmonary function studies.

[ weighing chest x-ray and medical opinion evidence ]