1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-1-1995

Plesh v. Dir., Office of Workers' Comp. Programs

Precedential or Non-Precedential:

Docket 94-3572

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

---------- 

No. 94-3572 

---------- 

SALVADORE PLESH, 

 Petitioner 

v. 

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, 

UNITED STATES DEPARTMENT OF LABOR, 

 Respondent 

---------- 

On Petition for the Review of the Final Decision 

of the Benefits Review Board 

(No. 92-2292 BLA) 

 

---------- 

Argued Tuesday, June 27, 1995 

BEFORE: HUTCHINSON,0 ROTH and GARTH, Circuit Judges

---------- 

(Opinion filed December 1, 1995) 

---------- 

 Andrew K. Soto (Argued) 

 Ball, Janik & Novack 

 101 Southwest Main Street 

 Suite 1100 

 Portland, OR 97204 

 Attorney for Petitioner 

 

0

Judge Hutchinson heard argument of this appeal and participated 

in its decision. However, Judge Hutchinson died before this 

opinion was filed. 
2 

 Thomas S. Williamson, Jr. 

 Donald S. Shire 

 Christian P. Barber 

 C. William Mangum (Argued) 

 Suite N-2605 

 United States Department of Labor 

 Office of the Solicitor 

 200 Constitution Avenue, N.W. 

 Washington, DC 20210 

 Attorneys for Respondent

 

 ---------- 

 

 OPINION OF THE COURT 

 

 ---------- 

 

GARTH, Circuit Judge: 

 Petitioner Salvadore Plesh, a retired miner, petitions for 

review of an order entered by the Benefits Review Board (BRB) of 

the United States Department of Labor (DOL). The BRB upheld the 

decision of the DOL administrative law judge (ALJ) who terminated 

Plesh's benefits under the Black Lung Benefits Act, 30 U.S.C. 

§901 et seq. (BLBA). We conclude that the BRB erred in 

terminating Plesh's benefits and we will therefore reverse. 

I. 

 Born on May 28, 1917, Plesh began working in a coal mine in 

1943, for the Lehigh Valley Coal Company in Hazelton, Pennsylvania. Plesh worked for more than seventeen years, from 1943 to 

1960, in underground mines and later in strip mines as a rock and 

coal driller. Plesh testified that he left the coal mines after 

he began to feel ill and his doctor advised him to discontinue 
3 

coal mine employment. After abandoning coal mine work, Plesh 

worked as a janitor, a nightwatchman and a mail sorter. 

 Plesh first filed a claim for benefits under the BLBA on May 

29, 1979.0 This application was governed by the guidelines set 

forth in 20 C.F.R. Part 727, which provide certain presumptions 

in favor of the miner. On March 29, 1980, the Director awarded 

benefits and began making monthly payments retroactive to May 

1979. 

 More than six years later, on September 16, 1986, the 

Director sent a letter to Plesh informing him that a recent 

review of Plesh's claim file revealed "certain deficiencies." The 

letter requested that Plesh provide "[m]edical information 

showing the condition of your lungs" and "[d]ocuments to 

establish your relationship to any dependents." The letter 

further instructed Plesh to "undergo a complete set of medical 

tests at [DOL] expense." 

 Plesh underwent the required medical testing. On November 

6, 1986, Dr. Leo Corazza examined Plesh, performed a chest x-ray, 

and conducted a pulmonary function study (PFS) and an arterial 

blood gas study (BGS). Dr. Corazza found that the x-ray 

"demonstrate[d] no evidence of pneumoconiosis." Jt. App. 377. 

 

0

In connection with his application for black lung benefits, 

Plesh was examined by Dr. Harold Silver on December 21, 1979 and 

by Dr. Roscoe C. Young on April 29, 1980. Dr. Silver diagnosed 

chronic bronchitis but opined that the condition was unrelated to 

coal mine employment. Dr. Young reported that a chest x-ray 

showed evidence of pneumoconiosis and that a pulmonary function 

study indicated a moderately severe restrictive ventilatory 

defect. Dr. Young diagnosed early simple coal workers' 

pneumoconiosis and moderate restrictive respiratory disability. 
4 

Dr. Stanley Laucks and Dr. W.S. Cole, both "B-readers,"0 reread 

the x-ray and concluded that it was negative for pneumoconiosis. 

 Dr. Corazza found that the BGS results were within normal 

limits but noted that the PFS results were "compatible with the 

diagnosis of chronic obstructive pulmonary disease, moderately 

severe." Jt. App. 380. Based on his examination of Plesh, Dr. 

Corazza diagnosed chronic bronchitis, pulmonary emphysema and 

ankle edema (of unknown etiology). Dr. Corazza also opined, 

without explanation, that Plesh's condition was not related to 

coal mine employment. 

 After conducting further PFS and BGS tests on January 14, 

1987, Dr. Corazza observed a decrease in vital capacity 

"compatible with the presence of some restrictive pulmonary 

disease." Jt. App. 367. Dr. Corazza further opined that "[t]he 

appearance of the spirogram0 [wa]s compatible with some degree of 

obstructive disease." Id.

 The Director determined that the additional medical evidence 

compiled by Dr. Corazza failed to establish that Plesh was 

totally disabled due to pneumoconiosis. Consequently, on March 

11, 1987, the Director issued an Order to Show Cause, which 

directed Plesh to "show cause within thirty (30) days why the 

original award should not be modified to reflect that eligibility 

 

0

A "B reader" is a physician who has demonstrated proficiency in 

reading x-rays for pneumoconiosis by passing annually an 

examination established by the National Institute of Safety and 

Health and administered by the U.S. Department of Health and 

Human Services. See 20 C.F.R. § 718.202(a)(ii)(E); 42 C.F.R. 

§37.51. 

0

A spirogram is "a tracing or graph of respiratory movements." 

Dorland's Illustrated Medical Dictionary 1563 (27th ed. 1988). 
5 

shall cease effective April 1, 1987." Jt. App. 360. The Order 

to Show Cause required Plesh to submit evidence showing that he 

was totally disabled due to pneumoconiosis caused by coal mine 

employment. 

 Rather than complying with this mandate, Plesh returned the 

Order with the following handwritten note on the last page of the 

Order: 

Dear Sir - I am appealing this as of now. Having went 

to the Howard Hospital, for my Pulmonary Medical 

Records and I was told they were sent to Mt. Sterling 

KY Labor Dept - and having taken another exam at Dr. 

Corrazza [sic] -- Now I am going to get another exam 

and will give you further med. evidence of my health 

for Black Lung after 26 years in coal mines. I will 

send this to you as soon as possible - thank you 

 Sincerely yours 

 Salvadore Plesh 

 [Social Security number omitted] 

P.S. Mr. Ratliff - this is the only means of survival 

that my wife and I have to live on now - thank you. 

Jt. App. 360-61 (emphasis added). This letter was received by 

the Office of Workers' Compensation (OWCP) on March 26, 1987. The 

Director did not respond to Plesh's letter, but instead issued a 

final order on April 28, 1987 terminating benefits, effective 

April 1, 1987. Plesh did not appeal this order. 

 Two years later, on April 13, 1989, Plesh submitted a new or 

second claim for benefits. On July 5, 1989, Dr. Philip Witorsch 

examined Plesh, took x-rays, and conducted PFS and BGS tests. 

Based on these tests, Dr. Witorsch diagnosed "chronic obstructive 

pulmonary disease - chronic bronchitis . . . most likely due to 
6 

[Plesh's] history of tobacco use." Dr. Witorsch observed that 

the "chest x-ray is consistent with simple coal workers' 

pneumoconiosis." Dr. Witorsch opined, however, that "[t]he 

contribution, if any, of patient's coal mine employment to this 

impairment is uncertain." At the same time, Dr. Witorsch 

recommended performing further tests, including a lateral x-ray, 

lung volume test and an exercise study, to further evaluate 

whether Plesh's respiratory impairment was attributable to coal 

dust exposure. Permission to perform these tests was denied. 

 The Director issued a Proposed Decision and Order Denying 

Benefits on October 23, 1989. In denying Plesh's claim, the 

Director explained that because Plesh had filed his second claim 

more than one year after the denial of his first claim, Plesh's 

second claim would be treated as a duplicate claim under 20 

C.F.R. § 725.3090 rather than as a request for modification under 

20 C.F.R. § 725.310.0 The Director explained further that Plesh 

 

0

Section 725.309, which is titled "Duplicate claims, provides in 

part: 

If an earlier claim subject to review under part 727 of 

this subchapter has been denied after review, a new 

claim filed under this part shall also be denied, on 

the ground of the prior denial, unless the [Director] 

determines that there has been a material change in 

conditions or the later claim is a request for 

modification and the requirements of § 725.310 are met. 

20 C.F.R. § 725.309(c). 

0

Section 725.310 provides in part: 

Upon his or her own initiative, or upon the request of 

any party on grounds of a change in conditions or 

because of a mistake in a determination of fact, the 

[Director] may, at any time before one year from the 

date of the last payment of benefits, or at any time 

before one year after the denial of a claim, reconsider 

the terms of an award or denial of benefits. 

20 C.F.R. §725.310(a). 
7 

had failed to establish "a material change in condition," a 

necessary prerequisite to filing a duplicate claim. 

 Plesh appealed to the BRB, which remanded to the Office of 

Administrative Law Judges pursuant to Lukman v. Director, OWCP, 

896 F.2d 1248 (10th Cir. 1990).0 The ALJ concluded that Plesh's 

March 26, 1987 letter, wherein Plesh declared "I am appealing 

this as of now," constituted an effective appeal of the 

Director's final order terminating Plesh's benefits. 

 Because Plesh filed his first claim for benefits before 

April 1980, the ALJ first evaluated Plesh's claim under 20 C.F.R. 

Part 727. Part 727 provides for a rebuttable "interim" 

presumption that a claimant with at least ten years of coal mine 

employment is totally disabled due to pneumoconiosis if the 

claimant meets any one of the criteria set forth in 20 C.F.R. 

§ 727.203(a). The ALJ found that Plesh had satisfied the (a)(2)0

and (a)(4)0 requirements. 

 

0

Previously, the BRB had required that duplicate claims be 

appealed directly to the BRB rather than to an ALJ. Lukman v. 

Director, OWCP, 10 Black Lung Rep. (MB) 1-56 (1987), aff'd on 

recon., 11 Black Lung Rep. (MB) 1-71 (Ben. Rev. Bd. 1988) (en 

banc), rev'd, 896 F.2d 1248 (10th Cir. 1990). The Tenth Circuit 

later reversed Lukman, holding that a claimant who filed a 

duplicate claim had a right to a hearing before an ALJ. Lukman, 

896 F.2d at 1254. 

0

A claimant may invoke the interim presumption under subsection 

(a)(2) if ventilatory studies produce values less than those 

specified in the table incorporated into section 727.203(a)(2). 

0

A claimant may invoke the interim presumption under subsection 

(a)(4) if "[o]ther medical evidence, including the documented 

opinion of a physician exercising reasoned medical judgment, 

establishes the presence of a totally disabling respiratory or 

pulmonary impairment." 20 C.F.R. § 727.203(a)(4). 
8 

 The ALJ further found, however, that the interim presumption 

had been rebutted, pursuant to 20 C.F.R. § 727.203(b)(3),0 by Dr. 

Witorsch's testimony that Plesh's coal mine employment did not 

significantly contribute to his disability. The ALJ therefore 

concluded that Plesh was not entitled to benefits under Part 727. 

 Relying on Caprini v. Director, OWCP, 824 F.2d 283 (3d Cir. 

1987),0 the ALJ then proceeded to evaluate Plesh's claim under 

the standards set forth in Part 718. Part 718 requires that the 

claimant bear the burden of proving (1) that he suffers from 

pneumoconiosis; (2) that the disease arose out of coal mine 

employment; and (3) that he is totally disabled due to 

pneumoconiosis. See 20 C.F.R. § 718.201-.204. See also

Director, OWCP v. Mangifest, 826 F.2d 1318, 1320 (3d Cir. 1987). 

The ALJ found that Plesh had established the first two prongs but 

not the last prong (i.e. total disability). Accordingly, the ALJ 

denied benefits to Plesh. 

 The BRB, on appeal, held that Plesh had not timely appealed 

the April 28, 1987 order and hence the ALJ had erred in applying 

Part 727. The BRB reasoned that the ALJ had improperly merged 

Plesh's second claim with Plesh's first claim, and vacated the 

ALJ's Part 727 findings. 

 

0

A presumption established under subsection (a) may be rebutted 

in one of several ways, including submission of "evidence [which] 

establishes that the total disability or death of the miner did 

not arise in whole or in part out of coal mine employment 

. . . ." 20 C.F.R. § 727(b)(3). 

0

In Caprini, we held that where the claim was filed before March 

31, 1980 but adjudicated after that date, the ALJ must evaluate 

the claim under Part 718. 824 F.2d 283, 284 (3d Cir. 1987). 
9 

 Turning to Plesh's second claim, the BRB held that Plesh, by 

submitting new medical evidence, established a "material change 

in conditions," as required by 20 C.F.R. § 725.309. See supra

note 5. The BRB, having decided that Part 727 was inapplicable 

because Plesh's appeal was untimely, did not review the ALJ's 

Part 727 findings, which it had vacated. The BRB then concluded 

that the ALJ's decision to deny benefits under Part 718 was 

supported by substantial evidence. Plesh filed a timely petition 

for review of the BRB's decision. 

II. 

 The BRB had jurisdiction to review the final order of an ALJ 

granting or denying compensation benefits under section 21(b)(3) 

of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 

33 U.S.C. § 921(b)(3), as incorporated into the BLBA by 30 U.S.C. 

§ 932(a). See Elliot Coal Mining Co. v. Director, OWCP, 17 F.3d 

616, 625 (3d Cir. 1994). We have jurisdiction over an appeal 

from the final order of the BRB under section 21(c) of the LHWCA, 

33 U.S.C. § 921(c). Id. 

 The BRB is bound by an ALJ's findings of fact "if they are 

rational, supported by substantial evidence, and consistent with 

applicable law." Id. at 626. See also 33 U.S.C. § 921(b)(3), as 

incorporated into the BLBA by 30 U.S.C. § 932(a); O'Keeffe v. 

Smith, Hinchman & Grylls Assocs., 380 U.S. 359 (1965). We review 

the BRB's decision to ensure that the Board has accepted those 

findings of the ALJ that are supported by substantial evidence. 

Oravitz v. Director, OWCP, 843 F.2d 738, 739 (3d Cir. 1988). We 
10 

exercise plenary review over questions of law. BethEnergy Mines, 

Inc. v. Director, OWCP, 32 F.3d 844, 846 (3d Cir. 1994). 

III. 

 We must first address the threshold issue of whether the 

Director possessed authority to reopen and reconsider Plesh's 

1980 award. Plesh has challenged the validity of 20 C.F.R. 

§ 718.404(b),0 which effectuates section 22 of the LHWCA, 33 

U.S.C. § 922,0 and which is incorporated into the BLBA by 30 

U.S.C. § 932(a). 

 Specifically, Plesh contends that Congress has acknowledged 

that pneumoconiosis is an incurable, progressive disease, and 

 

0

Section 718.404(b) provides: 

 An individual who has been finally adjudged to be 

totally disabled due to pneumoconiosis shall, if 

requested to do so upon reasonable notice, where there 

is an issue pertaining to the validity of the original 

adjudication of disability, present himself or herself 

for, and submit to, examinations or tests as provided 

in § 718.101, and shall submit medical reports and 

other evidence necessary for the purpose of determining 

whether such individual continues to be under a 

disability. Benefits shall cease as of the month in 

which the miner is determined to be no longer eligible 

for benefits. 

0

Section 922 provides in relevant part: 

Upon his own initiative, or upon the application of any 

party in interest . . ., on the ground of a change in 

conditions or because of a mistake in a determination 

of fact by the [Director], the [Director] may, at any 

time prior to one year after the date of the last 

payment of compensation, whether or not a compensation 

order has been issued, or at any time prior to one year 

after the rejection of a claim, review a compensation 

case . . . in accordance with the procedure prescribed 

. . . and . . . issue a new compensation order which 

may terminate, continue, reinstate, increase, or 

decrease such compensation, or award compensation. 

33 U.S.C. § 922. 
11 

hence the Director may not withdraw benefits based upon the 

premise that the claimant has recovered from the illness or that 

the miner's disability has lessened. Indeed, the Director has 

conceded that a miner who is totally disabled by pneumoconiosis 

will never recover, and the Secretary of the DOL has disavowed 

authority to terminate or modify an award based upon recovery 

from pneumoconiosis: 

Although one comment praises [section 718.404], the 

overwhelming majority of comments on this section 

suggest that it be stricken. These comments note that 

pneumoconiosis is a progressive disease, and that while 

the symptoms may, on occasion, subside, the condition 

itself does not improve. . . . 

. . . In order to reflect the fact that the symptoms of 

pneumoconiosis generally continue, even though 

statutory entitlement may cease, the Department has 

changed the title of this section from "cessation of 

disability" to "cessation of entitlement." Although 

the Department agrees that the disease does not 

improve, section 22 of the [LHWCA] provides for 

modification of awards on a change in condition or 

mistake in determination of fact. Subsection (b) of 

this regulation effectuates this provision. 

45 Fed. Reg. 13,694 (Feb. 29, 1980) (emphasis added). 

 We agree that pneumoconiosis is progressive and incurable. 

The legislative history of the Black Lung Benefits Reform Act of 

1977 clearly demonstrates that Congress recognized that coal dust 

inhalation causes permanent damage. See H.R. Rep. No. 95-151, 

95th Cong., 2d Sess. 6 (1977), reprinted in 1978 U.S.C.C.A.N. 

237, 242. In fact, the Supreme Court, this court and other 

courts have recognized the irreversible nature of black lung 

disease. See Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 

138 (1987); Shendock v. Director, OWCP, 893 F.2d 1458, 1467 n.10 
12 

(3d Cir.), cert. denied, 498 U.S. 826 (1990); Kowalchick v. 

Director, OWCP, 893 F.2d 615, 621 (3d Cir. 1990); Back v. 

Director, OWCP, 796 F.2d 169, 172 (6th Cir. 1986); Orange v. 

Island Creek Coal Co., 786 F.2d 724, 727 (6th Cir. 1986); 

Consolidation Coal Co. v. Chubb, 741 F.2d 968, 973 (7th Cir. 

1984); Andryka v. Rochester & Pittsburgh Coal Co., 14 Black Lung 

Rep. (MB) 1-34 (1990); Stanley v. Betty B Coal Co., 13 Black Lung 

Rep. (MB) 1-72 (1990); Belcher v. Beth-Elkhorn Corp., 6 Black 

Lung Rep. (MB) 1-1180 (1984). 

 The Director argues, however, that the regulation in 

question, as well as the DOL's authority to reopen a case, does 

not rely upon an assumption that the claimant's condition can 

improve. Rather, the Director posits that section 718.404(b), 

consistent with the statute, authorizes the OWCP to reopen a case 

only upon a finding of a mistake in the original determination or 

of a change in condition other than recovery from pneumoconiosis. 

 Here, the record does not reveal the specific reasons that 

the Director chose to reopen Plesh's file. The Director's letter 

to Plesh merely states that his file was "found to have certain 

deficiencies." This statement is equivocal as to the Director's 

motivation for reopening Plesh's file. Because our analysis as 

to the timeliness of Plesh's appeal differs substantially from 

that of the BRB's, we have no need to address the following two 

issues, which were not explicitly discussed by either party in 

their briefs. 

 First, neither party has informed us as to whether the 

Director's initial failure to identify the particular "change in 
13 

[Plesh's] condition" or the Director's "mistake in determination 

of fact" precludes a remand to enable the Director to make such a 

finding. See 33 U.S.C. § 922 and supra note 3. Second, neither 

party has informed us as to whether the Director, in claiming a 

"change in condition" or a "mistake in determination of fact," 

bears the burden of proof or only a burden of production. 

 Accordingly, we do not find it necessary to remand for 

further briefing because under our view of Plesh's appeal, we are 

satisfied that his letter received by the Director on March 26, 

1987, in which he stated "I am appealing this as of now," was 

sufficient to effectively appeal the termination of his Part 727 

benefits. Moreover, holding as we do infra that Plesh's appeal 

was timely and effective, our review of the ALJ's findings and 

conclusions persuades us that substantial evidence existed of 

Plesh's continuing pneumoconiosis and total disability --evidence 

which has not been rebutted by the Director. 

IV. 

 For claims filed before April 1, 1980, the DOL's "interim" 

presumptions apply. Plesh filed his initial claim on May 29, 

1979. Under the more liberal Part 727 standards, a presumption 

of total disability due to pneumoconiosis is established if a 

living claimant has worked for more than ten years as a miner and 

meets at least one of four specified medical requirements. See

20 C.F.R. § 727.203(a)(1)-(4).0 If the claimant successfully 

 

0

Section 727.203(a) provides in relevant part: 

A miner who engaged in coal mine employment for at 

least 10 years will be presumed to be totally disabled 

due to pneumoconiosis . . . arising out of [coal mine] 
14 

invokes an interim presumption, the Director bears the burden of 

rebutting the presumption in one of four ways: 

 (1) The evidence establishes that the individual 

is, in fact, doing his usual coal mine work or 

comparable and gainful work . . .; or 

 (2) In light of all relevant evidence it is 

established that the individual is able to do his usual 

coal mine work or comparable and gainful work . . .; or 

 (3) The evidence establishes that the total 

disability or death of the miner did not arise in whole 

or in part out of coal mine employment; or 

 (4) The evidence establishes that the miner does 

not, or did not, have pneumoconiosis. 

Id. at § 727.203(b). 

 If a claimant "files more than one claim for benefits . . ., 

the later claim shall be merged with the earlier claim for all 

purposes if the earlier claim is still pending." Id. at 

§ 725.309(d); see also Tonelli v. Director, OWCP, 878 F.2d 1083, 

1086-87 (8th Cir. 1989). Plesh's claim was properly evaluated 

under Part 727 because his first claim was still pending at the 

 

employment, if one of the following medical 

requirements is met: 

 (1) A chest roentgenogram (X-ray), biopsy, or 

autopsy establishes the existence of pneumoconiosis 

. . .; 

 (2) Ventilatory studies establish the presence of 

a chronic respiratory or pulmonary disease . . . as 

demonstrated by values which are equal to or less than 

the values specified in the following table . . .; 

 (3) Blood gas studies which demonstrate the 

presence of an impairment in the transfer of oxygen 

from the lung alveoli to the blood as indicated by 

values which are equal to or less than the values 

specified in the following table . . .; 

 (4) Other medical evidence, including the 

documented opinion of a physician exercising reasoned 

medical judgment, establishes the presence of a totally 

disabling respiratory or pulmonary impairment . . . . 

20 C.F.R. § 725.203(a)(1)-(4). 
15 

time he filed his second claim. Whether Plesh's first claim 

would be considered still pending depends upon whether Plesh 

effectively appealed the 1989 denial of benefits due under his 

first claim. 

 The ALJ found that Plesh's handwritten letter, which was 

received by the Director on March 26, 1987, and which was written 

in response to the Order to Show Cause, was a proper appeal of 

the order terminating benefits. The BRB disagreed with the ALJ's 

determination of this issue and vacated the ALJ's findings as to 

the timeliness of Plesh's appeal and merger of Plesh's claims. 

 We first note that Plesh's message to the Director, although 

terse and informal, clearly and unequivocally communicated 

Plesh's intent to "appeal . . . as of now." Under the 

regulations, the Director must refer a claim to the Office of 

Administrative Law Judges if a party requests a formal hearing, 

which we deem Plesh's "letter-appeal" to have sought. See 33 

U.S.C. § 919(c) ("The [Director] shall make or cause to be made 

such investigations as he considers necessary in respect of the 

claim, and upon application of any interested party shall order a 

hearing thereon . . . .") (emphasis added); 20 C.F.R. §725.421(a) 

("In any claim for which a formal hearing is requested . . ., the 

[Director] shall refer the claim to the Office of Administrative 

Law Judges for a hearing.") (emphasis added). 

 We are unaware of any mandatory requirements as to the form 

that an appeal must take, other than that it be in writing. Nor 

has the Director apprised us of any such requisites with which 

Plesh has failed to comply. Hence, we conclude that Plesh's 
16 

handwritten note constituted a request for a formal hearing 

before an ALJ, triggering the Director's duty to refer all 

contested issues to an ALJ for resolution. 

 The Director argues, however, that Plesh's request for 

review of the decision to terminate his benefits was ineffective 

because Plesh made the request prior to the entry of a final 

order. In support of this contention, the Director cites several 

regulatory provisions, including section 725.450, which provides: 

Any party to a claim . . . shall have a right to a 

hearing concerning any contested issue of fact or law 

unresolved by the [Director]. There shall be no right 

to a hearing until the processing and adjudication of 

the claim by the [Director] has been completed. There 

shall be no right to a hearing in a claim with respect 

to which a determination of the claim made by the 

[Director] has become final and effective in accordance 

with this part. 

20 C.F.R. § 725.450. 

 The Director also relies on section 725.419(a), which 

provides in part: 

Within 30 days after the date of issuance of a proposed 

decision and order, any party may, in writing, request 

a revision of the proposed decision and order or a 

hearing. If a hearing is requested, the [Director] 

shall refer the claim to the Office of Administrative 

Law Judges. 

Id. at § 725.419(a). The Director also points to the Secretary's 

comments reported in the Federal Register: 

One comment recommends that the [Director] should be 

required to terminate the processing of a claim as soon 

as a hearing is requested, and immediately forward the 

claim for a hearing. 

. . . . 

. . . A party should not be allowed to proceed to a 

hearing before informal procedures are completed. It 

is not appropriate for a hearing to go forward until 

the issues are fully identified and most evidentiary 
17 

development completed. These preliminary activities 

are within the purview of the [Director], and not the 

[ALJ]. 

43 Fed. Reg. 36,797 (Aug. 18, 1978). 

 The Director posits that a claimant cannot exercise his or 

her right to a hearing until after a final determination has been 

made as to the claimant's entitlement to benefits. We agree that 

a claimant is not entitled to a hearing until after the Director 

has "completed development and adjudication [of claimant's 

application for benefits]." 20 C.F.R. § 725.421(a). That is, a 

formal hearing may not be conducted until after the Director has 

made an initial finding as to the claimant's eligibility for 

black lung benefits. 

 Nevertheless, we cannot agree that a premature appeal (that 

is, a hearing request filed before entry of a final order) is 

ineffective as an invocation of a claimant's right to a hearing 

before an ALJ. Notably, none of the regulations cited by the 

Director forbid a claimant from requesting a hearing prior to 

entry of a final order; they merely indicate that the claimant 

cannot "proceed to a hearing before informal procedures are 

completed." 43 Fed. Reg. 36, 797 (Aug. 18, 1978). 

 The Director argues that Plesh was required to take some 

further action after, but within thirty days of, receiving the 

Proposed Decision and Order. Plesh's failure to file a second 

request for a hearing, according to the Director, was fatal. 

 The Director further suggests that the Notice of Appeal 

Rights, which was included with the Proposed Decision and Order, 
18 

should have alerted Plesh to the necessity of submitting a 

written request for a hearing. The notice advised that 

"[f]ailure to appeal with [sic] that thirty (30) day period will 

result in the Order becoming final . . . ." 

 However, Plesh explained, during the hearing before the ALJ, 

that the reason he took no further action (after receiving the 

Proposed Decision and Order and the Notice of Appeal Rights) was 

that he believed he had already appealed the termination of his 

benefits by his letter, which stated "I am appealing this [order] 

as of now." The ALJ found Plesh's testimony on this issue to be 

credible. 

 It is easy to understand how Plesh, who was not represented 

by counsel at the time the Director advised him that his award 

was under reconsideration, could be confused as to the proper 

protocol for appealing the order which terminated his benefits. 

The Proposed Decision and Order bears a striking resemblance to 

the Order to Show Cause. The first four paragraphs of each 

document are identical; and both are printed on DOL letterhead. 

The only significant difference between the two documents was 

that the final order was captioned "Proposed Decision and Order 

of Modification of Award of Benefit" rather than "Order to Show 

Cause." However, a layperson might well fail to discern the 

legal distinction between an Order to Show Cause and a Proposed 

Decision and Order. 

 The Director cites a litany of cases for the proposition 

that an appeal from an order to show cause is premature because 

the order to show cause is not a final order. The Director, 
19 

however, never responded to Plesh's counter-argument that a 

premature request for a hearing can be perfected by the 

subsequent entry of a final order. 

 Indeed, we have taken such an approach in the context of 

premature filings of notices of appeal to this court. We have 

held that an appeal from "an order which is not final but which 

is followed by an order that is final may be regarded as an 

appeal from the final order in the absence of a showing of 

prejudice to the other party." Richerson v. Jones, 551 F.2d 918, 

922 (3d Cir. 1977); see also Cape May Greene, Inc. v. Warren, 698 

F.2d 179, 185 (3d Cir. 1983); New Castle County v. Hartford 

Accident & Indem. Co., 933 F.2d 1162, 1178 (3d Cir. 1991); 

Dowling v. City of Philadelphia, 855 F.2d 136, 138 (3d Cir. 

1988); Hodge v. Hodge, 507 F.2d 87, 89 (3d Cir. 1975). Our own 

appellate rules of procedure, which pertain to certain 

postjudgment motions, have always provided jurisdictional 

deadlines. Yet, even these rules have recently been amended, see

Fed. R. App. P. 4(a)(2) (as amended Apr. 22, 1993, effective Dec. 

1, 1993), to provide for a premature filing of a notice of 

appeal. Federal Rule of Appellate Procedure 4(a)(2) explicitly 

provides that "[a] notice of appeal filed after the court 

announces a decision or order but before the entry of the 

judgment or order is treated as filed on the date of and after 

the entry." 

 We have been given no reason to hold that a premature 

request for a hearing should be treated differently than a 

premature appeal from the decision of a district court. Plesh's 
20 

letter "appealing" from the Order to Show Cause rather than from 

the subsequent final order will accordingly be deemed filed as of 

the date the Director's final order was entered. In our view, 

such a rule does not prejudice the Director. 

 We therefore conclude that the BRB erred in determining that 

Plesh had not appealed the 1987 modification of his first claim. 

In light of our conclusion that Plesh's first claim was still 

pending, we hold that the ALJ properly merged Plesh's second 

filed claim with his earlier first claim and hence properly 

determined that Plesh's claim for benefits should be evaluated 

under the interim presumptions of Part 727. 

V. 

 We next turn to the ALJ's analysis under Part 727. Under 20 

C.F.R. § 727.203(a), a claimant may invoke the presumption of 

entitlement to benefits if the claimant has been engaged in coal 

mine employment for at least ten years and the claimant satisfies 

at least one of five medical requirements.0 Based upon the 

Director's stipulation and Plesh's Social Security record, the 

ALJ credited Plesh with seventeen and three-fourth years of coal 

mine employment. This finding is supported by substantial 

credible evidence. 

 The ALJ found that the x-ray and arterial blood gas study 

evidence insufficient to satisfy the requirements under sections 

727.203(a)(1) and (a)(3). On the other hand, the ALJ found that 

the interim presumption could be invoked based on the pulmonary 

 

0

See supra note 14 for the text of section 727.203(a). 
21 

function study and medical opinion evidence pursuant to 

subsections (a)(2) and (a)(4). Based on our review of the 

record, we conclude that the ALJ's finding that Plesh satisfied 

subsections (a)(2) and (a)(4) is supported by substantial 

evidence. 

 To invoke the presumption based on ventilatory study results 

under section 727.203(a)(2), a claimant who is less than 67 

inches tall must demonstrate FEV1 (forced expiratory volume) 

values equal to or less than 2.3 liters per second and MVV 

(maximum voluntary ventilation) values equal to or less than 92 

liters per minute. Plesh, who is 5' 4" tall, see Jt. App. 380, 

underwent ventilatory study testing on five occasions, from 

December 1979 to July 1989. The ALJ found that the FEV1 values 

ranged from 1.33 to 1.92; and the MVV values ranged from 42 to 

59. Jt. App. 102. Therefore, Plesh was entitled to invoke the 

presumption under subsection (a)(2). 

 To invoke the presumption under subsection (a)(4), a 

claimant may establish the presence of a totally disabling 

respiratory or pulmonary impairment through "[o]ther medical 

evidence, including the documented opinion of a physician 

exercising reasoned medical judgment . . . ." 20 C.F.R. 

§ 727.203(a)(4). The ALJ relied on the reports of Drs. Young and 

Witorsch to conclude that Plesh had established a totally 

disabling respiratory impairment within the meaning of the BLBA. 

Dr. Young, who had examined Plesh in May 1980, concluded that 

Plesh suffered from a moderate respiratory disability. Dr. 

Witorsch, who examined Plesh in July 1989, characterized Plesh's 
22 

respiratory impairment as mild but agreed that Plesh's 

respiratory impairment would prevent him from performing heavy 

manual labor as required in coal mine employment. These medical 

reports constitute substantial evidence supporting the ALJ's 

finding that Plesh could invoke the presumption under subsection 

(a)(4). 

 Once a claimant has successfully invoked the interim 

presumption under section 727.203(a), as Plesh did under 

subsections (a)(2) and (a)(4), the burden of production and 

persuasion shifts to the Director to rebut the presumption in one 

of the four methods set forth in 20 C.F.R. § 727.203(b). The ALJ 

found that the Director had failed to rebut the presumption under 

subsections (b)(1), (b)(2) or (b)(4). Substantial evidence 

supports the ALJ's determination with respect to the Director's 

burden of rebuttal under these subsections.0

 

0

Under subsection (b)(1), the Director may rebut the presumption 

by proving that the claimant is in fact engaged in his usual coal 

mine work or comparable and gainful work. The record reveals 

that Plesh has not worked in a coal mine since 1966; indeed, the 

Director does not contend that rebuttal is established under this 

subsection. 

 Under subsection (b)(2), the Director may rebut the 

presumption if the evidence establishes that the claimant is 

capable of performing his usual coal mine work or comparable and 

gainful work. Dr. Witorsch found that Plesh was unable to engage 

in heavy manual labor because of his respiratory condition; and 

the Director did not offer any evidence to the contrary. 

 Under subsection (b)(4), the interim presumption may be 

rebutted by establishing that the claimant does not have 

pneumoconiosis. First, there is record evidence to support a 

finding that Plesh suffers from pneumoconiosis; for example, Dr. 

Young read Plesh's x-rays as positive for pneumoconiosis. 

Moreover, the Director relies solely on the reports of Drs. 

Witorsch and Corazza to establish rebuttal under this subsection. 

Neither report, however, is sufficient to establish rebuttal. 
23 

 As to subsection (b)(3), however, the ALJ found that the 

Director had established that Plesh's disability did not arise, 

in whole or in part, out of coal mine employment. Under Third 

Circuit precedents, in order to rebut a presumption of 

pneumoconiosis under subsection (b)(3), the party opposing the 

award of benefits must "'rule out' a possible causal connection 

between a miner's disability and his coal mine employment." Kline 

v. Director, OWCP, 877 F.2d 1175, 1179 (3d Cir. 1989) (emphasis 

original). In ruling that the Director had met her burden of 

rebutting the presumption under subsection (b)(3), the ALJ relied 

entirely on Dr. Witorsch's testimony. 

 We cannot agree that Dr. Witorsch's testimony "rules out" a 

possible causal connection between Plesh's disability and his 

employment as a coal mine worker. Dr. Witorsch never 

 

 First, Dr. Witorsch's findings were equivocal. Indeed, he 

concluded that Plesh's x-rays were "consistent" with 

pneumoconiosis and that pulmonary function studies showed some 

mild restrictive pulmonary condition. Dr. Witorsch merely noted 

that a lateral x-ray and additional lung volume tests were 

necessary for a conclusive determination as to the presence of 

pneumoconiosis. 

 Second, Dr. Corazza's opinion was based solely on the fact 

that "[t]here is no evidence of pneumoconiosis on the x-ray." Jt. 

App. 378. As noted by the Supreme Court, however, "significant 

evidence demonstrat[es] that x-ray testing that fails to disclose 

pneumoconiosis cannot be depended upon as a trustworthy indicator 

of the absence of the disease." Usery v. Turner Elkhorn Mining 

Co., 428 U.S. 1, 31-32 (1976). The ALJ properly discounted Dr. 

Corazza's opinion as inconsistent with the BLBA because the 

statute "specifically provides that a presumption of 

pneumoconiosis comes into play even though it cannot be proved by 

x-ray." Black Diamond Coal Mining Co. v. Benefits Review Bd., 

758 F.2d 1532, 1534 (11th Cir. 1995) (holding that ALJ properly 

refused to accredit opinion of physician who stated that he would 

not diagnose pneumoconiosis absent positive x-ray evidence that 

the disease existed). 
24 

affirmatively stated that Plesh's coal mine employment did not 

contribute to his disability. Rather Dr. Witorsch merely 

expressed his reservations about diagnosing the cause of Plesh's 

chronic respiratory disease with any degree of medical certainty. 

Dr. Witorsch's deposition testimony is enlightening: 

 Q: [D]o you believe that Mr. Plesh has a chronic 

lung disease significantly related to or substantially 

aggravated by coal dust exposure? 

 A: I'm not certain that he does. He has a 

chronic lung disease but I can't say with any degree of 

medical certainty that it relates to his coal dust 

exposure. 

. . . . 

 Q: Is that statement [in Dr. Diggs's medical 

report] consistent with a chronic lung disease 

significantly related to or substantially aggravated by 

coal dust exposure? 

 A: It is consistent with it but not diagnostic of 

it. . . . [W]e'd need at least a lateral x-ray [to 

make such a diagnosis]. 

. . . . 

 Q: Are these findings [in your July 5 report] 

consistent with a chronic lung disease significantly 

related to or substantially aggravated by coal dust 

exposure? 

 A: Again, they are consistent with it but not 

diagnostic of it. . . . 

. . . . 

 Q: Does Mr. Plesh's history of coal dust exposure 

support a determination that he has a coal dust related 

impairment? 

 A: I think it neither supports it or refutes it. 

It is consistent with his -- at least it indicates that 

he had exposure but it's only supportive in the sense 

that if he never worked in a coal mine or never had any 

exposure, it would be very inconsistent with that. 
25 

. . . . 

 Q: Can you rule out the causal contribution of 

the restrictive impairment to his lung impairment? 

 A: Well, I think if he has any, it's at most, 

very slight and I think he probably doesn't have any. 

And the reason I say that is his predominant impairment 

is air flow obstruction . . . . So, any contribution 

of any restrictive impairment would be negligible to 

very small. 

. . . . 

 Q: You say the contribution is uncertain? 

 A: It -- I couldn't be a hundred percent certain 

from a scientific point of view. 

 Q: Okay, so forgive me if I'm trying to -- I 

don't want to put words in your mouth but I want you to 

address specifically, can you rule out the causal 

contribution? 

 A: I cannot absolutely rule it out with this 

information [i.e. without further tests]. 

Jt. App. 271-79. 

 Dr. Witorsch's testimony cannot be read to "rule out" coal 

workers' pneumoconiosis as a contributing factor to Plesh's 

disability. Rather, Dr. Witorsch merely stated that he could not 

confirm the extent to which pneumoconiosis contributed to Plesh's 

respiratory ailment. In fact, Dr. Witorsch, on several 

occasions, opined that the medical evidence was consistent with 

coal workers' pneumoconiosis. 

 We were faced with a similar set of facts in Kline v. 

Director, OWCP, 877 F.2d 1175 (3d Cir. 1989). In that case, the 

ALJ found that the claimant had established the presumption under 

section 727.203(a). However, the ALJ concluded that the 

presumption was rebutted under subsections (b)(3) and (b)(4) 
26 

based upon the testimony of Dr. McQuillan. Id. at 1177. Dr. 

McQuillan reviewed the medical records and concluded that the 

miner's pulmonary condition was due to advanced tuberculosis, 

stating that he was "unable to substantiate a disabling diagnosis 

of pneumoconiosis in this case." Id. at 1178. The BRB affirmed, 

finding that the ALJ had "properly credited the opinion of Dr. 

McQuillen [sic]." Id. at 1177. 

 We reversed, holding that Dr. McQuillan's opinion was 

insufficient to rebut the presumption. We explained that "Dr. 

McQuillan's strongest statement is that he was not able to 

substantiate a diagnosis of pneumoconiosis. The fact that Dr. 

McQuillan could not confirm pneumoconiosis does not suggest that 

such a condition is inconsistent with the medical evidence." Id.

at 1179. 

 Similarly, in the case at bar, Dr. Witorsch's testimony that 

he could not conclude with any degree of medical certainty that 

Plesh's condition was caused by coal dust exposure does not 

establish the lack of a causal connection. Indeed, Dr. Witorsch 

requested the DOL's permission to perform additional tests 

(lateral x-rays and lung volume tests) to ascertain whether 

Plesh's chronic respiratory problems were related to coal dust 

exposure. Dr. Witorsch's request was denied, and the record does 

not reveal the reasons for the denial. However, the fact that 

Dr. Witorsch requested these tests indicates at the very least 

that Dr. Witorsch was uncertain as to whether Plesh suffered from 

pneumoconiosis arising out of coal mine employment. 
27 

 Therefore, we conclude that the ALJ's finding of rebuttal 

under subsection (b)(3) is not supported by substantial evidence. 

The interim presumption under section 727.203(a) consequently 

remains unrebutted. Thus, Plesh is entitled to benefits under 

the BLBA. 

VI. 

 In sum, we conclude that the record establishes Plesh's 

entitlement to black lung benefits as a matter of law. We will 

therefore reverse the BRB's decision and order and remand this 

case solely for reinstatement of Plesh's benefits, which had been 

erroneously terminated.