The opinion
McCREE, Circuit Judge
(dissenting).
I respectfully dissent. It is clear from the definitions provided in 20 C.F.R. § 410 .-110 that in order to be a “miner” for the purposes of the Federal Coal Mine Health and Safety Act, an individual must be working “as an employee in a coal mine,” and that an “employee” is an “individual in a legal relationship (between the person for whom he performs services and himself) of employer and employee under the usual common-law rules.”
In order to be an employee, therefore, a person must be employed by a legal entity other than himself. Even if he possessed an interest in the entity for which he worked, he would be in the necessary legal relationship with the entity. Accordingly, I do not agree with the Secretary’s adoption of the administrative law judge’s conclusion that the legal status of the Montel Coal Company — whether it be partnership, joint venture, or corporation — is irrelevant to this case. If the Montel Coal Company were a separate legal entity, then the years during which appellant was employed by it should have been counted as years during which he was employed as a miner for the purpose of the presumption about the origin of disability due to pneumoconiosis.
Because of his improper view of the law, the administrative law judge made no findings regarding the exact status of the Mon-tel Coal Company or the appellant’s precise relationship to it. I would remand for the purpose of permitting a resolution of these questions.