finding under the BLBA that a worker who stored, loaded, and unloaded coal for a coal retailer was not engaged in the "work of preparing the coal" because the coal retailers he worked for were "purchasers of prepared coal”
How later courts described this case
- finding under the BLBA that a worker who stored, loaded, and unloaded coal for a coal retailer was not engaged in the "work of preparing the coal" because the coal retailers he worked for were "purchasers of prepared coal”
- holding that claimant employed by coal retailers to load and deliver coal was not a "miner” because the coal was extracted and prepared before it reached the retailer’s facilities
- observing in dicta that “ ‘coal mine’ is basically defined by the work that is performed” and is “inextricably related to function”
- “ ‘[w]hile there is no question that plaintiff worked in an atmosphere which was filled with coal dust, the work he performed was not the preparation of coal as contemplated by the applicable law and regulations’ ”
Written by the judges who cited it.
The opinion
KRUPANSKY, Circuit Judge,
dissenting.
I agree that Southard is not entitled to the statutory presumption of causation ( 30 U.S.C. § 921 (c)), however, I also believe the decision of the Administrative Law Judge (AU) on the causation issue is supported by substantial evidence and should be upheld. Accordingly, I dissent.
The AU, quoting 20 C.F.R. § 718.201 , concluded that Southard had failed to produce evidence that his disease was “significantly related to, or substantially aggravated by, dust exposure in coal mine employment.” The majority rejects this conclusion because of the AU’s supposed failure to “discuss or reconcile the apparently lesser burden [of causation] of 20 C.F.R. § 718 ,203(a).” Ante at 70.
The majority’s reliance on a perceived inconsistency in the regulation is misplaced. The pertinent regulations provide as follows:
For purposes of the Act, “pneumoconiosis” means a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment. * * * For purposes of this definition, a disease “arising out of coal mine employment” includes any chronic pulmonary disease resulting in respiratory or pulmonary impairment significantly related to, or substantially aggravated by, dust exposure in coal mine employment.
§ 718.203 Establishing a relationship of pneumoconiosis to coal mine employment.
(a) In order for a claimant to be found eligible for benefits under the Act, it must be determined that the miner’s pneumoconiosis arose at least in part out of coal mine employment. The provisions of this section set forth the criteria to be applied in making such a determination.
(b) If a miner who is suffering or suffered from pneumoconiosis was employed for ten years or more in one or more coal mines, there shall be a rebut-table presumption that the pneumoconiosis arose out of such employment.
(c) If a miner who is suffering or suffered from pneumoconiosis was employed less than ten years in the nation’s coal mines, it shall be determined that such pneumoconiosis arose out of that employment only if competent evidence establishes such a relationship.
20 C.F.R. §§ 718.201 , 718.203 (emphasis added).
The majority apparently concludes that a claimant bears a lighter burden under *73 § 718.203 to prove that his pneumoconiosis “arose at least in part out of coal mine employment” than under § 718.201 to demonstrate that his disease was “significantly related to, or substantially aggravated by, dust exposure in coal mine employment.” The majority has misconstrued the relationship of the two sections.
Section 718.201 defines a disease “arising out of coal mine employment.” The section provides that a disease arises out of coal mine employment if, but only if, it is a disease “significantly related to, or substantially aggravated by, dust exposure in coal mine employment.”
Section 718.203 articulates the burden of proof essential to entitle a miner to benefits under the Act. The section provides that a miner must prove that his disease “arose at least in part out of coal mine employment.” By attaching undue emphasis to the clause “at least in part” and ignoring the claimant’s threshold burden of establishing that his disease “arose out of coal mine employment,” the majority erroneously infers or concludes that the claimant’s burden of proof to establish a disease under the Act is less than the burden imposed by the Act to establish that the chronic pulmonary disease or impairment is “... significantly related to, or substantially aggravated by, dust exposure in coal mine employment.”
Hence, the two sections construed in context simply state that a claimant must prove that his pulmonary disease or impairment was, at least in part, significantly related to or substantially aggravated by, coal mine employment. Needless to say, if the pulmonary disease or impairment is not in any manner whatsoever significantly related to or substantially aggravated by, coal mine employment, then the disease can not be partially so related. Accordingly, once the AU determined that Southard’s disease was not, in any manner, related to his coal mine employment, the pertinent inquiry was concluded.
Because the AU properly applied the regulations, the only remaining issue is whether his decision is supported by substantial evidence viewing the record in its entirety. Moore v. Califano, 633 F.2d 727, 724 (6th Cir.1980). Furthermore, this court cannot overturn the AU’s determination even if it would have arrived at a different conclusion if writing on a clean slate. Id.
The record discloses that Southard worked in a coal mine for approximately three years in the 1930’s. For sixteen years following his employment in the coal mine he engaged in unrelated employment as a coal deliverer in Detroit, Michigan. In this employment Southard was exposed to high concentrations of coal dust. As Southard himself explained:
Well I would say that inside of the coal bin, that one day inside of that coal bin you would get more dust than you would in a week in the coal mines.
Clearly the bulk of Southard’s coal dust exposure occurred in non-coal mine employment.
This is not to say Southard was precluded from demonstrating that his pneumoconiosis was significantly related, at least in part, to the three years he worked as a miner in the coal mines. However, it was Southard’s burden to establish this relationship by “competent evidence” ( 20 C.F.R. § 718.203 (c)) which he failed to do. The only evidence Southard produced relative to causation is the form report of Dr. Wong. In response to the form question, “is the diagnosed condition related to dust exposure in the patient’s coal mine employment,” Dr. Wong checked the “yes” box but wrote in the word “possible”.
The AU quite properly viewed this report as an extremely equivocal evaluation which, in fact, it was. Contrary to the unsupportable inferences drawn by the majority, the AU did not imply that Southard was required to establish what portion of his disease related to coal mine employment. Rather, the AU simply concluded that, based on the record taken in its entirety, and in particular the facts relating to Southard’s non-coal mine employment, Southard had failed to carry his burden of proof on the issue of causation. That conclusion is supported by substantial evi *74 dence. Accordingly, I would deny the petition for review.