Michael D. Ireland, Sr. v. Manor Mining & Contracting, Incorporated and Rockwood Casualty Insurance Company (Board decision, March 26, 2025)

BRB final decision. The Benefits Review Board affirmed the administrative law judge's determination that black lung benefits begin in August 2008. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Michael D. Ireland, Sr., had established entitlement to black lung benefits; the remaining dispute was whether payments began in August 2008 or August 2018. On remand, the judge concluded that a 2008 biopsy showing a 1.7 centimeter nodule established complicated pneumoconiosis at that time when considered with later CT scan evidence. The employer argued that no doctor had specifically said the biopsy nodule would appear as a qualifying opacity on an x-ray. A two-judge Board majority held that the record provided an adequate basis for the judge's equivalency finding and affirmed the August 2008 start date. One judge dissented and would have restored the August 2018 date.

Decision snapshot

• Authority: Complicated pneumoconiosis under 20 C.F.R. § 718.304; benefit commencement under § 725.503(b) and (d)(1).
• Outcome: August 2008 benefits commencement affirmed by majority.
• Key point: The judge could use the biopsy finding together with later imaging evidence to establish an earlier disease onset.

Full text (DOL BRB public release)

U.S. Department of Labor Benefits Review Board 200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 24-0179 BLA

MICHAEL D. IRELAND, SR.
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Claimant-Respondent
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v. )
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MANOR MINING & CONTRACTING,
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INCORPORATED
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NOT-PUBLISHED
and
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ROCKWOOD CASUALTY INSURANCE
) DATE ISSUED: 03/26/2025
COMPANY
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Employer/Carrier-
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Petitioners
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DIRECTOR, OFFICE OF WORKERS’
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COMPENSATION PROGRAMS, UNITED
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STATES DEPARTMENT OF LABOR
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Party-in-Interest
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DECISION and ORDER

Appeal of the Decision and Order on Remand Addressing the Onset Date of Benefits of Natalie A. Appetta, Administrative Law Judge, United States Department of Labor.

Heath M. Long and Matthew A. Gribler (Pawlowski, Bilonick, & Long), Ebensburg, Pennsylvania, for Claimant.

Christopher Pierson (Burns White LLC), Pittsburgh, Pennsylvania, for Employer.
Before: GRESH, Chief Administrative Appeals Judge, BUZZARD and JONES, Administrative Appeals Judges.

GRESH, Chief Administrative Appeals Judge, and JONES, Administrative Appeals Judge:

Employer appeals Administrative Law Judge (ALJ) Natalie A. Appetta’s Decision and Order on Remand Addressing the Onset Date of Benefits (2021-BLA-05147) rendered on a claim filed on September 11, 2017, pursuant to the Black Lung Benefits Act, as amended, 30 U.S.C. §§901-944 (2018) (Act). This case is before the Benefits Review Board for a second time. The sole issue before the ALJ was the commencement date of benefits as Employer conceded Claimant invoked the irrebuttable presumption of total disability due to pneumoconiosis under Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3).

The district director issued a Proposed Decision and Order denying benefits on June 5, 2018, because Claimant did not establish a totally disabling respiratory or pulmonary impairment. Director’s Exhibit 28. Claimant timely requested modification on September 20, 2018, and submitted Dr. Costa’s August 5, 2008 biopsy report, and subsequently submitted Dr. DePonte’s interpretation of an August 7, 2018 computed tomography (CT) scan. Director’s Exhibits 13, 35. On May 22, 2019, the district director issued a Proposed Decision and Order granting modification, finding Claimant established complicated pneumoconiosis, and later indicated benefits commenced in September 2018. Director’s Exhibits 45, 53.

Employer timely requested a hearing; however, while the case was pending before the Office of Administrative Law Judges, Employer withdrew its controversion of Claimant’s entitlement and requested the case be remanded to the district director to institute payment of benefits. Employer’s April 15, 2020 Motion to Remand. The ALJ granted Employer’s motion and remanded the claim to the district director for payment of benefits. April 30, 2020 Order Cancelling Hearing and Remanding Claim to District Director for Payment of Benefits. Finding the evidence established an August 2008 onset date of Claimant’s complicated pneumoconiosis, the district director awarded benefits commencing August 2008. Director’s Exhibit 57. Employer requested a hearing on the commencement date for benefits, and the case was returned to the ALJ. Director’s Exhibits 59-61.

In her initial Decision and Order Awarding Benefits, the ALJ determined Dr.
DePonte’s reading of the August 7, 2018 CT scan was the “earliest definitive diagnosis of complicated pneumoconiosis” and found Claimant established a change in condition based

2 on the newly submitted evidence. 20 C.F.R. §§718.304, 725.310. She therefore awarded benefits commencing August 1, 2018.

In consideration of Claimant’s appeal, the Board vacated the ALJ’s finding that Dr.
DePonte’s interpretation of the August 7, 2018 CT scan was the first definitive diagnosis of complicated pneumoconiosis and that the commencement date for benefits is August 2018. Ireland v. Manor Mining & Contracting, Inc., BRB No. 22-0155 BLA, slip op. at 5-6 (July 26, 2023) (unpub.). The Board held the ALJ erred in failing to address whether the evidence, as a whole, permitted her to render an equivalency determination, taking into consideration the 2008 biopsy report and 2018 CT scan evidence. Id. at 5. Thus, the Board remanded the case, instructing the ALJ, pursuant to Clites v. Jones & Laughlin Steel Corp., 663 F.2d 14, 16 (3d Cir. 1981),1 to address whether Dr. Costa’s 2008 biopsy report is sufficient to establish statutory complicated pneumoconiosis when considered in conjunction with the totality of the evidence, including Dr. DePonte’s equivalency determination. Id. at 5-7. The Board further explained that if the ALJ found Dr. Costa’s biopsy report establishes the onset of Claimant’s complicated pneumoconiosis, Claimant will have established modification based on a mistake in a determination of fact and the ALJ must set the commencement date for benefits as August 2008. Id. at 7 (citing 20 C.F.R. §725.503(b), (d)(1)). Alternatively, the Board explained that if the ALJ again found Dr. Costa’s biopsy report insufficient to establish complicated pneumoconiosis, she may reinstate her findings that Dr. DePonte’s CT scan report establishes complicated pneumoconiosis as of August 7, 2018, based on a change in condition, and that benefits therefore commence in August 2018. Id. at 7-8 (citing 20 C.F.R. §725.503(b), (d)(2)). Consequently, the Board vacated the denial of benefits and remanded the case for further consideration. Subsequently, the Board denied Employer’s timely motion for reconsideration. Ireland v. Manor Mining & Contracting, Inc., BRB No. 22-0155 BLA (Nov. 13, 2023) (Order) (unpub.).

On remand, the ALJ determined Dr. Costa’s August 5, 2008 biopsy report, when considered with the evidence, as a whole, is sufficient to establish the onset of Claimant’s complicated pneumoconiosis and therefore awarded benefits commencing on August 1, 2008. 20 C.F.R. §725.503(b).

1
The United States Court of Appeals for the Third Circuit, within whose jurisdiction this case arises, has held that a designated adjudicator is competent to make an equivalency determination between the pathology evidence and x-ray findings where there is “some evidentiary basis” for doing so. Clites v. Jones & Laughlin Steel Corp., 663 F.2d 14, 16 (3d Cir. 1981).

3
On appeal, Employer alleges the ALJ erred in finding Claimant is entitled to benefits beginning on August 1, 2008. Claimant responds in support of the ALJ’s commencement date of benefits finding. The Acting Director, Office of Workers’ Compensation Programs, has not filed a response brief.

The Board’s scope of review is defined by statute. We must affirm the ALJ’s Decision and Order if it is rational, supported by substantial evidence, and in accordance with applicable law.2 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C. §932(a); O’Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359 (1965).

Commencement Date for Benefits

The commencement date for benefits is the month in which the miner became totally disabled due to pneumoconiosis. 20 C.F.R. §725.503(b); see Lykins v. Director, OWCP, 12 BLR 1-181, 1-182 (1989). When a miner suffers from complicated pneumoconiosis, the factfinder must consider whether the evidence establishes the date of onset of the disease. See Williams v. Director, OWCP, 13 BLR 1-28, 1-30 (1989). Additionally, in a modification proceeding, an ALJ may, pursuant to 20 C.F.R. §725.503(d), award benefits that predate the original denial only if modification is based on a mistake in a determination of fact. See 20 C.F.R. §725.503(d)(1). To the extent the award is based on a change in conditions, benefits are payable “beginning with the month of onset of total disability due to pneumoconiosis . . . provided that no benefits shall be payable for any month prior to the effective date of the most recent denial of the claim by a district director or administrative law judge.” 20 C.F.R. §725.503(d)(2).

In accordance with the Board’s remand instructions, the ALJ reconsidered all of the relevant evidence, including Dr. DePonte’s reading of the August 17, 2018 CT scan and equivalency determination, Dr. Costa’s finding of a 1.7 centimeter (cm) nodule that was consistent with pneumoconiosis in Claimant’s August 5, 2008 lung wedge resection biopsy, and Drs. Ahmed’s and Simone’s reading of the October 30, 2017 x-ray. Decision and Order on Remand at 4-5; Director’s Exhibits 11, 13, 14, 35. The ALJ determined there was sufficient evidence to establish the 1.7 cm nodule identified by Dr. Costa would appear as 1.7 cm on x-ray and therefore constituted complicated pneumoconiosis; therefore, she awarded benefits commencing on August 1, 2008. Decision and Order on Remand at 2-5; Director’s Exhibits 13, 35.

2
This case arises within the Third Circuit’s jurisdiction because Claimant performed his coal mine employment in Pennsylvania. See Shupe v. Director, OWCP, 12 BLR 1-200, 1-202 (1989) (en banc); Director’s Exhibit 3.

4
Employer contends this case is distinguishable from Clites because there was no “evidentiary basis” for the ALJ’s equivalency determination and, therefore, it asserts the ALJ erred in finding Claimant is entitled to benefits beginning August 1, 2008. Employer’s Brief at 10-11 (citing Clites, 663 F.2d at 16 (ALJ’s finding of massive lesions supported by the pathologist’s subsequent testimony that the nodules identified on autopsy would appear as greater than one centimeter if x-rayed)). Specifically, Employer asserts that, although Dr. Costa identified a 1.7 cm nodule on Claimant’s August 5, 2008 biopsy, neither he nor any other physician provided an equivalency determination that the nodule would appear as greater than one centimeter on x-ray, nor described it as a massive lesion, complicated pneumoconiosis, or progressive massive fibrosis. Id. at 9-11. We disagree, in part, with Employer’s argument.

Section 411(c)(3) of the Act, 30 U.S.C. §921(c)(3), provides an irrebuttable presumption that a miner is totally disabled due to pneumoconiosis if he suffers from a chronic dust disease of the lung which: (a) when diagnosed by x-ray, yields one or more opacities greater than one centimeter in diameter that would be classified as Category A, B, or C; (b) when diagnosed by biopsy or autopsy, yields massive lesions in the lung; or (c) when diagnosed by other means, would be a condition that could reasonably be expected to yield a result equivalent to (a) or (b). See 20 C.F.R. §718.304. In determining whether a claimant has invoked the irrebuttable presumption, the ALJ must weigh all evidence relevant to the presence or absence of complicated pneumoconiosis. See Melnick v. Consolidation Coal Co., 16 BLR 1-31, 1-33-34 (1991) (en banc).

Employer correctly asserts that, although Dr. Costa identified a 1.7 cm nodule on Claimant’s August 5, 2008 biopsy, neither he nor any other physician provided an equivalency determination that the specific nodules identified on the biopsy would appear as greater than one centimeter on x-ray, nor described it as a massive lesion, complicated pneumoconiosis, or progressive massive fibrosis. Employer’s Brief at 9-11. However, we disagree with Employer that there was no “evidentiary basis” for the ALJ’s equivalency determination.

Pathology evidence can support a finding of complicated pneumoconiosis where a physician diagnoses massive lesions or when there is some evidentiary basis for the ALJ to make an equivalency determination between the pathology evidence and x-ray findings. See 20 C.F.R. §718.304(b); Clites, 663 F.2d at 16; Lohr v. Rochester and Pittsburgh Coal Co., 6 BLR 1-1264 (1984). The Board has also construed Clites to mean that the ALJ must make an equivalency determination if the record permits. Britten v. Florence Mining Co., BRB No. 04-0947 BLA, slip op. at 4 n.4 (Sept. 23, 2005) (unpub.).

Contrary to Employer’s contentions and our dissenting colleague’s assertion, the ALJ identified an “evidentiary basis” in accordance with the holding in Clites for her 5 equivalency determination regarding the 2008 biopsy finding. Decision and Order on Remand at 3-5; Director’s Exhibits 13, 35; see Clites, 663 F.2d at 16. The ALJ reconsidered all of the evidence, including Dr. DePonte’s 2018 CT scan and equivalency determination, Dr. Costa’s uncontradicted finding of a 1.7 cm nodule of pneumoconiosis in Claimant’s 2008 wedge resection biopsy, and the readings of the October 30, 2017 x- ray. Decision and Order on Remand at 3-5; Director’s Exhibits 11, 13, 14, 35. While Dr. Costa did not provide an equivalency determination or identify massive lesions in his 2008 biopsy report, the ALJ credited Dr. DePonte’s statement that the 2 cm opacity she identified on the 2018 CT scan would appear similar in size on an x-ray, and further found Dr. DePonte’s statement supported a similar equivalency determination for the 1.7 cm nodule of pneumoconiosis found on the 2008 biopsy. Decision and Order on Remand at 4; Director’s Exhibits 13, 35. Thus, the ALJ rationally found Dr. Costa’s biopsy report supported a finding of complicated pneumoconiosis commencing in 2008 based on his measurements of the 1.7 cm opacity when considered alongside the evidence as a whole.3 20 C.F.R. §718.304; see Clites, 663 F.2d at 16 (ALJs are competent to make an equivalency determination between the pathology evidence and x-ray findings where there is “some evidentiary basis” for doing so); Lohr, 6 BLR 1-1264; Decision and Order on Remand at 4-5.

It is the ALJ’s function to weigh the evidence, draw appropriate inferences, and determine credibility. See Consolidation Coal Co. v. Kramer, 305 F.3d 203, 211 (3d Cir. 2002); Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986). Employer’s arguments amount to a request to reweigh the evidence, which we are not empowered to do. See Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111, 1-113 (1989). Because the ALJ acted within her discretion in weighing Dr. Costa’s biopsy evidence alongside the whole of the evidence, we affirm the ALJ’s finding that Claimant established complicated pneumoconiosis as of August 5, 2008. Decision and Order on Remand at 4-5. Consequently, we affirm the ALJ’s determination that benefits commence in August 2008. 20 C.F.R. §725.503(b), (d)(1); see Williams, 13 BLR at 1-30; Ireland, BRB No. 22- 0155 BLA, slip op. at 7-8; Decision and Order on Remand at 5.

3
The ALJ noted a question remains as to whether the 1.7 cm mass removed from Claimant’s lung during the 2008 biopsy constitutes the same 2 cm opacity observed by Dr. DePonte on the 2018 CT scan. Decision and Order on Remand at 5 n.4.

6
Accordingly, we affirm the ALJ’s Decision and Order on Remand Addressing the Onset Date of Benefits.

SO ORDERED.

DANIEL T. GRESH, Chief
Administrative Appeals Judge

MELISSA LIN JONES
Administrative Appeals Judge

BUZZARD, Administrative Appeals Judge, dissenting:

I respectfully dissent from the majority’s decision to affirm the ALJ’s findings as to the onset of Claimant’s complicated pneumoconiosis and thus the date benefits commence. As discussed in my prior dissenting opinion, the ALJ’s findings in her initial decision reflect an accurate characterization of the evidence and application of law. Her new equivalency determination on remand from the Board is not supported by the evidence. Instead, it is based on the ALJ’s belief that the Board’s remand order “clearly suggested” she find that Claimant is entitled to benefits as of August 2008 rather than August 2018.4 Ireland v. Manor Mining & Contracting, Inc., BRB No. 22-0155 BLA, slip op. at 8-13

4
It is understandable why the ALJ interpreted the Board’s prior remand order as “clearly suggesting” she find in Claimant’s favor. As I pointed out in my dissent at the time, the majority decision plainly overstepped the Board’s limited review authority by making findings of fact and telling the ALJ that it would be “difficult” for a “reasonable person” to reach a different conclusion based on the evidence. Ireland v. Manor Mining & Contracting, Inc., BRB No. 22-0155 BLA, slip op. at 6-7 n.4 (July 26, 2023) (unpub.).

7
(July 26, 2023) (unpub.) (Buzzard, J., dissenting); see Decision and Order on Remand at 4.

I, therefore, dissent and would reinstate the ALJ’s findings from her initial decision.

GREG J. BUZZARD
Administrative Appeals Judge

8