Opposition Brief — Pauley v. BethEnergy Mines, Inc.

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— SO Re ee oe

ourt, US

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UL 24 Re

| LOSE be! SPANIOL, JR

No. 89-1714

IN THI L —-————

Supreme Court of the United States

OCTOBER TERM. 1989

HARRIET PAULEY.

SURVIVOR OF JOHN C. PAULEY.

Petitioner,

BETHENERGY MINES INC... 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 THIRD CIRCUTT

BRIEF OF RESPONDENT, BETHENERGY

MINES INC. IN OPPOSITION

JOHN J. BAGNATO

Counsel of Record

SPENCE, CUSTER. SAYLOR, WOLFE & Rost

400 United States National Bank Building

Post Office Box 280

Johnstown, Pennsylvania 15907

(814) 536-0735

Attorney for Respondent.

BethEnergy Mines Inc.

QUESTIONS PRESENTED

In Pittston Coal Group v. Sebben, 109 S. Ct. 414 (1988).

this Court determined that the United States Department of

Labor’s black lung “interim presumption.” 20 C.F.R.

§ 727.203(a) (1989). was invalid under 30 U.S.C. § 902(f)(2)

to the extent that it denied access to the presumption of total

disability or death due to coal workers’ pneumoconiosis to

miners with less than ten years of coal mine employment but

who were. nevertheless. able to demonstrate through x-ray or

biopsy evidence that they had the disease.

Left unresolved in that decision and now presented for

resolution are the following issues:

1. Whether the rebuttal provisions of the Unned

States Department of Labor's black lung “interim pre-

sumpuon.” 20 C.F.R. § 727.203(b) (1989). are invalid

under 30 U.S.C. § 902(f(2) because they permit denial of

a claim where the medical evidence proves that the

miner does not or did not have coal workers’ pneumo-

coniosis or 1s not disabled or did not die. in whole or in

part. due to his coal mine employment.

2. Whether the rights of coal mine operators and

their insurers under the Due Process Clause of the Fifth

Amendment of the Constitution of the United States are

violated by an interpretation of 30 U.S.C. § 902(f\2) of

the Black Lung Benefits Act which precludes those opera-

tors from defending black lung claims by proving that the

miner did not or does not have coal workers’ pneumo-

coniosis or that the presumed disability or death did not

result in whole or in part from coal mine employment.

LIST OF PARTIES AND RULE 29.1 STATEMENT

John C. Pauley (“Pauley”) is a claimant for benefits

under the Black Lung Benefits Act. While this matter was

pending in the Benefits Review Board. United States Depart-

ment of Labor (“BRB”). John Pauley died and is survived by

his widow. Harriet Pauley. John Pauley was the respondent

below, and his widow, Harriet Pauley, is now petitioner. On

May 29. 1990. the Director. Office of Workers’ Compensa-

tion Programs, filed with the BRB an unopposed Motion to

Substitute Harriet Pauley. Nunc Pro Tunc. for her Deceased

Husband. John Pauley.

Petitioner below and now respondent. BethEnergy

Mines Inc.. formerly Bethlehem Mines Corporation. is a

wholly owned subsidiary of the Bethlehem Steel Corporation.

The Director. Office of Workers’ Compensation Programs. is

the administrator of the black lung program and is a statutory

party in all black lung claims. 20 U.S.C. § 932(k).

TABLE OF CONTENTS

gy.

Dueammeee Gee pee GAGE ................

EE SS POC

B. STATUTORY BACKGROUND..............

C. BACKGROUND OF THIS LITIGATION .......

ES eee

A. THE CIRCUITS ARE IN CONFLICT .........

B. THE THIRD CIRCUIT’S DECISION PROPERLY

DECIDES AN IMPORTANT QUESTION OF

I ee

1. The Plain Wording Of The Rebuttal Provisions

Of The SSA’s Rule Specifically Permits

Disability Causation Rebuttal.............

2. The Rebuttal Provisions Of Labor's Rule Are

Consistent With Section 902(f)(2) Of The Act. .

C. A SIGNIFICANT CONSTITUTIONAL

QUESTION MAY BE PRESENTED...........

OSS Pee

TABLE OF AUTHORITIES

CASES:

County Court vy. Allen, 422 U.S. 140 (1979) .

Dayton vy. Consolidation Coal Co.. 895 F.2d

173 (4th Cir. 1990). petition for cert. filed,

58 U.S.L.W. __ (U.S. __) (No. 89- py

Farmer v. Weinberger, 519 F.2d 627 (6th

Mere ee eT ee ee eee eee

Gibas v. Saginaw Mining Co., 748 F.2d 1112

(6th Cir. 1984). cert. denied. 471 U.S. 1116

SUR Son Oe iene es Seer Ca

Mullins Coal Co. v. Director, Office of

Workers’ Compensation Programs. 484 U.S.

2, BR rte eri nr eee

Oravitz v. Director, Office of Workers’

Compensation Programs, 843 F.2d 738 (3rd

TCS nS a 0 og oa atel ee tala ein te ea ual

Pittston Coal Group v. Sebben. 109 S. Ct. 414

Dak oo a ag Crk tne catty oy

Roberts v. Benefits Review Bd. 822 F.2d 636

I Sent S23 st a a

Sulvma vy. Director, Office of Workers’

Compensation Programs. 827 F.2d 922 (3d

ee PO as 604d o% 5 eee eee

Svkes v. Itmann Coal Co.. 812 F.2d 890 (4th

0 a ee ere

Tavior, Hubert v. Peabody Coal Co.. 892

F.2d 503 (7th Cir. 1989). reh'g denied. (7th

Cir. Feb. 1. 1990). petition for cert. filed. 58

U.S.L.W. 3725 (U.S. May 2. 1990) (No. 89-

nes Sa arenes Gas aa inne oe whee a

PAGE

3, 6, 12. 14

] =

passim

Tavior, John vy. Clinchfield Coal Co.. 895

F.2d 178 (4th Cir. 1990), reh'g denied,

No. 87-3852 (4th Cir. Apr. 20, 1990).

petition for cert. filed. 58 U.S.L.W. —

(U.S. __) (No. 89- 8, Sayet ge ae

Usery v. Turner Elkhorn Mining Co.. 428

Se Rl Pee er ns soa

Wetherill v. Director, Office of Workers’

Compensation Programs, 812 F.2d 376 (7th

IN hha ees Br Ed he ae Lea

Youghiogheny and Ohio Coal Co. vy. Milliken.

866 F.2d 195 (6th Cir. 1989)...........

CONSTITUTIONAL PROVISIONS:

Ss ee I ores a od 6'.0 4 a 00 0s

STATUTES AND REGULATIONS:

Administrative Procedure Act. as amended.

5 U.S.C. §§ 551-559. 701-706 (1988) Section

ee a eee eee

26 U.S.C. § 4121 (1982) .. 0.0... eee.

26 U.S.C. § 9501 (1982) ... 2... eee eee.

Black Lung Benefits Act. as amended. 30

RB Sem eee

Section 401(a). 30 U.S.C. § 901(a) (1988) .

Section 402. 30 U.S.C. § 902 (1988) .....

Section 402(f\(1). 30 U.S.C. § 902(f\(1)

Ee re are rae ee

Section 402(f)(1)(A). 30 U.S.C.

boot a ara

Section 402(f)(2). 30 U.S.C. § 902(f\(2)

rr es ree eer

Section 41 l(a). 30 U.S.C. § 921(a) (1988) .

PAGE

passim

Section 411(c3). 30 U.S.C. § 921(c3) = ahh

(1988) ...... oy ees 7 IN THE

Section 413(b). 30 U.S.C. § 923(b) (1988) . 3.14 Supreme Court of the United Ftates

Section 413(c). 30 U.S.C. § 923(c) (1988). . 3 OCTOBER TERM, 1989

Section 415. 30 U.S.C. § 925 (1988) ..... 3

Section 421. 30 U.S.C. § 931 (1988) ..... 3

Section 422(a). 30 U.S.C. § 932(a) (1988) . 3 HARRIET PAULEY,

Section 422(b). 30 U.S.C. § 932(b) (1988) 4 SURVIVOR OF JOHN C. PAULEY. a

Section 422(c). 30 U.S.C. § 932(c) (1988). . 3.11 v. ruenneeee,

Section 423, 30 U.S.C. § 933 (1988) ..... 3 BETHENERGY MINES INC.. AND DIRECTOR

Section 424. 30 U.S.C. § 934 (1988) ..... 3 OFFICE OF WORKERS’ COMPENSATION PROGRAMS,

Section 424(a). 30 U.S.C. § 934(a) (1988) 3 UNITED STATES DEPARTMENT OF LABOR,

Section 435. 30 U.S.C. § 945 (1988) ..... 4 Respondents.

Longshore Act. as amended. 33 U.S.C.

§§ 901-950 (1988) PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

Section 19, 33 U.S.C. §919 (1988) ...... 3

FOR THE THIRD CIRCUIT

Section 19(d). 33 U.S.C. §919(d) (1988) .. 3

Section 21. 33 U.S.C. § 921 (1988) ...... 3

42 U.S.C. §§ 404-408 (1982)... 2.2.22... 3 BRIEF OF RESPONDENT, BETHENERGY

. te MINES INC., IN OPPOSITION

Social Security Administration Regulations

20 C.F.R. Part 410 (1989) ............ 10. 15

20 C.F.R. §§ 410.401-410.476 (1989)... .. + BethEnergy Mines Inc. opposes the pending petition

20 C.F.R. § 410.401(b)(1) (1989)... 22... 1] oe the oc oe . = ted aonterad

in part out of coal mine employment. The denial of benefits

20 C.F.R. § 410.41 2(a(1) (1989)... .... 10 under the Black Lung Benefits Act as ordered by the Third

20 C.F.R. § 410.490 (1989) ........... 4.11 Circuit is correct. The United States Courts of Appeals for the

20 C.F.R. § 410.490(b) (1989) 2... 00... 4 “ae oes grey: Metg 2 “g a egy mo “ory

4 2) of the Blac ung Benefits Act, =F ad

OCP R. PS1V.4AKC) (1989). ....----. 9 10, 12 § 902(f(2), prohibits employers from defending black lung

20 C.F.R. § 410.490(cW1) (1989)... 2... 5 benefits claims by proving that a miner does not or did not

have coal workers’ pneumoconiosis or that his disability or

vi death did not result in whole or in part from coal mine

employment. Peabody Coal Co. v. Hubert Taylor,

No. 89-1696: Clinchfield Coal Co. v. John Taylor.

No. 89- . Consolidation Coal Co. v. Davton, No. 89-

BethEnergy respectfully suggests that a resolution of these

conflicts by this Court is desirable and appropriate and that a

consolidation of this case with the currently pending petitions

for certiorari in Nos. 89-1696. 89- . and 89- is most

likely to assure a final and complete resolution of the contro-

versy presented. BethEnergy requests that this Petition for

Writ of Certiorari be granted to confirm as correct the Geci-

sion below.

STATEMENT OF THE CASE

A. INTRODUCTION

This case addresses the question left unresolved in Pitt-

ston Coal Group, 109 §. Ct. 414 (1988). The question is

whether 30 U.S.C. § 902(f)(2) precludes coal mine operators

from prevailing in non-meritorious Federal black lung claims

by proof that the miner does not or did not have coal workers’

pneumoconiosis or that his disability or death did not arise in

whole or in part out of coal mine employment.

The Third Circuit held that no such interpretation of

section 402(f(2) of the Act is permissible and that no regula-

tory construction could require the payment of benefits to one

who 1s Statutorily barred therefrom. The Third Circuit's reso-

lution of this issue. now under attack by this petition. 1s

clearly correct.

B. STATUTORY BACKGROUND

The Black Lung Benefits Act. 30 U.S.C. §§ 901-945

(1988) (the “Act’’). establishes a federal program to provide

benefits to coal miners and their families on account of total

disability or death due to coal mine employ.nent related

pneumoconiosis (“black lung” disease). 30 U.S.C. § 901(a).

The program is divided into two parts. Claims filed from

January |. 1970 to June 30. '©7? 2-e«*"I-4 “Part B” claims.

Part B claims were filed with and adjudicated by the Social

Security Administration (“SSA”). Benefits awarded are paid

by the U.S. Treasury. Userv v. Turner Elkhorn Mining Co..

428 U.S. 1. 8 (1976).

Claims filed after December 31. 1973.' are filed under an

approved state workers compensation law. 30 U.S.C. § 931.

or if no law has been approved in the miner's state. with the

U.S. Department of Labor (“DOL” or “Labor”™). Claims filed

with DOL are called “Part C™ claims.’ Benefits awarded in a

Part C claim are paid directly by a mine owner or its insurer.

30 U.S.C. §§ 9231c). 933. or by a coal industry financed fund

administered by DOL. id § 934.4

In all segments of the program. benefit entitlements are

determined in accordance with agency reguiations setting

forth eligibility criteria. medical standards and rules of proof.

In general. there are three elements of entitlement: (1) the

miner must have coal mine employment related pneumocon-

10818. (2) the miner must be totally disabled or deceased. and

(3) the total disability or death must be attributable to pneu-

moconiosis. Mullins Coal Co. v. Director, Office of Workers’

Compensation Programs. 484 U.S. 135. 141 (1987).

‘Claims filed between July |. 1973 and December 31. 1973 were

filed with SSA but adjudicated by DOL. They became Part C claims on

January i. 1974. 30 U.S.C. § 925

- No state's law has been approved.

’ Part B claims are adjudicated in accordance with procedures con-

tained in the Social! Security Act. 42 U.S.C. §§ 404-408. incorperated

reterence into 30 U.S.C. §923b). Part C claims are adjudicated in

accordance with the adversarial I:tigation procedures contained in the

Longshore Act. 33 U.S.C. §§ 919. 921. incorporated by reference into 30

U.S.C. § 932(a). The on-the-record hearing provisions of the Admints-

trative Procedure Act (“APA”) apply im Part C claims. 5 U.S.C. § 554

incorporated by retgrence inte 33 US. § 919(d).

* The Black Lung Disability Trust Fund 1s financed by a producer's

tax on coal. 26 U.S.C. §§ 4121. 9501. The Fund 1s liable for claims if the

miner last worked prior to January |. 1970. or if no financially respon-

sibic mine owner or carrier can be found 3OU S.C. §§ 932ic) 934ta)

Originally. only the Secretary of Health Education and

Welfare (*HEW™) had authority to write eligibility regula-

uions. 30 U.S.C. §§ 921(a). 932(b). In 1972. HEW published

two sets of regulations. HEW’s permanent regulations

applied in both SSA and DOL ciaims. 20 C.F.R. §§ 410.401-

410.476 (1989). A second set of “interim” standards applied

only in SSA claims. /d. § 410.490. In 1978, Congress author-

ized DOL to write its own eligibility rules. 30 U.S.C.

§ 902(f\(1). and also mandated a review of all pending and

previously denied claims. id. 945. Claims reviewed by DOL

and a group of newly filed claims were to be considered under

criteria that “shall not be more restrictive than the criteria

applicable to a claim filed on June 30. 1973.” Jd. § 902(f2).

DOL then promulgated interim regulations to comply with

section 902(f\(2). see 20 C.F.R. § 727.203. and permanent

regulations. see id. Pari 718.

The SSA and DOL interim regulations are similar. but

not identical. Both regulations erect rebuttable presumptions

of entitlement. In both. the claimant proves predicate facts.

eligibility 1s presumed. and ultimate facts are decided in the

rebuttal inquiry. The employer bears the burden of persua-

sion in the rebuttal phase. See. ¢.g.. Gibas v. Saginaw Mining

Co.. 748 F.2d 1112. 1120 (6th Cir. 1984). cert. denied, 471

U.S. 1116 (1985). The SSA rule may be invoked if the claim-

ant establishes pneumoconiosis by x-ray. biopsy or aulops\

evidence. or if the miner meets published values on puimo-

nary function tests. 20 C.F.R. § 410.490(b). Labor's rule fol-

lows this same format. but adds three additional! bases for

invocation (arterial blood gas tests. medical opimion evi-

dence. and lay evidence in certain survivor's claims). /d.

§ 727.203(a). Labor's rule required at least ten years of coal

mine employment for invocation by any method. while SSA’s

allowed a shorter term miner to invoke by x-ray. autopsy or

biopsy evidence if additional evidence connected abnormal!

findings 10 coal dust exposure. See Pittston Coal Group. 109 S.

Ct. at 418-19.

SSA’s rule states that the presumption may be rebutted

by evidence showing that the miner 1s still working or is able

to work. The SSA rebuttal rule also cross-references certain

provisions in the SSA permanent regulations. 20 C.F.R.

§ 410.490(c)(1), (2). SSA’s rule makes no statement limiting

the sort of evidence that may prove rebuttal facts. The Labor

rebuttal rule generally follows section 410.490(c). but adds

several provisions to it. First, the Labor rule states that all

relevant medical evidence shall be considered. /d.

§ 727.203(b). The Labor rule also provides that rebuttal may

be established by proof showing that (1) the miner’s disability

or death did not arise in whole or in part out of coal mine

employment. or (2) that the miner did not or does not have

pneumoconiosis. /d. § 727.203(b)(3). (4).°

C. BACKGROUND OF THIS LITIGATION

John Pauley worked as a miner for thirty years. He has

early stage. simple coal workers’ pneumoconiosis. On

April 21. 1978. he filed a claim for benefits under the Act.

(App. 3-4.) His case was tried before an administrative law

judge (“ALJ”). DOL’s interim presumption applied to

Pauley’s claim and was invoked by x-ray proof of pneumo-

coniosis. 20 C.F.R. § 727.203(a\(1). (App. 35-36.) After review

of all pertinent evidence, however, the ALJ concluded that

the presumption was rebutted under 20 C.F.R.

§ 727.203(b)(3) by proof that Pauley’s disability did not arise

in whole or in part out of coal mine employment. (App.

37-38.)

* Benefits are provided by the Act on account of total disability or

death due to pneumoconiosis. 30 U.S.C. § 901(a). Labor's

rule specifically accommodates rebuttal in a claim filed by a

survivor of a miner. SSA’s rule does not specifically do so, but

SSA did not interpret its rules to preclude rebuttal in a case

filed on behalf of a deceased miner. See Farmer v. V ein-

berger, 519 F.2d 627. 630 (6th Cir. 1975).

The ALJ then considered the claim under SSA’s rule and

found invocation based upon Pauley’s admitted pneumocon-

iosis. He further determined that rebuttal was not available

because Pauley was totally disabled due to conditions that

had nothing to do with his coal mine employment: namely.

arthritis and a residual hemiparesis. (App. 39.) The ALJ

awarded benefits. determining that the fact that Pauley’s total

disability had nothing to do with his coal mine employment

was irrelevant under SSA’s rule. (App. 40.)’ The BRB

affirmed. (App. 21-22.)

On appeal. the Third Circuit reversed. (App. 19.) The

court was troubled by the fact that Pauley’s entitlement

depended upon which presumption was used. The court con-

cluded that the statute controlled and benefits were not avail-

able to Pauley because the Act provided benefits only to

miners totally disabled. at least in part, by pneumoconiosis

arising out of coal mine employment. App. 12 citing 30

U.S.C. § 901(a): Mullins Coal Co., 484 U.S. at 141. The court

held that disability causation rebuttal is implicit both under

SSA’s and DOL’s regulations and the Act. (App. 14-19.)

Predominant in the court's reasoning are two inexorable

concerns: (1) . . . no set of regulations under it [the Black

Lung Benefits Act] may provide that a claimant who 1s statu-

torily barred from recovery may nevertheless recover” and

(2) . . . the only way in which we [the Court] can affirm the

Benefits Review Board [the award] is to hold that even though

BethEnergy should, on the law and facts, have prevailed

under the Benefits Act. by reason of the presumptions and

limitations on rebuttal it must be responsible for benefits. We

’ The administrative law judge relied on Su/yma v. Director, Office of

Workers’ Compensation Programs, 827 F.2d 922 (3d Cir. 1987). for the

proposition that “disability causation” was not a proper rebuttal

inquiry under SSA’s rule but. such an interpretation was specifically

rejected by the decision’s author. Circuit Judge Morton |. Greenberg.

(App. 18-19.)

decline to reach such an unjust result.” (App. 13-14: emphasis

added. )

ARGUMENT

Both the Fourth and Seventh Circuits have decided

issues similar to those presented here. but have required pay-

ment of federal black lung benefits to miners who do not have

black lung disease or whose disability or death did not arise in

whole or in part out of coal mine employment and have

deprived operators of due process by precluding considera-

uion of determinative medical evidence. The decision of the

Third Circuit 1s correct and properly precludes the payment

of benefits to a miner under those circumstances and requires

that employers receive a full and fair hearing. A conflict

among the circuits exists.

A. THE CIRCUITS ARE IN CONFLICT

The Third Circuit holds that absent an irrebuttable pre-

sumption.’ coal mine operators are free to defend black lung

* The petitioner would have this Court interpret SSA's rule as an

irrebuttable presumption and declare that Congress in section 902(f\(2)

of the Act requires such an interpretation. See Petition for Certiorari.

Reasons for Granting the Petition (B) (1). (2). at 18-22. The Third

Circuit reyected this proposal:

We point out that when Congress wants to make a presumption

irrebuttable so as to establish entitiement it knows how to do so.

An irebuttable presumption of total disability arises under 30

U.S.C. §921(c3) if the evidence shows that the miner has a

complicated case of coal miner's pneumoconiosis as defined in the

subsection. In the event a miner may receive benefits even if there

iS Other evidence that the miner can do his usual coal mine work

or other comparable and gainful work. . . . There is. however.

no indication that Congress had any intention to make the pre-

sumption invoked here on behalf of Pauley paramount over a

showing by BethEnergy that Pauley did not qualify for benefits

under the Benefits Act. We also observe that our result eliminates

possible due process problems raised by the Director.

(App. 13.)

claims by demonstrating that the miner's death or disability

did not arise in whole or in part out of coal mine employment.

(App. 12-13.)

Prior to this decision. the Sixth Circuit held that regard-

less of whether SSA’s rule is applied to a Part C claim for the

purposes of invocation. rebuttal is controlled by Labor's rule.

Youghiogheny and Ohio Coal Co. v. Milliken, 866 F.2d 195.

201, 202 (6th Cir. 1987). The Seventh Circuit came to a

contrary conclusion in Hubert Taylor v. Peabody Coal Co..,

892 F.2d 503 (7th Cir. 1989). reh'e denied, (7th Cir. Feb. 1.

1990). It determined that Labor's rule violated section

902(f\(2) because it permitted the consideration of medica!

evidence on rebuttal.

The Fourth Circum then struck down Labor's rules per-

mitting rebuttal on the grounds that the miner did not have

black lung disease or related disability. John Tavior v. Clinch-

held Coal Co.. 895 F.2d 178 (4th Cir. 1990), reh'g denied.

No. 87-3852 (4th Cir. Apr. 20. 1990): Dayton v. Consolidation

Coal Co.. 895 F.2d 173 (4th Cir. 1990). reh'g denied.

No. 89-3203 (4th Cir. Apr. 20. 1990). The Fourth Circuit heid

that SSA’s rule did not expressly permit rebuttal by these

methods. Accordingly. Labor's counterpart was more restric-

tive and thus violated 30 U.S.C. § 902(f\(2).° John Tavior.

895 F.2d at 182-83.

The dimensions of the conflict are adequately described

in the Petition for Writ of Certiorari at | 7-18. and the diver-

gent views of the courts of appeals should be resolved in their

entirety by this Court.

* Chief Judge Sam J. Ervin. Ill. dissented. noting constitutional and

statutory problems with the result. 895 F.2d at 184 (“To preclude

rebuttal with evidence that the miner either does not have pneumocon-

10Sis OF that his total disability did not arise oul of coal mine employ-

meni 1s unacceptable to me.”).

B. THE THIRD CIRCUIT'S DECISION PROPERLY

DECIDES AN IMPORTANT QUESTION OF

FEDERAL LAW

The court below in considering whether Labor’s rebuttal

provisions violate section 902(f)(2). premised its inquiry on

the fundamental and statutorily expressed purpose of the Act:

namely.

to provide benefits ... to coal miners who are

totally disabled due to pneumoconiosis and to the

surviving dependents of miners whose death was

due to such disease... .

30 U.S.C. § 90 1(a).

With this in mind, the court defined its burden as follows:

The only way in which we can affirm the Benefits

Review Board is to hold that even though

BethEnergy should. on the law and facts have pre-

vailed under the benefits act. by reason of the pre-

sumptuons and limitations on rebuttal. it must be

responsible for benefits. We decline to reach such an

unjust result.

(App. 13.) Not only is the court below’s analysis correct. it is

inexorable. '°

' The legislative history of section 902(f(2) which petitioner

accuses the Third Circuit of ignoring also compels this result:

The conferees intend that the Secretary of Labor shall promulgate

regulations for the determination of total disability or death due

to pneumoconiosis. With respect to a claim filed or pending prior

to the promulgation of such regulations. such regulations shall not

provide more restrictive criteria than those applicable to a claim

filed on June 30, 1973. except that in determining claims under

such criteria all relevant medical evidence shal! be considered in

accordance with standards prescribed by the Secretary of Labor

and published in the Federal Register.

(footnote continues)

1. The Plain Wording Of The Rebuttal Provisions Of

The SSA’s Rule Specifically Permits Disability

Causation Rebuttal

The rebuttal provisions of the SSA rule are codified at 20

C.F.R. § 410.490(c) and provide as follows:

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 1s not

contraindicated). establish that the individ-

ual is able to do his usual coal mine work or

comparable and gainful work (see section

410.41 2(a(1)).

Both subdivisions of the section cross reference 20 C.F.R.

§ 410.41 2(a\l). All of Part 410 is qualified by this definition

of total disability which relates exclusively to the circum-

stance where the claimant is “disabled due to pneumoconio-

sis.” Pneumoconiosis is earlier defined as “[a] chromic dust

disease of the lung arising out of emplovment in the Nation's

(footnote continued)

Joint Explanatory Statement of the Commitiee of Conference.

H.R. Conf. Rep. No. 864, 95th Cong. 2d Sess.. reprinted in 1978 U.S.

Code Cong. & Admin. News 308. 309. See Youghiogheny and Ohio

Coal Co., 866 F.2d at 202.

I: 1s certainly puzzling how petitioner could overlook the precise

requirement of considering all relevant medical evidence in determin-

ing these claims when the; submit that there 1s nothing in the history

“even suggesting” this appropriate resolution. See Petition for Wmt of

Certiorari. Page 23. n.13.

—

coal mines

added).

Accordingly. rebuttal pursuant to section 410.490(c)(2)

1s accomplished when the evidence proves that the claimant

1s not precluded from performing his usual coal mine work or

comparable and gainful work by a chronic dust disease of the

lung arising Out of employment in the Nation’s coal mines.

Having been found to have no disability arising in whole or in

part from his coal mine employment. the claim of Pauley is

rebutted under section 410.490(c)(2) as a matter of law. This

interpretation is perfectly consistent with the statutory defini-

uon of compensable disability under section 902(f)(1(A) of

the Act:

* 20 C.F.R. § 410.401(b)(1) (emphasis

a miner shall be considered totally disabled when

pneumoconiosis prevents him or her from engaging

in gainful employment requiring the skills and abil)-

ules comparable to those of any employment in a

mine Or mines in which he or she previously

engaged

30 U.S.C. § 902(f (1A).

As acknowledged by the Third Circuit, the Director is in

complete accord:

The Director further contends that in any event even

under 20 C.F.R. § 410.490 the party opposing enti-

tlement may produce evidence to establish that the

disesility did not arise out of coal mine employ-

ment. He asserts that a contrary ruling would violate

Congressional intent. upset the statutory scheme

and be inimical to the employer's due process rights.

(App. 11.) The court below was the only court to conduct an

analysis predicated upon the statutory requirement of sec-

tion 932(c) that benefits are to be paid by an operator. onl

because of death or disability due to pneumoconiosis which

arose al least in part out of coal mine employment.

30 § U.S.C. 932(c). The court concluded that to interpret

20 C.F.R. § 410.490(c) differently would mean that a miner

“both could and could not recover benefits under the Act.

depending upon whether his claim was considered under

Health. Education and Welfare or Labor regulations. We find

this 10 be a disquieting result . . . .” (App. 12.) Petitioner

offers an interpretation of SSA’s rebuttal which would

achieve a disquieting result in total disregard of the purpose

of the Act. Mullins Coal Co., 484 U.S. at 141. Even if the

petitioner's analysis were plausible. which it is not, consider-

ing the Act’s purpose. it is the Director's interpretation and

not that of the claimant to which deference may be accorded.

Id. at 159.

Petitioner argues that all of the courts of appeals con-

struing Labor's rebuttal provisions. section 727.203(b)(2).

which is essentially identical 10 section 410.490(c)(2). deter-

mined that it did not include a disability causation test. Peti-

tion for Writ of Certiorari at 20. This is true. Equally true.

however. is that it did so because disability causation was

precisely addressed in section 727.203(b)\(3). Oravitz v. Direc-

tor, Office of Workers’ Compensation Programs, 843 F.2d

738. 740 (3d Cir. 1988) (stating that (b)(3) assumes total

disability and limits rebuttal to those instances where the

disability was caused by some other disease): Roberts v. Bene-

fits Review Bd.. 822 F.2d 738. 740 (3d Cir. 1987) (stating that

causation comes into play only with respect to (b)(3)): Svkes v.

Itmann Coal Co.. 812 F.2d 890. 894 (4th Cir. 1987) (stating

that causation is addressed in section 727.203(b)(3)):

Wetherill v. Director, Office of Workers’ Compensation Pro-

grams, 812 F.2d 376. 380 (7th Cir. 1987) (finding no need to

resolve the question of the scope of (b)(2) rebuttal because

rebuttal had been accomplished here under (b)(3)). Accord-

ingly. petitioner's argument has no merit.

The only court to conduct an appropriate analysis of

rebuttal under SSA's rule is the court below. This analysis

achieved a result that is consistent with legislative history. the

express purpose of the Act. and the Director’s interpretation

of the regulations and is accordingly correct.!!

2. The Rebuttal Provisions Of Labor’s Rule Are

Consistent With Section 902(f)(2) Of The Act

The Pauley court first determined that there was nothing

contained in Pittston Coal Group predicting the resolution of

Pauley. (App. 16.) The court commented:

We think that if Congress had intended “criteria”

under 30 U.S.C. § 902(f)(2) to include rebuttal crite-

ria OT criteria relating 10 matters other than those

dealing with “total disability” it would have said so

directly rather than dealing with the matter diffi-

dently in the section.

(App. 17.) From this petitioner illogically submits that

because the Act requires that pneumoconiosis be the condi-

tion which causes disability, the Act at section 902(f)(2) pre-

cludes a rebuttal inquiry into disability causation. See

Petition for Writ of Certiorari at 22, 23.!2

Whatever 30 U.S.C. § 902 means or does not mean, it

cannot be read, as petitioner demands, to require the pay-

ment of benefits to miners who do not have pneumoconiosis

or whose disability does not arise in whole or in part out of

coal mine employment. This is the interpretation petitioner

acknowledges is essential to the successful prosecution of her

'! It is noted that co-counsel for Pauley also represented claimants

Charlie Broyles and Lisa Colley in Pittston Coal Group and there

informed this Court that DOL’s rebuttal rules were valid in all respects

on the merits. Brief for Respondents Charlie Broyles and Lisa Kay

Colley at 18-19 n.20 (Nos. 87-821, 87-827 and 87-1095 consolidated):

see also Official Transcript. Proceedings Before the Supreme Court of

the United States, Pittston Coal Group at 31-34 (U.S. Oct. 3. 1988).

'? Petitioner's argument at this point directly contradicts her argu-

ment regarding appropriate consideration under SSA’s rebuttal rule.

See Petition for Writ of Certiorari at 18, 19. Here. she argues for the

inclusion of pneumoconiosis in the definition of disability: there. her

argument requires exclusion.

claim. As is noted by the court below, to award benefits to the

petitioner, it would have, “to hold that even though

BethEnergy should. on the law and facts have prevailed under

the benefits Act, by reasons of the presumptions and limita-

tions on rebuttal, it must be responsible for benefits.”

(App. 13.) Petitioner’s argument also disregards the legisla-

tive history which requires the consideration of all relevant

medical evidence iricluding the types of medical evidence

that might demonstrate the absence of disease or disability in

determining claims under 30 U.S.C. § 902(f)(2). H.R. Conf.

Rep. No. 864, supra, n.10; 30 U.S.C. § 923(b).

The petitioner's challenge of the Pauley court’s analysis

is without merit. Disability causation is not precluded from

consideration by section 902(f)(2): it is an essential

consideration.

Cc. A SIGNIFICANT CONSTITUTIONAL QUESTION

MAY BE PRESENTED

The court below acknowledged a potential deprivation

of constitutional rights that could result from an interpreta-

tion of 30 U.S.C. § 902(f)(2) prohibiting a mine operator from

prevailing in a case in which the miner did not have pneumo-

coniosis or any related disability. (App. 13.) A similar con-

cern was expressed in this Court’s first review of the interim

presumption. Mullins Coal Co., 484 U.S. at 158-59 & n.30

(“but if a miner is not actually suffering from the type of

ailment with which Congress was concerned. there is no justi-

fication for presuming that that miner is entitled to bene-

fits."*): see also id. at 440 n.32 (“Lurking beneath the surface

of this case is the constitutional concern that there must be

‘some rational connection between the fact proved and the

ultimate fact presumed.’ ” (citation omitted)).

The validity of evidentiary devices under the Due Pro-

cess Clause of the Fifth Amendment of the Contitution of the

United States depends “on the strength of the connection

between the particular basic and elemental facts and on the

degree to which the device curtails the faci finder’s freedom to

access the evidence independently.” Jd. at 439 n.30 (quoting

County Court v. Allen, 442 U.S. 140, 156 (1979)). If the disa-

bility causation inquiry is precluded by section 902(f\(2), a

presumpuon of total disability or death due to pneumoconio-

SIS 1S established by x-rays, ventilatory or blood gas tests

meeting specified values, or other proof that the miner has or

had severe lung disease. Yet, the employer is permitted to

rebut only if the miner is working or able to work. On its face.

such a presumption is illogical, but upon closer analysis, it is

patently irrational. Chest x-rays are incapable of showing the

cause of total disability or death. See Usery v. Turner Elkhorn

Mining Co., 428 U.S. at 6-7 & n.2. Abnormalities shown on

the x-ray are not necessarily related to coal dust exposure. !?

Blood gas and pulmonary function studies are non-diagnostic

and any abnormalities they show may be due to a host of

illnesses or personal characteristics of the patient.'* The pul-

monary function invocation values in the rules are normal for

older persons. For a deceased miner. without disability causa-

uon rebuttal. there is no rebuttal. .

'S Pendergrass. er a/., Roentgenological Patterns in Lune Changes

That Simulate Those Found in Coal Workers’ Pneumoconiosis. 200

Annals N.Y. Acad. of Sci. 494 (1972). Lapp. A Lawver's Medical Guide

to Black Lung Litigation. 83 W. Va. L. Rev. 721. 730 (1981).

'* The SSA presumption does not permn invocation by blood gas

test results. SSA treats blood gas evidence in a separate and more

restrictive way than does DOL. 20 C.F.R. Part 410. subpart D Appen-

dix. Arterial blood gas test results cannot diagnose pneumoconiosis or

related disability. Abnormal blood gas components mav be due to a

vast array of illnesses. environmental factors. or the personal habits of

the patient. A. Miller, Pulmonary Function Tests in Clinical and Occu-

pational Lung Disease 162. 176. 186-87. 376-78 (1986). The pulmo-

nary function invocation values in both the DOL and SSA rules are

“basically normal” values for reured miners and just below normal! for

younger miners. See Pittston Coal Group. 109 §. Ct. at 412: id. at 432-

33 n.8 (Stevens. J. dissenting.) Truly abnormal! pulmonary function

tests may detect disability. but are not diagnostic of black lung disease.

A. Miller. supra at 4-5.

If section 902(f2) requires employers to pay benefits to

miners who do not have pneumoconiosis or whose disability

does not arise in whole or in part out of coal mine emplov-

ment. it creates a presumpuon which 1s purely arbitrary and

forecloses all reasonable inquiry into the truth of the matter.

It completely curtails the fact finder’s ability to assess the

evidence independently because 11 makes medical evidence.

the only evidence that matters, incompetent as a matter of

law. The connections between predicate and ultimate facts

are also exceptionally weak. It is hard to see how this passes

due process muster at any level of scrutiny.

On the facts and on the law. BethEnergy should prevail

in the claim of John Pauley. (App. 13.) Interpreting the Act or

its regulations to require BethEnergy to pay benefits to Pauley

is without constitutional predicate.

CONCLUSION

_ The Third Circuit’s resolution of the claim of John

Pauley 1s correct and must be affirmed. Should this Court

intervene to resolve the conflict among the circuit courts on

the question of available rebuttal under 30 U.S.C. § 902(f\(2)

of the Act. this Petition for Writ of Certiorari should be

granted, and this case should be consolidated with the peti-

tions pending in Peabody Coal Co. v. Hubert Taylor,

No. 89-1696; Clinchfield Coal Co. v. John Taylor,

No. 89- . and Consolidation Coal Co. vy. Dayton,

No. 89- . to assure a final and complete resolution of the

controversy presented.

Respectfully submitted.