                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-9-1995

Beatty v Danri Corp
Precedential or Non-Precedential:

Docket 94-3227




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                            No. 94-3227


                            GENE BEATTY,
                                    Petitioner

                                v.

         DANRI CORPORATION & TRIANGLE ENTERPRISES; and
      DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
               United States Department of Labor,
                                  Respondents



               Petition from Benefits Review Board
                 (Nos. 88-4160 BLA & 92-2154 BLA)


                    Argued January 11, 1995

               BEFORE:   COWEN, NYGAARD and ALITO
                          Circuit Judges

                     (Filed March 9, 1995)


Thomas E. Johnson
Johnson, Jones & Snelling
343 South Dearborn Street
Suite 1110
Chicago, IL 60604

Robert E. Lehrer (Argued)
Legal Assistance Foundation
 of Chicago
343 South Dearborn Street
Suite 700
Chicago, IL 60604

          COUNSEL FOR GENE BEATTY
                    Petitioner


William W. Schrimpf, Sr. (Argued)
Pietragallo, Bosick & Gordon
One Oxford Centre
38th Floor
Pittsburgh, PA 15219

          COUNSEL FOR DANRI CORPORATION &
          TRIANGLE ENTERPRISES
                    Respondent


Gary K. Stearman (Argued)
Suite N-2605
United States Department
 of Labor
Office of the Solicitor
200 Constitution Avenue, N.W.
Washington, D.C. 20210

          COUNSEL FOR DIRECTOR, OFFICE OF
          WORKERS' COMPENSATION PROGRAMS,
          United States Department of Labor
                    Respondent



                                OPINION


Cowen, Circuit Judge.


          Gene Beatty appeals from two orders of the Benefits

Review Board of the United States Department of Labor that denied
him benefits under the Federal Coal Mine Health and Safety Act of

1969, 30 U.S.C. §§ 901-45 (as amended), and its applicable

implementing regulations.   The question presented in this appeal

is whether Beatty is entitled to benefits if he is able to prove

a total disability due to pneumoconiosis arising out of coal

mining employment in combination with other nonrespiratory or

nonpulmonary impairments.   The Director, Office of Workers'
Compensation Programs, argues1 that a worker must be totally

disabled due to a respiratory or pulmonary condition, and not due

to other nonrespiratory or nonpulmonary ailments, in order to

qualify for benefits.   Although this is a close question, and one

on which we have received little guidance from Congress, we

conclude that the Director's position is reasonable.

Accordingly, we will affirm the orders of the Benefits Review

Board.



                                I.

          Gene Beatty began working in coal mining in 1968.    He

ran a cutting machine and worked as a mechanic.   His last job was

as a beltman, where his duties included keeping the belt clean,

assembling and greasing it, shoveling coal that fell off of it,

and rock dusting.   In each of these jobs, his lungs were

continuously exposed to coal dust.

          Beatty worked for Danri Corporation and Triangle

Enterprises until June 15, 1983, at which time he suffered a

stroke.   He has not worked in the mines, or anywhere else, since

1
 . Danri Corporation and Triangle Enterprises advance the same
argument as the Director. For expediency purposes we will simply
refer to their collective position as that of the Director. With
respect to any deference arguments made throughout the opinion
concerning the Director, however, we obviously do not mean to
suggest that Danri Corporation and Triangle Enterprises should be
accorded any deference.
     Additionally, counsel for Danri Corporation and Triangle
Enterprises informed this Court at oral argument that it is
Triangle Enterprises who is the relevant employer for purposes of
this appeal. Since this assertion was unchallenged by Beatty, we
accept it as accurate.
that date.     Until his stroke, his attendance record at work was

good.

          Beatty filed an application for benefits with the

Department of Labor on June 17, 1985, pursuant to the federal

black lung program.     A formal hearing before an Administrative

Law Judge ("ALJ") was conducted in Pittsburgh, Pennsylvania on

March 9, 1988, at which all parties were afforded a full

opportunity to present evidence and argument.     The ALJ found that

Beatty was entitled to benefits.

          The employer appealed from the ALJ's decision awarding

benefits and the Benefits Review Board ("BRB") vacated the ALJ's

decision in part.    The BRB ruled that Beatty had failed to

establish a total disability as required by 20 C.F.R. §

718.204(c).2    According to the BRB, a claimant must establish

that the miner's respiratory or pulmonary impairment is totally

disabling and nonrespiratory or nonpulmonary impairments have no

bearing on establishing total disability.    The BRB, therefore,



2
 . Section 718.204(c)(4), the section under scrutiny in this
case, states:

     Where total disability cannot be established under
paragraphs (c)(1), (c)(2) or (c)(3) of this section, 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 or prevented the miner from engaging in
employment as described in paragraph (b) of this section[.]

20 C.F.R. § 718.204(c)(4) (1993).
remanded the case to the ALJ for consideration of the total

disability issue.

           On remand, the ALJ conducted a review of the evidence

of total disability consistent with the BRB's ruling.    The

medical evidence is summarized as follows:

           Dr. Petsonk: Beatty had pneumoconiosis and this

condition was related to his coal mine employment.    Beatty had no

limitations in walking, climbing stairs, lifting weights, or

carrying weight any distance due to a pulmonary disease.      Since

Beatty's stroke, he walks with a cane and a brace.

           Dr. Silverman: Beatty was obviously totally and

permanently disabled with the sequelae of his previous stroke,

and it was the primary focus of his disability.    Beatty did have

some coal mine exposure and respiratory symptoms.    In his

opinion, Beatty had pneumoconiosis which occurred as a result of

his exposure to coal dust in the mines which made, "some

contribution" to his overall disability.

           Dr. Alpern: Beatty had black lung disease and moderate

ventilatory insufficiency.   Although Beatty had arteriosclerotic

heart disease and residuals of a cerebral vascular accident with

left hemiparesis, Beatty was totally disabled from his black lung

disease.

           Dr. Sachs: Beatty was totally and permanently disabled

on the basis of his stroke and, perhaps, his arteriosclerotic

heart disease.    Beatty was not disabled due to a pulmonary

condition.   There was no evidence of pulmonary impairment due to

pneumoconiosis.
ALJ Decision and Order on Remand at 2-3 (June 18, 1992).

             The ALJ found the reports of Drs. Petsonk and Sachs to

be most credible.    The ALJ reasoned that both of these physicians

had conducted blood gas studies as well as vent studies to reach

their conclusions, while Drs. Silverman and Alpern did not have

the benefit of blood gas results.      Further, the ALJ noted that

Dr. Sachs was board-certified in internal medicine as well as in

pulmonary diseases, whereas Dr. Alpern was not board-certified in

pulmonary diseases.    Additionally, the ALJ explained that Dr.

Sachs challenged the pulmonary function studies conducted by Dr.

Alpern and felt that they were invalid because these studies did

not meet the recommended criteria for such tests.      The ALJ found

that Dr. Sachs' view was supported by the applicable regulations.

             Based on this evidence, the ALJ found that Beatty was

not entitled to benefits because Beatty was not disabled due to a

respiratory or pulmonary condition, but rather due to other

conditions including his stroke.       On appeal, the BRB affirmed the

ALJ's decision and denied Beatty benefits.       This appeal followed.



                                 II.

          The Benefits Review Board had jurisdiction in this

matter by virtue of 30 U.S.C. § 932(a), incorporating 33 U.S.C. §

921(b)(3).    This Court has jurisdiction over Beatty's appeal

pursuant to 30 U.S.C. § 932(a), incorporating 33 U.S.C. § 921(c).

Beatty appeals from a final order of the BRB dated March 25,

1994, and an interlocutory order dated November 20, 1991, which

is now ripe for appeal.
                               III.

          The federal black lung program, first enacted as Title

IV of the Federal Coal Mine Health and Safety Act of 1969, Pub.

L. No. 96-173, 83 Stat. 742 (1969), provides benefits to miners

who have pneumoconiosis, a disease arising from exposure to coal

dust during coal mine employment.     Judge Mansmann's scholarly

opinion in Bonessa v. United States Steel Corp., 884 F.2d 726,

727-730 (3d Cir. 1989), analyzed the legislative history of the

federal black lung program and the alternatively constricting and

liberalizing amendments to the Act which include the Black Lung

Benefits Act of 1972, Pub. L. No. 92-303, 86 Stat. 150 (1972),

the Black Lung Benefits Reform Act of 1977, Pub. L. No. 95-239,

92 Stat. 95 (1978), the Black Lung Benefits Revenue Act of 1981,

Pub. L. No. 97-119, 95 Stat. 1635-39 (1981), and the Black Lung

Benefits Amendments of 1981, Pub. L. No. 97-119, 95 Stat. 1643-45

(1981).   Since Beatty filed his claim for benefits after 1982,

his claim is governed by the Act, as amended, and by the

Department of Labor's permanent regulations codified at 20 C.F.R.

§ 718 (1993).

           Beatty's claim on appeal is that the ALJ and the BRB

applied an incorrect legal standard in evaluating his claim for

black lung benefits.   A miner who is "totally disabled due to

pneumoconiosis" may receive black lung benefits.    30 U.S.C. §

901(a); 20 C.F.R. § 718.204(a).   According to Beatty, the Act and

its implementing regulations require a fact finder to assess

whether the miner is totally disabled by reference to the miner's

pneumoconiosis, his other respiratory or pulmonary conditions,
and his other nonrespiratory or nonpulmonary impairments, not

merely by reference to the miner's respiratory or pulmonary

impairments.    Beatty calls his position a "full contribution"

standard.    The Director, Office of Workers' Compensation

Programs, argues that a worker must be totally disabled due to

pneumoconiosis and any other respiratory or pulmonary

impairments, not due to other nonrespiratory or nonpulmonary

ailments, in order to qualify for benefits.    Beatty has dubbed

this standard a "limited contribution" standard, and we adopt

this nomenclature as a useful shorthand.3

            In Bonessa, we determined that it was error for the BRB

to require a claimant to prove that his total disability was due

solely to pneumoconiosis.   Bonessa, 884 F.2d at 731.   We

explained, however, that a miner must show that pneumoconiosis is

a substantial contributing cause to the total disability.     Id. at

734.   Today we are called upon to fill a gap left by our decision

3
 . The standard is one of "limited contribution" because it
allows impairments other than pneumoconiosis to "contribute"
towards proving a total disability (i.e., other respiratory and
pulmonary impairments), but is "limited" because it does not
allow nonrespiratory or nonpulmonary impairments to be counted
unless they are caused by pneumoconiosis.
     We wish to make perfectly clear that the Director does not
dispute that nonrespiratory and nonpulmonary impairments which
are caused by pneumoconiosis count toward the definition of total
disability. Indeed, the definition of pneumoconiosis was
expanded in 1978 to include its "sequelae." 30 U.S.C. § 902(b).
A "sequela" is "any lesion [loss of function] or affection
[affliction] following or caused by an attack of disease."
Dorland's Illustrated Medical Dictionary 1509 (27th ed. 1988).
Accordingly, impairments caused by pneumoconiosis, respiratory or
not, count towards the definition of total disability. The
Director takes issue with counting nonrespiratory and
nonpulmonary impairments that are unrelated to pneumoconiosis.
in Bonessa and determine whether pneumoconiosis may be combined

with other unrelated nonrespiratory and nonpulmonary conditions

in proving whether the miner is totally disabled (i.e., whether a

full contribution or a limited contribution standard is

appropriate).

          Because Beatty's claim involves an interpretation of a

statute by an agency which administers it, to the extent that the

statute is ambiguous, the question for the Court is whether the

agency's interpretation is based on a permissible construction of

the statute.    Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 2781-82

(1984).   As the Supreme Court has explained, the reviewing court

"need not conclude that the agency construction was the only one

it permissibly could have adopted to uphold the construction, or

even the reading the court would have reached if the question

initially had arisen in a judicial proceeding."    Id. at 843 n.11,

104 S. Ct. 2782 n.11 (citations omitted).   In addition, to the

extent that Beatty's claim involves an interpretation of the

Department of Labor's regulations, we defer to the Director's

consistent interpretation of those regulations unless this

interpretation is "`plainly erroneous or inconsistent with the

regulations'"   Bethlehem Mines Corp. v. Director, Office of
Workers' Compensation Programs, 766 F.2d 128, 130 (3d Cir. 1985)

(quoting Udall v. Tallman, 380 U.S. 1, 16-17, 85 S. Ct. 792, 801-

02 (1965)).4

4
 . Congress has delegated rule-making powers under the Act to
the Secretary of Labor. The Secretary of Labor has redelegated
            For purposes of Beatty's claim, the Act provides that

the term "total disability" has the meaning given it by the

regulations of the Secretary of Labor provided the Secretary

complies with certain enumerated restrictions.     30 U.S.C. §

902(f)(1) (1988).   Beatty raises three arguments based on the

Act, and two arguments based on the regulations, to support his

position that a full contribution standard is appropriate.       In

addition, Beatty argues that the Director's position is not

entitled to deference.   We will discuss each of these arguments

seriatim.

                             A. The Act

                     1. 30 U.S.C. § 902(f)(1)(C)

            Among the restrictions with which the Secretary must

comply in promulgating regulations under the Act is that "such

regulations shall not provide more restrictive criteria than

those applicable under section 423(d) of Title 42."     30 U.S.C. §

902(f)(1)(C).    According to Beatty, the statutory command of §

902(f)(1)(C) compels the conclusion that in assessing a claim for

benefits under the Act an ALJ must look to all of a miner's

physical impairments in order to determine whether the miner is

(..continued)
all of his powers under the Act to the Director. Because the
Director is the Secretary's delegate with respect to the Act, we
owe deference to the Director's interpretation. Bethlehem Mines,
766 F.2d at 130. One exception to this proposition occurs when
the Secretary's interpretation conflicts with the Director's
interpretation. See Elliot Coal Mining Co., Inc. v. Director,
Office of Workers' Compensation Programs, 17 F.3d 616, 627 (3d
Cir. 1994). We will examine this possibility in conjunction with
Beatty's other arguments against according the Director
deference. See discussion infra part III.C.
totally disabled.   Beatty points to 42 U.S.C. § 423(d)(2)(B) in

support of his position.

          Section 423(d)(2)(B), a section of the Social Security

Act, states:

     In determining whether an individual's physical or mental
     impairment or impairments are of a sufficient medical
     severity that such impairment or impairments could be the
     basis of eligibility under this section, the Secretary shall
     consider the combined effect of all of the individual's
     impairments without regard to whether any such impairment,
     if considered separately, would be of such severity. If the
     Secretary does find a medically severe combination of
     impairments, the combined impact of the impairments shall be
     considered throughout the disability determination process.


42 U.S.C. § 423(d)(2)(B) (1988) (emphasis added).   Beatty asserts

that this statutory language prevents the Secretary from

promulgating regulations which determine total disability only by

reference to respiratory or pulmonary impairments, and not by

reference to the totality of a miner's impairments.

          The Director's position is that the Act was not

intended to be a universal workers' compensation program, but

rather a compensation program that focuses on the miner's

respiratory or pulmonary conditions caused by the unique problems

of coal mining.   In support of this position, the Director

provides an alternative reading of the applicable statutory

provisions.    According to the Director, the "no more restrictive

criteria" phrase in § 902(f)(1)(C) refers to 42 U.S.C. §

423(d)(2)(A) which states that:
     An individual shall be determined to be under a
     disability only if his physical or mental impairment or
     impairments are of such severity that he is not only
     unable to do his previous work but cannot, considering
     his age, education, and work experience, engage in any
     other kind of substantial gainful work which exists in
     the national economy . . . .


The Director asserts that in using the phrase "no more

restrictive criteria" Congress was simply concerned that the

total disability standard take into account such factors as age,

education, and work experience.

          The Director's position is borne out by the legislative

history concerning the 1972 amendments to the Act.    The section

of the Senate report entitled "Definition of Total Disability"

contains a statement of the Committee on Labor and Public

Welfare's intent in changing the definition of total disability:
     By providing that criteria established under this definition
     shall not be more restrictive than those applicable under
     Section 223(d) of the Social Security Act, this section
     assures that due weight shall be given to such factors as
     age, education and previous work experience in the
     application of the revised definition of total disability,
     in order to insure as broad coverage as possible.


S. Rep. No. 743, 92nd Cong., 2d Sess. 16-17 (1972), reprinted in
1972 U.S.C.C.A.N. 2305, 2321.   Accordingly, we cannot agree that

§ 902(f)(1)(C) decisively answers this question in favor of

Beatty.



                  2.   30 U.S.C. § 931(b)(2)(C)

          Beatty's next argument is that § 931(b)(2)(C) of the

Act supports his full contribution standard.   The Act provides

that after a certain period, claims for benefits would be shifted

to state workers' compensation programs approved as adequate

under statutory standards.   30 U.S.C. § 931(a).   Beatty notes
that § 931(b)(2)(C) provides that a state program can be approved

if its standards are "substantially equivalent" to the federal

standards.    Beatty asserts that state workers' compensation

statutes have traditionally adhered to a full contribution

standard.    Accordingly, Beatty argues that § 931(b)(2)(C)

evidences Congress' expectation that the regulations implementing

30 U.S.C. § 902(f) would incorporate a full contribution

standard.

            We believe that Beatty's interpretation of this section

is unwarranted.    One of the reasons that the black lung benefits

program was enacted was because few states provided for such

benefits.    30 U.S.C. § 901(a).   Accordingly, it defies logic to

argue that Congress intended to incorporate specific state

causation standards into its Act.    Further, despite Beatty's

arguments to the contrary,5 we can see no obvious flaw in the

position espoused by the Director that the federal program merely

provides minimum standards for the states to meet.    As the

Director points out, if the states wanted to be more generous in

awarding benefits, they could be.    Additionally, as the Director

notes, the Department of Labor regulations make clear that the

federal program provides only minimum standards for the states to

meet.   20 C.F.R. § 722.146.   Thus, we are unable to conclude that

§ 931(b)(2)(C) dictates the result Beatty desires in this case.
5
 . Beatty makes the textual argument that because Congress used
the phrase "substantially equivalent to" instead of "no more
restrictive than" in § 931(b)(2)(C), it could not have
contemplated approving more generous state standards. We do not
believe Congress intended to place a ceiling on state benefits by
using the "substantially equivalent" phraseology.
                    3.   30 U.S.C. § 902(f)(1)(A)

           Beatty's final statutory argument is based on §

902(f)(1)(A) of the Act which provides that "a miner shall be

considered totally disabled when pneumoconiosis prevents him or

her from engaging in gainful employment requiring the skills and

abilities comparable to [his or her past coal mine work]."

(emphasis added).   To support his argument, Beatty refers to the

dictionary definition of the word "prevent," which he states as

"to stop, keep, or hinder [a person or other agent] from doing

something." (citing The Oxford English Dictionary (2d ed. 1989)).

According to Beatty, the dictionary definition of "prevent"

indicates that if a number of factors contribute to "preventing"

a particular result -- for example, if pneumoconiosis and various

nonrespiratory and nonpulmonary impairments "prevent" a miner

from working -- then any one of the factors may be said to

"prevent" the result.

           We find that this linguistic argument is of no avail to

Beatty.   Indeed, it merely begs the question of how to construe

the phrase "when pneumoconiosis prevents."    The phrase "when

pneumoconiosis prevents" is ambiguous because it does not state

the precise role pneumoconiosis must play in disabling the miner.

One possible interpretation is that pneumoconiosis must be the

sole cause of the miner's inability to engage in his past work.

We rejected this notion in Bonessa.    884 F.2d at 731.   Other

possibilities include both the full contribution and limited

contribution standards advanced by the parties in this case.
Accordingly, Beatty's reference to the dictionary definition of

the word "prevent" does not lead us toward a specific conclusion

in this case.



                          B. The Regulations

           Beatty's next claim is that the relevant regulations

implementing the Act require a full contribution standard.    He

advances two arguments to support his contention.   First, he

asserts that the history of the successive regulations,

particularly the interim regulations governing the black lung

program, dictate a full contribution standard.   Second, Beatty

asserts that the relevant regulations parallel the language of

the statute itself and dictate a full contribution standard. We

are unpersuaded by Beatty's arguments.

           The Black Lung Benefits Reform Act of 1977 (BLBRA)

granted the Secretary of Labor authority to establish total

disability regulations for certain classes of cases.   Pending

issuance of the new permanent regulations, the BLBRA provided for

interim regulations applying standards different from (and more

generous than) the regulations that had previously been in

effect.6   Pittston Coal Group v. Sebben, 488 U.S. 105, 110, 109

S. Ct. 414, 418 (1988).    The Director concedes that the interim

regulations incorporated a full contribution standard.

Nevertheless, the Director argues that the interim regulations

6
 . The regulations previously in effect were the permanent
regulations established by the Secretary of the Department of
Health, Education and Welfare.
and the permanent regulations stem from different Congressional

concerns.    According to the Director, the interim regulations

were designed to speedily process a large backlog of claims,

while the permanent regulations were more concerned with accuracy

in adjudicating claims.

            Whether or not the Director has accurately portrayed

Congress' intent in authorizing the interim regulations, we find

that the interim regulations have little relevance to the issue

here.   The issue before the Court is the proper interpretation of

the Secretary of Labor's permanent regulations.    Accordingly, we

find Beatty's first argument to be of little value.

            Beatty's second argument, that the relevant regulations

parallel the language of the Act itself and dictate a

contribution standard, is simply belied by the text of the

regulations.    The relevant Department of Labor regulation states

that "total disability may . . . be found if a physician

exercising reasoned medical judgment . . . concludes that a

miner's respiratory or pulmonary condition prevents or prevented

the miner from engaging in employment . . . ."    20 C.F.R. §

718.204(c)(4).    Further, the regulations state that proof that a

miner suffers from a totally disabling respiratory or pulmonary

impairment is "not, by itself sufficient to establish that the

miner's impairment is or was due to pneumoconiosis."    20 C.F.R. §

718.204(c)(5).    Accordingly, the regulations require the miner to

establish that he has pneumoconiosis, and also that he is totally

disabled.    The Act, by contrast, simply states that a miner is

totally disabled if "pneumoconiosis prevents him or her from
engaging in gainful employment . . . ."    30 U.S.C. §

902(f)(1)(A).    The Act does not further define how to analyze the

phrase when "pneumoconiosis prevents."    Thus, the regulations set

out a more specific formula for resolving these claims than does

the Act, a formula that allows a claimant to include all

respiratory or pulmonary impairments in establishing total

disability.    The regulations do not contemplate inclusion of

nonrespiratory or nonpulmonary impairments as Beatty asserts.

           To bolster his second argument, Beatty asserts that

only his construction of the Part 718 regulations (a full

contribution construction) makes them consistent with the

statute.   Beatty notes that regulations must be construed, if at

all possible, to be consistent with the governing statute.    See

Public Employees Retirement System v. Betts, 492 U.S. 158, 171,

109 S. Ct. 2854, 2863 (1989).    The problem with Beatty's argument

is that he is evaluating the regulations under his own reading of

the statute.    Because we demonstrated in the last section that

Beatty is incorrect in his assertion that the statute clearly

incorporates a full contribution standard, Beatty's regulatory

argument is mere bootstrapping.    Accordingly, we are unpersuaded

by Beatty's regulatory arguments.7
7
 . Beatty also argues that Bonessa resolves this dispute by
declining to construe total disability "due to" pneumoconiosis,
20 C.F.R. § 718.204(a), to mean that pneumoconiosis must be the
sole cause of a miner's total disability. As we noted
previously, the Bonessa decision focused on the proper standard
of causation (whether sole cause or substantial contributing
cause was the correct standard). The Bonessa court did not
decide the question of the range of other impairments
pneumoconiosis could combine with to create a total disability.
Further, in its opinion, the Bonessa court hinted at the proper
          At best, Beatty's statutory and regulatory arguments

disclose another possible construction of the Act and its

implementing regulations.    Beatty has not demonstrated that the

Act unambiguously dictates a full contribution standard.

Similarly, Beatty has not demonstrated that the Director's

interpretation of the applicable regulations is "plainly

erroneous" or "inconsistent" with those regulations.

Accordingly, we are inclined to uphold the Director's position.



               C.   Whether Deference is Appropriate

          Beatty's final contention is that the Director's

position is not entitled to deference.    To support this position,

Beatty advances four arguments.    First, Beatty argues that

because the Director is merely a delegatee of the Secretary, the

Secretary's interpretation must prevail over the Director's if

the two are in conflict.    He cites Elliot Coal Mining Co. v.

Director, Office of Workers' Compensation Program, 17 F.3d 616,

627 (3d Cir. 1994), in support of this proposition.

          Unfortunately for Beatty, he fails to demonstrate any

conflict between the Director's position and that of the

Secretary.   Beatty argues that the Part 718 regulations (i.e.,

(..continued)
resolution of the case before us when it commented that
"[w]ithout a doubt, a miner seeking benefits must show that he is
totally disabled not merely by a respiratory or pulmonary
condition but by pneumoconiosis." Bonessa, 884 F.2d at 729.
Implicit in the Court's statement is the conclusion that it is
the universe of respiratory or pulmonary impairments that is at
issue in determining whether the miner is totally disabled, not
the universe of all physical impairments.
the Secretary's regulations), embody a full contribution standard

and therefore the Director's interpretation of these regulations

is in conflict with the Secretary's interpretation.    As we have

explained, however, Beatty has not demonstrated that the Part 718

regulations embody a full contribution standard.    Accordingly,

Beatty's first argument against according the Director deference

is fatally flawed.

           Beatty's next argument is that deference to an

administrative agency's construction of a statute is

inappropriate if a court, employing traditional tools of

statutory construction, is able to discern Congress' intent in

enacting the measure.   For this proposition, Beatty cites

Immigration and Naturalization Service v. Cardoza Fonseca, 480

U.S. 421, 446, 107 S. Ct. 1207, 1221 (1987).    Beatty claims that

the statutory text itself permits the Court to decide the

question of the appropriate standard.

           Once again, however, Beatty's argument is fatally

flawed.   As we have previously determined, the text of the Act

does not unambiguously embrace a full contribution standard.     We

are not able to discern Congress' precise intent from the

language presented to us in the Act.    Accordingly, Beatty's

argument cannot succeed.

           Beatty's third argument is that the Senate Committee

report accompanying the 1977 Reform Act, in discussing its

understanding of "total disability" under the Act, expressed the

"expectation that the Secretary of Labor will promulgate

standards which give the benefit of any doubt to the coal miner."
S. Rep. No. 209, 95th Cong., 1st Sess. 13 (1977).    Further,

Beatty argues that the agency itself assumed this obligation by

incorporating this expectation into its regulations at 20 C.F.R.

§ 718.3(c) (1993).

            Both the full contribution standard urged by Beatty and

the limited contribution standard urged by the Director allow

impairments other than pneumoconiosis or its sequelae to be

counted toward the definition of total disability.    Admittedly,

Beatty's position is more generous toward miners than that of the

Director.    We do not think, however, that the Director runs afoul

of his duty of establishing regulations which give the benefit of

the doubt to the claimants by promulgating and implementing

regulations that place some limits on the kinds of impairments

that a claimant can count towards establishing a total

disability.    Accordingly, we are unpersuaded by Beatty's

argument.

            Beatty's final argument is that the Director's current

reading of the statute and the Part 718 regulations is

inconsistent with her prior constructions and is merely expressed

in a litigating position.    Beatty argues that under such

circumstances it is inappropriate to accord the Director

deference.    Beatty cites Bowen v. Georgetown University Hospital,

488 U.S. 204, 212-13, 109 S. Ct. 468, 473-474 (1988), in support

of his position.

            Beatty has not demonstrated any inconsistency in the

position taken by the Director concerning the current Department

of Labor regulations.    At best, Beatty can demonstrate some
inconsistency between the interpretation of DOL's permanent

regulations and its interim regulations.   As previously

discussed, however, the interim regulations do not concern us

here.   Accordingly, we are unpersuaded by Beatty's argument that

the Director's position is not entitled to deference.



                                IV.

          In addition to Beatty's inability to provide a

persuasive reason not to defer to the Director's position, we

must point out that adhering to Beatty's view would produce

undesirable consequences.   Under Beatty's view, a miner who has

pneumoconiosis, but whose total disability is only 10%

attributable to this disease, would be able to recover benefits

if his completely unrelated physical problems (such as a stroke)

created 90% of his total disability.    While a persuasive argument

can be made (and is made by the Director) that the state of

current medical science makes it difficult to distinguish between

pneumoconiosis and other respiratory or pulmonary diseases, it is

untenable that physical impairments that affect other parts of

the body (such as a stroke) would often be indistinguishable from

pneumoconiosis.8   While neither the Director's view nor Beatty's

view will likely lead to a perfect test for compensation, we find

the Director's view to be reasonable.   Accordingly, we reject


8
 . Beatty argues that some nonrespiratory and nonpulmonary
impairments are difficult to distinguish from pneumoconiosis.
While this may be the case in some instances, we do not believe
these instances to be dispositive.
Beatty's claim on appeal that a miner is entitled to benefits if

he or she is able to prove a total disability due to

pneumoconiosis arising out of coal mining employment in

combination with other unrelated nonrespiratory or nonpulmonary

impairments.9

          In announcing the position that we set forth today, we

align ourselves with a recent decision of the Court of the

Appeals for the Fourth Circuit which decided this very question.

In that case, Jewell Smokeless Coal Corporation v. Junior Street,

42 F.3d 241, 244 (4th Cir. 1994), the court deferred to the

reasonable interpretation of the Director, Office of Workers'

Compensation Programs and rejected the claimant's argument that a

miner need only establish a total disability due to

pneumoconiosis in combination with nonrespiratory and

nonpulmonary impairments.

          For the foregoing reasons, we will affirm the orders of

the Benefits Review Board.




9
 . Because we reject Beatty's claim that the Board applied an
inappropriate legal standard, we need not reach his other
argument that the evidence of record, if scrutinized under
Beatty's standard, obliges a judgment from this Court directing
an outright award of benefits.
