1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
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, 49 F.3d 993, 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 bloodgas 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). 

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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. 

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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., 380 U.S. 359, 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., 788 F.2d 158, 163 (3d 

Cir. 1986). 

 5 
Our standard of review for questions of law is plenary. 

BethEnergy Mines, Inc. v. Director, OWCP, 32 F.3d 843, 846 

(3d Cir. 1994). We will, however, defer to the Director's 

reasonable interpretations of its regulations. Beatty v. Danri

Corp. & Triangle Enterprises, 49 F.3d 993, 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., 884 F.2d 726, 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"); Kertesz, 788 F.2d at 163 (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. 

Kertesz, 788 F.2d at 163. 

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. 

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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. Id. The ALJ 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 xray 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. 

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A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

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