Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-3-1997

Penn Allegheny Coal v. Williams
Precedential or Non-Precedential:

Docket 96-3464,96-3464




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Recommended Citation
"Penn Allegheny Coal v. Williams" (1997). 1997 Decisions. Paper 119.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/119


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Filed June 3, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3464

In the Matter of: PENN ALLEGHENY COAL COMPANY
and
OLD REPUBLIC INSURANCE COMPANY,
Petitioners

v.

HARRY D. WILLIAMS and DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents

Petition for Review of a Decision and
Order of the Benefits Review Board,
United States Department of Labor (No. 95-1398BLA)

Submitted Pursuant to Third Circuit LAR 34.1(a)
May 22, 1997

Before: SLOVITER, Chief Judge, ROTH, C ircuit Judge and
POLLAK,* District Judge

(Filed June 3, 1997)

George H. Thompson
Thompson, Calkins & Sutter
Pittsburgh, PA 15219

Attorney for Petitioners
_________________________________________________________________

*Hon. Louis H. Pollak, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
Robert J. Bilonick
Pawlowski, Tulowitzki & Bilonick
603 North Julian Street
Ebensburg, PA 15931

Attorney for Respondent
Harry D. Williams

J. Davitt McAteer
 Acting Solicitor of Labor
Donald S. Shire
 Associate Solicitor
Christian P. Barber
 Counsel for Appellate Litigation
Jennifer U. Toth
U.S. Department of Labor
Washington, D.C. 20210

Attorneys for Director,
Office of Workers' Compensation
Programs

OPINION OF THE COURT

SLOVITER, Chief Judge.

Henry D. Williams filed a claim for benefits under the
Black Lung Benefits Act, as amended, 30 U.S.C. §§ 901-
945, claiming he had pneumoconiosis as a result of his coal
mine employment. Williams worked in the coal mining
industry for about 35 years, most of it underground. He
retired from his operator job in 1982. His last employer was
Penn Allegheny Coal Company.

The District Director of the Office of Workers'
Compensation Programs found Williams eligible for
benefits. After a hearing the Administrative Law Judge
(ALJ) awarded benefits. Penn Allegheny appealed and the
Benefits Review Board (the Board or BRB) affirmed the
ALJ's decision. The Board denied Penn Allegheny's Motion
for Reconsideration. Penn Allegheny and Old Republic
Insurance Company (collectively referred to as Penn
Allegheny) then filed this Petition for Review.

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I.

In order to establish eligibility for benefits, a claimant
must establish the existence of pneumoconiosis, show that
it arose out of coal mine employment, and show that s/he
is totally disabled as a result of the pneumoconiosis. Beatty
v. Danri Corp. & Triangle Enterprises, 

, 997 (3d
Cir. 1995).

The language of 20 C.F.R. § 718.202, set forth in the
margin, provides that pneumoconiosis may be shown
through 1) a chest x-ray; 2) a biopsy; 3) statutory
presumptions (which are not applicable here); 4) a
physician's evaluation.1 In order to determine whether
Williams had pneumoconiosis, the ALJ reviewed doctors'
reports concerning x-rays, biopsies, and Williams' general
health history. The x-rays all showed changes in the lungs
but the physicians disagreed whether they showed signs of
_________________________________________________________________

1. "A finding of the existence of pneumoconiosis may be made as follows:

(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.

...

(2) A biopsy or autopsy conducted and reported in compliance
with § 718.106 may be the basis for a finding of the existence of
pneumoconiosis.

...

(3) If the presumptions described in SS 718.304, 718.305 or
§ 718.306 are applicable, it shall be presumed that the miner is or
was suffering from pneumoconiosis.

 (4) 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 or
suffered from pneumoconiosis as defined in § 718.201. Any such
finding shall be based on objective medical evidence such as blood-
gas studies, electrocardiograms, pulmonary function studies,
physical performance tests, physical examination, and medical and
work histories. Such a finding shall be supported by a reasoned
medical opinion."

20 C.F.R. § 718.202(a).

                    3
pneumoconiosis or some other disease. The ALJ then
reviewed the biopsy evidence, as analyzed by the physicians
but they also disagreed as to what the biopsy disclosed.

Drs. James A. Puckett and Gary F. Haverty diagnosed
Williams, based on a biopsy, as having pulmonary fibrosis
with evidence of anthracosilicosis in the right lower lung
and mild pulmonary fibrosis with evidence of
anthracosilicosis in the left lower lung. Dr. Joshua Perper
testified he unquestionably detected the presence of coal
workers' pneumoconiosis based on the biopsy slides. On
the other hand, Dr. Robert J. Sinnenberg reviewed the
biopsy slides and reported the slides showed scattered
deposits of coal dust, but nothing to indicate that these
deposits amounted to coal workers' pneumoconiosis. He
detected interstitial fibrosis but felt it was associated with
Williams' history of microplasma pneumonia.

Dr. Everett Oesterling reported it was not possible to
make a definite diagnosis of pneumoconiosis from the
slides available from the biopsy. He believed the tissue
slides were inadequate for giving a diagnosis because they
were taken from the lower instead of the upper lungs and
were too compressed. He did, however, detect some
evidence of fibrosis along with some black pigment
fragments on the tissue slides.

After considering all of the pathology reports, the ALJ
found the conclusions of Drs. Puckett, Haverty and Perper
to outweigh those of Drs. Oesterling and Sinnenberg and
found that pneumoconiosis had been established by their
biopsy reports. The ALJ then found that the positive
biopsies lent support to the opinions of those physicians
who had concluded that the x-rays showed changed lung
conditions due to pneumoconiosis.

In accordance with 20 C.F.R. § 718.202(a)(4), the ALJ
examined conflicting reports by nine different physicians.
The ALJ then found that the physicians' reports provided a
basis for concluding that Williams had established that he
had pneumoconiosis and that it arose out of his coal
mining employment. The ALJ also found that Williams had
established his total disability and was therefore entitled to
benefits under the Black Lung Benefits Act, as amended,
30 U.S.C. § 901-945.

                    4
On its appeal to the BRB, Penn Allegheny argued that the
ALJ erred when he found that the x-rays and physicians'
reports established pneumoconiosis. The Board affirmed
the ALJ's finding that the x-rays established
pneumoconiosis and in a footnote stated that "Inasmuch as
we affirm the administrative law judge's findings pursuant
to Section 718.202(a)(1), and Section 718.202(a) provides
alternative methods of establishing the existence of
pneumoconiosis, we need not address employer's
arguments regarding Section 718.202(a)(2) and (4)." BRB
Opinion at 3 n.3. That is, the Board reasoned that any one
of the four methods of determining the presence of
pneumoconiosis listed in § 718.202(a) may by itself
establish the existence of the condition, independent of the
evidence provided by the other three methods.

Penn Allegheny now petitions this court for review.

II.

Penn Allegheny argues that the Board acted contrary to
law and/or abused its authority by relying exclusively on
the chest x-ray evidence, and failing to consider that
evidence in conjunction with the biopsy evidence and the
physicians' reports. It asserts that once the ALJ found it
necessary to consider the x-ray evidence in light of the
biopsy evidence, the Board was precluded from finding the
presence of pneumoconiosis based on the x-ray evidence
alone. The Director agrees that the Board erred in
interpreting 20 C.F.R. § 718.202 as providing disjunctive
methods of establishing the presence of pneumoconiosis.
Instead, the Director argues, the methods of proof set forth
in that regulation are to be weighed together to determine
whether a claimant has the disease.

The Board's scope of review is limited to considering
whether the ALJ's findings of fact and conclusions of law
are rational, supported by substantial evidence, and
consistent with applicable law. O'Keeffe v. Smith, Hinchman
and Grylls Associates, Inc., 

, 362 (1965). The
Board must affirm the ALJ's findings of fact if they are
supported by substantial evidence in the record as a whole.
Kertesz v. Crescent Hills Coal Co., 

, 163 (3d
Cir. 1986).

                    5
Our standard of review for questions of law is plenary.
BethEnergy Mines, Inc. v. Director, OWCP, 

, 846
(3d Cir. 1994). We will, however, defer to the Director's
reasonable interpretations of its regulations. Beatty v. Danri
Corp. & Triangle Enterprises, 

, 997 (3d Cir.
1995). We owe this deference to the Director and not the
Board, because it is the Director who formulates policy.
Bonessa v. U.S. Steel Corp., 

, 732 (3d Cir.
1989).

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." Director's Brief at 15.
See also, 30 U.S.C. § 923(b) ("in determining the validity of
claims under this part, all relevant evidence shall be
considered"); 

(the ALJ should
review all medical evidence presented in determining
presence of pneumoconiosis).

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. However, we need not disturb the Board's
decision if the error was harmless. Because the ALJ used
the correct legal standard, we may independently evaluate
the evidence presented to the ALJ to determine whether the
ALJ's findings are supported by substantial evidence.

.

The ALJ thoroughly examined all of the evidence
presented to him and reviewed the biopsy evidence after
finding the x-ray evidence to be conflicting. The ALJ was
within his discretion to credit the opinions of Drs. Puckett,
Haverty and Perper over those of Oesterling and
Sinnenberg. In fact, Dr. Oesterling's opinion that the tissue
slides were inadequate to rule out pneumoconiosis was
inconsistent with Dr. Sinnenberg's conclusion that the
biopsy showed no pneumoconiosis, leaving Dr.

                    6
Sinnenberg's report unsupported by other medical
evidence. Although Dr. Oesterling's opinion would tend to
undercut the opinion of those doctors who found the
presence of pneumoconiosis, those doctors were supported
by each other as well as by the clinical and radiological
evidence. In any event, under 20 C.F.R. § 718.106(c) a
negative biopsy report is not conclusive evidence that a
miner does not have pneumoconiosis. In contrast, the same
section provides that positive findings will constitute
evidence of pneumoconiosis. 

was also within
his discretion to place more weight on the opinions of Drs.
Puckett and Haverty as they were the physicians who
performed the actual biopsy.

Pursuant to the regulation which makes a physician's
evaluation relevant, the ALJ also considered the various
reports of the other physicians. He found that those from
Drs. Miller, Long, Gress and Malhotra, which found the
presence of pneumoconiosis, were more persuasive than
those of Drs. Garrettson, McKinley, Strother and Scott,
which did not. He explained that Dr. Garrettson's 1982
report was outweighed by more recent reports, and that the
determinations of Dr. McKinley that Williams was totally
disabled due to an unknown etiology and of Drs. Strother
and Scott that Williams was suffering from idiopathic
pulmonary fibrosis were less persuasive than those of the
other physicians. The ALJ concluded that the biopsy and x-
ray evidence as a whole lent more weight to the
determinations of those physicians who had found Williams
to have pneumoconiosis.

III.

We conclude that the ALJ's determination of
pneumoconiosis is supported by substantial evidence and
that the ALJ properly and thoroughly evaluated all of the
relevant evidence. We will therefore deny the Petition for
Review, but do so for reasons different than those given by
the BRB.

                   7
A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

                   8