NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 08-2222

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BETTY HIXSON

(Survivor of and o/b/o DEMPSEY HIXSON),

 Petitioners

v.

DIRECTOR OWCP, UNITED STATES DEPARTMENT OF LABOR;

U.S. STEEL MINING COMPANY,

 Respondents

____________

On Petition for Review from an

Order of the Benefits Review Board,

United States Department of Labor

(Benefits Review Board No. 07-0471)

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Submitted Under Third Circuit LAR 34.1(a)

October 19, 2010

Before: HARDIMAN, GREENAWAY, JR. and NYGAARD, Circuit Judges.

(Filed: November 10, 2010)

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OPINION OF THE COURT

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HARDIMAN, Circuit Judge.

Betty Hixson (Hixson), widow of Dempsey Hixson (Dempsey), filed a petition for 

review of the Black Lung Benefits Review Board denying her claim for benefits under 

30 U.S.C. § 921(a). We will deny the petition.

I.

Because we write solely for the parties, we narrate only those portions of the facts 

and procedural history that are necessary to our decision. The Black Lung Benefits Act

(Act), 30 U.S.C. § 901 et seq., and its implementing regulations impose upon certain coal 

mine operators liability for the total disability or death of workers in the operators’ mines

if the disability or death was caused by pneumoconiosis (a lung disease) arising out of 

coal mine employment. See 30 U.S.C. § 921(a); 20 C.F.R. §§ 718.204 (total disability), 

718.205 (death).

Dempsey Hixson, a coal miner for over 20 years, smoked cigarettes regularly for 

much of his life. Dempsey retired from mining in 1983, suffered various pulmonary and 

respiratory difficulties that increased in severity with time, and ultimately died from 

pneumonia in 2001.

Dempsey filed multiple applications for benefits under the Act. In his final 

application, after protracted proceedings before multiple Administrative Law Judges 

(ALJs) and the Benefits Review Board, Dempsey was ultimately found to be suffering

from pneumoconiosis arising from coal mining and to be totally disabled. Nevertheless, 
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the Board denied benefits based on a lack of proof that Dempsey’s total disability was 

caused by the pneumoconiosis. Dempsey filed a number of motions for modification,

some of them including additional evidence. Before his last motion could be heard, 

Dempsey died, and Hixson added a survivor’s claim.

Because the previous medical evidence had established Dempsey’s

pneumoconiosis, U.S. Steel conceded that he had suffered from the disease and that it 

arose out of coal mine employment, but maintained that his disability and death were not 

caused by it. U.S. Steel offered the expert opinion of Dr. Everett Oesterling, a boardcertified clinical pathologist, who opined that Dempsey’s pneumoconiosis was too minor 

in nature to have caused either his disability or his death. Oesterling instead pointed to 

Dempsey’s cigarette smoking and asthma as the causal agents behind his pulmonary and 

respiratory problems.1 The ALJ found Dr. Oesterling’s opinion to be persuasive and in 

accord with the weight of the medical evidence adduced in prior proceedings. 

Accordingly, the ALJ denied the motion for modification. Hixson appealed to the Board, 

which affirmed.

 

1 We recognize that the record contains other medical evidence and that, in 

considering a motion for modification, an ALJ must consider all of the evidence, 

including that adduced in prior proceedings. See Nataloni v. Director, Officer of 

Worker’s Comp. Programs, 17 B.L.R. 1-82 (1993). We here address only Dr. 

Oesterling’s opinions because Hixson limits her competence objections to those opinions

and does not lodge any complaint with respect to the ALJ’s weighing of the remaining 

evidence.
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II.

Hixson now petitions for review of the denial of the motion for modification.2 An 

order denying benefits can be modified “on grounds of a change in conditions or because 

of a mistake in a [previous] determination of fact.” 20 C.F.R. § 725.310(a). In reviewing 

an ALJ’s decision with respect to benefits:

[t]he Board is bound by the ALJ’s findings of fact if they are supported by 

substantial evidence. Our review of the Board’s decision is limited to a 

determination of whether an error of law has been committed and whether the 

Board has adhered to its scope of review.

In reviewing the Board’s decision, we must independently review the 

record and decide whether the ALJ’s findings are rational, consistent with 

applicable law and supported by substantial evidence on the record considered as a 

whole. Substantial evidence has been defined as “such relevant evidence as a 

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

plenary review over the ALJ’s legal conclusions that were adopted by the Board.

Hill v. Dir., Office of Worker’s Comp. Programs, 562 F.3d 264, 268 (3d Cir. 2009) 

(citations and some internal quotation marks omitted).

For the reasons that follow, we will deny the petition.

III.

Hixson first assails the Board’s affirmance of the ALJ’s conclusion that she failed 

to prove that Dempsey’s total disability was due to his pneumoconiosis. She does so by 

maintaining that U.S. Steel’s admission that Dempsey suffered from pneumoconiosis 

 

2 We have jurisdiction pursuant to 33 U.S.C. § 921(c).
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arising from his coal mine employment eliminated the requirement that she make any 

showing of causation.

20 C.F.R. § 718.204(c)(1) provides that, in order to establish that her husband was 

“totally disabled due to pneumoconiosis,” Hixson must demonstrate that the disease 

either had “a material adverse effect on [his] respiratory or pulmonary condition,” id.

§18.204(c)(1)(I), or “[m]aterially worsen[ed]” some other “totally disabling respiratory or 

pulmonary impairment.” Hixson’s argument relies on the regulatory definition of 

“pneumoconiosis” found at 20 C.F.R. § 718.201, which reads:

(a) For the purpose of the Act, “pneumoconiosis” means a chronic dust 

disease of the lung and its sequelae, including respiratory and pulmonary 

impairments, arising out of coal mine employment. This definition includes 

both medical, or “clinical”, pneumoconiosis and statutory, or “legal”, 

pneumoconiosis.

. . . .

(b) For purposes of this section, a disease “arising out of coal mine 

employment” includes any chronic pulmonary disease or respiratory or 

pulmonary impairment significantly related to, or substantially aggravated 

by, dust exposure in coal mine employment.

Hixson maintains that the phrase “substantially aggravated by[] dust exposure in coal 

mine employment,” as used in this regulatory definition of pneumoconiosis, is 

substantively identical to § 718.204(c)(1)(i)’s causation requirement of a “materially 

adverse effect on the miner’s respiratory or pulmonary condition.” Under Hixson’s 

theory, U.S. Steel’s admission that her husband had pneumoconiosis arising out of coal 

mine employment absolves her from submitting further proof of causation.
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The Board rejected this argument, citing multiple authorities for the proposition 

that causation is an element of a benefits claimant’s case distinct from the existence of 

pneumoconiosis. We agree. If § 718.201(b) provided that an illness can be regarded as 

pneumoconiosis only if it is “substantially aggravated” by such employment, Hixson’s 

argument might have some merit. But § 718.201(b) expressly states that a lung ailment 

can also qualify as pneumoconiosis simply by being “significantly related to” mine 

employment. We think it abundantly clear that this “significantly related” standard can 

be satisfied even in cases where the illness does not create any material adverse effects on 

the miner’s health, within the meaning of § 718.204(c)(1). Accordingly, an admission 

that a miner has pneumoconiosis is not equivalent to an admission that the illness caused 

any total disability the miner may have suffered, and we will affirm the Board’s decision 

in this regard.

IV.

Hixson also argues that the testimony of Dr. Oesterling, U.S. Steel’s expert, was 

incompetent because it contradicted the fundamental premises of the statutory and 

regulatory regime:

The Act and its implementing regulations provide compensation and other 

benefits . . . to miners’ surviving dependents where death is due to 

pneumoconiosis. For purposes of the Act, death is considered due to 

pneumoconiosis if the disease was a “substantially contributing cause or 

factor” leading to death. 20 C.F.R. §718.205(c). This term has been held to 

encompass situations in which pneumoconiosis “actually hastened” the 

miner’s death.
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Consol. Coal Co. v. Kramer, 305 F.3d 203, 205 (3d Cir. 2002). Thus, it is axiomatic to 

this remedial scheme that pneumoconiosis is indeed capable of hastening death. We have 

held that ALJs may disregard as incompetent expert opinion evidence that contradicts 

fundamental tenets of this sort. Id. at 210.

Hixson, however, overstates the import of the regulatory scheme at issue here. 

She states that “[u]nder the Rules as promulgated by the Director, one cannot have de 

minimis pneumoconiosis,” Pet. Br. at 29 n.3, implying that every case of the illness 

necessarily hastens death, thus invalidating any evidence that a given individual’s death 

was not caused by it. This is plainly wrong. The regulations indicate only that it is 

possible for pneumoconiosis to hasten death, not that it always does so. And, as the 

Board noted, Dr. Oesterling’s testimony in this regard was not at all in tension with the 

regulations. Oesterling simply opined that pneumoconiosis did not hasten Dempsey’s 

death, not that it was incapable of hastening anyone’s death. Accordingly, the Board did 

not err in affirming the ALJ’s consideration of Oesterling’s testimony.

V.

For the reasons stated, we find no legal error in the Board’s conclusions and 

substantial evidence supported the ALJ’s findings of fact. Accordingly, we will deny 

Hixson’s petition for review.