2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-9-2014

Harriman Coal Corp v. Marylou Schoffstall

Precedential or Non-Precedential: Non-Precedential

Docket 13-2495

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Harriman Coal Corp v. Marylou Schoffstall" (2014). 2014 Decisions. Paper 271.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/271
NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-2495

_____________

HARRIMAN COAL CORPORATION; 

AMERICAN MINING INSURANCE COMPANY,

 Petitioners

v.

MARYLOU SCHOFFSTALL, (Widow of Charles W. Schoffstall); 

DIRECTOR OFFICE WORKERS' COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

 Respondents

_______________

On Petition for Review of a Decision of the Black Lung 

Benefits Review Board

(BRB Nos. 12-0388 BLA and 12-0389 BLA)

_______________

Submitted Under Third Circuit LAR 34.1(a)

March 6, 2014

Before: AMBRO, JORDAN and ROTH, Circuit Judges.

(Filed: March 10, 2014)

_______________

OPINION OF THE COURT

_______________
2

JORDAN, Circuit Judge.

Harriman Coal Corporation and American Mining Insurance Company

(collectively, “Harriman”) seek review of an order by the Benefits Review Board (the 

“Board”) affirming an award to Mary Lou Schoffstall of survivor benefits pursuant to the 

Black Lung Benefits Act, 30 U.S.C. § 901 et seq. For the reasons that follow, we will 

deny the petition.

I. Background

Mrs. Schoffstall’s late husband, Charles, worked at four different coal companies 

over a forty-year period. His final job was with Harriman, where he worked from 1997 

through 2000. He had worked around coal since he was 16 years old and spent about 10 

years of his career working in the mines. He also worked above ground in various jobs 

requiring hands-on labor with coal. He picked slate, which involves separating impurities 

from coal and sorting it into useful sizes for processing; he operated a “bull shaker,” a 

device that assists in cleaning coal; and he delivered coal by truck, which included the 

responsibility of moving coal in and out of the truck bed. He claimed that his aboveground work exposed him to “a lot” of coal dust. 

On July 6, 2004, Mr. Schoffstall filed a claim for disability benefits on the basis

that he had contracted pneumoconiosis, otherwise known as black lung disease, as a 

result of working in and around mines. At the time, to recover under the Act, the burden 

was on Mr. Schoffstall to establish by a preponderance of the evidence that (1) he had 

pneumoconiosis; (2) it arose from his coal mine employment; and (3) it caused him “total 

disability.” 20 C.F.R. §§ 718.201-204. 
3

The case went before an administrative law judge (“ALJ”), who received four 

medical opinions: one concluded that Mr. Schoffstall’s disability was a result of his 

exposure to mine dust, one was generally unclear about causation, and two concluded 

that, although he suffered from “some restrictive impairment,” it was not a result of his 

work in the mines. (App. at A60.) The ALJ decided that, while the X-ray evidence 

submitted was “evenly balanced,” (App. at A55), he would accord greater weight to the 

latter two opinions. He thus found that, although Mr. Schoffstall suffered from a total 

disability, “the evidence is not sufficient to establish [Mr. Schoffstall’s] pulmonary 

disability is due to coal mine dust exposure or to coal worker’s pneumoconiosis,” (App. 

at A60.) The ALJ denied benefits, and Mr. Schoffstall appealed to the Board. 

On March 5, 2007, while Mr. Schoffstall’s appeal was pending, he passed away, 

and Mrs. Schoffstall submitted a survivor’s claim on April 6, 2007. To succeed on her 

claim, Mrs. Schoffstall also had to prove that her husband suffered from pneumoconiosis 

and that it was causally related to his work in the mines. See 20 C.F.R. § 718.205(a).

1

 

She filed a motion to remand her husband’s claim so that it and her own claim could be 

heard together. The Board obliged. Another ALJ took over the cases and denied benefits 

as to each, finding that the evidence did not establish the existence of pneumoconiosis. 

Relevant here, that ALJ also credited Mr. Schoffstall with 21.27 years of coal mine work. 

While Mrs. Schoffstall’s appeal was pending, Congress enacted the Patient 

Protection and Affordable Care Act (the “ACA”), Pub. L. No. 111-148, 124 Stat. 119, 

 

1 Under 20 C.F.R. § 725.212(a)(1), (2), a widow must also prove that she was 

dependent on the miner and that she is not currently married. Those issues were never in 

dispute in this case. 
4

§ 1556, which, among other things, extended the so-called “15-year presumption” found 

in the Black Lung Benefits Act, 30 U.S.C. § 921(c)(4), and made that statute applicable 

to all direct and survivor claims under the Black Lung Benefits Act. A claimant is 

entitled to the 15-year presumption if the miner (1) “was employed for fifteen years or 

more in one or more underground coal mines” or in mining activity “substantially similar 

to conditions in an underground mine,” and (2) suffered from “a totally disabling 

respiratory or pulmonary impairment.” 30 U.S.C. § 921(c)(4). If those criteria are met, 

the claimant enjoys a rebuttable presumption that the miner was “totally disabled by 

pneumoconiosis [and] that his death was due to pneumoconiosis.” Id. The employer 

must then rebut the presumption in one of two ways: (1) by demonstrating that the miner 

“does not, or did not, have pneumoconiosis,” id., or (2) by showing that “no part of the 

miner’s death was caused by pneumoconiosis.” 78 Fed. Reg. 59115 (revising 20 C.F.R. 

§ 718.305(d)(2)). 

Prior to the ACA’s enactment, only claimants who filed before January 1, 1982, 

were entitled to the 15-year presumption. See 30 U.S.C. § 921(a), (c)(4)-(5) (1982). The 

ACA, however, made the presumption applicable to all claims, including survivor claims, 

filed after January 1, 2005, and pending on or after the enactment date of the ACA, i.e., 

March 23, 2010. Pub. L. No. 111-148, § 1556; see Keene v. Cons. Coal Co., 645 F.3d 

844, 849 (7th Cir. 2011) (finding that the revived presumption applies to a widow’s claim 

filed within the applicable time period). Thus, because Mrs. Schoffstall’s claim was filed 

after January 1, 2005 and was pending at the time of the ACA’s enactment, the Board 

concluded that she qualified for the 15-year presumption. The Board vacated the ALJ’s 
5

decision as to Mrs. Schoffstall’s claim, remanded for further consideration, and directed 

the ALJ to determine whether Mr. Schoffstall’s 21.27 years of combined underground 

and surface mining activities were equivalent to at least fifteen years of mining in 

conditions substantially similar to those of an underground mine. It affirmed the ALJ’s 

denial of benefits on Mr. Schoffstall’s claim. 2 

On remand, additional evidence was submitted, and the ALJ determined that all

21.27 years of Mr. Schoffstall’s coal mine employment qualified to invoke the 

presumption. According to the ALJ, although Mr. Schoffstall worked only ten years in 

underground mines, he spent at least an additional five years laboring on the surface in 

conditions substantially similar to those within an underground mine. The ALJ also 

found that the medical evidence established a totally disabling respiratory condition, 

satisfying the second of the presumption’s two prerequisites. The ALJ reviewed the 

medical report of Dr. Frederick Seidel, the physician who, after conducting two 

pulmonary function tests on Mr. Schoffstall, diagnosed him with pneumoconiosis, and 

the ALJ also reviewed the findings of Dr. Gregory Fino, Harriman’s expert medical 

witness, who, after reviewing the pulmonary function tests, determined Mr. Schoffstall 

did not have pneumoconiosis. Dr. Fino also provided deposition testimony discrediting 

the pneumoconiosis diagnosis. The ALJ further reviewed and found persuasive a onepage letter addressed to Dr. Seidel from Dr. Henry Smith, a radiologist, who “reviewed 

several X-rays” of Mr. Schoffstall “and determined they were positive for 

 

2 Because Mr. Schoffstall filed his claim before January 1, 2005, the Board 

determined that the 15-year presumption did not apply. 
6

pneumoconiosis.” (App. at A27). In the end, the ALJ accorded only minimal weight to 

Dr. Fino’s report and testimony because she determined that (1) his diagnosis was 

unexplained and contradicted by first-hand observations recorded by Mr. Schoffstall’s 

doctor; (2) his conclusion that better effort on the part of Mr. Schoffstall during the tests 

would have produced normal results was unexplained and speculative; and (3) his 

statement that Mr. Schoffstall’s doctor did not diagnose a respiratory impairment was 

incorrect. The ALJ determined that the 15-year presumption should be invoked, thereby 

shifting the burden to Harriman to prove that the miner did not have pneumoconiosis or 

that his disabling respiratory impairment was not related to his coal mine employment. 

The ALJ then determined that Harriman had not rebutted the presumption, noting 

that Dr. Fino actually conceded the presence of pneumoconiosis based on a later set of xray readings and that Harriman submitted no evidence challenging the causal relationship 

between the malady and the nature of Mr. Schoffstall’s employment. Accordingly, the 

ALJ awarded benefits to Mrs. Schoffstall, ruling that the widow had “established that 

[Mr. Schoffstall] died due to pneumoconiosis, based on [Harriman]’s failure to rebut the

[15-year] presumption.” (App. at 30.) 

Harriman appealed to the Board, which determined that the ALJ applied the 

proper burden of proof and that the finding that Harriman failed to rebut the 15-year 

presumption was supported by substantial evidence. It noted that Harriman wrongly 

focused on the first ALJ’s finding of no pneumoconiosis, which did not govern because 

of the change in the law that rendered the 15-year presumption applicable. It further 

noted that Harriman failed to challenge the final ALJ’s finding that Mr. Schoffstall had 
7

worked for at least five years in conditions substantially similar to an underground mine 

and thus satisfied the presumption’s temporal condition; rather, Harriman erroneously 

argued that Mr. Schoffstall had to labor underground for all 15 years to satisfy that 

condition, disregarding the “substantially similar” language in the statute. Accordingly, 

the Board affirmed the decision awarding Mrs. Schoffstall benefits.

Harriman timely appealed.

II. Discussion3

Harriman brings two arguments in support of its contention that the Board’s ruling 

was not supported by substantial evidence. First, it argues that the Board erred in 

determining that Mrs. Schoffstall satisfied the requirement in 20 U.S.C. § 921(c)(4) that 

her husband worked at least 15 years in an underground coal mine or in conditions 

substantially similar to those in an underground mine. Harriman points out that the ALJ 

only found that Mr. Schoffstall “had ‘at least’ 10 years of underground coalmine 

employment.” (Petitioner’s Br. at 13 (quoting App. at A16).) Because the evidence of 

 

3

The ALJ and the Board had jurisdiction pursuant to 30 U.S.C. § 932(a) and 33 

U.S.C. § 921(b). We have jurisdiction under 30 U.S.C. § 932(a) and 33 U.S.C. § 921(c). 

We review Board decisions for errors of law and to determine whether the Board adhered 

to its own standard of review. Lombardy v. Dir., OWCP, 355 F.3d 211, 213 (3d Cir.

2004). We review questions of law de novo. Id. The Board is bound, as are we, by the 

ALJ’s findings of fact, if those findings are supported by substantial evidence. Id. In 

cases where a party challenges a finding of fact, we independently review the record and 

decide whether that finding is supported by substantial evidence. Helen Min. Co. v. Dir., 

OWCP, 650 F.3d 248, 254 (3d Cir. 2011). Substantial evidence is “such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.” 

Consol. Coal Co. v. Kramer, 305 F.3d 203, 207 (3d Cir. 2002). Under that standard, we 

will not disturb an ALJ’s factual findings if they are supported by substantial evidence, 

even if we “might have interpreted the evidence differently in the first instance.”

Balsavage v. Dir., OWCP, 295 F.3d 390, 395 (3d Cir. 2002) (citation omitted) (internal 

quotation marks omitted).
8

record only supports a finding of 10 years of underground employment, Harriman argues, 

Mrs. Schoffstall is not entitled to the 15-year presumption. Second, Harriman argues that 

the opinion of Dr. Fino serves as substantial evidence of a lack of pneumoconiosis 

sufficient to rebut the presumption. 

Regarding the temporal requirement of the statute, Harriman does not 

meaningfully challenge the application of the presumption. It simply fails to accept that 

the additional finding that Mr. Schoffstall worked in substantially similar conditions 

above ground for at least 5 years, combined with the 10 years he spent below ground, was 

sufficient to meet the requirement. See 20 C.F.R. § 718.305(b)(1)(i). But Harriman 

makes no argument challenging that additional finding.4 Thus, the ALJ’s application of 

the statute on this point is essentially unchallenged, see Kost v. Kozakiewicz, 1 F.3d 176, 

182 (3d Cir. 1993) (“[A]ppellants are required to set forth the issues raised on appeal and 

to present an argument in support of those issues in their opening brief.”), and, in any 

event, substantial evidence suggests that Mrs. Schoffstall is entitled to the 15-year 

presumption. 

Regarding the issue of pneumoconiosis, Harriman overlooks the significance of 

the presumption’s invocation: Mrs. Schoffstall was no longer required to affirmatively 

prove the presence of the disease – she only had to demonstrate that Mr. Schoffstall

 

4 Harriman also argues that the ALJ should not have credited Mr. Schoffstall with 

10 years of underground work and that “[t]he Judge substituted her own opinions for that 

of the actual evidence of record.” (Appellant’s Br. at 14.) But Harriman points to no 

actual evidence to support its contention, and instead cites Mr. and Mrs. Schoffstall’s 

testimony supporting the ALJ’s determination. The ALJ’s credibility determination as to 

those witnesses is hardly a substitution of opinion for contradictory evidence. 
9

suffered from a total disability. Once the presumption was invoked, the existence of 

pneumoconiosis was presumed and the burden shifted to Harriman to prove the absence

of the condition. See Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473, 480 (6th Cir. 

2011) (“[R]ebuttal requires an affirmative showing ... that the claimant does not suffer 

from pneumoconiosis ... .”). Importantly, even if Dr. Fino’s opinion were given greater 

weight, it still conflicts with Dr. Seidel’s convincing evidence of the existence of 

pneumoconiosis, which would certainly support a conclusion that Harriman did not 

demonstrate the absence of the disease. In addition, positive x-ray readings suggest that 

Mr. Schoffstall indeed suffered from the disease. Harriman’s only expert, Dr. Fino, 

failed to explain his conclusions, see Lango v. Dir., OWCP, 104 F.3d 573, 577 (3d Cir. 

1997) (“The mere statement of a conclusion by a physician, without any explanation of 

the basis for that statement, does not take the place of the required reasoning.”), and Dr. 

Fino also acknowledged under oath that “there was radiographic pneumoconiosis based 

on the new chest X-ray readings that were forwarded to me” (App. at A143). Substantial 

evidence thus supports the ALJ’s determination that Harriman failed to rebut the 

presumption that Mr. Schoffstall suffered pneumoconiosis.

5

III. Conclusion

For the foregoing reasons, we will deny the petition for review. 

 

5 Harriman does not make any argument bearing on the alternative basis for 

rebutting the 15-year presumption – that pneumoconiosis played no role in 

Mr. Schoffstall’s death. Therefore, there is no need to consider that alternative.