, and did not apply the amended regulations in its disability analysis under § 718.204. In this vein, the court stated that, assuming the miner suffered from pneumoconiosis, the court would find it difficult to conclude that the miner was totally disabled by the disease:
Given his many other ailments it is hard to see how it could have been, for the other problems appear to be sufficient to cause disability (implying that pneumoconiosis was not a necessary condition of disability). (citations omitted).
Moreover, the court found that it was "irrational" to accord greater weight on this issue to the opinion of a treating physician, who may not be a specialist. The court stated:
Treating physicians often succumb to the temptation to accommodate their patients (and their survivors) at the expense of third parties such as insurers, which implies attaching a discount rather than a preference to their views.
C. Methods of demonstrating total disability
Benefits are provided under the Act for or on behalf of miners who are totally disabled due to pneumoconiosis. 20 C.F.R. § 718.204(a). The regulations at § 718.204(b) provide the following five methods to establish total disability: (1) pulmonary function (ventilatory) studies; (2) blood gas studies; (3) evidence of cor pulmonale; (4) reasoned medical opinions; and (5) lay testimony. 20 C.F.R. § 718.204(b). However, it is noted that in a living miner's claim, lay testimony "is not sufficient, in and of itself, to establish total disability." Tedesco v. Director, OWCP, 18 B.L.R. 1-103 (1994). For the use of lay testimony in a survivor's claim, see Chapter 17.
1. Pulmonary function (ventilatory) studies
The quality standards for pulmonary function studies are found at 20 C.F.R. § 718.103. The standards require that the studies be accompanied by three tracings of each test performed, FEV1, FVC, and MVV. The standards also require that a statement signed by the physician or technician indicate the following: (1) date and time of test; (2) name, claim number, age, height, and weight of the claimant; (3) name of the technician; (4) signature of the physician supervising the test; (5) the claimant's ability to understand the instructions, ability to follow directions, and degree of cooperation in performing the tests; (6) paper speed; (7) name of the instrument used; (8) whether a bronchodilator was used; and (9) that the test is in compliance with the quality standards. 20 C.F.R. § 718.103(b).
It is noteworthy that the Board and some circuit courts have emphasized that pulmonary function and blood gas testing measure different types of impairment. In Tussey v. Island Creek Coal Co., 982 F.2d 1036, 1040-41 (6th Cir. 1993), the court noted that the Board has held that the results of blood gas and pulmonary function testing "may consistently have no correlation since coal workers' pneumoconiosis may manifest itself in different types of pulmonary impairment.'" The court cited to Gurule v. Director, OWCP, 2 B.L.R. 1-772, 1-777 (1979), aff'd., 653 F.2d 1368 (10th Cir. 1981). See also Sheranko v. Jones and Laughlin Steel Corp., 6 B.L.R. 1-797, 1-798 (1984) (blood gas studies and ventilatory studies measure different types of impairment).
2. Blood gas studies
The quality standards for blood gas studies are found at 20 C.F.R. § 718.105. The standards require that no blood gas study shall be performed if medically contraindicated. 20 C.F.R. § 718.105(a). A blood gas study shall initially be administered at rest and in a sitting position. If the results of the blood gas test at rest do not satisfy the requirements of Appendix C, an exercise blood gas test shall be offered unless medically contraindicated. 20 C.F.R. § 718.105(b). The report of the blood gas study shall specify: (1) date and time of test; (2) altitude and barometric pressure; (3) name and claim number of the claimant; (4) name and signature of the physician; (6) recorded values for PCO2, PO2, and pH collected at rest and if performed, during exercise; (7) duration and type of exercise; (8) pulse rate; (9) time between drawing of sample and analysis of sample; and (10) whether the equipment was calibrated before and after each test. 20 C.F.R. § 718.105(c).
It is noteworthy that the Board and some circuit courts have emphasized that pulmonary function and blood gas testing measure different types of impairment. In Tussey v. Island Creek Coal Co., 982 F.2d 1036, 1040-41 (6th Cir. 1993), the court noted that the Board has held that the results of blood gas and pulmonary function testing "may consistently have no correlation since coal workers' pneumoconiosis may manifest itself in different types of pulmonary impairment.'" The court cited to Gurule v. Director, OWCP, 2 B.L.R. 1-772, 1-777 (1979), aff'd., 653 F.2d 1368 (10th Cir. 1981). See also Sheranko v. Jones and Laughlin Steel Corp., 6 B.L.R. 1-797, 1-798 (1984) (blood gas studies and ventilatory studies measure different types of impairment).
3. Cor pulmonale
As the pulmonary disease progresses to produce greater pulmonary functional derangement, it produces dysfunction of the pulmonary blood vessels. The resistance to blood flow in the pulmonary vessels rises, causing an elevation in the pressure in the pulmonary artery, putting severe stress on the right ventricle of the heart which eventually fails. Heart disease which is secondary to chronic lung disease is known as cor pulmonale, and this form of failure of the circulation is known as congestive heart failure. A miner's total disability may be established where the miner has pneumoconiosis and has been shown by the medical evidence to be suffering from cor pulmonale with right-sided congestive heart failure. 20 C.F.R. § 718.204(c)(3).
4. Reasoned medical opinions
Where total disability cannot be established under paragraphs (c)(1), (2), or (3), or where pulmonary function tests and/or blood gas studies are medically contraindicated, total disability may nevertheless be found if a physician exercising reasoned medical judgment, based on medically acceptable clinical and laboratory diagnostic techniques, concludes that a miner's respiratory or pulmonary condition prevents the miner from engaging in his usual or comparable coal mine employment. 20 C.F.R. § 718.204(c)(4). Under § 718.204(c)(4), "all the evidence relevant to the question of total disability due to pneumoconiosis is to be weighed, with the claimant bearing the burden of establishing by a preponderance of the evidence the existence of this element." Mazgaj v. Valley Camp Coal Co., 9 B.L.R. 1-201, 1-204 (1986).
a. Burden of proof
In assessing total disability under § 718.204(c)(4), the administrative law judge, as the fact-finder, is required to compare the exertional requirements of the claimant's usual coal mine employment with a physician's assessment of the claimant's respiratory impairment. Cornett v. Benham Coal, Inc., 227 F.3d 569, Case No. 99-3469 (6th Cir. Sept. 7, 2000) (a finding of total disability may be made by a physician who compares the exertional requirements of the miner's usual coal mine employment against his physical limitations); Schetroma v. Director, OWCP, 18 B.L.R. 1-19 (1993) (a qualified opinion regarding the miner's disability may be given less weight). See also Scott v. Mason Coal Co., 14 B.L.R. 1-37 (1990)(en banc on recon.). Once it is demonstrated that the miner is unable to perform his or her usual coal mine work, a prima facie finding of total disability is made and the party opposing entitlement bears the burden of going forth with evidence to demonstrate that the miner is able to perform "comparable and gainful work" pursuant to § 718.204(c)(2). Taylor v. Evans & Gambrel Co., 12 B.L.R. 1-83 (1988).
b. Nonrespiratory, nonpulmonary impairments
In Jewell Smokeless Coal Corp. v. Street, 42 F.3d 241 (4th Cir. 1994), the Fourth Circuit concluded that "nonrespiratory and nonpulmonary impairments have no bearing on establishing total disability due to pneumoconiosis." Rather, the miner must demonstrate that he "has a totally disabling respiratory and pulmonary condition . . . and show that his pneumoconiosis is a contributing cause to this total disability."
Similarly, the Board has held that nonrespiratory and nonpulmonary impairments are irrelevant to establishing total disability under § 718.204(c). Beatty v. Danri Corp., 16 B.L.R. 1-11 (1991), aff'd. 49 F.3d 993 (3d Cir. 1995). It is noted that, in Carson v. Westmoreland Coal Co., 20 B.L.R. 1-64 (1996), mod'g. on recon., 19 B.L.R. 1-16 (1994), the Board concluded that the following holding was an error and struck the language from its prior decision:
The disabling loss of lung function due to extrinsic factors, e.g., loss of muscle function due to stroke, does not constitute respiratory or pulmonary disability pursuant to 20 C.F.R. § 718.204(c).
See also 20 C.F.R. § 718.204(a) (Dec. 20, 2000) (non-respiratory and non-pulmonary impairments, which cause an independent disability unrelated to the miner's pulmonary or respiratory condition, "shall not be considered in determining whether the miner is totally disabled due to pneumoconiosis").
For a discussion of non-respiratory and non-pulmonary impairments under the amended regulations, see the discussion at pages 17-18 of this Chapter, supra.
5. Lay testimony
In a living miner's claim, lay testimony cannot support the finding of a totally disabling respiratory impairment in the absence of corroborating medical evidence. For example, in Madden v. Gopher Mining Co., 21 B.L.R. 1-122 (1999), the administrative law judge properly found no "material change in conditions" in a miner's claim filed after 1982 under § 725.309. In so holding, the Board rejected Claimant's argument that the administrative law judge's failure to consider and weigh Claimant's testimony regarding the miner's extreme difficulty in "'performing even the simplest of tasks'"was error. Rather, the Board held that "lay testimony offered by claimant at the hearing . . . is generally insufficient to establish total disability unless it is corroborated by at least a quantum of medical evidence." Moreover, in Milburn Colliery Co. v. Director, OWCP [Hicks], 138 F.3d 524 (4th Cir. 1998), the court held that "[w]hile relevant to the issue of whether there is a totally disabling respiratory impairment, a miner's own statements about his history of coal mine employment or symptoms of pneumoconiosis are not conclusive in resolving conflicting medical opinion evidence." The court then stated that "the length of a miner's coal mine employment does not compel the conclusion that the miner's disability was solely respiratory" and the "mere presence of pneumoconiosis (by x-ray) is not synonymous with a totally disabling respiratory condition."
In a case involving a deceased miner in which a claim was filed prior to January 1, 1982, and where there is no medical or other relevant evidence, affidavits from persons knowledgeable of the miner's physical condition shall be sufficient to establish total disability. 20 C.F.R. § 718.204(c)(5); Fields v. Island Creek Coal Co., 10 B.L.R. 1-19, 1-22 (1987). The medical or other relevant evidence refers to evidence "relevant to the existence of, or disability due to, a respiratory or pulmonary impairment." Gessner v. Director, OWCP, 11 B.L.R. 1-1, 1-3 (1987). The use of lay testimony alone is available only on claims filed prior to January 1, 1982, and only in the case of a deceased miner. In the case of a living miner's claim, a finding of total disability shall not be made solely on the miner's statements or testimony. 20 C.F.R. § 718.204(d)(2). For further discussion of the use of lay testimony in survivors' claims, see Chapter 16. See also 20 C.F.R. § 718.204(d) (Dec. 20, 2000).
VI. Etiology of total disability
[ VII(E) ]
Unless one of the presumptions at §§ 718.304, 718.305, or 717.306 is applicable, a miner with less than 15 years of coal mine employment, must establish that his or her total disability is due, at least in part, to pneumoconiosis. The Board has held that "[i]t is [the] claimant's burden pursuant to § 718.204 to establish total disability due to pneumoconiosis . . . by a preponderance of the evidence." Baumgartner v. Director, OWCP, 9 B.L.R. 1-65, 1-66 (1986); Gee v. Moore & Sons, 9 B.L.R. 1-4, 1-6 (1986)(en banc).
A. "Contributing cause" standard
1. Prior to applicability of December 2000 regulations
The following list of cases are those which set forth variations of the "contributing cause" standard delineated by the Board and circuit courts:
- Benefits Review Board. The Board requires that pneumoconiosis be a "contributing cause" to the miner's disability. Scott v. Mason Coal Co., 14 B.L.R. 1-37 (1990) (en banc), overruling Wilburn v. Director, OWCP, 11 B.L.R. 1-135 (1988).
It is noteworthy that, in Billings v. Harlan #4 Coal Co., BRB No. 94-3721 BLA (June 19, 1997)(en banc)(unpublished), the Board stated the following:
Contrary to employer's argument, the issues of total disability and causation are independent; therefore, the administrative law judge was not required to reject Dr. Baker's August 23, 1991 opinion on causation simply because the doctor did not consider claimant's respiratory impairment at that time to be totally disabling.
- Third Circuit. The Third Circuit requires that pneumoconiosis be a "substantial contributor" to the miner's total disability. Bonessa v. U.S. Steel Corp., 884 F.2d 726, 734 (3d Cir. 1989).
- Fourth Circuit. Pneumoconiosis must be a "contributing cause" to the miner's disability. Hobbs v. Clinchfield Coal Co., 917 F.2d 790, 792 (4th Cir. 1990); Robinson v. Pickands Mather & Co., 914 F.2d 35, 38 (4th Cir. 1990). In Jewell Smokeless Coal Corp. v. Street, 42 F.3d 241 (4th Cir. 1994), the Fourth Circuit concluded that "nonrespiratory and nonpulmonary impairments have no bearing on establishing total disability due to pneumoconiosis." Rather, the miner must demonstrate that he "has a totally disabling respiratory or pulmonary condition . . . and show that his pneumoconiosis is a contributing cause to this total disability."
In Milburn Colliery Co. v. Director, OWCP [Hicks], 138 F.3d 524 (4th Cir. 1998), the court concluded that the administrative law judge erred in stating that, even if Claimant's cardiac condition was the primary cause of his total disability, it was not the exclusive cause. Citing to Jewell Smokeless Coal Corp. v. Street, 42 F.3d 241, 243 (4th Cir. 1994), the court "rejected the argument that '[a] miner need only establish that he has a total disability, which may be due to pneumoconiosis in combination with nonrespiratory and nonpulmonary impairments.'" Thus, the court held that, even if it is determined that Claimant suffers from a totally disabling respiratory condition, he "will not be eligible for benefits if he would have been totally disabled to the same degree because of his other health problems."
- Sixth Circuit. The Sixth Circuit requires that total disability be "due at least in part" to pneumoconiosis. Adams v. Director, OWCP, 886 F.2d 818, 825 (6th Cir. 1989); Zimmerman v. Director, OWCP, 871 F.2d 564, 566 (6th Cir. 1989); Roberts v. Benefits Review Board, 822 F.2d 636, 639 (6th Cir. 1987). However, in Peabody Coal Co. v. Smith, 127 F.3d 504, 507 (6th Cir. 1997), the Sixth Circuit held that, although pneumoconiosis need only be a "contributing cause" to the miner's total disability, a claimant must demonstrate that the disease was more than a de minimus or "infinitesimal" factor in the miner's total disability.
- Seventh Circuit. Pneumoconiosis must be a "simple contributing cause" of the miner's total disability (pneumoconiosis must be a necessary, but need not be a sufficient, cause of miner's total disability). Hawkins v. Director, OWCP, 907 F.2d 697, 707 (7th Cir. 1990); Shelton v. Director, OWCP, 899 F.2d 690, 693 (7th Cir. 1990).
- Tenth Circuit. The Tenth Circuit requires that the pneumoconiosis be "at least a contributing cause." Mangus v. Director, OWCP, 882 F.2d 1527, 1531 (10th Cir. 1989) (emphasis added).
- Eleventh Circuit. The Eleventh Circuit requires that pneumoconiosis be a "substantial contributor" to the miner's total disability. Lollar v. Alabama By-Products, Corp., 893 F.2d 1258, 1265 (11th Cir. 1990).
2. After applicability of December 2000 regulations
The amended regulations at § 718.204(c) contain a standard for determining whether total disability is caused by the miner's pneumoconiosis and provides the following:
(c)(1) Total disability due to pneumoconiosis defined. A miner shall be considered totally disabled due to pneumoconiosis if pneumoconiosis, as defined in Sec. 718.201, is a substantially contributing cause of the miner's totally disabling respiratory or pulmonary impairment. Pneumoconiosis is a 'substantially contributing cause" of the miner's disability if it: (i) Has a material adverse effect on the miner's respiratory or pulmonary condition; or (ii) Materially worsens a totally disabling respiratory or pulmonary impairment which is caused by a disease or exposure unrelated to coal mine employment.
(2) Except as provided in Sec. 718.305 and paragraph (b)(2)(iii) of this section, proof that the miner suffers or suffered from a totally disabling respiratory or pulmonary impairment as defined in paragraphs (b)(2)(i), (b)(2)(ii), (b)(2)(iv) and (d) of this section shall not, by itself, be sufficient to establish that the miner's impairment is or was due to pneumoconiosis. Except as provided in paragraph (d), the cause or causes of a miner's total disability shall be established by means of a physician's documented and reasoned medical report.
20 C.F.R. § 718.204(c) (Dec. 20, 2000) (emphasis added).
In its comments, the Department noted that addition of the word "material" or "materially" to the foregoing provisions reflects the view that "evidence that pneumoconiosis makes only a negligible, inconsequential, or insignificant contribution to the miner's total disability is insufficient to establish that pneumoconiosis is a substantially contributing cause to that disability." Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, 65 Fed. Reg. 79,946 (Dec. 20, 2000).
B. Blood gas and ventilatory studies irrelevant
With respect to the use of blood gas studies and pulmonary function (ventilatory) studies, "the Board consistently has held that pulmonary function studies and blood gas studies are not diagnostic of the etiology of the respiratory impairment, but are diagnostic only of the severity of the impairment." Tucker v. Director, OWCP, 10 B.L.R. 1-35, 1-41 (1987). As a result, the Board concluded that "a claimant who establishes the existence of total disability pursuant to subsections (c)(1) or (c)(2) of 20 C.F.R. § 718.204 with pulmonary function studies or blood gas studies . . ., has not also established that the total disability is due to pneumoconiosis." Id. at 1-41 and 1-42. The claimant must also establish, by a preponderance of the evidence, that the impairment evidenced by pulmonary function studies and blood gas studies was caused by pneumoconiosis.
C. Weighing medical opinion evidence
In reviewing the medical opinion evidence regarding etiology, it is noteworthy that those opinions wherein the physicians did not diagnose the miner as suffering from pneumoconiosis may be accorded little probative value. In Hobbs v. Clinchfield Coal Co., 45 F.3d 819 (4th Cir. 1995), the court held that the administrative law judge's finding that the miner's total disability was not due to pneumoconiosis was supported by substantial evidence as "[t]he medical opinions upon which he relied most strongly were not tainted by underlying conclusions of no pneumoconiosis pursuant to the broad legal definition contained in 20 C.F.R. § 718.201." On the other hand, in Toler v. Eastern Assoc. Coal Co., 43 F.3d 109 (4th Cir. 1995), the court held that, where the administrative law judge determines that a miner suffers from pneumoconiosis or is totally disabled or both, then a medical opinion wherein the miner is determined not to suffer from pneumoconiosis or is not totally disabled "can carry little weight" in assessing the etiology of the miner's total disability "unless the ALJ can and does identify specific and persuasive reasons for concluding that the doctor's judgment on the question of disability causation does not rest upon her disagreement with the ALJ's finding as to either or both of the predicates (pneumoconiosis and total disability) in the causal chain."
VII. Applicability of Parts 410 and 727 and § 410.490
As Part 718 contains the permanent black lung regulations for the Department of Labor, a case which is properly adjudicated and denied under Part 718 need not be considered under any other regulatory scheme.
[ENDNOTES]
1 The Board has also held that all evidence relevant to the existence of pneumoconiosis must be considered and weighed. In Mabe v. Bishop Coal Co., 9 B.L.R. 1-67 (1986), the Board upheld a finding that the claimant had not established the existence of pneumoconiosis even where the x-ray evidence of record was positive. The Board concluded that the "administrative law judge's assignment of less weight to the record's positive x-rays was rational and based on substantial evidence," where "the weight of other medical evidence indicat[ed] that claimant's impairment was due to interstitial fibrosis of unknown etiology." Id. at 1-68.
2 Possibly the court felt that the administrative law judge provided reasons for according greater weight to the prosector's opinion which were in contravention of the court's recent ruling in Bill Branch Coal Corp. v. Sparks, 213 F.3d 186 (4th Cir. 2000) (it is improper to accord greater weight to the prosector's opinion solely on the basis that s/he reviewed the miner's entire respiratory system).
3 At the time the Seventh Circuit's decision was issued, application of the amended regulations was stayed by the U.S. District Court in Nat'l. Mining Ass'n., et al. v. Chao, Civil Action No. 00-3086 (D. D.C. 2001).