Petition — Old Ben Coal Co. v. Blaize
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FILE D
DEC 20 1982
NoB2 -1052
memes 2 . STEVAS,
CLERK
In the
Supreme Court of the Nnited Staten
OcroBeEr ‘l'erm, 1982
OLD BEN COAL COMPANY,
Petitioner,
v.
CORNELIUS J. BLAIZE,
and
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
EDMUND J. MORIARTY
MARK M. PIERCE
69 W. Washington St. +700
Chicago, Illinois 60602
Attorneys for Petitioner
UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581
QUESTIONS PRESENTED
I. Whether the United States Court of Appeals for the
Seventh Circuit departed from accepted and usual judicial
practice by vacating the Decision and Order of the Benefits
Review Board and the Department of Labor Administra-
tive Law Judge and deciding a federal question of mootness
in a way that conflicts with applicable decisions of the
United States Supreme Court.
II. Whether the United States Court of Appeals for
the Seventh Circuit departed from accepted and usual
judicial practice by failing to vacate all prior administra-
tive decisions in this case, an action which conflicts with
the applicable decisions of the United States Supreme
Court.
PARTIES
All parties to this proceeding before the United States
Court of Appeals for the Seventh Circuit are contained in
the caption of the case before this Court with the exception
of the Benefits Review Board of the Department, of Labor.
Old Ben Coal Company is a wholly owned subsidiary of
the Standard Oil Company (Ohio). Its subsidiary and
affiliates are listed in Appendix G.
ii
TABLE OF CONTENTS
Cueathnain Pennant oisssc os cnicesanscnscetatestnseneneeee i
GNI cavacin winsevnonecsionsectscchiertecdartanaeatiodataiimameieh eee
CCRE BI ncvivinenecsesceunntrenniontnnsdemae 1
PR ieccseirinnisirsiniacitanantineammamamamaate 2
Statutes and Regulations Involved oo..ccccccccccccccccecceeens 2
ENIE OE TRG ORI mesccssninsinsssesrmcocsnepamnnamnedel 3
MOR © cnsccsereciissnntssnicthccsantesphnnditcnandsnactinbdnaaaea
IC PIUIIIOT | ~ <:sas.sosssssssentsacensiccasenesanesnsunddeuspansiinasasbeaiisenainemaeel 7
Appendix
A. Seventh Cireuit Court of Appeals Order
Dated September 22, 1982 o.....ccccccccceseceeees App. 1
B. Seventh Cireuit Court of Appeals Order
Dated August 16, 1982 ..........ccccccssssssesssceeseees App. 3
C. Benefits Review Board Decision and Order ....App. 6
D. Department of Labor, Administrative Law
Judge Opinion and Order ooooccccccccccccccccseeeeee App. 38
E. Department of Labor Memorandum of
III: <. .cikcescsversncuscsanegheasesepsediiiinsesonnateciiacell App. 44
F. Pertinent Text of Cited Statutes and
NUON. ssi ccssasocedabadbeansneccsccubbaanetibineneniel App. 48
G. Corporate Subsidiary and Affiliates of the
BONN <si:s.:<icssibeslasshatihinesnsscecidieniheaadatieiane
iii
TABLE OF AUTHORITIES
Cases
PAGE
American Tel. & Tel. Co. v. Interstate Commerce Com-
mission, 602 I, 2d 401 (D.C. Cir, 1979) coc 16
Banks v. Chicago Grain Trimmers Ass'n, Ine., 390
U.S. 459 (1968), reh. den. 391 U.S, 929 (1968) ........ s
Bryan v. Austin, 354 U.S. 933 (1957) ccccceceeeeeceeeeee 11
Crowell v. Mader, 444 U.S. 505 (1980) 10, 14
Diffenderfer v. Central Baptist Church, 404 U.S, 412
PIIPTIED ~ © \cusssinsssosnsovensosssecssensonsontontcosonsenvonsosheesansasnansouseoseioose 11
Director v. Bethlehem Mines Corp., 609 F.2d 187 (4th
SeniccUEIIINTD 5: \ccccesnchicasstacochehamoowiosnshaphestbiansannviniaabenentasshetonbonss 8
Duke Power Co. v. Greenwood County, 299 U.S, 259
CBB) secccerscscscorsscovssesessecaseesnssccsotevsusnscnsensesesaveesensensesoessesee 11, 16
Great Western Sugar Co. v. Nelson, 442 U.S. 92 (1979) 16
A.L.Mechling Barge Line, Ine. v. United States, 368
Beis: BI CBUIED ~ cscsecessnetessccsscssonsccssnesecnmeivoreneonnenese 5, 7, 10, 14
O'Keefe v. Areojet—General Shipyards, Inc., 404 U.S.
BB CEDIA) voccaccccssonecvsceserenccsnseccssescnscnsenvetestossenssobecenesesocesces S
Tennessee Gas Pipeline Co. v. Federal Power Com-
mission, 606 F. 2d 1373 (D.C, Cir, 1979) concen 5, 7
United States v. Munsingwear, Inc, 340 U.S. 36
(1080) rerssssssecscscecerscssennsecsserseecsesesenees 6,7, 9, 10, 14, 15, 16, 17
iv
Statutes
PAGE
26 U.S.C. § 9501 (a) (2) (1982) vrescsecsessesseeneeneereernsensenees 15
BO U.B.C. § GOL et Seq. (1982) .cccsecsesseerernsrnsreeneerenneenee 3
BO U.S.C. § 902(1) (1982) .csecsecsessssnereeneensensensnceneennens 9, 11,12
BO U.S.C. $$921-925 (1982) ...scecseesssneersenesnsnsersnsennensenennens 3
BO U.S.C. § 922 (1982) .sscceesessecsessesernennernesneenernseneenseeses 2,8,9
BO U.S.C. §§ 981-945 (1982) ...eccecssssseesnesssserssnennennnennsrnes 3
BO U.S.C. § 9B2(a) (1982) cccccserssreresnererermanencereess 2,4, 8, 13
BO U.S.C. § 9820) (1982) ..cccecsesesssenesnesnernerreenenseneens 11, 12, 18
BO U.S.C. § 9B2(j) (1982) cresesssesessseressnserersenenne 9, 11, 12, 13
BO U.S.C. § 984 (1982) .ccccccccceeseeeeeenees a sadniecemanenpmeninaiaes HN]
BO U.S.C. § 945 (1982) ccscsesseseseesnennsneensenennsessseanensennsnnens 18
83 U.S.C. § 919 (1978) .ccseccssesesesesnennessenensansnesnsntensnnansnnenss 13
BB U.S.C. § 921 (1978) csccsssesseressssssenneneaereeneneanensencnsenes 13
83 U.S.C. § 921(b)(B) (1978) ccecserseresesneenernensrreneenenees 2, 8, 13
BB U.S.C. § 921(c) (1978) .cseccecesseceseseanenneenesrenerreneanees 2, 4,9
BB U.S.C. § 922 (1978) scecsessecesserssssersseeenernsenensneenensenenens 8, 9
Pub. Le No. 95-289 ...ccccsssssssessssssesscsssnnsssseneeneeneescanenncanecnnennens 3
Pub. Li NO. 7-119 ccccccccesssssescneeseesenenenenenenenes 2,9, 11, 12, 13, 14
Regulations
QO CUBR. $$ 725.809( 6), (A) .ccsecseressereesseenennereneenneenennes 2,9
QO C.FLR. $8 725.310(m), (A) ocsceseccersereseeneerennsenenncrennannns 2,8
90 CUPL. $$ 725.408-725.421 ..cccesscsesenesesssensenenssnenanannenees 13
QO CABUR. § 725.417 (A) ccsesesssessessesseneeneeeennenenesnsensnssnennennens 2,18
PAGE
Pe Re IE cotiinterisccserioeinsanenabemiaemacaeed 2,13
RAM a 0G SIMRO: . -cnacivcscetennssisarienpsvessanlasiniasbaanslcbi 13
ee TEI OC MEIIUIND ._ snscisseieasssackseanancacocaiivecptidasansbiaavennibeliel 13, 15
AE. PUR LUIPUD © © susccctecetssacossnioniohunassanicshibinnensibiiiens 2
Se AAS PUNE PONT CIDP . scuicsesvesnassasccunicssaciuebenntnctioeatiiabions 4
Se Es NCI |. “ieshiotansshsssictsenscsnentenidccasondaimaninnael 2, 8,13
Miscellaneous
Congressional Record-Senate, December 16, 1981,
AINA * wapsacissaiscectlisipkangdtiekdsceoiastulbanamsightspsnctuitdbaeastaaaacaeenaae 12, 14
Hearing on S, 1922 Before the Subcommittee on Labor
of the Senate Committee on Labor and Human Re-
sources, 97th Cong. Ist Sess. (Comm. Print 1981) ....9, 12
Report to the Congress; Legislation Authorized
Benefits Without Adequate Evidence of Black Lung
or Disability, General Accounting Office, January 19,
Mas iacsicsiniadass tiie cenddd rakancsindtbecdtcadiinuicksoeaeaiumialanananane 10
Iu the
Supreme Court of the United States
Ocroser ‘TERM, 1982
No.
OLD BEN COAL COMPANY,
Petitioner,
Vv.
CORNELIUS J. BLAIZE,
and
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
OPINIONS BELOW
The August 16, 1982 Order of the United States Court
of Appeals for the Seventh Circuit, which is here sought
to be reversed, is unreported and is reprinted in Appendix
B. The Order overruling the Petition for Rehearing dated
September 22, 1982 is printed in Appendix A. The prior
Opinion of the Benefits Review Board dated June 11, 1981
is reprinted in Appendix ('. The Opinion and Order, dated
February 28, 1980, of the Department of Labor, Adminis-
trative Law Judge, Stuart A. Levin is printed in Appendix
D. The Department of Labor’s Memorandum of Confer-
ence, dated April 6, 1979 is printed in Appendix EF.
2
JURISDICTION
The Order of the United States Court of Appeals for the
Seventh Circuit was filed on August 16, 1982. <A further
Order denying the Petition for Rehearing was filed on
September 22, 1982. The statutory provision which confers
jurisdiction on this Honorable Court is found at 28 U.S.C.
§ 1254(1) (1966).
STATUTES AND REGULATIONS
INVOLVED
The pertinent text of the following statutes and regula
tions are set forth in the Appendix F.
Statutes:
26 U.S.C. § 9501(a)(2) (1982)
30 U.S.C. $902(i) (1982)
30 U.S.C. § 932(a) (1982)
30 U.S.C. § 982(¢) (1982)
30 U.S.C. § 932(j) (1982)
33 U.S.C. $921(b)(3) (1978)
33 U.S.C. § 921(e) (1978)
33 U.S.C. § 922 (1978)
Pub. L. No. 97-119, Title I
Regulations:
20 C.F.R. § 725.309(¢)
20 U.E.R. § 725.309(d)
20 C.F.R. § 725.310(a)
S
20 C.F.R. § 725.310(d)
20 U.F.R. § 725.417(d)
20 C.F.R. § 725.481
20 U.F.R. § 727.108(c¢)
S
20 C.F.R. § 801.102
STATEMENT OF THE CASE
On March 5, 1973, Cornelius J. Blaize applied for benefits
under Title IV ‘‘Part B’’ (30 U.S.C. $§ 921-925) (1982)
of the Federal Coal Mine Health and Safety Act
of 1969, as amended, 30 U.S.C. § 901 et seq. (1982)
(the Act). His claim was denied by the Department of
Ilealth, Education and Welfare on September 25, 1973.
The claim was subsequently approved on January 16, 1975
by Administrative Law Judge John R. Hood of the Bureau
of Hearings and Appeals of the Social Security Adminis-
tration. However, on September 2, 1975, the Appeals
Council of that agency reversed this determination of en-
titlement on the grounds that Mr. Blaize was not totally
disabled prior to July 1, 1973.
During the pendency of that litigation, on July 24, 1974,
Mr. Blaize filed a claim for benefits under Title LV ‘‘ Part
(’ of the Act, 30 U.S.C. $§ 931-945, with the Depart-
ment of Labor (DOL).
On October 4, 1978 Claims Examiner, Fred P. May, an
employee of Respondent, Director, Office of Workers’ Com-
pensation Programs (Director, O.W.C.P.) found Mr.
Blaize entitled to benefits based on his erroneous inter-
pretation of the Black Lung Benefits Reform Act of 1977,
Pub. L. No. 95-239 (Reform Act). Old Ben was subsequently
notified of the initial finding and of its alleged status as
the operator responsible to pay Mr. Blaize’s benefits. On
October 20, 1978, Old Ben filed a controversion of liability.
On March 16, 1979 an informal conference was conducted
on the claim by Deputy Commissioner Edmond J. F. Fitz-
patrick, an employee of Director, O.W.C.P. On April 6,
1979 Deputy Commissioner Fitzpatrick recommended that
Mr. Blaize was eligible for benefits and found Old Ben
liable for the payment of benefits. Old Ben disagreed with
4
this recommendation of entitlement and requested a formal
hearing before a Department of Labor, Administrative Law
Judge.
A hearing was held on September 24, 1979 in Vincennes,
Indiana before Administrative Law Judge Stuart A. Levin.
On February 28, 1980 the Administrative Law Judge found
Mr. Blaize entitled to benefits as of July 1, 1974 under his
erroneous interpretation of 20 C.I'.R. § 727.203(a) (2). Old
Ben appealed the Administrative Law Judge’s decision
to the Department of Labor, Benefits Review Board
(Board). On June 11, 1981 the Board issued a Decision
and Order reversing Judge Levin’s award. The Director,
O.W.C.P. appealed the Board’s Decision and Order to the
Court of Appeals for the Seventh Cireuit. Mr. Blaize
cross-appealed the Board’s Decision and Order. The basis
for jurisdiction of the Cireuit Court of Appeals fer the
Seventh Circuit is 33 U.S.C. § 921(¢) (1978), as ineor-
porated by 30 U.S.C. § 932(a).
The Court of Appeals for the Seventh Circuit, by Order
dated August 16, 1982, dismissed the appeals of the Diree-
tor, O.W.C.P. and Mr, Blaize, and vacated the Orders of
the Benefits Review Board and the Administrative Law
Judge. This Order reinstated Mr. Blaize’s entitlement to
Federal Black Lung Benefits based on the Deputy Commis-
sioner’s recommendation dated April 6, 1979. On Sep-
tember 22, 1982 the Court of Appeals for the Seventh
Cireuit denied Old Ben’s Petition for Rehearing.
ARGUMENT
I, The United States Court of Appeals for the Seventh
Circuit departed from accepted and usual judicial practice
by vacating the Decision and Order of the Benefits Review
Board and Department of Labor Administrative Law
Judge, and deciding a federal question of mootness in a
way that conflicts with applicable decisions of the United
States Supreme Court,
It is Old Ben’s contention that the Court below erred in
its application of mootness theories to the instant case in
two ways:
A) The Court’s disposition of the instant case conflicts
with the applicable decisions of the United States
Supreme Court;
B) The instant case is not entirely moot.
A.
In its Order dismissing the appeals of the claimant and
the Director, O.W.C.P., the Court below cited the cases
of A.L. Mechling Barge Line, Inc. v. United States, 368 U.S.
324 (1961) and Tennessee Gas Pipeline Co. v. Federal
Power Commission, 606 F, 2d 1373 (D.C. Cir. 1979) in
support of its action of vacating the Orders of the Benefits
Review Board (Board) and the Administrative Law Judge
(ALJ). The Court stated that ‘‘Blaize and the Director
should not be bound by an order of the Board when ap-
pellate review fails because of intervening mootness,’’ Ap-
pendix B. It is Old Ben’s contention that the Court erred
in vacating the Board and ALJ Orders by misinterpreting
and misapplying the principles of Mechling, supra, Ten-
nessee, supra, and the case upon which these rulings are
6
based, United States v. Munsingwear, Inc., 340 U.S. 36
(1950).
In Munsingwear, supra, the United States sued Munsing-
wear Ine, for alleged violations of a price-fixing regulation,
seeking an injunction and treble damages. By agreement,
the treble damages count was held in abeyance pending
trial and final determination of the suit for an injunction.
Holding that Munsingwear’s prices complied with the
regulation, the District Court dismissed the complaint.
While an appeal was pending the commodity involved was
decontrolled, and the Court of Appeals dismissed the ap-
peal for mootness. The United States acquiesced in the
dismissal an’! made no motion to vacate the District Court
judgment. Lhe District Court then dismissed the action
for treble damages on the ground that the matter was
res judicata. The Court of Appeals affirmed,
In declining to make an exception to the application of
res judicala to the case, this Honorable Court noted that
any hardship to the government was preventable: ‘The
established practice of the Court in dealing with a civil
case from a court in the federal system which has become
moot while on its way here or pending our decision on the
merits is to reverse or vacate the judgment below and re-
mand with a direction to dismiss.’’ 340 U.S. at 39.
Since, the United States failed to move for vacation of
the District Court’s judgment on the injunction, it was
res judicata to the treble damages action,
The reason underlying this ‘‘established practice’? was
stated as follows: ‘‘That procedure clears the path for
future relitigation of the issues between the parties and
climinates a judgment, review of which was prevented
through happenstance. When that procedure is followed,
the rights of all parties are preserved; none is prejudiced
7
by a decision which in the statutory scheme was only pre-
liminary.’’ 340 U.S. at 40. The practice prevents ‘'... a
judgment, unreviewable because of 1nootness, from spawn-
ing any legal consequences.’’ 340 U.S. at 41.
In Mechling, supra, this Honorable Court explained the
governing principle of Munsingwear, supra, to be: **... LA)
party should not be concluded in subsequent litigation by
a District Court’s resolution of issues, when appellate re-
view of the judgment incorporating that resolution, other-
wise available as of right, fails because of intervening
mootness ... [T'Jhat principle should be implemented by
the reviewing court’s vacating the unreviewed judgment
below [footnote omitted].’’ 368 U.S. at 329. Stating that
this principle is equally applicable to unreviewed adminis-
trative orders, this Honorable Court modified the District
Court Order dismissing the underlying complaint, and or-
dered remand to the Interstate Commerce Commission with
directions to vacate its order, 368 U.S, at 331.
In Tennessee, supra, the Court of Appeals for the Dis-
trict of Columbia Circuit held that the controversy sur-
rounding an order of the Federal Power Commission
(FPC) had become moot pending appeal. In vacating the
FPC Order and remanding the case to the FPC for fur-
ther disposition, the Court cited Munsingwear and Mech-
ling for the proposition that, where there are ‘‘no assur-
ances that judicial review would ultimately be available,’’
vacation is appropriate to avoid any conclusive effects of
the administrative order. 606 F.2d at 1383.
In vacating the Board’s Order, the Court below mis-
applied the principles of Munsingwear and Mechling be-
cause it misconstrued the nature of the case before it.
Unlike the situation in Munsingwear, Mechling, and Ten-
nessee, there are no collateral proceedings to which the
8
Board’s judgment in the instant case may be applied, The
effect of the Board’s Order is to establish, as the final
decision of the Secretary of Labor,' that the claimant is
ineligible for benefits under the Act; on the basis of ex-
tensive medical and testimonial evidence, he is not totally
disabled due to coal worker’s pneumoconiosis. The Court
below could not have found any inherent unfairness or
prejudice to the claimant in allowing to stand the Voard’s
denial of a claim which has been proven meritless.’
Furthermore, under the administrative procedural rules
governing litigation of black lung claims, the Board's
Order has limited, if any, res judicata effect. Under the
provisions of 33 U.S.C. § 922 (1978), as incorporated by 30
U.S.C. § 932(a), the claimant may file a petition for modif-
ication alleging a change of condition or mistake in a de-
termination of fact. Under this procedure, the Deputy Com-
missioner of the Director, O.W.C.P. has the power to
‘terminate, continue, or reinstate’? benefit payments or
made an award of benefits. 20 C.F.R. $$ 725.310(a), (d).
As this Honorable Court has noted, the rights of modifiea-
tion under 33 U.S.C. § 922 are to be construed broadly and
are not limited to any particular type of facts."
In addition to the petition for modification, the claimant
may file a new application for benefits. His entitlement
to benefits will then be readjudicated. The res judicata
133 U.S.C, § 921(b)(3) (1978) as incorporated by 30 U.S.C.
§ 932(a); 20 C.F.R. § 801,102.
* See Director vy. Bethlehem Mines Corp., 609 F. 2d 187, 197
(4th Cir, 1982),
"O'Keeffe vy. Aerojet General Shipyards, Inc., 404 U.S. 254
(1971); Banks vy. Chicago Grain Trimmers Ass'n, Inc., 390 U.S.
459 (1968), reh. den. 391 U.S, 929 (1968),
9
effect of the Board’s Order is limited through the applica-
tion of the principles of 33 U.S.C, § 922 to the new adjudi-
cation. See 20 C.F.R, §§ 725.309(¢), (d). The determina-
tion of eligibility is ultimately reviewable by a Cireuit
Court of Appeals. 33 U.S.C. § 921(e). Therefore, the fear
of prejudice to the claimant or the spawning of legal con-
sequences due to res judicata is absent in the instant case.
Far from following the holding of Munsingwear that
vacation is to avoid prejudice to the parties and the spawn-
ing of legal consequences,’ the action of the Court below in
vacating the Board’s Order in fact creates prejudice and
legal obligations where none existed, The Court below
effectively passed on the merits of the claimant's case by
changing the Secretary of Labor’s ultimate denial of en-
titlement into a grant of entitlement payable by the Black
Lung Disability Trust Fund (Trust Fund). In doing so, the
Court below acted contrary to the very purpose for which
the Black Lung Benefits Amendments of 1981, Pub. L. No.
97-119, were enacted; to relieve the financial insolvency
of the Trust Fund and strengthen the eligibility stan-
dards of the Black Lung program. The Congress
was concerned with the General Accounting Office
(GAO) study indicating that black lung claims were being
awarded by the Social Security Administration without
adequate evidence of disability. See Hearing on S, 1922
Before the Subcommittee on Labor of the Senate Committee
on Labor and Iluman Resources, 97th Cong. 1st Sess. at
12-15, 20-21 (Comm. Print 1981), A recent GAO study
reached the same conclusion with respect to the Depart-
340 U.S. at 41.
* 30 U.S.C. $§ 902(i), 932(j), 934,
10
ment of Labor’s administration of the Reform <Act.® By
changing a denial into a grant, the Court below further
depleted the Trust Fund assets.
Since, the underlying concerns of JM/unsingwear and
Mechling are not present in this case and use of the Mun-
singwear procedure actually creates prejudice herein, the
Court below erred in its vacation of the Board and ALJ
orders,
The Court below erred further in its determination that
the case met the threshold requirement for application
of the Munsingwear, Mechling doctrine: that the case be
moot. As this Honorable Court recently pointed out in
reversing its own order of dismissal in the case of Crowell
v, Mader, 444 U.S. 505 (1980), use of the Munsingwear
" Report to the Congress; Legislation Authorised Benefits With-
out Adequate Evidence of Black Lung or Disability, General Ac-
counting Office, Jan, 19, 1982, The summary of findings in this
study states:
The Federal Coal Mine Health and Safety Act, as amended,
authorized the Department of Labor to approve black lung claims
based on conflicting or inconclusive medical evidence, affidavits
from spouses and others, or presumptions based on years of
coal mine employment. GAO believes that medical evidence
should be the basis for determining disability and death from
black lung and that benefits should be awarded only to miners
who are totally disabled by black lung or to their survivors,
This report (1) suggest that the Congress consider amending
the black lung legislation and (2) recommends that Labor
provide more guidance on the evidence needed to rebut certain
legislative presumptions and establish additional procedures for
resolving conflicting medical evidence,
Legislation passed by the Congress in December 1981 should
resolve a number of GAO's concerns and result in better evi-
dence to support approval of future black lung benefit claims.
11
procedure is only appropriate where intervening legisla-
tion makes the case entirely meot pending appeal.’
The Court below characterized the passage of the Black
Lung Benefits Amendments of 1981, Pub. L. No. 97-119, as
intervening legislation which ‘‘ requires this Court not only
to dismiss this appeal but also vacate all adjudicatory pro-
ceedings below in which Old Ben was the only party to
contest the initial administrative finding.’’ Appendix B.
However, this position overlooks the fact that while Pub.
L. No. 97-119 made several prospective eligibility criteria
changes, nothing in the Black Lung Benefits Amendments
of 1981 alters the eligibility criteria applicable to this
claim. This legislation does not mandate payment of bene-
fits by the Trust Fund in a case such as this, where the
claimant has been found to be ineligible for benefits. This
legislation does not purge the record of evidence devel-
oped by the alleged responsible operator, nor does it in
any way turn back the clock on a claim to some convenient
time prior t the completion of the full administrative
adjudication process. Clearly then, the issue of claimant’s
eligibility for benefits, the resolution of which is a pre-
requisite to the very existence of liability either for an
employer or the Trust Fund, has not been rendered moot
by the intervening legislation.
Beside the issue of eligibility, the issue of the proper
interpretation of Sections 422 and 402 of the Federal Coal
Mine and Safety Act of 1969, as amended by Section 205
of Pub. L. No, 97-119, codified at 30 U.S.C. $§ 932(¢), (3),
and 902(i) was squarely before the Court below. Liability
for certain denied but subsequently approved black lung
claims is transferred from the individual operator to the
* See also Duke Power Co. vy. Greenwood County, 299 U.S. 259
(1936); Bryan vy, Austin, 354 U.S. 933 (1957); Diffenderfer v.
Central Baptist Church, 404 U.S, 412 (1972).
12
coal industry supported Trust Fund by 30 U.S.C. $§ 932(¢)
and (j). For a claim to fall within the transfer provisions
under 30 U.S.C. § 932(j)(3) it must be one:
...in which there was a claim denied before March
1, 1978, and such claim is or has been approved in
accordance with the provisions of section 945 of this
title.
A ‘‘claim denied’’ is defined by 30 U.S.C. ¢ 902(i) to include
one ‘‘... (1) denied by the Social Security Administration ;
..’’ It was Old Ben’s contention before the Court below
that the transfer provisions of Section 205 are not ap-
plicable to this case since the entire administrative review
process involved in the claim must be considered before it
can be identified as a ‘‘claim ... approved’’ under Sec-
tion 205, 30 U.S.C. $$ 902(i), 932(¢), (j). The legislative
history of Pub. L. No. 97-119 supports this view.
In testimony before the Subcommittee on Labor of the
Committee on Labor and Human Resources, United States
Senate, Mr. Robert B. Collyer, Deputy Under Secretary
of Labor for Employment Standards, characterized the
transfer provisions as follows:
The administration proposes to transfer to the trust
fund the liability for claims denied and closed prior
to the 1977 amendments, and subsequently reopened
and approved pursuant to the special review process
established by those amendments. The purpose of this
amendment is to relieve operators from a significant
payment burden for which the insurance industry con-
tends coverage is unavailable.
See Hearing on S. 1922 Before the Subcommittee on Labor
of the Senate Committee on Labor and Human Resources,
97th Cong. 1st Sess., at 19 (Comm. Print 1981). A similar
statement was made by Senator Orin Hatch when present-
ing S. 1922 on the floor of the Senate. Congressional
Recorvd-Senate, December 16, 1981, S. 15494.
13
The above mentioned review process for these claims
is set out in 30 U.S.C. § 945. The Department of Labor
regulations on the procedure to be followed in the review
process are found in 20 C.I".R. g§ 727.101-109. Paragraph
(c) of § 727.108 provides that the Deputy Commissioner
may further develop the record and then ‘‘notify a coal
mine employer, if any, of its possible liability for the claim
and proceed to adjudicate the claim under §$§ 725.408-
725.421 of this subchapter.’’ The referenced Part 725 regu-
lations set out the appeal process from Deputy Commis-
sioner, Administrativ. Law Judge, and Board decisions.
See generally 33 U.S.C. s$ 919, 921 (1978) as incorporated
by 30 U.S.C. § 932(a).
In the instant case, Old Ben filed a timely request for
hearing on the Deputy Commissioner’s recommendation
of entitlement under the Reform Act. This action pre-
cluded the recommendation from becoming the final deci-
sion of the Secretary of Labor. 20 C.F.R. § 725.417(d).
Following the Administrative Law Judge’s grant of en-
titlement, Old Ben filed a timely Notice of Appeal with the
Board. Old Ben’s action precluded the Judge’s decision
from becoming final. 20 C.F.R. § 725.481. The Board re-
versed the ALJ’s decision thereby denying entitlement.
Under the statutory scheme, the Board has been em-
powered to determine finally for the Department of Labor
appeals raising a substantial question of law. 33 U.S.C.
§$ 921(b)(3); 20 C.F.R. § 801.102. Accordingly, the final
decision of the Department of Labor makes this claim a
denial of entitlement and thus a denial of all liability for
benefits. Therefore, it is not a claim approved as required
by Section 205, Pub. L. No. 97-119, 30 U.S.C. $$ 932(¢), (j).
Resolving the issue of proper interpretation of Section
205 is absolutely essential to the further disposition of
this claim. Whether this case is or is not a ‘‘claim.. .
14
approved”’ under the provisions of Section 205 is deter-
minative of whether liability, if any, is transferred to the
Trust Fund.
Since, Pub. L. No. 97-119 did not affect the issue of claim-
ant’s eligibility for benefits, and its passage created the
equally important threshold issue of defining what con-
stitutes a claim approved under Section 205, the contro-
versy before the Court below was not entirely moot. . Fol-
lowing Crowell, supra, use of the Munsingwear procedure
was completely inappropriate.
II. The United States Court of Appeals for the Seventh
Circuit departed from accepted and usual judicial prac-
tice by failing to vacate all prior administrative decisions
in this case, an action which conflicts with the applicable
decisions of the United States Supreme Court.
It remains Old Ben’s contention that the Court erred in
vacating the Board and ALJ orders under the Munsing-
wear, Mechling doctrine. However, in the alternative, Old
Ben contends that if this Honorable Court determines that
the Munsingwear, Mechling doctrine is applicable herein,
the Court below improperly applied said doctrine by fail-
ing to vacate all of the Department of Labor administra-
tive recommendations, decisions and orders issued in this
case.
In the Order appealed from, the Court below stated:
The Revenue Act requires this Court not only to
dismiss this appeal but also vacate all adjudicatory
proceedings below in which Old Ben was the only
party to contest the initial administrative finding.
* «* ”
We dismiss this appeal and vacate the orders of the
ALJ and the Board. Since the initial finding of eligi-
bility is not affected, and since the Director takes the
15
position that Blaize is entitled to black lung benefits,
we assume that appropriate action will be taken to
transfer liabiliiy for payment to the Trust Fund,
(Appendix B.)
By allowing the Deputy Commissioner’s recommendation
of entitlement to stand the Court below has elevated the
initial administrative determination of Respondent, Di-
rector, O.W.C.P., to the status of a final approval by the
Seerctary of Labor in his capacity as a Trustee of the Trust
Fund, 26 U.S.C. § 9501(a)(2) (1982). As the record in
this case indicates, and as permitted by 20 C.F.R. § 727.108,
the first review of this claim was based solely on the one-
sided record provided to the Director, O.W.C.P. by the
claimant. As a result of Old Ben’s involvement in the
case, new evidence was added, A full exposition of the
legal issues was made, After the full administrative ad-
judicatory process on the complete record, the claim was
proven meritless and denied, By allowing this initial
recommendation to stand while vacating the Board’s denial,
the Court’s action directly contradicts the holding of
Munsingwear, supra,
In Munsingwear, supra, vacation of all judgments below
was said to be the ‘‘duty of the appellate court.’’ The pro-
cedure was to clear ‘‘the path for future relitigation of
* The Court below premised its remand for payment by the Trust
Fund on the observation that the Director, O.W.C.P. does not
oppose claimant's entitlement, However, the fiduciary duties of the
Secretary of Labor as Trustee rest solely with the Secretary of
Labor, not with the Director, O.W.C.P. Nothing in this record in-
dicates that the Trustee, Secretary of Labor acquieses in the Director,
O.W.C.P.'s recommendation of entitlement, In fact, the Secretary
of Labor has not been a party in the case and this record contains
no indication by the Secretary of Labor, or the other Trustees (Sec-
retary of the Treasury, and Secretary of Health and Human
Services) whether the Trust Fund assets should be preserved by
defending the denial of the instant claim.
16
the issues’’ and prevent prejudice from ‘‘a decision which
in the statutory scheme was only preliminary.’ As char-
acterized by the District of Columbia Circuit Court of
Appeals, the Munsingwear procedure requires the Court
‘*simply to vacate the entire disposition below—to wipe
the slate clean.’’'”
This Honorable Court has recently made the require-
ment to vacate all proceedings below abundantly clear in
the case of Great Western Sugar Co, vy. Nelson, 442 US.
92 (1979). That case held that ‘‘[u]pon dismissing as moot
an appeal from the District Court’s order requiring arbi-
tration of a dispute as to respondent’s discharge by peti-
tioner—the arbitration proceedings having been completed
before the appeal could be decided on the merits—the
Court of Appeals erred in holding that the District Court’s
judgment should remain in effect.’’ 442 U.S. at 92. The
Petition for Certiorari was granted and the case remanded
to the Court of Appeals with directions to vacate the Dis-
trict Court’s judgment and to remand the case for dis-
missal.
This Honorable Court further noted" that the Court of
Appeals presumed desire to show approval of the non-
vacated District Court decision could not excuse its failure
to follow the holding of Duke Power Co, vy. Greenwood
County, 299 U.S, 259 (1936) which provided:
Where it appears upon appeal that the controversy
has become entirely moot, it is the duty of the appel-
late court to set aside the decree below and to remand
the cause with directions to dismiss (299 U.S, at 267).
* 340 U.S, at 40.
™ American Tel. & Tel. Co. v. L.C.C,, 602 F, 26 401, 411 (D.C,
Cir, 1979),
"442 U.S, at 93,
17
Assuming that the Munsingwear doctrine is applicable
to this case, the Court below erred in not vacating all of
the administrative recommendations, decisions and orders
issued herein, including the recommendation of entitlement
made by the Deputy Commissioner of the Director, O.W.
CP,
CONCLUSION
Wuererore, Petitioner respectfully prays that a Writ
of Certiorari be granted and the decision of the Court of
Appeals reversed,
Respectfully submitted,
Epmunp J. Mortarty
Vice President- Law &
Chief Counsel
Mark M, Pierce
Senior Counsel
Attorneys for Petitioner
APPENDIX
APPENDIX A
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
September 22, 1982
Before
Hon, WILLIAM J. BAUER, Circuit Judge
Hon. PHILIP NICHOLS, JR., Judge*
Hon. HARLINGTON WOOD, JR., Circuit Judge
No, 81-2188
DIRECTOR, OFFICE OF WORKERS’ COMPENSA-
TION PROGRAMS, UNITED STATES DEPARTMENT
OF LABOR, Petitioner,
vs.
OLD BEN COAL COMPANY and
CORNELIUS J. BLAIZE, Respondents,
No, 81-2324
DIRECTOR, OFFICE OF WORKERS’ COMPENSA-
TION PROGRAMS, UNITED STATES DEPARTMENT
OF LABOR, Petitioner,
Vs.
OLD BEN COAL COMPANY, Respondent,
and
CORNELIUS J. BLAIZE,
Respondent-Cross Petitioner.
Petitions for Review of the Benefits Review Board.
* The Honorable Philip Nichols, Jr.. Judge of the United States
Court of Claims, is sitting by designation.
App. 2
ORDER
On consideration of the petition for rehearing and sug-
gestion for rehearing in bane filed in the above-entitled
cause by counsel for Old Ben Coal Company, no judge in
active service has requested a vote thereon, and all of the
judges on the original panel have voted to deny a rehear-
ing. Accordingly,
IT IS ORDERED that the aforesaid petition for re-
hearing be, and the same is hereby, DENIED.
App. 3
APPENDIX B
UNITED STATES COURT OF APPEALS
For the Seventh Cireuit
Chicago, Illinois 60604
(Argued Mareh 30, 1982)
August 16, 1982
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon, PHILIP NICHOLS, JR., Associate Judge*
Hon. HARLINGTON WOOD, JR., Circuit Judge
No, 81-2188
DIRECTOR, OFFICE OF WORKERS’ COMPENSA-
TION PROGRAMS, UNITED STATES DEPARTMENT
OF LABOR, Petitioner,
vs.
OLD BEN COAL COMPANY and
CORNELIUS J. BLAIZE, Respondents,
No. 81-2324
DIRECTOR, OFFICE OF WORKERS’ COMPENSA-
TION PROGRAMS, UNITED STATES DEPARTMENT
OF LABOR, Petitioner,
vs.
OLD BEN COAL COMPANY, Respondent,
and
CORNELIUS J. BLAIZE,
Respondent-Cross Petitioner.
Petitions for Review of the Benefits Review Board.
“The Honorable Philip Nichols, Jr. Associate Judge of the
United States Court of Claims, is sitting by designation.
App. 4
ORDER
The Director and Blaize seek review of an order of
the Department of Labor Benefits Review Board which
overturned an ALJ finding that Blaize was entitled to
black lung benefits in accordance with 20 C.F.R. § 727.203
(1980). While this cause was pending appeal, Congress
enacted the Black Lung Benefits Revenue Act of 1981,
P.L. 97-119, 95 Stat. 1635, which in part amended §§ 422
and 402 of the Black Lung Benefits Reform Act of 1977,
30 U.S.C. § 923, 902. Because of that intervening enact-
ment, we dismiss this appeal and vacate the decisions of
the Benefits Review Board and the ALJ as moot.
All parties agree that Old Ben Coal must be dismissed
as a party since the Revenue Act, Title II, § 205 relieves
the operator of liability and requires that the type of
claim asserted here be presented to the Secretary of Labor
for review with benefits to be paid by the Black Lung
Disability Trust Fund if approved by the Secretary. See
H. Rep. No. 97-406, 97th Cong., Ist Sess. 5, 9 (1981), re-
printed in U.S. Code Cong. & Ad. News 2671, 2674, 2677.
The Director additionally filed a motion, in which Blaize
concurred, to vacate the decision of the Board and to re-
mand the case for assumption of liability for benefits by
the Trust Fund. Old Ben opposes that motion.
-Old Ben argues that the final adjudication of the Board
must stand and that the Revenue Act ‘‘does not allow the
Director to ignore the decision of the highest review au-
thority for black lung cases within the Department. of
Labor simply because he disagrees with that decision.’’ We
disagree.
The Department initially approved Blaize’s claim to
benefits under ‘‘Part C.’’ That initial review, made by a
deputy commissioner, is the same whether the claim is
against the operator or the trust fund. See 20 C.F.R.
App. 5
§$§ 727.108-.109 (1980). Old Ben was not a party to that
proceeding inasmuch as the finding was essentially an ad-
ministrative determination. Sce id. §§ 725.360, .412(a).
After the deputy commissioner made the initial finding of
entitlement, Old Ben was notified as a ‘‘responsible opera-
tor’’ and became a party entitled to invoke subsequent re-
view. See id, §§ 725,.360(a)(3), 412-413. As a party, Old
Ben contested the finding and thus thrust the matter into
the adjudication phase. The regulations permitted Old
Ben to present additional evidence to the deputy commis-
sioner and invoke Al,J and Board review of any adverse
findings. 7d. 725-413-.422, 725.450 et seq.
The Revenue Act requires this court not only to dismiss
this appeal but also vacate all adjudicatory proceedings
below in which Old Ben was the only party to contest the
initial administrative finding. It is clear that the juris-
diction for the proceedings which followed the initial find-
ing was premised on Old Ben’s status as a ‘‘party’’ and
its decision to contest that finding. See id. §§ 725.360,
.413(b) (2), 450, .481. The Revenue Act removes Old Ben
as a ‘‘responsible operator’’ and thus its status as a ‘‘par-
ty’? under the regulations. Moreover, Blaize and the
Director should not be bound by an order of the Board
when appellate review fails because of intervening moot-
ness. See A.L, Mechling Barge Lines, Inc. v, United
States, 368 U.S. 324, 329 (1961); Tennessee Gas Pipeline
Co. v. FPC, 606 F.2d 1373, 1382-83 (D.C. Cir. 1979).
For the foregoing reasons, we grant the motion of the
Director. We dismiss this appeal and vacate the orders
of the ALJ and the Board. Since the initial finding of eligi-
bility is not affected, and since the Director takes the posi-
tion that Blaize is entitled to black lung benefits, we as-
sume that appropriate action will be taken to transfer li-
ability for payment to the Trust Fund.
CORNELIUS J. BLAIZE
OLD BEN COAL COMPANY
DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION
PROGRAMS, UNITED
App. 6
APPENDIX C
Claimant-Respondent
v
)
)
)
)
) 80-301 BLA
Employer-Petitioner )
) OWCP No. 346-01-
) 1110
)
)
DECISION and
STATES DEPARTMENT OF ) ORDER
LABOR
Party-in-Interest )
Appeal from the Decision and Order of Stuart A.
Levin, Administrative Law Judge, United States De-
partment of Labor,
Robert J. Araujo, Chicago, Illinois, for the employer.
Judith Kk. Wolf, Co-Counsel for Black Lung Benefits
(T. Timothy Ryan, Jr., Solicitor of Labor; Laurie M.
Streeter, Associate Solicitor) Washington, D.C., for
the Director, Office of Workers’ Compensation Pro-
grams, United States Department of Labor,
Before: SMITH, Chief Administrative Appeals
Judge, MILLER and KALARIS, Administrative Ap-
peals Judges.
SMITH, Chief Administrative Appeals Judge;
Old Ben Coal Company (hereinafter, the employer) ap-
peals from the Decision and Order of Administrative Law
Judge Stuart A. Levin granting benefits to Cornelius J.
Blaize (hereinafter, the claimant) pursuant to 20 C.F.R.
App. 7
$727.203, which is contained in the Secretery of Labor’s
regulations implementing the Black Lung Benefits Reform
Act of 1977. The Black Lung Benefits Reform Act of 1977
made substantial changes to various provisions of Title
IV of the Federal Coal Mine Health and Safety Act of
1969, as amended, 30 U.S.C. §901 et seq., (hereinafter, the
Act).
On appeal, employer contends that the interim presump-
tion at 20 C.F.R. §727.203(a)(2) was not properly invoked
since the original pulmonary function study of record did
not specify degree of cooperation or comprehension and
only a supplemental statement of the doctor based on a
review of the study’s tracings was offered into evidence
to meet the requirements of 20 C.F.R. §410.430. Employer
further argues that claimant does not have totally dis-
abling pneumoconiosis, specifically pointing out Dr. Con-
nerley’s statement that claimant does not suffer from
pneumoconiosis. We treat employer’s argument as a con-
tention that claimant does not have pneumoconiosis and
that therefore the interim presumption has been rebutted
pursuant to 20 C.F.R, §$727.203(b)(4). The Director, in
his response, argues that the administrative law judge’s
award of benefits is based on substanual evidence, prop-
erly applies the interim presumption and should be
affirmed,
The claimant filed a Part C claim for black lung benefits
on July 24, 1974.! Following a hearing which was held on
'We note that claimant also filed an application for black lung
benefits with the Department of Health, Education, and Welfare on
March 5, 1973, under Part B of the Act. That claim was initially
denied by the Department of Health, Education, and Welfare on
September 25, 1973, and denied again on reconsideration. After a
hearing, an administrative law judge of Health, Education, and
Welfare granted claimant benefits on January 16, 1975. Social
(footnote continued )
App. 8
September 24, 1979, the administrative law judge deter-
mined that claimant was entitled to invocation of the in-
terim presumption based on a pulmonary function study
of record pursuant to 20 C.F.R. §727.203(a)(2). The ad-
ministrative law judge also found that employer had
failed to rebut the presumption pursuant to 20 C.F.R.
§$727.203(b) (4). Accordingly, the administrative law judge
found that claimant was entitled to benefits.
The Board’s scope of review is governed by statutory
authority. The trier of fact is charged with evaluating the
credibility of the evidence and witnesses; the Board may
not reweigh the evidence, but must accept the administra-
tive law judge’s factual conclusions unless unsupported
by substantial evidence, not in accordance with law or ir-
rational. 33 U.S.C. §921(b)(3) as incorporated by 30
U.S.C, §$932(a); O’Keeffe v. Smith, Hinchman & Grylls
Assoc., Inc., 380 U.S. 359 (1965); Peabody Coal Co. v.
Benefits Review Board, 560 F.2d 797, 802, 6 BRBS 434 (7th
Cir. 1977), aff’g Wells v. Peabody Coal Co., 4 BRBS 506,
BRB No. 75-219 BLA (1976).
(footnote continued )
Security's Appeals Council reversed the administrative law judge,
however, and denied the claim for benefits on September 2, 1975.
On October 4, 1978, the Department of Labor notified claimant that
his application for benefits and been reviewed under the provisions
of the 1977 Reform Act and that based on this review he appeared
to be entitled to benefits. The employer was identified as the po-
tentially liable responsible operator and controverted its liability
on the Part C claim filed July 24, 1974. The administrative law
judge based the Decision and Order on appeal here solely on this
July 1974 claim. We also base our review solely on the claimant's
1972 Act Part C application for benefits.
App. 9
With this in mind, we turn to the issue of whether the
interim presumption was properly invoked. Employer
contends that the interim presvinption at 20 C.F.R. §727.-
203(a)(2) was not properly invoked because the only pul-
monary function study of record does not meet the Sec-
tion 410.430 quality standards.
In the Decision and Order on appeal, the administrative
law judge found that the only pulmonary function study
in the record invoked the presumption. This study was
performed on January 29, 1974, by Dr. Marion L. Conner-
ley and resulted in an FEV; of 1.215 and an MVV of 40
with claimant’s height recorded as 70 inches. The regula-
tory table at 20 C.F.R. $727.203(a)(2) provides that in
order to invoke the interim presumption, a claimant 70
inches tall must score an FEV; of 2.5 or less coupled with
an MVV of 100 or less. Thus, the pulmonary function
study of record resulted in qualifying values, 20 C.F.R.
§727.203(a) (2).
Pursuant to 20 C.F.R. $727.206(a), however, only a ven-
tilatory test which meets the quality standards applicable
at the time the evidence was submitted is considered suffi-
cient to invoke the interim presumption. Thus the pulmo-
nary function study of record in the instant case must also
be conforming, i.e., meet the quality standards set forth at
20 C.F.R. §410.430 in order to constitute substantial evi-
dence sufficient to support the administrative law judge’s
invocation of the interim presumption.
Section 410.430 requires that ‘‘a statement shall be made
as to the individual’s ability to understand the directions,
and cooperate in performing the tests.’’ 20 C.F.R. §410.430.
The pulmonary function study in the instant case, how-
ever, was submitted into evidence without such a state-
App. 10
ment. The hearing record was kept open to allow counsel
to obtain a statement as to claimant’s cooperation and
comprehension during his performance of the test. Post-
hearing, the administrative law judge received and admit-
ted into evidence a letter from Dr. Connerley which indi-
cated that he had reviewed the study’s tracings and con-
cluded that claimant’s cooperation and comprehension
were adequate. The administrative law judge held this
statement to be sufficient to bring the pulmonary function
study of record into compliance with the mandatory quality
standards and therefore invoked the interim presumption
based on it.
Employer, however, objects to invocation of the pre-
sumption arguing that Dr. Connerley’s subsequent review
of the study’s tracings to determine claimant’s cooperation
and comprehension is not acceptable and does not make
the study conforming. Employer argues that Section
410.430 does not mention reviewing tracings to determine
cooperation and comprehension and does not pose alterna-
tive methods for complying with the regulation. It is em-
ployer’s position that the only purpose for keeping the
hearing record open was to see if a record existed which
was recorded at the time the test was administered and
indicated claimant’s cooperation. Since no such records
were produced, employer contends that the requirements
of Section 410.430 were not, and could not be, met.
We agree with the administrative law judge that Sec-
tion 410.430 mandates no specific method to be used in
ascertaining claimant’s cooperation and comprehension.
In this case, a later review of the study’s tracings by the
administering physician was used to meet the requirements
of 20 C.F.R. §410.430. We hold this review to be an ac-
ceptable method of determining claimant’s cooperation
App. 11
and comprehension.” The administrative law judge also
noted that employer did not submit any contrary medical
evidence and did not submit any evidence that review of
tracings is not an analytically valid basis for assessing
understanding and cooperation, Given this evidentiary
record, we affirm invocation of the interim presumption
as in accordance with law and supported by substantial
evidence in the record considered as a whole,
Kmployer further argues that the administrative law
judge focused on one item of evidence only and did not
properly consider the other relevant evidence in the ree-
ord before invoking the presumption. Section 727.203(a),
however, by its terms, permits a claimant to invoke the
presumption ‘‘if one of the . . . medical requirements is
met,’’ 20 C.F.R, §$727.203(a).° Thus adjudication officers
have only to weigh conflicting evidence of like type, ie.,
pulmonary function studies pursuant to Section 727,203
“Dr. Martin Welch, in an article entitled “Ventilatory Function
of the Lungs” stated that, when a competent and conscientious
technician carries out the test procedures and when a recording of
the tracings obtained accompanies the battery of measurements rec-
ommended, interpretation of the data may render a satisfactory
judgment as to validity in most cases. Dr, Welch indicates that a
poor effort spirogram can usually be identified. In a list of poor
effort patterns, Dr. Welch indicates that an uneven, slurred or
notched curve can indicate poor effort. Dr. Welch further stated
that the validity of any normal spirogram can be inferred from close
reproducibility on repeated performance and from the appearance
of smooth expiratory curves, without continued notching or slurring,
until a plateau is achieved, Pulmonary Medicine, Clarence A,
Guenter, M.D., editor; Martin Welch, M.D., associate editor; (1st
ed., 1977) pp. 96-97,
* For an example of pre-invocation weighing of several pulmonary
function studies, see Strako vy. Zeigler Coal Co., BLR ..., BRB
No. 79-188 BLA (May 14, 1981).
App. 12
(a)(2), before invocation. They must consider all other
relevant evidence in terms of rebuttal pursuant to Section
727,203(b).
In the present case, there was only one pulmonary fune-
tion study in the record and therefore only one study
relevant to invocation under subsection (a)(2) of Section
727,203. Thus, the administrative law judge acted prop-
erly when he considered only that pulmonary function
study prior to Section 727.203(a)(2) invocation and
weighed the other relevant evidence under the rebuttal
methods of Section 727.203(b). We, therefore, reject the
employer’s argument that the administrative law judge
incorrectly focused on one item of evidence,
We now turn to the issue of whether the interim pre-
sumption was rebutted. Employer argues that the claim-
ant does not have totally disabling pneumoconiosis and
therefore is not entitled to benefits. We will treat em-
ployer’s argument as a contention that claimant does not
have pneumoconiosis and that therefore the interim pre-
sumption has been rebutted pursuant to 20 C.F.R. $727,203
(b) (4). In the Decision and Order on appeal, the admin-
istrative law judge also determined that the only subsec-
tion of 727.203(b) relevant in the instant case was (b)(4).
That subsection provides that the interim presumption is
rebutted if the evidence establishes that the miner does
not, or did not, have pneumoconiosis,
In making his finding pursuant to 20 C.F.R. §727.203(b)
(4), the administrative law judge carefully weighed the
x-ray evidence of record and determined that claimant did
not have clinical pneumoconiosis, He concluded that the
weight of the evidence established that the claimant’s
respiratory condition was pulmonary emphysema, The
administrative law judge further stated that, since claim-
App. 13
ant’s emphysema was presumed to be pneumoconiosis
under Section 727,.203(a), in order to rebut the presump-
tion, employer must show that claimant’s emphysema did
not fall within the definition of pneumoconiosis as set
forth in 20 C.F.R, §727.202. After reviewing the medical
evidence, the administrative law judge found that the em-
ployer had not offered any evidence that established that
claimant’s pulmonary emphysema was not included in the
definition of pneumoconiosis, Thus, the administrative law
judge concluded that employer had failed to rebut the pre-
sumption pursuant to 20 C.F.R. §727,208(b)(4). After
review of the medical evidence and case law, however, we
hold that the employer has rebutted the interim presump-
tion by establishing that the miner does not have pneu-
moconiosis. 20 C.F.R. $727.203(b) (4).
Section 402(b) of the Act provides that the term ‘‘pneu-
moconiosis’’? means a chronic dust disease of the lung and
its sequelae, including respiratory and pulmonary impair-
ments, arising out of coal mine employment. 30 U.S.C,
$902(b). The corresponding regulation, 20 C.F.R, §727.202,
provides :
For the 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. This definition
includes, but is not limited to, coal workers’ pneumo-
coniosis, anthracosilicosis, anthracosisanthro-silico-
sis,‘ massive pulmonary fibrosis, progressive massive
fibrosis, silicosis, or silicotuberculosis arising out of
coal mine employment. For the purposes of this defi-
nition, a disease ‘arising out of coal mine employment’
‘ There is a typographical error in this section of the regulations.
We read the word which appears “anthracosisanthrosilicosis” as
anthracosis and anthrosilicosis. Lohr v. Rochester and Pittsburgh
Coal Co., 2 BLR 1-1070 (1980).
includes any chronic pulmonary disease resulting in
respiratory or pulmonary impairment significantly
related to, or aggravated by, dust exposure ir coal
App. 14
mine employment.°
20 C.F.R, §727,202.
There are several chest x-rays® and medical reports of
record relevant to a determination of whether claimant
5 The Fifth Circuit has expressed serious reservations concerning
aggravation of impairment due to coal dust exposure as a basis for
entitlement. See United States Steel Corp. v. Gray, 588 F.2d 1022,
1026, footnote 3 (Sth Cir. 1979). Claimant here does not raise the
issue, and we, therefore, do not consider it in the instant case.
Date of X-ray Doctor
Reading
Rereading Doctor
8/69
8/15/72
3/16/73
1/28/74
"/5/79
Weitzel
Weitzel
Beeler
Connerley
Pruitt
pulmonary
emphysema
no active
pulmonary
parenchymal
disease but
indicates
pleural
thickening
in both cos-
trophrenic
angles
1/0
0/0
emphysema
chronic
lung di-
sease with
emphysema
and fibrosis
N/A
N/A
1/0t
1/0
N/A
N/A
Strong
Winttlesey
App. 15
has pneumoconiosis. On January 31, 1974, Dr. R. KE.
Weitzel diagnosed claimant as suffering from pulmonary
emphysema, intermittent bronchial asthma, and hyperten-
sion. In a narrative report dated August 7, 1974, Dr.
Weitzel stated that he had known claimant for many years
and indicated that chest x-rays were consistent with pul-
monary emphysema but no active pulmonary parenchymal
disease. See footnote 6, supra, Dr. Weitzel diagnosed
obesity, periodic bouts of mild hypertension and chronic
pulmonary deficiency due to pulmonary emphysema. In a
medical report dated January 29, 1974, Dr, Marion L, Con-
nerley indicated that a chest x-ray showed category 0/0
opacities as well as emphysema and that claimant had a
68 percent permanent partial pulmonary disability, 100
pereent of which was due to obesity, hypertension and
obstructive type pulmonary emphysema. Dr. Connerley fur-
ther stated that there was no pneumoconiosis in the patient.
The most recent medical evidence of record is a report of
claimant’s September 1979 hospitalization. On claim-
ant’s discharge sheet, Dr. D. E. Pruitt diagnosed acute
cardiovascular attack with encephalitis and lower extremity
weakness, obesity, generalized arterioselerotic heart dis-
ease and benign prostatic hypertrophy. Dr. Pruitt also
stated that chest x-ray revealed chronic lung disease with
emphysema and fibrosis. See footnote 6, supra.
In reviewing this medical evidence, it must be emphasized
that all three doctors of record agree that claimant’s res-
piratory condition is emphysema. In addition, Dr. Con-
nerley, based on an x-ray, physical examination and
ventilatory study, specifically stated that claimant does not
have pneumoconiosis,
It has been established that medical opinion, other than
a radiologist’s opinion based solely on a negative chest
x-ray, may suffice to rebut a presumption by establishing
App. 16
that claimant does not have pneumoconiosis. United States
Steel Corp. v. Gray, 588 F.2d 1022, 1027, 9 BRBS 638, 642
(Sth Cir. 1979) construing 30 U.S.C, §$921(¢)(4). In the
instant case the medical opinion of record is unanimous in
stating that claimant has emphysema and in not diagnos-
ing pneumoconiosis.
In this respect the Gray court stated that ‘‘emphysema
... is not a chronic dust disease of the lung arising out
of employment in the coal mines’’ and does not qualify as
‘*statutory pneumoconiosis under either the definition set
forth in the 1969 Act as amended in 1972, or the new defi-
nition enacted as part of the 1977 Reform Act.’’ Gray,
supra, 588 F.2d at 1027, fn.3.
Therefore, we conclude that the administrative law judge
improperly weighed the medical evidence of record in
that instant case with respect to 20 C.F.R. $727.203(b) (4).
After careful consideration of the medical evidence of
record and prior case law, we hold that claimant does not
have pneumoconiosis and that therefore employer success-
fully rebutted the interim presumption pursuant to 20
C.F.R. $727.203(b) (4).
Accordingly, the Decision and Order granting claimant
benefits is reversed.
SO ORDERED.
Dated this 11th
day of June 1981
App. 17
MILLER, Administrative Appeals Judge, dissenting:
L vigorously dissent from the decision reversing the ad-
ministrative law judge’s award of benefits.'
After recognizing that the ‘* Black Lung Benefits Reform
Act of 1977 made substantial changes to various provisions
of Title IV of the Federal Coal Mine Health and Safety
Act of 1969,’ the majority proceeds to ignore the Reform
Act and its implementing regulations, and places sole re-
liance on a misreading of dicta in an isolated pre-Reform
Act decision. Therefore, | must discuss this case, as did
the administrative law judge, under the applicable law.
The cornerstone of the Reform Act is Section 402(f) (2)
which provides that with regard to determinations of
total disability :
Criteria applied by the Secretary of Labor in the case
of—
(A) any claim which is subject to review by the
Secretary of Health, Education, and Welfare, or
subject to a determination by the Secretary of
Labor under Section 435(a) ;
'T must note at the outset that in reversing the decision of the
administrative law judge, my colleagues decline to address the ag-
gravation doctrine of Section 727.202 because claimant has not
raised the issue. Majority opinion, n. 5. The majority overlooks
that it is employer who appeals from the award of the administra-
tive law judge. Moreover, since the administrative law judge based
the award, in part, on employer's failure to introduce any evidence
as to “whether the diagnosed pulmonary emphysema is aggravated
by coal dust exposure” as required by Section 727.202 and thus
concluded that employer did not rebut the interim presumption of
Section 727.203 pursuant to Section 727.203(b)(4), Decision and
Order at 7, I fail to see how my colleagues can reverse this deter-
mination, and find rebuttal as a matter of law pursuant to Section
727.203(b) (4), without considering the issue. But my colleagues
have done exactly that,
App. 18
(B) any claim which is subject to review by the
Secretary of Labor under Section 435(b); and
(C) any claim filed on or before the effective
date of regulations promulgated under this sub-
section by the Secretary of Labor;
shall not be more restrictive than the criteria applic-
able to a claim filed on June 30, 1973, whether or not
the final disposition of any such claim occurs after
the date of such promulgation of regulations by the
Secretary of Labor.
30 U.S.C. $902(f)(2) (emphasis added).*
* Criteria applicable to a claim filed on June 30, 1973, are found
at 20 C.F.R. §410.490 which provides:
Interim presumption, With respect to a miner who files a
claim for benefits before July 1, 1973, and with respect to a
survivor of a miner who dies before January 1, 1974, when
such survivor timely files a claim for benefits, such miner will
be presumed to be toally disabled due to pneumoconiosis, or to
have been totally disabled due to pneumoconiosis at the time
of his death, or his death will be presumed to be due to pneu-
moconiosis, as the case may be, if:
— <---
(1) One of the following medical requirements is met:
(i) <A chest roentgenogram (X-ray), biopsy, or autopsy
establishes the existence of pneumoconiosis (see Section
410.428) : or
(ii) In the case of a miner employed for at least 15 years
in underground or comparable coal mine employment, ventila-
tory studies establish the presence of a chronic respiratory or
pulmonary disease (which meets the requirements for duration
in Section 410.412(a)(2)) as demonstrated by values which
are equal to or less than the values specified in the following
table: [Table omitted].
(2) The impairment established in accordance with para-
graph (b)(1) of this section arose out of coal mine employment
(see Sections 410.416 and 410.456).
(3) With respect to a miner who meets the medical re-
(footnote continued )
App. 19
Prior to the enactment of the Reform Act, Section
402(f), 30 U.S.C. $902(f), mandated,
that the regulations regarding black lung benefits
‘shall not provide more restrictive criteria than those
applicable under Section 423(d) of Title 42 (Social
Security Act).’ Therefore, if the ‘total disability’
test [was] met under the Social Security criteria,
then total disability due to black lung [was] also
established,
Collins v. Mathews, 547 F.2d 795, 798 (4th Cir. 1976).
Similarly, Section 402(f)(2) now mandates that criteria
applied by the Department of Labor in this claim shall not
be more restrictive than the criteria of 20 C.F.R. §410.490.
Section 410.490 provides for a presumption of total dis-
ability due to pneumoconiosis. The Department of Labor
has promulgated the regulations at 20 C.F.R. $$727.200
(footnote continued )
quirements in paragraph (b)(1) (ii) of this section, he will be
presumed to be totally disabled due to pneumoconiosis arising
out of coal mine employment, or to have been totally disabled
at the time of his death due to pneumoconiosis arising out of
such employment, or his death will be presumed to be due to
pneumoconiosis arising out of such employment, as the case
may be, if he has at least 10 years of the requisite coal mine
employment.
Rebuttal of presumption. The presumption in paragraph (b)
of this section may be rebutted if:
(1) There is evidence that the individual is, in fact, doing
his usual coal mine work or comparable and gainful work (see
Section 410.412(a)(1)), or
(2) Other evidence, including physical performance tests
(where such tests are available and their administration is not
contraindicated ), establish that the individual is able to do his
usual coal mine work or comparable and gainful work (see
Section 410.412(a)(1)).
20 C.F.R. §410.490(b) and (c).
App. 20
et seq. to implement the congressional mandate requir-
ing criteria no more restrictive than the interim adjudica-
tory rules of 20 C.F.R. §410.490. See 20 C.F.R. $727,200,
Therefore, if the ‘‘total disability due to pneumoconiosis’?
test would be met under 20 C.F.R. §$410.490, then total
disability due to pneumoconiosis is also established under
the Department of Labor regulations.
To effectuate the congressional mandate of Section
402(f)(2), the Department of Labor has promulgated the
interim presumption of 20 C.F.R. §727.203."
ee ee
* Section 727.203 provides:
(a) Establishing interim presumption, A miner who en-
gaged in coal mine employment for at least 10 years will be
presumed to be totally disabled due to pneumoconiosis, or to
have been totally disabled due to pneumoconiosis at the time
of death, or death will be presumed to be due to pneumoconi-
osis, arising out of that employment, if one of the following
medical requirements is met:
(1) A chest roentgenogram (X-ray), biopsy, or autopsy
establishes the existence of pneumoconiosis (see Section 410.-
428 of this title) ;
(2) Ventilatory studies establish the presence of a chronic
respiratory or pulmonary disease (which meets the require-
ments for duration in Section 410.412(a)(2) of this title) as
demonstrated by values which are equal to or less than the
values specified in the following table: [Table omitted].
(3) Blood gas studies which demonstrate the presence of
an impairment in the transfer of oxygen from the lung alveoli
to the blood as indicated by values which are equal to or less
than the values specified in the following table: |Table omit-
ted].
(4) Other medical evidence, including the documented
opinion of a physician exercising reasoned medical judgment,
establishes the presence of a totally disabling respiratory or
pulmonary impairment ;
(5) In the case of a deceased miner where no medical evi-
(footnote continued )
App. 21
A comparison of the presumptions of Section 410.490
and Section 727.203 illustrates that the administrative law
judge correctly interpreted Section 727.203, i.e., in accord-
ance with the congressional mandate of Section 402(f) (2)
of the Act, whereas my colleagues have interpreted Sec-
tion 727.203 so as to violate the congressional mandate.
The Department of Labor has provided regulations for
the invocation of the Section 727.203 presumption by x-ray
evidence and ventilatory studies which are materially iden-
tical to the regulations of Section 410.490(b)(1). Compare
20 C.F.R. $$727.208(a)(1) and (a)(2) with 20 C.F.R.
$$410.490(b)(1)(i) and (b) (1) (ii).*
(footnote continued )
dence is available, the affidavit of the survivor of such miner
or other persons with knowledge of the miner's physical con-
dition, demonstrates the presence of a totally disabling respira-
tory or pulmonary impairment.
(b) Rebuttal of interim presumption. In adjudicating a claim
under this subpart, all relevant medical evidence shall be con-
sidered. The presumption in paragraph (a) of this section
shall be rebutted if:
(1) The evidence establishes that the individual is, in fact,
doing his usual coal mine work or comparable and gainful
work (see Section 410.412(a)(1) of this title); or
(2) In light of all relevant evidence it is established that
the individual is able to do his usual coal mine work or com-
parable and gainful work (see Section 410.412(a)(1) of this
title) ; or
(3) The evidence establishes that the total disability or
death of the miner did not arise in whole or in part out of
coal mine employment; or
(4) The evidence establishes that the miner does not, or
did not, have pneumoconiosis.
‘There are additional means of invocation in Sections 727.203
(a)(3), (a)(4), and (a)(5) which have no counterpart in Sec-
tion 410.490(b). In promulgating Section 727.203, the Secretary
of Labor recognized that the Reform Act regulations “provide addi-
(footnote continued )
App. 22
With regard to rebuttal of the Section 410.490 and See-
tion 727.203 presumptions, the Department of Labor has
provided regulations for the rebuttal of the Section 727.203
presumption by evidence of continued work and ability
to engage in work which are materially identical to the
rebuttal provisions of Section 410.490(c). Compare 20
C.F.R. §$§727.203(b)(1) and (b)(2) with 20 C.F.R.
$$410.490(c)(1) and (c)(2). However, the rebuttal
standards of Section 727.203(b)(3) and (b)(4) have no
counterparts in Section 410,490(¢c). Thus, any application
of the rebuttal standards of Section 727.203(b)(3) and
(b)(4), at least when the presumption is invoked by evi-
dence which would also have sufficed to invoke the Section
410.490(b) presumption, i¢., x-ray evidence (Section
727.203(a)(1)) and ventilatory studies (Section 727.203
(a)(2)), must be carefully scrutinized to insure that they
do not violate the ‘‘no more restrictive’’ requirement of
Section 402(f)(2), 30 U.S.C. §902(f)(2).
(footnote continued )
tional standards, not available in |Section 410.490], by which a
claimant can take advantage of a presumption of total disability
or death due to pneumoconiosis arising out of coal mine employ-
ment.” 20 C.F.R. §727.200. However, the deletion of standards,
available in Section 410.490, by which a claimant can take advan-
tage of a presumption of total disability or death due to pneumo-
coniosis does not appear to have been contemplated. Neither is
any such deletion permissible under the Section 402(f)(2) “no
more restrictive” requirement. 30 U.S.C. §902(f)(2).
The Department does not agree with the view that the interim
standards cannot as a matter of law be more favorable to
claimants than the Social Security Administration standards.
The Act requires only that the Department's standards be no
more restrictive than those applied by the Social Security Ad-
ministration.
43 Fed. Reg. 36826 (Discussion and Changes of Department of
Labor in Response to Comments Received, Adoption of 20 C.F.R.
Part 727).
App. 23
Careful scrutiny of Section 410.490 and Section 727.203
reveals that the rebuttal standards of Sections 727.203
(b)(3) and (b)(4), if correctly interpreted in accordance
with the applicable definitions of 20 C.F.R. §727.202, do
not go beyond the scope of rebuttal of Section 410.499(c),
and hence, as promulgated, do not violate the ‘‘no more
restrictive’? requirement of Section 402(f)(2), 30 U.S.C.
$902(f)(2).
The presumption of Section 410.490, once invoked, pro-
vided that a ‘‘miner will be presumed to be totally dis-
abled due to pneumoconiosis.’’ 20 C.F.R. §410.490(b).
Section 410.490 also required that the impairment which
sufficed to invoke the presumption arose out of coal mine
employment. 20 C.F.R. §410.490(b)(2). To this end,
Section 410.490 referred to Section 410.416 which provides
that:
If a miner was employed for 10 or more years in the
Nation’s coal mines, and is suffering or suffered from
pneumoconiosis, it will be presumed, in the absence of
persuasive evidence to the contrary, that pneumoco-
niosis arose out of such employment.
20 C.F.R. §410.416(a). For the purpose of Section
410.416(a), ‘‘pneumoconiosis’’ includes any condition that
may be the basis for application of any presumption of
total disability due to pneumoconiosis. 20 C.F.R. §410.401
(b). See also 20 C.F.R. §410.490(b)(3). Thus, Section
410.416(a) is not limited to ‘‘clinical’’ pneumoconiosis, but
rather applies equally to ‘‘presumed’’ pneumoconiosis.
See Ansel v. Weinberger, 529 F.2d 304, 310 (6th Cir. 1976).
In sum, Section 410.490 provided that a miner who met
the medical requirements of Seciion 410.490(b) (1) (i) [x-ray
evidence | or Section 410.490(b) (1) (ii) [ventilatory studies]
and was employed for ten or more years in coal mine em-
ployment, Section 410.490(b)(3) and Section 410.416(a)
App. 24
as applied by Section 410.490(b)(2), is presumed totally
disabled due to pneumoconiosis, Section 410.490(b) (2),
arising out of coal mine employment, Section 410.490(b) (3)
and Section 410.416(a) as applied by Section 410.490
(b)(2).°
The Section 727.203 presumption provides that with re-
gard to a miner with ten or more years of coal mine em-
ployment who satisfies any of the medical criteria in
Section 727.203(a)(1-5), the miner is presumed totally
disabled due to pneumoconiosis arising out of that employ-
ment. The rebuttal standards of Section 727.203(b) (1)
and (b)(2) are the only means of rebuttal provided in
Section 410.490(¢). Entitlement pursuant to the Section
410.490 presumption could also be rebutted by ‘‘ persuasive
evidence’’ that pneumoconiosis (clinical or presumed) did
not arise out of coal mine employment. 20 C.F.R. $410,416
(a) as applied by 20 C.F.R. §410.490(b)(2). Therefore,
the rebuttal standards of Sections 727.203(b)(3) and
(b)(4), which may not be broader in scope than the rebut-
tal standards of Section 410.490, are legally valid if, and
only if, subsections (b)(3) and (b)(4) provide for rebuttal
only by persuasive evidence that pneumoconiosis (true or
presumed) did not arise out of coal mine employment.
The Department of Labor has carefully defined the
term pneumoconiosis for the purpose of Section 727.203
so as to comply with the congressional mandate of Section
402(f) (2), 30 U.S.C. $902(f)(2). 20 C.F.R. §727.202. How-
5 The Section 410.490 presumption also applied to miners with
less than ten years of coal mine employment and x-ray evidence of
pneumoconiosis, 20 C.F.R. §410.490(b)(1)(i); 20 C.F.R. §410.-
416(b) as applied by 20 C.F.R. §410.490(b) (2); Cantrell v. Cali-
fano, 578 F.2d 549 (4th Cir. 1979); Lynn v. Director, .... BLR
ames BRB No. 80-257 BLA (May 11, 1981) (Miller, J., dis-
senting).
App. 25
ever, by applying pre-Reform Act case law, the majority
interprets pneumoconiosis restrictively in Section 727.203
(b)(4), an interpretation which violates the mandate of
Section 402(f)(2).°
The majority fails to give any effect to the expanded
definition of pneumoconiosis in Section 727.202 which
provides:
For the 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. This definition
includes but is not limited to, coal workers’ pneumo-
coniosis, anthracocilicosis, anthracosisanthro-silicosis
[sic], massive pulmonary fibrosis, progressive massive
fibrosis, silicosis, or silicotuberculosis arising out of
coal mine employment. For purposes of this defini-
tion, a disease ‘arising out of coal mine employment’
includes any chronic pulmonary disease resulting in
respiratory or pulmonary impairment significantly re-
lated to, or aggravated by, dust exposure in coal mine
employment.
20 C.F.R. $727.203(b)(2). It is apparent that the applic-
able definition of pneumoconiosis includes clinical pneumo-
*Since rebuttal pursuant to Section 727.203(b)(3) is not in-
volved in the instant case, it is not necessary to discuss this rebuttal
standard in relation to the Section 402(f)(2) “no more restrictive”
requirement. I must note that in Jones v. The New River Co., ---
BLR -.., BRB No. 79-386 BLA (June i9, 1981), my colleagues
found that Section 727.203(b)(3), in placing too heavy a burden
on the employer, exceeded the scope of the Act, and thus invali-
dated the language “in whole or in part” in Section 727.203(b) (3).
While my colleagues have never addressed the validity of the in-
terim presumption pursuant to the applicable mandate of the Act
in Section 402(f)(2), they have not hesitated to find that rebuttal
standards with no clear counterpart in Section 410.490 are not suffi-
ciently restrictive of entitlement. See also n. 7 of this dissent, infra
App. 26
coniosis (coal workers’ pneumoconiosis) as well as a broad
range of pulmonary or respiratory impairments which may
be significantly related to, or aggravated by, dust exposure
in coal mine employment (presumed pneumoconiosis).’ It
is equally apparent that this broad definition of pneumoco-
niosis must be given effect to comply with the Section
402(f)(2) requirement that the criteria of Section 727.203
be no more restrictive than the criteria of Section 410.490.
The existence of pneumoconiosis was only relevant to pre-
cluding entitlement under Section 410.490 to the extent
that employer established by persuasive evidence that
claimant’s pneumoconiosis (true or presumed) did not
arise out of coal mine employment. 20 C.F.R. $410.490
(b)(2); 20 C.F.R. §410.416(a).
In finding the Section 727.203 presumption rebutted by
evidence which merely tends to show the nonexistence of
clinical pneumoconiosis, the majority ignores the definition
71 must note that my colleagues have found the aggravation doc-
trine in the Section 727.202 definition of pneumoconiosis invalid as
imposing too great a burden on the employer in violation of the
provisions of the Act. Thus, in Ovies v. Director, .... BLR ---.,
BRB No. 80-344 BLA (June 11, 1981), my colleagues invalidated
the language “or aggravated by” in Section 727.201. Again, my col-
leagues ignored the Section 402(f)(2) “no more restrictive” re-
quirement and found that Section 727.202 was not sufficiently re-
strictive of entitlement. Once again, this determination was made
in regard to a regulation relevant to a rebuttal standard (Section
727.203(b)(4)) which does not even have a clear counterpart in
Section 410.490. See n. 6 of this dissent, supra. It has been stated
that the complexity of this Act requires that in the “march through
the statutory thicket . . . our conclusion views the forest rather
than merely the trees.” Director vy. Alabama By-Products Corp.,
560 F.2d 710, 720 (Sth Cir. 1977). However, the majority has
apparently concluded that the march through the thicket must in-
clude trimming of those regulatory branches which obscure their
view of entitlement.
App. 27
of pneumoconiosis in Section 727.202, and without expla-
nation, relieves the employer of its regulatory burden to
establish by persuasive evidence that claimant’s totally
disabling respiratory disease is not a chronic® dust disease
of the lung, its sequelae, or a respiratory or pulmonary im-
pairment, significantly related to, or aggravated by, dust
exposure in coal mine employment.’ Moreover, the inter-
pretation of the majority violates Section 402(f)(2), 30
U.S.C. $902(f)(2), by interpreting Section 727.203(b) (4)
as requiring rebuttal as a matter of law based on evidence
legally insufficient to rebut the presumption of Section
410.490.
However, the erroneous analysis of the majority goes
beyond their failure to give effect to, and violation of, the
Section 402(f)(2) ‘‘no more restrictive’’ requirement and
the applicable implementing definition of pneumoconiosis
in Section 727.202. My colleagues then proceed to find
the Section 727.203 presumption rebutted as a matter of
law pursuant to a misreading of dicta in United States
Steel Corp. v. Gray, 588 F.2d 1022, 1 BLR 2-168 (Sth Cir.
1979).
In Gray, a case decided under the Act as amended in
1972, the Court, applying the definition of pneumoconiosis
in the 1972 Act, stated that ‘‘emphysema, however ag-
* The term “chronic” is defined broadly under the Act. See Rose
v. Clinchfield Coal Co., 614 F.2d 939 n. 3, 2 BLR 2-38, 42 n. 3
(1980), rev'g 9 BRBS 690, BRB No. 76-490 BLA (1979) (Miller,
J., dissenting).
® With regard to erroneously relieving employer of its burdens of
proof under the Act, the Fourth Circuit has previously reversed a
decision of my colleagues pursuant to the Section 411(c)(4), 30
U.S.C. §921(c)(4), presumption, for erring “in failing to impose
on the [employer] the burden of rebutting this presumption.” Rose,
614 F.2d at 939, 2 BLR at 43.
App. 28
gravated by coal dust, is not a chronic dust disease of the
lung arising out of employment in the coal mines.’’ 588
F.2d at 1027 n. 3. Thus, the court merely concluded that
emphysema, which was related to coal mine employment
only by its aggravation, did not constitute pneumoconiosis
under the 1972 Act’s definition. This is axiomatic since
‘‘aggravation’’ was not included in the 1972 Act’s defini-
tion of pneumoconiosis and there was medical evidence
in that record that claimant’s emphysema was not di-
rectly caused by coal dust exposure. The Court then
went on to state:
The issue has not been fully briefed by the parties,
but it does not seem to us that emphysema aggra-
vated by dust exposure qualifies as statutory pneumo-
coniosis under either the definition set forth in the
1969 Act as amended in 1972, or the new definition
enacted as part of the 1977 Reform Act, see note 1
supra. We note that the hearing oflicer’s ‘aggrava-
tion theory’ is embodied in the new regulation issued
by the Secretary of Labor pursuant to his 30 U.S.C.
$936(a) authority, which gives a very expansive mean-
ing to the statutory term ‘chronic dust disease of the
lung.’ See 43 Fed. Reg. 36825 (1978) (to be codified
at 20 C.F.R. $727,202). Although we recognize that
the Board’s and the Secretary’s interpretation of the
statute is entitled to great deference, the new regula-
tion does appear to reach very far, perhaps beyond
the intendment of the statute. The validity of the
‘aggravation’ theory is not before us, however, be-
cause the new regulation was not applied in this case
and because it is not clear whether the Review Board
applied the ‘aggravation’ theory.
588 F.2d at 1027 n. 3. With regard to the Reform Act,
the Gray court only commented, in noting the aggravation
theory of Section 727.202, that emphysema aggravated by
coal dust is perhaps beyond the range of the Reform Act’s
App. 29
definition of pneumoconiosis. These are the so-called
‘*serious reservations concerning aggravation’? which my
colleagues refer to in their footnote 5, supra, in conjune-
tion with their decision to ‘‘not consider [aggravation]
in the instant case.’’ The Gray court did not address
(in decision or dicta) the Reform Act’s expansion of the
definition of pneumoconiosis in Section 402(b) to include
‘sequelae [of pneumoconiosis and] respiratory and pul-
monary impairments, arising out of coal mine employ-
ment,’’ 30 U.S.C. §$902(b), or the implementation of this
expansion in the regulatory definition in Section 727.202.
Contrary to the view of my colleagues, Gray did not even
consider, let alone decide, whether emphysema which is
caused by coal dust exposure, or is so presumed, falls
within the 1972 or 1977 Act definition of pneumoconiosis.”
Thus my colleagues’ decision to relieve employer of the
burden of establishing the nonexistence of pneumoconiosis
as defined in the Act and regulations rests solely upon
a court’s comments on one aspect of the expanded definition
(aggravation), a comment which my colleagues state they
do not consider. Majority opinion, n. 5.
The administrative law judge avoided the errors in legal
analysis which plague the majority decision. Rather, the
administrative law judge carefully considered the evidence
of record and concluded:
“In a decision filed on the same day as the majority decision in
the instant case, my colleagues correctly recognized that the Gray
“court considered whether emphysema aggravated by dust exposure
qualifies as pneumoconiosis under the Reform Act.” Ovies v, Di-
rector, OWCP, .... BLR ...., BRB No, 80-344 BLA (June 11,
1981) slip op. at 13 n. 5 (emphasis added). I do not quarrel with
this interpretation of Gray proffered but my colleagues, but it is
inconsistent with the interpretation in the instant case.
App. 30
Under Section 727.203(a), Mr. Blaize’s emphysema
is presumed to fall within the definition of pneumo-
coniosis. Consequently, the employer, under Section
727.203(b)(4), may rebut this presumption by show-
ing that the emphysema does not fall within the defi-
nition of pneumoconiosis set forth in Section 727.202.
This possibly might be done through the introduction
of evidence establishing that the disease a claimant
has was neither significantly related to coal dust ex-
posure, nor aggravated by it. (20 C.F.R, $727.202)
Here, however, the medical evidence is silent in respect
to whether Mr. Blaize’s emphysema is work-related ;
nor has a physician specifically stated whether the
diagnosed pulmonary emphysema is aggravated by
coal dust exposure. In view of the requirement that
the employer must show ‘that the miner does not...
have pneumoconiosis’ to rebut the interim presump-
tion under 20 C.F.R. §727.203(b)(4), and given the
silence in this record in respect to whether or not Mr.
Blaize’s emphysema arose out of coal mine employ-
ment or is aggravated significantly by coal dust ex-
posure, Old Ben Coal Company has failed to estab-
lish that the diagnosed pulmonary emphysema is not
pneumoconiosis within the meaning of Section 727,202
of the regulations. The employers’ evidence is, there-
fore, insufficient to rebut the interim presumption
under 20 (.F.R. §727.203(b) (4).
Decision and Order at 7. The discussion of the adminis-
trative law judge adequately demonstrates that the em-
ployer introduced no evidence to meet its burden of estab-
lishing the nonexistence of pneumoconiosis to rebut the
interim presumption under Section 727.203(b)(4), vur-
suant to either the statutory or the regulatory defimtion
of pneumoconiosis. Section 402(b), 30 U.S.C. §902(b); 20
C.F.R. $727,202.
Since in all respects the decision of the administrative
law judge is supported by substantial evidence, rational,
App. 31
and in accordance with law, I would affirm his decision.
Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797
(7th Cir, 1977).
In refusing to apply the statutory or regulatory defi-
nition of pneumoconiosis and failing to require the em-
ployer to establish the nonexistence of true or presumed
pneumoconiosis, my colleagues have once again manifested
the same erroneous analysis which prompted the Fourth
Vireuit to state:
These [provisions of the Act and regulations] spell
out modifying presumptions which serve to endow the
term ‘pneumoconiosis’ with a broad definition, one
that effectively allows for the compensation of miners
suffering from a variety of respiratory problems that
may bear a relationship to their employment in the
coal mines.
The creation of certain presumptions favoring claim-
ants and the corresponding imposition of certain bur-
dens on those opposing claims under the Act reflect
the purpose of the statute. See 30 U.S.C. §901
Congress intended that the Act should receive a liberal
construction in favor of the miner or his dependents.
See, e.g., Wheatley v. Adler, 132 U.S. App. D.C. 177,
183, 407 F.2d 307, 313 (D.C, Cir. 1968). Having failed
to hold the [employer] to their statutory burden, the
Board improperly denied claimant Rose the benefit of
the presumption. .. .
Rose, supra, 614 F.2d at 938-39, 2 BLR at 41-44. In
Ansel v. Weinberger, supra, the Sixth Circuit disposed of
the interpretation which the majority proffers in stating:
We believe that the district court failed to distinguish
between ‘true’ statutory pneumoconiosis, which can
be directly proved by x-ray and biopsy, and ‘presumed’
pneumoconiosis which exists when an eligible applicant
is totally disabled because of a pulmonary or respira-
App. 32
tory impairment but cannot prove true pneumoconiosis.
To hold that presumed pneumoconiosis is rebutted by
evidence which merely precluded a finding of true
pneumoconiosis would render the presumption of Sec-
tion 411(c)(4) a nullity.
Ansel, supra, 529 F.2d at 310.
Rose and Ansel were decided under the 1972 Act. Con-
gress has expanded the definition of pneumoconiosis in the
Reform Act and the Department of Labor has implemented
this expansion. Section 402(b), 30 U.S.C. §902(b); 20
(.F.R. $727.202. The majority ignores this expansion,
and in so doing, violates the explicit congressional com-
mand contained in Section 402(f) (2), 30 T7.S.C. §902(f)(2).
Therefore, for all of the reasons expressed in this opin-
ion, I dissent, and would affirm the decision of the ad-
ministrative law judge.
It is provided in 20 C.F.R. $802.410 that any party ad-
versely affected or aggrieved by a decision of the Board
may file a petition for review with the appropriate United
States court of appeals pursuant to 33 U.S.C. §921(c)
within 60 days of the filing of the Board’s decision. In
the instant case the majority opinion was filed on June
11, 1981.
Dated this 29th
day of July 1981
App. 33
APPENDIX D
U.S. DEPARTMENT OF LABOR
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C, 20036
Dated: 28 February 1980
Case No. 79-BLA-150
OWCP No. 1D346-01-1110
In the Matter of
CORNELIUS JOHN BLAIZE
Claimant
and
OULD BEN COAL COMPANY
Employer
and
DIRECTOR, OFFICE OF WORKERS’ COMPENSA-
TION PROGRAMS
Party-in-Interest
DAVID 0. KELLEY, ESQUIRE
For the Claimant
ROBERT J. ARAUJO, ESQUIRE
For the Employer
LEE D, RICHARDSON, ESQUIRE
For the Employer
Before: Stuart A. Levin
Administrative Law Judge
App. 34
OPINION AND ORDER AWARDING BENEFITS
This case involves a claim for black lung benefits by Mr.
Cornelius John Blaize of Hazelton, Indiana. Originally
filed on March 5, 1973, the claim was denied by the Social
Security Administration on September 21, 1975. While
his claim with the Social Security Administration was
pending, Mr. Blaize, on July 24, 1974, filed a claim for
black lung benefits with the Department of Labor, Division
of Coal Mine Workers’ Compensation. Following the
denial of his Social Security claim and the enactment of the
Black Lung Benefits Act of 1977, Pub. L. No, 95-239, his
Department of Labor claim was approved and Old Ben
Coal Co. was notified that it was the mine operator deemed
liable for the payment of benefits to Mr. Blaize from
January 1, 1974. Old Ben contested the award, and the
case was scheduled for trial.
On September 24, 1979, a hearing was conducted at
Vincennes, Indiana. Each participant was afforded a full
opportunity to present evidence and oral argument, and
each was represented by counsel.
The findings and conclusions which follow are based
upon my observation of the appearance and the demeanor
of the witness who testified at the hearing, and upon a
careful analysis of the entire record in light of the argu-
ments of the parties, applicable statutory provisions, reg-
ulations, and pertinent case law.'
'The following abbreviations will be used as citations to the
record :
DX — Director Exhibits. To facilitate the review and evalua-
tion of the record, each page of multiple-page exhibits are fur-
ther identified alphabetically. (For example, the pages of DX
1, a four-page exhibit, are individually identified DX 1-A, 1-B,
(footnote continued)
App. 35
Issues
The issues in this case are; (1) whether the claimant
suffered from coal worker’s pneumoconiosis; (2) the
causal relationship of any pneumoconiosis to claimant’s
coal mine employment; (3) whether the claimant is total-
ly disabled; and (4) whether any disability was due to
coal worker’s pneumoconiosis.
Findings of Fact
1. Cornelius John Blaize, age 67, is educated through
the tenth grade. (DX 1-A) He is married and his wife,
Bernice, is a dependent for the purpose of augmentation
of benefits. (Tr. 5)
( footnote continued )
1-C, and 1-D, respectively.)
CX — Claimant Exhibits.
Tr. — Transcript of the hearing.
The record in this matter was held open to afford counsel for
the claimant and for the director an opportunity to obtain a copy
of a report concerning Mr. Blaize’s recent hospitalization and a
report from the physician who administered certain ventilatory tests
(DX 9) concerning the claimant's cooperation and understanding
in respect to taking the test. Following a motion for an extension
of time, claimant produced the physician's report on October 18,
1979, and the employers’ comments were received on October 24,
1979. These documents, marked for identification as CX 1-A, 1-B,
and RX 1-A, 1-B, are admitted into evidence. By letter dated
January 4, 1980, the claimant forwarded a copy of the records con-
cerning his hospitalization at Gibson General Hospital, Princeton,
Indiana. The submission crossed in the mail with a show cause
order which was served on the parties undated by the docket sec-
tion of this office. Claimant provided copies of his hospital records
to counsel for the employer and for the director, and as of this
date, neither has objected to their admission into evidence. Ac-
cordingly, records of the Gibson General Hospital, marked for iden-
tification as CX-2, are admitted into evidence.
App. 36
2. Mr. Blaize worked for Old Ben Coal Company or
its predecessors at the Kings Station mine from February
8, 1948, until December 11, 1973, when the mine closed
and Mr. Blaize quit working. (DX 1-A, 2-3; Tr. 6-7, 10-
11) During the course of his employment, Mr. Blaize had
various jobs including topman, jerryman, and beltman;
the latter included cleaning up the coal spills around an
underground beltline. (Tr. 7-9, DX 19-N).
3. Mr. Blaize has compiled a work record of 24 years,
10 months in or around various coal mines as a miner.
Old Ben Coal Company has been identified correctly as
the responsible operator.
4. When the Kings Station mine closed, Mr. Blaize,
upon the advice of his physician, decided not to continue
working in the mines. (Tr. 10) At the time, he was ex-
periencing shortness of breath and was having difficulty
walking the length of the beltline. (Tr. 10-11)
Medical Evidence
X-rays
5. X-ray Date: March 16, 1973.
Physician: J. W. Beeler.
Impression: Small irregular opacities, type ‘‘s,’’
1/0. (DX 5)
6. X-ray Date: March 16, 1973.
Physician: Phillip Whittlesey.
Impression: Small opacities 0/0. (DX 6)
7. X-ray Date: March 16, 1973,
Physician: Maria A. Strong.
Impression: Small irregular opacities, type ‘‘t,’’
1/0. (DX 7)
App. 37
8 X-ray Date: January 28, 1974.
Physician: MLC.
Impression: Opacities 0/0, (DX 8) Emphysema,
pulmonary obstructive type. (DX 10-B)
9 X-ray Date: August, 1969; Report Date: August
7, 1974.
Physician: Roland KE. Weitzel.
Impression: Pulmonary emphysema. (DX 11)
10. X-ray Date: August 15, 1972; Report Date: Janu-
ary 18, 1974.
Physician: Illegible.
Impression: Pulmonary emphysema, bronchial
asthma. (DX 19-S thru 19-T)
ll. X-ray Date: September 5, 1979.
Physician: D. E. Pruitt.
Impression: Chronic lung disease with emphy-
sema and fibrosis. (CX 2)
Pulmonary Function Studies
12. Test Date: January 29, 1974.
Physician: Connerley.
Miner’s Height: 70 inches.
FEV:: 1.215.
MVV: 40. (DX 9-A thru 9-C)
Tracings included. Cooperation and Comprehen-
sion: adequate. (CX 1-B)
Other Medical Evidence
13. Dr. Marion L. Connerley examined Mr. Blaize on
January 28, 1974. Considering Mr. Blaize’s work history
and symptoms, (including dyspnea, shortness of breath,
and the fact that he had no cough but slept sitting up),
x-ray data, and pulmonary function tests, Dr. Connerley
App. 38
concluded that Mr. Blaize had a 68 percent permanent
partial pulmonary disability due to obesity, hypertension,
and emphysema, ‘‘there being no pneumoconiosis in this
patient.’’ (DX 10-A)
14. Dr. R. E. Weitzel prepared a report on August 7,
1974. After noting that he has known Mr. Blaize for many
years, and reporting a ‘‘few fine rales’’ in each lung, he
diagnosed obesity, hypertension, and chronic pulmonary
deficiency due to pulmonary emphysema. (DX 11)
15. Dr. Weitzel, following a physical examination of
the claimant, noted that the lungs were clear bilaterally,
with no dullness to percussion, rales, or consolidation.
(CX 2)
Discussion
I.
Under 20 CFR §727.203(a), Mr. Blaize may be pre-
sumed to be totally disabled due to pneumoconiosis aris-
ing out of such employment if one of the following four
medical requirements is met:
(1) An x-ray, biopsy, or autopsy establishes the
existence of pneumoconiosis (Subsection 203(a)-(1));
(2) Ventilatory tests yield values equal to or be-
low 2.5 for the FEV; and 100 for the MVV (Subsec-
tion 203(a)(2));
(3) Blood gas studies yield values equal to or
below the values set forth in Subsection 203(a) (3) ;
(4) Other medical evidence establishes the exis-
tence of a totally disabling respiratory or pulmonary
impairment (Subsection 203(a)(4)).
The evidence in this record satisfies the regulatory
standard set forth in Subsection 203(a)(2). On January
App. 39
29, 1974, Mr. Blaize underwent a ventilatory test admin-
istered by Dr. Connerley. The test results showed an
FEV: of 1.2 and an MVV of 40, values well below criteria
of total disability specified in the regulations for a miner
70 inches tall.
It should be noted, however, that the employer objects
to this evidence on the ground that the test report origi-
nally submitted by Dr. Connerley failed to mention the
claimant’s understanding and cooperation in taking the
test. Accordingly, the report initially failed to meet an
important quality standard required by the regulations.
Following the hearing in this matter, counsel for the
claimant contacted Dr. Connerley, the record having been
held open for this purpose, to determine whether this de-
fect could be cured. Dr. Connerley reported back on Octo-
ber 17, 1979. He concluded that Mr. Blaize’s comprehen-
sion and cooperation in taking the test were adequate and
stated that this conclusion was based upon a review of
the tracings. Old Ben again objected, noting that the
regulations do not provide for an assessment of under-
standing and cooperation based upon an evaluation of
the tracings.’
The regulations at 20 CFR §410.430 specify no particu-
lar methodology which must be employed in evaluating a
claimant’s understanding and cooperation in respect to a
ventilatory test. An evaluation based upon a study of
tracings is, therefore, not precluded. In this instance, it
is the opinion of Dr. Connerley that understanding and
cooperation can be determined from a review of tracings,
and the tracings here, in his opinion, indicate both were
adequate.
2Dr. Connerly also volunteered a legal analysis of the merits
of this case to which the employer properly takes exception and
which has been disregarded.
App. 40
The employer was afforded an opportunity to submit
evidence to the contrary. It was free, for example, to
show through its own experts either that tracings are an
analytically invalid basis for assessing understanding and
cooperation or that Dr. Connerley’s interpretation of
these particular tracings is incorrect. Yet no further evi-
dence was offered. The employer, instead, would inter-
pret the regulations in a way which presumably would
allow for an assessment of understanding and coopera-
tion only by those who administer a ventilatory test. If
accepted, this argument, without supporting evidence,
could virtually preclude an employer from challenging a
ventilatory test under circumstances in which the tracings
may evidence a clear lack of cooperation, or preclude a
claimant from challenging a notation that he or she failed
to cooperate under circumstances in which the tracings
indicate the contrary.
As previously mentioned, the regulations do not fore-
close an assessment of understanding and cooperation by
anyone other than those who perform the test. Moreover,
the evidence here indicates that a review of the tracings
provides a valid alternative method of evaluation in the
absence of an on-the-spot determination by the technician
or physician who administered the test. Accordingly, the
ventilatory test in evidence triggers the interim presump-
tion.
Rebuttal
The regulations at 20 CFR §727.203(b) provide four
methods of rebutting the interim presumption. The ree-
ord fails to demonstrate that Mr. Blaize is doing or is
capable of doing his usual coal mine work or comparable
and gainful work, or that his disability did not in part
arise out of coal mine employment. Subsections 203(b)
App. 41
(1), (2), and (3) are, therefore, not applicable. The final
method requires a showing that the miner does not, or
did not, have pneumoconiosis. (Section 727.203(b) (4) )
The record shows that Mr. Blaize does not have clinical
pneumoconiosis. The x-ray evidence, including the inter-
pretation of Dr. Whittlesey, a ‘‘B’’ reader, is, on balance,
negative for pneumoconiosis. In addition, Dr. Connerley
found ‘‘no pneumoconiosis in this patient.’’ More recent-
ly, Dr. Pruitt found x-ray evidence of chronic obstructive
lung disease with emphysema and fibrosis; yet his report
fails to categorize the fibrosis in accordance with the
classifications set forth in 20 CFR §410.428. Thus the
weight of the evidence indicates the respiratory impair-
ment involved here is pulmonary emphysema. (DX 10-B,
11, 19-S thru 19-T, 10-A, 11; CX 1-B)
Although on this record the doctors distinguish clinical
pneumoconiosis from pulmonary emphysema, the latter
nevertheless may fall within the legal definition of pneu-
moconiosis set forth in Section 727.202 of the regulations.
Pulmonary emphysema is not listed specifically under
this legal definition, and it may not necessarily be the
equivalent of legally defined pneumoconiosis in all cases.
Rather, it may be included in the definition if it is found
to have arisen ‘‘out of coal mine employment.’’ The regu-
lation further provides that it will be deemed to arise out
of coal mine employment if it is ‘‘significantly related to,
or aggravated by, dust exposure in coal mine employ-
ment.’’
Under Section 727.203(a), Mr. Blaize’s emphysema is
presumed to fall within the definition of pneumoconiosis.
Consequently, the employer, under Section 727.203(b) (4),
may rebut this presumption by showing that the emphy-
sema does not fall within the definition of pneumoconiosis
set forth in Section 727.202. This possibly might be done
App. 42
through the introduction of evidence establishing that the
disease a claimant has was neither significantly related
to coal dust exposure, nor aggravated by it. (20 C.F.R.
$727.202) Here, however, the medical evidence is silent
in respect to whether Mr. Blaize’s emphysema is work
related; nor has a physician specifically stated whether
the diagnosed pulmonary emphysema is aggravated by
coal dust exposure. In view of the requirement that the
employer must show ‘‘that the miner does not... have
pneumoconiosis’’ to rebut the interim presumption under
20 CFR §727.203(b)(4), and given the silence in this ree-
ord in respect to whether or not Mr, Blaize’s emphysema
arose out of coal mine employment or is aggravated sig-
nificantly by coal dust exposure, Old Ben Coal Company
has failed to establish that the diagnosed pulmonary em-
physema is not pneumoconiosis within the meaning of
Section 727.202 of the regulations. The employers’ evi-
dence is, therefore, insufficient to rebut the interim pre-
sumption under 20 CFR $727.203(b) (4).
For the foregoing reasons, I find that Mr. Blaize is en-
titled to the benefits claimed as augmented by reason of
his one dependent, commencing July 1, 1974, the first day
of the month in which his claim was filed with the De-
partment of Labor.
Attorney's Fees
Claimant’s counsel, David 0. Kelley, has submitted an
application for legal fees totaling seven hundred sixty-two
dollars and fifty cents ($762.50). This fee represents legal
services billed at a rate of fifty dollars ($50) per hour
for 15% hours. The employer was provided with a copy
of this application and has interposed no objection to it.
I have carefully reviewed counsel’s request, find it rea-
sonable in all respects, and hereby approve it.
App. 43
ORDER
IT IS ORDERED that Old Ben Coal Company pay:
(1)
(2)
(3)
(4)
(5)
To the claimant, all benefits to which he is entitled
under the Act augmented by reason of his one de-
pendent described above, commencing July 1, 1974.
To the claimant, all medical and hospitalization
benefits to which he is entitled, commencing July
1, 1974.
To the Secretary of Labor, reimbursement for any
payment the Secretary has made to the claimant
under the Act and to deduct such amounts, as ap-
propriate, from the amounts the employer is or-
dered to pay under paragraphs 1 and 2 above.
To the Secretary of Labor or to the claimant, as
appropriate, interest at the rate of 6 percent per
annum from the date upon which each payment
was due until the date upon which payment is actu-
ally made.
To David 0. Kelley, the sum of seven hundred
sixty-two dollars and fifty cents ($762.50) for legal
services rendered to the claimant.
/s/ Stuart A, Levin
Stuart A. Levin
Administrative Law Judge
App. 44
APPENDIX E
U.S. DEPARTMENT OF LABOR
EmpLoyMent StTanpands ADMINISTRATION
Washington, D.C, 20210
Office of Workers’ Compensation Programs
Division of Coal Mine Workers’ Compensation
Miner: Cornelius Blaize
Claim No: D-346-10-1110
Date of Conference: March 16, 1979
Gentlemen:
Enclosed is a copy of the Memorandum of Conference
and Stipulation of Uncontested and Contested Issues in
the referenced claim.
The Regulations provide that the parties shall, in writ-
ing, indicate their acceptance or rejection of all or part
of the recommendation(s) of the Deputy Commissioner
within thirty (30) days. If a recommendation is rejected,
the rejecting party shall state the reason(s) for such re-
jection. Either party may reject a recommendation, in
whole or in part, and may request a formal hearing be-
fore the Office of Administrative Law Judges of the U.S.
Department of Labor.
The Regulations further provide that if no reply is re-
ceived by this office within thirty (30) days from the date
the Memorandum is sent to the parties, the recommenda-
tion(s) made therein shall be considered accepted by the
parties and a proposed decision and order may be issued.
Consistent wtih the recommendation(s) contained in the
Memorandum of Conference and after careful considera-
tion of all evidence submitted by the parties, it has been
App. 45 |
initially determined that the claimant is eligible for bene-
fits under the Act. Accordingly, Old Ben Coal Company,
should begin payment of benefits within thirty (30) days
of the date of this letter, and upon making the first pay-
ment, immediately return the enclosed ‘‘Notice of First
Payment’’ (CM-906) and executed ‘‘Agreement to Pay
Benefits’’ (CM-941) to this office.
Should you fail to begin payment to the claimant, bene-
fits will be paid by the Black Lung Disability Trust Fund
in accordance with 20 CFR 725.420. If you are subse-
quently determined to be liable for the claim you will be
required to reimburse the Fund for all payments made
up to that time. In addition, you will be liable for such
penalties and interest as are deemed appropriate together
with the payment of the claimant’s attorney fee, if any.
You may contact me on telephone number (202) 523-6792
if you have any questions.
Sincerely,
/8/ Edmond J, F. Fitzpatrick
EDMOND J. F. FITZPATRICK
Deputy Commissioner
Enclosure: CM-906, CM-941
Memorandum of Conference
Stipulation of Uncontested and Contested
Issues
ee: Cornelius Blaize
Box 133
Hazleton, In. 47640
Old Ben Coal Co.
500 N. DuQuoin St.
P.O.B. 659
Benton, Il. 62812
David O. Kelley
125 So. 2nd St.
Boonville, In. 47601
App. 46
EMPLOYMENT MEMORANDUM OF
STANDARDS INFORMAL
ADMINISTRATION CONFERENCE
Office of Workers’ (Under the Black Lung
(‘ompr sation Programs Benefits Act)
1, Claimant 2. Claim Number
Cornelius J. Blaize 1)-346-10-1110
3. Operator
Old Ben Coal Company
4. Insurer
The Standard Oil Company of Ohio
Date and time of Conference (month, day, year)
Friday - March 16, 1979
6. Place of Conference
Federal Bldg., Evanville, In.
7, Appearances; (Name, address, telephone number,
and status)
=
For Claimant: Kor KEmployer/Carrier
Cornelius J, Blaize (i. EK. Hopkins
Box 133 (ld Ben Coal Company
Hazelton, In. 47640 500 W. Main St.
Benton, Il, 62821
G18-435-8176
For Other Parties:
§ Issues Discussed at Conference:
A. Timeliness of claim.
B. Applicant’s employment as a coal miner and
duration of employment.
(', Evidence of pneumoconiosis, its severity and re-
lationship to coal mine employment.
App. 47
D. Identity of the responsible coal mine operator.
Kk. Augmentation of benefits for Bernice Blaize.
9. Additional material presented at Conference (X-rays,
medical reports, marriage certificates, employment re-
ports, birth certificates).
None.
10. The following issues were resolved (See attached
CM-943) :
A. Timeliness of claim,
B. Applicant’s employment as a coal miner and
duration of employment.
(. Identity of the responsible operator.
D. Augmentation of benefits.
11. Upon discussion of the issues involved among those
present, together with due consideration to all infor-
mation in the administrative file, the following ree-
ommendation is made,
RECOMMENDATION
That the presented evidence establishes that Cor-
nelius J. Blaize is totally disabled by pneumoconio-
sis, arising out of coal mine employment and is
eligible for benefits under the Black Lung Benefits
Reform Act of 1977.
That such benefits should be augmented for Bernice
Blaize, the miner’s wife.
That Old Ben Coal Company is the responsible
operator liable for the provisions of these benefits,
effective January 1, 1974.
APR 6 1979 /s/ Edmond J, F. Fitepatrick
Date Deputy Commissioner
App. 48
APPENDIX F
PERTINENT TEXT OF CITED STATUTES
AND REGULATIONS
STATUTES;
26 U.S.C, §9501(a)(2)(1982) provides:
Trustees.—The trustees of the Black Lung Disability
Trust Fund shall be the Secretary of the Treasury,
the Secretary of Labor, and the Secretary of Health
and Human Services,
30 U.S.C, §$902(i) (1982) provides:
For the purposes of subsections (¢) and (j) of section
932 of this title, and for the purposes of paragraph
(7) of subsection (d) of section 9501 of Title 26, the
term ‘‘claim denied’? means a claim—
(1) denied by the Social Security Administration ;
or
(2) in which (A) the claimant was notified by the
Department of Labor of an administrative or infor-
mal denial more than 1 year prior to March 1, 1978,
and did not, within 1 year from the date of notifica-
tion of such denial, request a hearing, present addi-
tional evidence or indicate an intention to present
additional evidence, or (B) the claim was denied un-
der the law in effect prior to March 1, 1978, following
a formal hearing or administrative or judicial review
proceeding.
30 U.S.C. § 982(a)(1982) provides:
During any period after December 31, 1973, in which
a State workmen’s compensation law is not included
on the list published by the Secretary under section
931(b) of this title, the provisions of Public Law 803,
App. 49
69th Congress (44 Stat. 1424, approved March 4,
1927), as amended, and as it may be amended from
time to time (other than the provisions contained in
sections 1, 2, 3, 4, 8, 9, 10, 12, 13, 29, 30, 31, 32, 33,
37, 38, 41, 43, 44, 45, 46, 47, 48, 49, 50, and 51 there-
of), shall (exeept as otherwise provided in this sub-
section or by regulations of the Secretary and except
that references in such Act to the employer shall be
considered to refer to the trustees of the fund, as the
Secretary considers appropriate and as is consistent
with the provisions of section 9501(d) of Title 26),
he applicable to each operator of coal mine in such
State with respect to death or total disability due to
pneumoconiosis arising out of employment in such
mine or with respect to entitlements established in
paragraph (5) of section 921(¢) of this title. In ad-
ministering this part, the Secretary is authorized to
preseribe in the Federal Register such additional pro-
visions, not inconsistent with those specifically ex-
cluded by this subsection, as he deems necessary to
provide for the payment of benefits by such operator
to persons entitled thereto as provided in this part
and thereafter those provisions shall be applicable to
such operator,
50 U.S.C, § 982(¢) (1982) provides:
Benefits shall be paid during such period by each
such operator under this section to the categories of
persons entitled to benefits under section 922(a) of
this title in accordance with the regulations of the
Secretary applicable under this section: Provided,
That, except as provided in subsection (i) of this
section, no benefit shall be payable by any operator
on account of death or total disability due to pneu-
moconiosis (1) which did not arise, at least in part,
App. 50
out of employment in a mine during a period after
December 31, 1969 when it was operated by such
operator or (2) which was the subject of a claim de-
nied before March 1, 1978, and which is or has been
approved in uccordance with the provisions of sec-
tion 945 of this title.
30 U.S.C. $932(j) (1982) provides:
Notwithstanding the provisions of this section, sec-
tion 9501 of Title 26 shall govern the payment of
benefits in cases—
(1) described in section 9501(d)(1) of Title 26;
(2) in which the miner’s last coal mine employment
was before January 1, 1970; or
(3) in which there was a claim denied before March
1, 1978, and such claim is or has been approved in
accordance with the provisions of section 945 of this
title.
33 U.S.C. § 921(b)(3) (1978) provides:
The Board shall be authorized to hear and determine
appeals raising a substantial question of law or fact
taken by any party in interest from decisions with
respect to claims of employees under this chapter
and the extensions thereof. The Board’s orders shall
be based upon the hearing record. The findings of
fact in the decision under review by the Board shall
be conclusive if supported by substantial evidence in
the record considered as a whole. The payment of
the amounts required by an award shall not be stayed
pending final decision in any such proceeding unless
ordered by the Board. No stay shall be issued unless
irreparable injury would otherwise ensue to the em-
ployer or carrier.
App. 51
33 U.S.C. § 921(¢) (1978) provides:
Any person adversely affected or aggrieved by a final
order of the Board may obtain a review of that order
in the United States court of appeals for the circuit
in which the injury occurred, by filing in such court
within sixty days following the issuance of such
Board order a written petition praying that the order
he modified or set aside. A copy of such petition shall
be forthwith transmitted by the clerk of the court, to
the Board, and to the other parties, and thereupon
the Board shall file in the court the record in the pro-
ceedings as provided in section 2112 of Title 28. Upon
such filing, the court shall have jurisdiction of the
proceeding and shall have the power to give a decree
affirming, modifying, or setting aside, in whole or in
part, the order of the Board and enforcing same to
the extent that such order is affirmed or modified.
The orders, writs, and processes of the court in such
proceedings may run, be served, and be returnable
anywhere in the United States. The payment of the
amounts required by an award shall not be stayed
pending final decision in any such proceeding unless
ordered by the court. No stay shall be issued unless
irreparable injury would otherwise ensue to the em-
ployer or carrier. The order of the court allowing
any stay shall contain a specific finding, based upon
evidence submitted to the court and identified by ref-
erence thereto, that irreparable damage would result
to the employer, and specifying the nature of the
damage.
33 U.S.C. § 922 (1978) provides:
Upon his own initiative, or upon the application of
any party in interest, on the ground of a change in
App. 52
conditions or because of a mistake in a determination
of fact by the deputy commissioner, the deputy com-
missioner may, at any time prior to one year after
the date of the last payment of compensation, wheth-
er or not a compensation order has been issued, or
at any time prior to one year after the rejection of
a claim, review a compensation case in accordance
with the procedure prescribed in respect of claims in
section 919 of this title, and in accordance with such
section issue a new compensation order which may
terminate, continue, reinstate, increase, or decrease
such compensation, or award compensation. Such
new order shall not affect any compensation previous-
ly paid, except that an award increasing the compen-
sation rate may be made effective from the date of
-the injury, and if any part of the compensation due
or to become due is unpaid, an award decreasing the
compensation rate may be made effective from the
date of the injury, and any payment made prior
thereto in excess of such decreased rate shall be de-
ducted from any unpaid compensation, in such man-
ner and by such method as may be determined by the
deputy commissioner with the approval of the Secre-
tary.
Title II of P.L. 97-119 provides:
SEC. 201 (a) This title may be cited as the ‘‘ Black
Lung Benefits Amendments of 1981.’’
(b) Except as otherwise specifically provided, when-
ever in this title an amendment or repeal is ex-
pressed in terms of an amendment to, or repeal
of, a section or other provision, the reference
shall be considered to be made to a section or
other provision of the Black Lung Benefits Act.
App. 53
SEC. 202 (a) The Fourth sentence of subsection (b)
of section 413 is amended by inserting immediately
after the words ‘‘In any case’’ a comma and the fol-
lowing: ‘‘other than that involving a claim filed on
or after the effective date of the Black Lung Benefits
Amendments of 1981.’’
(b)(1) Paragraphs (2) and (4) of subsection (¢) of
section 411 are each amended by inserting a new sen-
tence at the end of each as follows; ‘‘The provisions
of this paragraph shall not apply with respect to
claims filed on or after the effective date of the Black
Lung Benefits Amendments of 1981.’’
(2) Paragraph (5) of subsection (c) of section 411
is amended by inserting a new sentence at the end
thereof as follows: ‘‘The provisions of this para-
graph shall not apply with respect to claims filed on
or after the day that is 180 days after the effective
date of the Black Lung Benefits Amendments of
1981.’’
(c) The third sentence of subsection (b) of section
413 is amended by inserting immediately after the
word ‘‘affidavits’’ a comma and the following: ‘‘from
persons not eligible for benefits in such -ase with re-
spect to claims filed on or after the effective date of
the Black Lung Benefits Amendments of 1981.’’
(d) Section 430 is amended by striking the words
‘‘and by’’ and inserting in lieu thereof a comma, and
by inserting immediately after the phrase ‘‘the Black
Lung Benefits Amendments of 1981.’’
(e) The Secretary of Labor, in consultation with the
Secretary of Health and Human Services, shall un-
dertake a study of current medical methods for the
diagnosis of pneumoconiosis, and of the nature and
App. 54
extent of impairment and disability that are attribut-
able to the existence of both simple and complicated
pneumoconiosis. The study, together with appropri-
ate recommendations, shall be transmitted to the Con-
gress no later than eighteen months after the effective
date of this title.
SEC. 203 (a)(1) Section 412(a)(2) is amended by
inserting immediately after the word ‘‘or’’ a comma
and the following: ‘‘except with respect to a claim
filed under part C of this title on or after the effee-
tive date of the Black Lung Benefits Amendments of
1981.’’
(2) Section 412(a)(3) is amended by striking the first
comma therein, and by inserting immediately after
the word ‘‘or’’ the second time it appears therein a
comma and the following: ‘‘except with respect to a
claim filed under part C of this title on or after the
effective date of the Black Lung Benefits Amend-
ments of 1981,"’.
(3) Section 412(a)(5) is amended by striking out the
second comma therein, by striking out the phrase ‘‘of
a miner’’ the third time it appears therein, and by
inserting immediately after the word ‘‘or’’ the see-
ond time it appears therein a comma and the follow-
ing: ‘‘except with respect to a claim filed under part
C of this title on or after the effective date of the
Black Lung Benefits Amendments of 1981,’’.
(4) Section 401(a) is amended by striking the phrase
‘for who were totally disabled by this disease at the
time of their deaths’’ each time it appears.
(5) Section 411(a) is amended by inserting immedi-
ately after the word ‘‘or’’ a comma and the follow-
ing: ‘‘except with respect to a claim filed under part
App. 55
C of this title on or after the effective date of the
Black Lung Benefits Amendments of 1981,’’.
(6) Section 422(1) is amended by inserting immedi-
ately before the period at the end thereof a comma and
the following: ‘‘except with respect to a claim filed
under this part on or after the effective date of the
Black Lung Benefits Amendments of 1981,’’.
(b) Subsection (g) of section 422 is amended by
adding at the end thereof a new sentence as follows:
‘*In addition, the amount of benefits payable under
this section with respect to any claim filed on or after
the effective date of the Black Lung Benefits Amend-
ments of 1981 shall be reduced, on a monthly or other
appropriate basis, by the amount by which such bene-
fits would be reduced on account of excess earnings
of such miner under section 203(b) through (1) of
the Social Security Act if the amount paid were a
benefit payable under section 202 of such Act.’’.
(c) The Secretary of Labor shall undertake a study
of the benefits provided by the Black Lung Benefits
Act, other benefits received by individuals who re-
ceive benefits under that Act, and benefits whicu
would be received were State workers’ compensation
programs applicable in lieu of benefits under that Act.
The study, together with appropriate recommenda-
tions, shall be transmitted to the Congress no later
than eighteen months after the effective date of this
title.
(d) Paragraph (1) of subsection (a) of section 412
is amended by deleting the phrase ‘‘50 per centum of
the minimum monthly payment to which a Federal
employee in grade GS-2, who is totally disabled, is
entitled at the time of payment under chapter 81 of
App. 56
title 5, United States Code’’ and inserting in lieu
thereof the phrase ‘374% per centum of the monthly
pay rate for Federal employees in grade GS-2, step
2".
SEC. 204 Subsection (d) of section 422 is amended
by adding two new sentences at the end thereof as
follows: ‘‘If payment is not made within the time re-
quired, interest shall accrue to such amounts at the
rates set forth in section 424(b)(5) of this title for
interest owed to the fund, With respect to payments
withheld pending final adjudication of liability, in the
case of claims filed on or after the effective date of
the Black Lung Benefits Amendments of 1981, such
interest shall commence to accumulate 30 days after
the date of the determination that such an award
should be made,’’,
SEC, 205 (a)(1) Subsection (c) of section 422 is
amended by inserting ‘‘(1)’’ after ‘*pneumoconiosis”’,
and by inserting before the period at the end thereof
a semicolon and the following: ‘tor (2) which was
the subject of a claim denied before March 1, 1978,
and which is or has been approved in accordance with
the provisions of section 435".
(2) Subsection (j) of section 422 is amended by strik-
ing out ‘‘or’’ at the end of paragraph (1), by strik-
ing out the period at the end of paragraph (2) and
inserting in lieu thereof ‘‘ ;or’’, and by adding at the
end thereof the following:
‘*(3) in which there was a claim denied before
March 1, 1978, and such claim is or has been approved
in accordance with the provisions of section 435."’
(b) Section 402 is amended by inserting at the end
thereof the following new paragraph:
App. 57
‘*(i) For the purposes of subsections (¢) and (j)
of section 422, and for the purposes of paragraph
(7) of subsection (d) of section 9501 of the Internal
Revenue Code of 1954, the term ‘claim denied’ means
a claim—-
‘*(1) denied by the Social Security Administra-
tion; or’’
‘*(2) in which (A) the claimant was notified by
the Department of Labor of an administrative or
informal denial more than 1 year prior to the
date of enactment of the Black Lung Benefits
Reform Act of 1977 and did not, within 1 year
from the date of notification of such denial, re-
quest a hearing, present additional evidence or
indicate an intention to present additional evi-
dence, or (B) the claim was denied under the
law in effect prior to the date of enactment of
the Black Lung Benefits Reform Act of 1977 fol-
lowing a formal hearing or administrative or
judicial review proceeding.’’.
SEC, 206. (a) Except as otherwise provided, the pro-
visions of this title shall take effect on January 1,
1982.
(b) If any provision of this title, or the application
of such provisions to any person or circumstance,
shall be held invalid, the remainder of this title, or
the application of such provision to persons or cir-
cumstances other than those to which it is held in-
valid, shall not be affected thereby.
REGULATIONS:
20 C.F.LR, § 725.309(¢) provides:
A claimant who filed a claim for benefits under part B
of title IV of the Act or part C of title IV of the Act
App. 58
before March 1, 1978, and whose previous claim(s)
are pending or have been finally denied, who files an
additional claim under this part, shall have the later
claim merged with any earlier claim subject to review
under Part 727 of this subchapter, If an earlier claim
subject to review under Part 727 of this subchapter has
been denied after review, a new claim filed under this
part shall also be denied, on the grounds of the prior
denial, unless the deputy commissioner determines that
there has been a material change in conditions or the
later claim is a request for modification and the re-
quirements of § 725,310 are met. If an earlier sur-
vivor’s claim subject to review under Part 727 of this
subchapter has been denied, the new claim filed under
this part shall also be denied unless the deputy com-
missioner determines that the later claim is a request
for modification and the requirements of § 725,310
are met,
20 C.F.R. § 725,309 (d) provides:
In the case of a claimant who files more than one claim
for benefits under this part, the later claim shall be
merged with the earlier claim for all purposes if the
earlier claim is still pending. If the earlier miner's
claim has been finally denied, the later claim shall also
be denied, on the grounds of the prior denial, unless
that deputy commissioner determines that there has
been a material change in conditions or the later claim
is a request for modification and the requirements of
§ 725.310 are met. If an earlier survivor's claim filed
under this part has been finally denied, the new claim
filed under this part shall also be denied unless the
deputy commissioner determines that the later claim is
a request for modification and the requirements of
§ 725.310 are met,
App. 59
20 C.F.R, § 725.310 (a) provides;
Upon his or her own initiative, or upon the request of
any party on grounds of a change in conditions or be-
cause of a mistake in a determination of fact, the
deputy commissioner may, at any time before one year
from the date of the last payment of benefits, or at any
time before one year after the denial of a claim, recon-
sider the terms of an award or denial of benefits,
20 C.F.R, § 725,310 (d) provides;
An order issued following the conclusion of modifica-
tion proceedings may terminate, continue, reinstate, in-
crease or decrease benefit payments or award benefits,
Such order shall not affect any benefits previously
paid, except that an order increasing or decreasing the
amount of benefits payable may be made effective on
the date from which benefits were determined payable
by the terms of an earlier award, In the case of an
award which is decreased, any payment made in ex-
cess of the decreased rate shall be subject to collec-
tion or offset under Subpart G of this part.
20 C.F.R, § 725.417 (d) provides:
Kach party shall, in writing, either accept or reject,
in whole or in part, the deputy commissioner's ree-
ommendation, stating the reasons for such rejection.
If no reply is received within 30 days from the date
on which the recommendation was sent to parties, the
recommendation shall be deemed accepted.
20 C.F.R. § 725.481 provides:
Any party dissatisfied with a decision and order issued
by an administrative law judge may, before the deci-
sion and order becomes final (see § 725.479), appeal
the decision and order to the Benefits Review Board.
A notice of appeal shall be filed with the Board. Pro-
App. 60
ceedings before the Board shall be conducted in ac-
cordance with Part 802 of this title.
20 O.F.R. § 727,108 (c) provides:
The deputy commissioner may: (1) Request up-to-date
information from the claimant pertaining to any mat-
ter affecting the amount of benefits payable (see Sub-
part G of Part 725 of this subchapter); and (2) re-
quest any additional information or verification which
may be necessary to establish a more detailed and
complete history of the miner’s employment, for the
purpose of determining the identity of any coal mine
employer which may be liable for the payment of the
claim, and for such other purposes as may be ap-
propriate. Upon receipt of any additional informa-
tion requested under this paragraph, or if the claim.
ant fails to supply such information, the deputy com-
missioner may notify a coal mine employer, if any, of
its possibile liability for the claim and proceed to
adjudicate the claim under §§ 725.409-725.421 of this
subchapter,
20 C.F.R, § 801,102 provides, in pertinent part:
(a) The Board is authorized, as provided in 33 U.S.C,
921(b), as amended, to hear and determine appeals
raising a substantial question of law or fact taken by
any party in interest from decisions or orders with
respect to claims for compensation or benefits arising
under the following Acts, as amended and extended;
(6) Title LV, Section 415 and Part © of the Federal
Mine Safety and Health Act of 1977 (Pub. L. 95-164,
91 Stat. 1290) (formerly the FOMHSA of 1969) as
amended by the Black Lung Benefits Reform Act of
1977 (92 Stat. 95), and the Black Lung Benefits Reve-
nue Act of 1977, Pub. L, 95-227, 92 Stat. 11.
App. 61
APPENDIX G
Subsidiary of Old Ben Coal Company:
Algers, Winslow and Western Railway Company
Corporate Afiiliates of Old Ben Coal Company :
3P ALASKA INC,
3P COMMUNICATIONS ALASKA INC,
3P OLL INC,
THE CARBORUNDUM COMPANY
INCORPORATED
FRANKLIN COAL COMPANY
HURON LIBERIAN COMPANY
INLAND CORPORATION
KENNECOTT COMMUNICATIONS
CORPORATION
KENNECOTT CORPORATION
KENNECOTT SANTA FE
CORPORATION
KITT ENERGY CORPORATION
MIAMI VALLEY CORPORATION
MID-VALLEY PIPELINE COMPANY
MONITOR INSURANCE COMPANY
LIMITED
MOUNTAIN CARBON COMPANY
PROSPECT INTERNATIONAL, C.A,
ROYAL LAND COMPANY
S. MINERALS, INCORPORATED
SOHIO ALASKA PETROLEUM
COMPANY
SOHTO ALASKA TRANSPORTATION
COMPANY
WEBB PARAGUAY, INC,
WEBB TONGA, INC,
VISTRON CORPORATION
WEDS DRILLING COMPANY
WELB INTERNATIONAL MINERALS,
INC,
SOHIO ALGERIA COMPANY
SOHTO ALGERLA SUPPLY COMPANY
SOHLO/BP TRANS ALASKA PIPELINE
CAPITAL INC,
SOHLO COAL CONVERSION COMPANY
SOHLO COMMERCIAL DEVELOPMENT
COMPANY
SOHLO CONSTRUCTION COMPANY
SOHIO de COLOMBIA COMPANY
SOLLO DEVELOPMENT COMPANY
SOHLO FINANCE COMPANY
SOHIO GAS PIPELINE COMPANY
SOHIO-TRAN TRADING, INC,
SOHLO PETROLEUM COMPANY
SOHLO PIPE LINE COMPANY
SOILO SHALE OIL, COMPANY
SOLO SUPPLY COMPANY
SOHLO TRANSPORTATION COMPANY
SOHLO VENEZUELA COMPANY
SOHLO WESTERN CRUDE OIL
COMPANY
SOHLO WESTERN MINING COMPANY
SPC SHIPPING INC,
UPPER KITTANNING INC,
VISTA VENTURES CORPORATION
THE VISTRON SUPPLY COMPANY
WEBB de COLOMBIA, 8.A,
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