                                                         NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                               No. 10-1816
                              _____________

                       P.T. MINE SERVICES, INC.;
                     STATE WORKERS INSURANCE
                       FUND OF PENNSYLVANIA,
                                     Petitioners

                                     v.

                         DIRECTOR, OWCP,
               UNITED STATES DEPARTMENT OF LABOR;
                         JOSEPH F. YURICK,
                                Respondents
                           _____________

                    Petition for Review of an Order of the
                      United States Department of Labor
                            Benefits Review Board
                            (BRB-1:09-0197 BLA)
           Administrative Law Judge: Honorable Michael P. Lesniak
                                _____________

                         Argued December 15, 2010

         Before: RENDELL, JORDAN and HARDIMAN, Circuit Judges

                       (Opinion Filed January 5, 2011)
                              _____________

Edward K. Dixon, Esq. [ARGUED]
Ryan M. Krescanko, Esq.
Zimmer Kunz
600 Grant Street
3300 USX Tower
Pittsburg, PA 15219
   Counsel for Petitioner
Cheryl C. Cowen, Esq. [ARGUED]
769 Lippencott Road
Waynesburg, PA 15370
  Counsel for Respondent
  Joseph F. Yurick

Matthew Bernt, Esq. [ARGUED]
Rae Ellen James, Esq.
Patricia M. Nece, Esq.
United States Department of Labor
Office of the Solicitor
Room N-2117
200 Constitution Avenue, N.W.
Washington, DC 20210
  Counsel for Respondent
 Director, OWCP,
 United States Department of Labor
                                     _____________

                              OPINION OF THE COURT
                                  _____________

RENDELL, Circuit Judge.

      P.T. Mine Services, Inc. petitions for review of a decision by the Department of

Labor’s Benefits Review Board (“BRB”) affirming decisions of an administrative law

judge (“ALJ”) awarding disability benefits to Joseph Yurick under the Black Lung

Benefits Act and determining that P.T. Mine is the “responsible operator” with respect to

Yurick’s benefits. P.T. Mine raises three issues: (1) whether the ALJ and BRB should

have determined that Apolo Construction Company, not P.T. Mine, was the “responsible

operator” liable for Yurick’s benefits; (2) whether the ALJ improperly admitted evidence

in excess of the applicable evidentiary regulations; and (3) whether the ALJ improperly

disregarded P.T. Mine’s digital x-ray evidence.


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       “We review the decisions of the [Benefits Review] Board for errors of law and to

assure that it has adhered to its own standard of review.” BethEnergy Mines, Inc. v.

Director, OWCP, 39 F.3d 458, 462-63 (3d Cir. 1994) (citation omitted). Our review of

the BRB’s legal determinations, including its interpretation of the applicable regulations,

is plenary. Id. at 463; see also Director, OWCP v. Gardner, 882 F.2d 67, 68 (3d Cir.

1989). Where a party challenges a finding of fact by the BRB or ALJ, we “independently

review the record and decide whether the Administrative Law Judge’s findings are

supported by substantial evidence.” Kowalchick v. Director, OWCP, 893 F.2d 615, 619-

20 (3d Cir. 1990) (internal quotation marks and citations omitted). Because we agree

with the BRB’s application of the relevant “responsible operator” and evidentiary

regulations, and because substantial evidence supports the BRB’s decision regarding P.T.

Mine’s digital x-ray evidence, we will deny the petition for review.

                                                 I.

       P.T. Mine first argues that the BRB erred in concluding that P.T. Mine, rather than

another company that employed Yurick, Apolo Construction Company, is the

“responsible operator” in Yurick’s case. The “responsible operator” is “[t]he operator

responsible for the payment of benefits” due under the Black Lung Benefits Act. 20

C.F.R. § 725.495(a)(1). The relevant regulations define a “responsible operator” as “the

potentially liable operator . . . that most recently employed the miner.” Id. Apolo

employed Yurick more recently than P.T. Mine; therefore, if Apolo qualifies as a

“potentially liable operator” under the regulations, Apolo is the “responsible operator” in



                                             3
Yurick’s case. P.T. Mine concedes that if Apolo does not qualify as a “potentially liable

operator,” P.T. Mine is liable for Yurick’s benefits.

       Whether Apolo is a “potentially liable operator” depends in relevant part on

whether Yurick “was employed” by Apolo “for a cumulative period of not less than one

year.” 20 C.F.R. § 725.494(c). An “employment relationship” under the regulations is

“any relationship under which an operator retains the right to direct, control, or supervise

the work performed by a miner, or any other relationship under which an operator derives

a benefit from the work performed by a miner.” 20 C.F.R. § 725.493(a)(1). The

regulations define a “year” for these purposes as follows:

              Year means a period of one calendar year (365 days, or 366
              days if one of the days is February 29), or partial periods
              totaling one year, during which the miner worked in or
              around a coal mine or mines for at least 125 ‘working days.’
              A ‘working day’ means any day or part of a day for which a
              miner received pay for work as a miner, but shall not include
              any day for which the miner received pay while on an
              approved absence, such as vacation or sick leave. In
              determining whether a miner worked for one year, any day
              for which the miner received pay while on an approved
              absence, such as vacation or sick leave, may be counted as
              part of the calendar year and as partial periods totaling one
              year.

20 C.F.R. § 725.101(a)(32).

       Yurick began working for Apolo on October 2, 2000; his last day of work with

Apolo was October 5, 2001. From August 16, 2001 to September 15, 2001, Yurick was

laid off from Apolo because of a slowdown in work. Yurick was not paid by Apolo

during that time; he collected unemployment benefits. Because he believed that he would

be recalled to work at Apolo, Yurick did not look for other work during the layoff period.

                                             4
At the same time, Yurick retained his seniority at Apolo and allegedly did not lose his

entitlements to health insurance or to participate in Apolo’s 401(k) plan. He was not

required to reapply for his job with Apolo when the layoff ended.

       Reviewing these facts, the BRB affirmed the ALJ’s determination that Yurick was

not employed by Apolo for the requisite one-year period. Specifically, the BRB found

that substantial evidence, including the facts that Yurick was not paid by Apolo, that he

received unemployment benefits, and that he was free to seek other employment during

the layoff period, supported the ALJ’s determination that the layoff severed Yurick’s

employment relationship with Apolo.

       We agree. The ALJ’s and BRB’s determinations that the layoff period severed

Yurick’s employment relationship with Apolo are reasonable in light of the law and the

facts. P.T. Mine’s argument to the contrary — that Yurick’s layoff was an “approved

absence” from Apolo — does not convince us otherwise. The regulations allow the fact-

finder to count “approved absences” toward the 365-day period, but only to the extent

that the miner “received pay” for such absences. 20 C.F.R. § 725.101(a)(32); see also 62

Fed. Reg. 3,338, 3,349 (Jan. 22, 1997) (Department of Labor guidance contrasting

approved absences, “such as vacation or sick leave,” with “[o]ther absences, such as the

time during a strike or layoff”). P.T. Mine has not pointed to any authority that indicates

that the BRB and ALJ were permitted, much less required, to include time for which the

miner did no work for and was not paid by the employer and, indeed, received

unemployment compensation, in the 365-day period. Thus, the ALJ and BRB did not err



                                             5
in determining that P.T. Mine, not Apolo, is the “responsible operator” with respect to

Yurick’s claim.

                                                  II.

       P.T. Mine next argues that the ALJ erred in admitting “cumulative chest x-ray

evidence” in excess of that allowed under the regulations during the merits phase of the

benefits proceedings. Its argument fails.

       The pertinent regulations provide that a Black Lung Benefits Act claimant may

submit, “in support of his affirmative case, no more than two chest X-ray interpretations.”

20 C.F.R. § 725.414(a)(2)(i). The regulations provide further that “[n]otwithstanding”

the x-ray evidence limits, “any record of a miner’s . . . medical treatment for a respiratory

or pulmonary or related disease, may be received into evidence.” 20 C.F.R.

§ 725.414(a)(4). In other words, an ALJ may admit x-ray evidence in excess of the two

interpretations ordinarily allowed under the rules when such evidence is part of a “record

of a miner’s . . . medical treatment.” Id.

       Yurick submitted two chest x-ray interpretations by Dr. Afzal Ahmed in support

of his affirmative case and two chest x-ray interpretations by Dr. Shyam Gohel as part of

the records of his treatment at a pulmonary clinic. P.T. Mine argues that the ALJ’s

admission of the Gohel x-ray interpretations violated the evidence-limiting regulations.

But record evidence established that Yurick underwent the x-rays in the course of his

treatment and that the x-ray interpretations were compiled and kept in the ordinary course

of the clinic’s business, not in anticipation of litigation, and P.T. Mine has not argued

otherwise. Because the Gohel x-ray interpretations were part of a record of Yurick’s

                                              6
treatment, they were admissible under the medical-records exception to the evidence-

limiting regulations. 1 Thus, the ALJ properly admitted the Gohel x-ray interpretations

and the BRB properly affirmed the decision of the ALJ.

                                                  III.

       Finally, P.T. Mine argues that the ALJ and BRB declined to afford sufficient

weight to digital x-ray evidence it submitted in connection with the opinion of its expert,

Dr. Gregory Fino. Digital x-rays are admissible as “other medical evidence” in black-

lung benefits proceedings, but the proponent of such x-rays “bears the burden to

demonstrate that” such x-rays are “medically acceptable and relevant to establishing or

refuting a claimant’s entitlement to benefits.” 20 C.F.R. § 718.107(b). P.T. Mine asserts

that the ALJ failed to analyze Dr. Fino’s digital x-ray and failed to make an independent

determination of the x-ray’s relevance.

       P.T. Mine’s argument on this point is simply at odds with the record. The ALJ

considered Dr. Fino’s digital x-ray evidence as “other medical evidence,” but determined

that the digital x-ray was entitled to “less weight due to the lack of quality standards in

the regulations for the reading of digital x-rays.” That determination was supported by

substantial record evidence in the form of testimony by another doctor concerning the



       1
         P.T. Mine’s further argument, that the ALJ should have determined whether
there was “good cause” to admit the Gohel x-ray interpretations, also fails. The
regulations require a determination of “good cause” before admitting x-ray evidence only
to the extent that such evidence is “in excess of the limitations contained in § 725.414.”
20 C.F.R. § 725.456(b)(1). The Gohel x-ray interpretations are not “in excess of the
limitations contained in § 725.414”; they fall squarely within the terms of
§ 725.414(a)(4). Therefore, they are not subject to the “good cause” requirement.
                                              7
potential unreliability of diagnoses of black-lung disease from digital x-rays. We discern

no error in the ALJ’s approach.

                                                IV.

      For the foregoing reasons, we will deny the petition for review.




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