Warman v. Pittsburg & Midway Coal Mining Co.

GEORGE CLIFTON EDWARDS, JR., Senior Circuit Judge,

dissenting.

Respectfully, I dissent from the opinion of my brethren in this black lung case. It is my opinion that petitioner Warman has established that he had worked in coal mines for 38 years, 20 of them at underground mining, that he suffers from pneu-moconiosis, is disabled thereby and that the AU’s findings to the contrary grossly distort the record of this case. There is no question that, as the Review Board recognized in reversing the AU in the first instance, § 727.203(a)(4) provides for invocation of a presumption which petitioner Warman is entitled to have applied.

Once the presumption has been invoked, the employer has the burden to rebut it pursuant to § 727.203(b)(l-4) by establishing that the miner is able to or is doing his usual coal mine work; or that his pneumo-coniosis did not arise in whole or in part out of coal mine employment or that he does not suffer from pneumoconiosis. 20 C.F.R. § 727.203 (b). The standard for rebuttal was outlined in Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1120 (6th Cir.1984):

Thus, Section 727.203(b)(3) does not permit the award of benefits for partial disability; it merely grants an employer the chance to prove that a miner’s disability *263 did not arise in whole or in part, from his coal mine employment. If any employer is able to prove that pneumoconiosis played no part in causing a miner’s disability, then the employer has satisfied the requirements of Section 727.203(b)(3). Where, however, pneumoconiosis is a contributing cause to a miner’s total disability, he is conclusively entitled to benefits.

Of course, I recognize that the AU, after being soundly admonished by the Benefits Review Board in its reversal, responded with such vigor that the Board ultimately reversed its original view and upheld his findings.

This Court’s question is whether, after a presumption of total disability due to pneu-moconiosis has been invoked under § 727.203, there was evidence presented such as to rebut the presumption by a preponderance of evidence.

The presumption of pneumoconiosis was placed in the Act by a Congress sensitive to the hazards of coal mining. The Sixth Circuit, in which a great deal of coal mining is done, has prior to now, sought to give the congressional intent full effect. I regret that the majority opinion would have the effect in this Circuit of eliminating a statutory provision designed as a remedial measure for one of the worst of the hazards of mining of coal.