BD07-B4A

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PART VII

ESTABLISHING ENTITLEMENT UNDER 20 C.F.R. PART 718

B. EXISTENCE OF PNEUMOCONIOSIS

4. SECTION 718.202(a)(3): PRESUMPTIONS

a. Section 718.304: Complicated Pneumoconiosis

[See Section 411(c)(3) of the Act; 30 U.S.C. §921(c)(3); Part VIII.B. of the Desk Book).

Section 718.202(a)(3) contains the presumption found in Section 718.304, implementing Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3). Through this section, a survivor can meet the burden of establishing that the miner had pneumoconiosis by producing medical evidence of complicated pneumoconiosis and thereby gaining an irrebuttable presumption of death due to pneumoconiosis. See generally Trent v. Director, OWCP, 11 BLR 1-26 (1987). This burden may be met with x-ray or autopsy evidence showing one or more large opacities greater than one centimeter in diameter. Handy v. Director, OWCP, 16 BLR 1-73 (1990); Sumner v. Blue Diamond Coal Co., 12 BLR 1-74 (1988).

Based on the express language of the Act as set forth at 30 U.S.C. §923(b) and Mullins Coal Co., Inc. of Virginia v. Director, OWCP, 484 U.S. 135, 11 BLR 2-1 (1987), the Board has held that Section 718.304(a)-(c) does not provide alternative means of establishing invocation of the irrebuttable presumption of total disability due to pneumoconiosis, but rather requires the administrative law judge to first evaluate the evidence in each category, and then weigh together the categories at Section 718.304(a), (b) and (c) prior to invocation. Melnick v. Consolidation Coal Co., 16 BLR 1-31 (1991)(en banc).

CASE LISTINGS

DIGESTS

A claimant must produce medical evidence of complicated pneumoconiosis to establish entitlement to the irrebuttable presumption found at 20 C.F.R. §718.304, implementing Section 411(c)(3) of the Act. See generally Trent v. Director, OWCP, 11 BLR 1-26 (1987).

Pulmonary function studies without an accompanying explanation are not relevant to a determination under Section 718.304(c) since such studies normally are relevant only to the issue of total disability and not the existence of pneumoconiosis. Trent v. Director, OWCP, 11 BLR 1-26, 1-28 (1987).

Section 718.304 is excepted from the regulations at Section 718.205(c)(4). Thus, the irrebuttable presumption of death due to pneumoconiosis found at Section 718.304, is controlling despite the fact that the death of a miner is caused by traumatic injury. Sumner v. Blue Diamond Coal Co., 12 BLR 1-74 (1988).

The Board held that an x-ray interpretation indicating the absence of small or large opacities consistent with pneumoconiosis, but noting the presence of a 1.0 centimeter lesion, is legally insufficient to establish the existence of complicated pneumoconiosis under Section 718.304(a) since Section 718.304(a) requires a finding of one or more large opacities greater than one centimeter in diameter. Handy v. Director, OWCP, 16 BLR 1-73 (1990).

The administrative law judge properly found invocation of the irrebuttable presumption established pursuant to Section 718.304(b) where the autopsy prosector diagnosed complicated pneumoconiosis and described the lungs as revealing "both macular and nodular pneumoconiosis. These lesions are large, firm and black. They vary in size up to 1.0 cm. in diameter..." Gruller v. Bethenergy Mines, Inc., 16 BLR 1-3 (1991).

Based on the express language of the Act as set forth at 30 U.S.C. §923(b) and Mullins Coal Co., Inc. of Virginia v. Director, OWCP, 484 U.S. 135, 11 BLR 2-1 (1987), the Board held that Section 718.304(a)-(c) does not provide alternative means of establishing invocation of the irrebuttable presumption of total disability due to pneumoconiosis, but rather requires the administrative law judge to first evaluate the evidence in each category, and then weigh together the categories at Section 718.304(a), (b) and (c) prior to invocation. Melnick v. Consolidation Coal Co., 16 BLR 1-31 (1991)(en banc).

Although the regulations provide no guidance for the evaluation of CT or CAT scans, Section 718.304(c) provides for new methods of diagnosis, and allows the consideration of any acceptable medical means of diagnosis. See 20 C.F.R. §718.304(c). Therefore, when initially weighing the evidence in each category pursuant to Section 718.204, CT scans are not to be considered x-rays but must be evaluated pursuant to subsection (c) together with any evidence or testimony which bears on the reliability and utility of CT scans and any other evidence not applicable to subsections (a) and (b). Melnick v. Consolidation Coal Co., 16 BLR 1-31 (1991)(en banc).

The Board affirmed the administrative law judge’s finding of invocation of the irrebuttable presumption of total disability and death due to pneumoconiosis under 20 C.F.R. §718.304. The Board held that substantial evidence, namely the opinion of Dr. Green as corroborated by the opinion of Dr. Koenig, supports the administrative law judge’s finding that the 1.5 centimeter lesion observed on autopsy, which he determined to be the more probative evidence, would have produced an opacity of equivalent size if viewed on x-ray. The Board further held that this equivalency finding by the administrative law judge is not compromised by his additional findings at 20 C.F.R. §718.304(a) and (b). The Board held that the administrative law judge’s weighing of the evidence is consistent with the statement of the United States Court of Appeals for the Fourth Circuit in Eastern Associated Coal Corp. v. Director, OWCP [Scarbro], 220 F.3d 250, 22 BLR 2-93 (4th Cir. 2000) that “[e]vidence under one prong can diminish the probative force of evidence under another prong if the two forms of evidence conflict.” See Scarbro, 220 F.3d 250, 256, 22 BLR 2-93, 2-101, and is also consistent with the Fourth Circuit’s mandate in Double B Mining, Inc. v. Blankenship, 177 F.3d 240 (4th Cir. 1999) that the administrative law judge is bound to perform equivalency determinations to make certain that, regardless of which diagnostic technique is used, the same underlying condition triggers the irrebuttable presumption. See Blankenship, 177 F.3d 240, 243. The Board thus affirmed the administrative law judge’s award of benefits in the instant case. Braenovich v. Cannelton Industries, Inc./Cypress Amax, 22 BLR 1-236 (2003)(Gabauer, J., concurring).

The Board affirmed the administrative law judge’s finding that a physician’s deposition testimony -- that a twelve millimeter nodule viewed on the miner’s lobectomy and two centimeter lesions viewed on the miner’s autopsy slides would “look like complicated pneumoconiosis on x-ray” -- fell short of a specific finding that these lesions would be seen as at least one centimeter opacities on x-ray. The Board thus held that the administrative law judge properly found the physician’s testimony insufficient to support the requisite equivalency determination for establishing invocation of the irrebuttable presumption of death due to pneumoconiosis under 20 C.F.R. §718.304 pursuant to Double B Mining, Inc. v. Blankenship, 177 F.3d 240, 22 BLR 2-554 (4th Cir. 1999). Gollie v. Elkay Mining Co., BRB No. 02-0741 BLA (July 31, 2003)(published).

The Fourth Circuit held that the presumption of total disability due to pneumoconiosis at 20 C.F.R. §718.304 does not subsume a 20 C.F.R. §718.203 “arising out of” causation finding. Thus, a miner who is found totally disabled due to pneumoconiosis pursuant to Section 718.304 is not automatically entitled to benefits. The miner must independently establish, and the administrative law judge must specifically find, that the miner’s pneumoconiosis arose at least in part out of coal mine employment pursuant to Section 718.203, either through the ten-years presumption, or through medical evidence. Daniels Co. v. Mitchell, 479 F.3d 321, 24 BLR 2-1 (4th Cir. 2007).

In a case where the United States Court of Appeals for the Fourth Circuit acknowledged that all relevant evidence supported a finding that claimant had radiographic opacities greater than three centimeters, the court rejected employer’s assertion that the administrative law judge improperly shifted the burden of proof, holding that the administrative law judge’s approach in weighing the evidence was consistent with Eastern Assoc. Coal Corp. v. Director, OWCP [Scarbro], 220 F.3d 250, 22 BLR 2-93 (4th Cir. 2000), insofar as she “simply stated that the clear evidence of large opacities would support the presumption unless the record contained ‘affirmative evidence’ showing either that the opacities did not exist or that they were due to something else, such as a disease other than pneumoconiosis.” In affirming the award of benefits, the court also held that the administrative law judge permissibly rejected, as speculative and equivocal, the opinions of employer’s experts, who opined that large opacities identified were unrelated to coal dust exposure and likely due to other conditions, such as tuberculosis, histoplasmosis, granulomatous disease, or sarcoidosis, as they failed to point to evidence that claimant was suffering from any of the alternative diseases and explain the bases for their respective diagnoses. Westmoreland Coal Co. v. Cox, 602 F.3d 276, BLR (4th Cir. 2010).

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