PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DOUBLE B MINING, INCORPORATED,
Petitioner,

v.

LLOYD BLANKENSHIP; DIRECTOR,
                                                                   No. 98-1206
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(96-1444-BLA)

Argued: December 2, 1998

Decided: May 21, 1999

Before ERVIN and NIEMEYER, Circuit Judges, and
HILTON, Chief United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Ervin and Chief Judge Hilton joined.

_________________________________________________________________

COUNSEL

ARGUED: Ronald Eugene Gilbertson, KILCULLEN, WILSON &
KILCULLEN, Washington, D.C., for Petitioner. Sarah Marie Hurley,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondent Director; Joseph E. Wolfe, WOLFE & FARMER,
Norton, Virginia, for Respondent Blankenship. ON BRIEF: Marvin
Krislov, Deputy Solicitor for National Operations, Donald E. Shire,
Associate Solicitor, Patricia M. Nece, Counsel for Appellate Litiga-
tion, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondent Director. Vernon M. Williams, Bobby S. Bel-
cher, Jr., WOLFE & FARMER, Norton, Virginia, for Respondent
Blankenship.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Under the Black Lung Benefits Act, a coal miner is entitled to an
irrebuttable presumption that he is totally disabled due to pneumoco-
niosis if he is able to show that he has "complicated pneumoconiosis"
as defined by the Act. Because the administrative law judge failed to
apply the statutory criteria for finding complicated pneumoconiosis in
this case, we remand this case for further proceedings.

I

For over 20 years, Lloyd Blankenship worked as a coal miner for
Double B Mining, Inc. in Grundy, Virginia. Acting on the advice of
Dr. Emory Robinette, Blankenship stopped working in 1990 and
underwent surgery to remove the lower portion of his left lung. Speci-
mens taken from the removed lung were examined by Dr. J. W. Fer-
guson, a pathologist, who concluded that Blankenship was suffering
from "anthrasilocotic pneumoconiosis with massive fibrosis."

Blankenship filed an application for black lung benefits, and the
Department of Labor denied his claim. Following a hearing before an
administrative law judge ("ALJ"), however, the ALJ found that
Blankenship was totally disabled due to pneumoconiosis, applying 20
C.F.R. § 718.204(c)(4) (providing for total disability when "a miner's
respiratory or pulmonary condition prevents or prevented the miner
from engaging in employment"). The ALJ based his disability finding
on the opinion testimony of Dr. Robinette.

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Although Dr. Robinette found that Blankenship suffered from com-
plicated coal workers' pneumoconiosis, he did not find that Blanken-
ship was totally disabled. On the complicated pneumoconiosis issue,
Dr. Robinette asserted that "a number of clinicians recognize compli-
cated pneumoconiosis as representing a mass greater than 1 cm in
size," implying that the 1.3 centimeter nodule found on Blankenship's
lung was sufficient to indicate complicated pneumoconiosis.

Double B Mining offered the testimony of Dr. Echols Hansbarger,
Jr., who based his opinion on the materials developed by Dr. Fergu-
son's biopsy. Dr. Hansbarger stated that while he agreed generally
with Dr. Ferguson's pathology findings, he did not agree with the
diagnosis of "massive fibrosis" and found no evidence of "compli-
cated Coal Workers' Pneumoconiosis." Dr. Hansbarger asserted that
complicated pneumoconiosis exists where there are nodules on the
lungs that are larger than two centimeters in greatest dimension. He
stated that the largest nodule on Blankenship's lungs was 1.3 centime-
ters in greatest dimension. He concluded that Blankenship had "Sim-
ple Coal Workers' Pneumoconiosis" and also that he had no
restriction in pulmonary function. Drs. Dale Sargent, James Castle,
and Gregory Fino also testified on behalf of Double B Mining, con-
cluding that Blankenship suffered only from simple, not complicated,
pneumoconiosis.

On appeal to the Benefits Review Board, the Board vacated the
ALJ's opinion, finding that the ALJ had erred in relying on Dr. Robi-
nette's statements for the proposition that Blankenship was totally
disabled, because Dr. Robinette had not offered any such opinion.
The Board, however, remanded the case for reconsideration under the
regulation for complicated pneumoconiosis, 20 C.F.R.§ 718.304,
which provides that there is "an irrebuttable presumption that a miner
is totally disabled due to pneumoconiosis" if a biopsy diagnoses him
with "massive lesions in the lung." The Board instructed the ALJ first
to examine the evidence in light of § 718.304 and then, if § 718.304
were determined to be inapplicable, to reexamine the evidence in light
of § 718.204(c)(4), under which the ALJ had originally considered the
matter.

On remand, the ALJ found that Blankenship had complicated pneu-
moconiosis, noting that Dr. Ferguson's diagnosis of"anthrasilocotic

                    3
pneumoconiosis with massive fibrosis" was sufficient to satisfy the
"massive lesions" requirement and to trigger the irrebuttable presump-
tion under 20 C.F.R. § 718.304(b). The ALJ noted, "Granted, Dr. Fer-
guson did not use the exact legislative words of art, but his finding[s]
by biopsy are sufficient to fall within the criteria[for complicated
pneumoconiosis] established by Congress in Section 718.304(b) for
purposes of meeting Claimant's burden of proof." The ALJ rejected
Dr. Hansbarger's opinion that complicated pneumoconiosis could
only be diagnosed where there is a nodule larger than two centimeters
in greatest dimension, stating, "Whether medically correct or not, Dr.
Hansbarger's personal criteria is [sic] irrelevant."

On appeal for the second time, the Board affirmed the ALJ, endors-
ing both his reliance on Dr. Ferguson's diagnosis of"massive fibro-
sis" to find complicated pneumoconiosis and his rejection of Dr.
Hansbarger's opinion. The Board stated that the ALJ"properly
rejected Dr. Hansbarger's opinion that the nodules must be larger than
two centimeters for a pathological finding of complicated pneumoco-
niosis because this is not supported by the `legislative criteria.'"

This appeal followed.

II

Section 921(c)(3) of the Black Lung Benefits Act, describing what
is often called "complicated pneumoconiosis," creates an irrebuttable
presumption that a coal miner is totally disabled due to pneumoconio-
sis if (A) an x-ray of the miner's lungs shows at least one opacity
greater than one centimeter in diameter; (B) a biopsy reveals "massive
lesions" in the lungs; or (C) a diagnosis by other means reveals a
result equivalent to (A) or (B). See 30 U.S.C. § 921(c).* The regula-
_________________________________________________________________
*Section 921(c)(3) provides in full:

          If a miner is suffering or suffered from a chronic dust disease of
          the lung which (A) when diagnosed by chest roentgenogram,
          yields one or more large opacities (greater than one centimeter
          in diameter) and would be classified in category A, B, or C in
          the International Classification of Radiographs of the Pneumo-
          conioses by the International Labor Organization, (B) when

                    4
tions implementing the statute employ virtually the same language.
See 20 C.F.R. § 718.304; cf. 20 C.F.R. § 410.418 (defining similarly
"complicated pneumoconiosis" for Social Security purposes). A miner
thus "afflicted with complicated pneumoconiosis, is `irrebuttably pre-
sumed' to be totally disabled due to pneumoconiosis." Usery v. Tur-
ner Elkhorn Mining Co., 428 U.S. 1, 10-11 (1976); see also Lester v.
Director, Office of Workers' Compensation Programs , 993 F.2d
1143, 1144 (4th Cir. 1993); Adkins v. Director, Office of Workers'
Compensation Programs, 958 F.2d 49, 50 (4th Cir. 1992).

Because clauses (A), (B), and (C) of § 921(c)(3) are three different
ways of diagnosing complicated pneumoconiosis, in construing the
requirements of each, one must perform equivalency determinations
to make certain that regardless of which diagnostic technique is used,
the same underlying condition triggers the irrebuttable presumption.
In other words, the same condition that triggers the presumption by
producing opacities greater than one centimeter in diameter on an x-
ray should be considered "massive lesions" under the statute if diag-
nosed through biopsy. By explicitly referencing prongs (A) and (B)
as guides, prong (C) of the statute requires "plainly that equivalency
determinations shall be made." Clites v. Jones & Laughlin Steel
Corp., 663 F.2d 14, 16 (3d Cir. 1981). Logic commands that prongs
(A) and (B) be similarly equivalent. Any other rule would lead to the
irrational result that the determination of whether a miner has totally
disabling pneumoconiosis could turn on the method of diagnosis
rather than on the severity of his disease.

Because prong (A) sets out an entirely objective scientific standard,
it provides the mechanism for determining equivalencies under prong
_________________________________________________________________
          diagnosed by biopsy or autopsy, yields massive lesions in the
          lung, or (C) when diagnosis is made by other means, would be
          a condition which could reasonably be expected to yield results
          described in clause (A) or (B) if diagnosis had been made in the
          manner prescribed in clause (A) or (B), then there shall be an
          irrebuttable presumption that he is totally disabled due to pneu-
          moconiosis or that his death was due to pneumoconiosis, or that
          at the time of his death he was totally disabled by pneumoconio-
          sis, as the case may be.

                    5
(B) or prong (C). In prong (A), Congress mandated that the condition
that triggers the irrebuttable presumption is one that creates, on an x-
ray, at least one opacity greater than one centimeter in diameter.
When that condition is diagnosed by biopsy rather than x-ray, it must
therefore be determined whether the biopsy results show a condition
that would produce opacities of greater than one centimeter in diame-
ter on an x-ray. That is to say, "massive lesions," as described in
prong (B), are lesions that when x-rayed, show as opacities greater
than one centimeter in diameter.

It has frequently been expressed in the medical community and by
the Benefits Review Board that at least one lesion of two centimeters
or greater in diameter is the minimum requirement for establishing
"massive lesions" and thereby invoking the irrebuttable presumption.
For this reason, in Riddle v. Director, Office of Workers' Compensa-
tion Programs, No. 95-1292 1995 WL 715303, at *2 (4th Cir. Dec.
6, 1995) (unpublished), we agreed with the Director, the ALJ, and the
Benefits Review Board that a fibrotic nodule measuring 1.8 centime-
ters in diameter by autopsy did not constitute "massive lesions" as
prescribed by the statute. Additionally, the Pneumoconiosis Commit-
tee of the College of American Pathologists long ago set two centime-
ters as the minimum diameter for a lesion to constitute complicated
pneumoconiosis. See Jerome Kleinerman, Pathology Standards for
Coal Workers Pneumoconiosis: Report of the Pneumoconiosis Com-
mittee of the College of American Pathologists to the National Insti-
tute for Occupational Safety and Health, 103 Archives of Pathology
& Laboratory Medicine 379 (1979); see also Allen R. Prunty & Mark
E. Solomons, The Federal Black Lung Program: Its Evolution and
Current Issues, 91 W. Va. L. Rev. 665, 673 n.22 (1989) (noting that
complicated pneumoconiosis "is diagnosed by x-ray evidence of sim-
ple pneumoconiosis plus larger lesions (nodules) of disease, at least
one centimeter in size" or "diagnosed by biopsy or autopsy evidence
of massive lesions, usually two centimeters or larger" (citations omit-
ted)). The two-centimeter standard recognizes the fact that "nodules
are generally larger on autopsy examination than they appear on a
chest radiograph." N. LeRoy Lapp, M.D., A Lawyer's Medical Guide
to Black Lung Litigation, 83 W. Va. L. Rev. 721, 736 (1981).

We decline, however, to impose the two-centimeter rule on the
Benefits Review Board. The statute does not mandate use of the med-

                    6
ical definition of complicated pneumoconiosis. Rather, it requires, if
diagnosis is by biopsy, that a miner have "massive lesions," which,
as we have noted, are lesions that would show on an x-ray as opacities
of at least one centimeter. In short, 30 U.S.C.§ 921(c)(3) requires that
an equivalency determination be made.

We have been presented with nothing in the record of this case to
demonstrate that the ALJ made this equivalency determination as
required by the statute. Dr. Ferguson found a thickened and pig-
mented area measuring two to three centimeters at its greatest dimen-
sion, which he described as a "mass." He diagnosed this to be a
"massive fibrosis." The statute, however, requires a diagnosis of
"massive lesions." See 30 U.S.C. § 921(c)(3). Apparently, the largest
lesion or nodule that Dr. Ferguson found was 1.3 centimeters in diam-
eter. With these findings alone, we conclude that the evidence is
insufficient to determine whether Blankenship had complicated pneu-
moconiosis.

To determine whether Blankenship's condition meets the statutory
criteria, we must remand this case to the Board for remand to the ALJ
to find whether the 1.3-centimeter lesion would, if x-rayed prior to
removal of that portion of Blankenship's lung, have showed as a one-
centimeter opacity.

It may be necessary for an ALJ to make a separate equivalency
determination each time a miner presents evidence of massive lesions
diagnosed by biopsy. On the other hand, it may be possible for the
Department of Labor to engage in a single fact-finding exercise to
determine how large a lesion must be in order to appear on an x-ray
as a greater-than-one-centimeter opacity and thereafter to promulgate
a rule imposing this finding on all future cases. Either way, however,
an equivalency determination must be made.

The decision of the Board in this case is accordingly vacated and
the case remanded for further proceedings consistent with this opin-
ion.

VACATED AND REMANDED

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