# Appendix — Mullins Coal Co. of Va. v. Director, Office of Workers' Compensation Programs

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0813%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 135

## Text

»| FILED

96-327 AUG 20 1908

No. | CLERK td

IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1986

MULLINS COAL COMPANY, INCORPORATED OF
VIRGINIA, OLD REPUBLIC INSURANCE COMPANY
and JEWELL RIDGE COAL CORPORATION,_

” Petitioners,

Vv.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF
LABOR, GLENN CORNETT, LUKE R. RAY, GERALD
R. ST. LETON AND WESTMORELAND COAL
COMPANY,

Respondents.

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

MARK E. SOLOMONS
Counsel of Record
Arter & Hadden
Of Counsel: Suite 400
1919 Pennsylvan.a Avenue, N.W.

MICHAEL F. BLAIR Washington, D.C. 20006
P.O. Box 749 (202) 775-7154
Abingdon, Virginia 24210 ;

Counsel for Petitioners
August 29, 1986 mec eebas:

CASILLAS PRESS INC. — 1717 K STREFT NW WASHINGTON DC 20036 — 223-1228

|

(i)

TABLE OF CONTENTS
Document Page

Opinion of the United States Court of Appeals for the
DTD to pneumoconiosis, arising out of that em-
ployment, if one of the following medical re-
quirements is met:

(1) A chest roentgenogram (X-ray), biopsy, or
autopsy establishes the existence of pneumoco-
niosis .. . ;

(2) Ventilatory studies establish the presence
of a chronic respiratory or pulmonary disease
(which meets the requirements for duration in §
410.412(a)(2) of this title) as demonstrated by
values which are equal to or less than [certain
values specified in the regulation’s tables];

(3) Blood gas studies which demonstrate the
presence of an impairment in the transfer of oxy-
gen from the lung alveoli to the blood as in-
dicated by values which are equal to or less than
[certain values specified in the regulation’s
tables];

' See, e.g., Whicker v. U.S. Dept. of Labor Benefits Review Board,
733 F.2d 346 (4th Cir. 1984), Consolidation Coal Co. v. Sanati, 713
F.2d 480 (4th Cir. 1983), and Hampton v. U.S. Dept. of Labor
Benefits Review Board, 678 F.2d 506 (4th Cir. 1982).

7a

(4) Other medical evidence, including the
documented opinion of a physici. i exercising
reasoned medical judgment, establishes the pres-
ne eee ae eee
nary impairment; .

(b) Rebuttal of interim presumption. In ad-
judicating a claim under this subpart, all relevant
medical evidence shall be considered. The pre-
sumption in paragraph (a) of this section shall be
rebutted if:

(1) The evidence establishes that the in-
dividual is, in fact, doing his usual coal mine
work or comparable and gainful work . . .; or

(2) In light of all relevant evidence it is
established that the individual is able to do his
mo ‘yaaa cin aca
work . . .;

& The evidence establishes that the total
disability or death of the miner did not arise in
whole or in part out of coe! mine employment; or

(4) The evidence establishes that the miner
does not, or did not, have pneumoconisis.

II.
Factual Background

A. Stapleton

Stapleton was forty-three years old in 1980 when his
claim for black lung benefits was heard by an Administra-
tive Law Judge (“ALJ”). Stapleton had worked in coal
mines for at least fifteen to sixteen years and was last
employed by respondent, Westmoreland Coal Company
(“Westmoreland”), from May, 1969, until Jume, 1972. At
that time, he stopped working as a result of breathing dif-
ficulties and heart problems.

A 1973 x-ray noted minimal pneumonitis but otherwise
clear lungs. An x-ray read by Dr. Shiv Navani, a B
reader,? on November 30, 1976, indicated an increase in
small nodular and linear densities throughout the lungs
consistent with changes of coal worker’s pneumoconiosis.
Another x-ray dated January 21, 1980, was read by Dr.
John G. Byers, a B reader, who concluded there was “es-
sentially” no evidence of pneumoconiosis. This x-ray was
re-read by Dr. Paul Francke, also a B reader, on July 24,
1980. Dr. Francke found no x-ray evidence of pneumoco-
niosis.

There were two pulmonary function studies received in-
to the record. A 1976 study showed qualifying value. , i.e.
values below the maximum values specified in the regula-
tion, but noted poor effort on the part of Stapleton. A
1980 study reflected non-qualifying values, i.e. values
above the maximum, and likewise indicated poor effort
and cooperation.

Also introduced into the record were two arterial blood
gas studies, one performed in 1976 and another conducted
in 1980. The results of both studies were above the regula-
tion’s maximum values and were, therefore, non-qualify-
ing.

In addition, the evidence included medical reports of
various physicians. In a report dated March, 1973, An-
thony F. Leger, M.D., one of Stapleton’s treating physi-
cians, stated that claimant suffers from sinus tachycardia

(rapid heart beat) and was hospitalized in July, 1972,

2A “B” reader is a physician who has completed a course and passed
a proficiency examination conducted by the National Institute for Oc-
= Safety and Health for reading pneumoconiosis on x-ray

Ya

because of his heart disorder. Dr. Leger also noted that
Stapleton had been hospitalized in Norton, Virginia, in
December, 1970, when he developed acute back pain while
lifting a heavy object. There is no reference in- Dr. Leger’s
records to any pulmonary or respiratory difficulty.

In a letter dated June 23, 1973, Daniel Gabrield, M.D.,
Stapleton’s regular treating physician, wrote to claimant's
counsel as follows:

I wish I could give you a more favorable report.

I first saw Mr. Stapleton in June, 1972 with chief
complaint of shortness of breath, chest pain and
rapid heart. At my insistence, hv: quit working
because of his heart condition.

In my letter to you of 1972 concerning his low
back injury ‘n 1970, it did not disable him for
work as you know he was working. I have no rec-
ords of this condition other than his statement.

Dr. S.K. Paranthaman, who examined the claimant in
1976 at the request of the Unite. States Department of
Labor, found that Stapleton had evidence of pneumoco-
niosis and possible bronchitis. Dr. Paranthaman noted,
however, that claimant’s respiratory impairment was
moderate and that “the functional impairment appears to
be primarily from cardiac condition and back pain.”

Stapleton was also exmained in April, 1980, by Dr.
John G. Byers, who concluded that there was not suffi-
cient evidence to justify a diagnosis of pneumoconiosis.
According to Dr. Byers, claimant had “no significant pure
respiratory symptoms other than dyspnea,” which the
physician attributed to Stapleton’s cardiac disease. Dr.
Byers further stated that:

Disability is difficult to evaluate in this

gentleman’s case. His respiratory impairment is
not fully evaluated because of his poor co-opera-
tion on pulmonary function testing. Certainly
the best curve that he was able to give us would
not indicate significant respiratory impairment.
There is an abnormality of arterial blood gases
which is not fully explained and which might be
associated with cGyspnea on moderate exertion. |
am attributing his abnormality to temporary fac-
tors associated with his heart rate of 160 beats
per minute caused by his cardiac disease. Note
that several years ago PO? was in the normal
range on another test. I think this patient has
significant disability based on neurosis, and he
probably has significant disability based on his
cardiac disease which is not yet in control on his
Inderal. . . . As noted above, I feel that this pa-
tient’s primary impairment is cardiac in nature
with a strong component of cardiac neurosis.

A report, dated June 30, 1980, was submitted by Dr.
George O. Kress, a specialist in industrial pulmonary
medicine. Dr. Kress, a non-examining physician, reviewed
the record and concluded that Stapleton did not suffer
from pneumoconiosis, or from any significant respiratory
problems. According to Dr. Kress, provlems unrelated to
claimant’s coal mine employment probably precluded his
ability to do work requiring significant effort.

Based on this evidence, the ALJ invoked the interim
presumption under 20 C.F.R. § 727.203(a)(1), citing Dr.
Navani’s positive x-ray, but concluded that the presump-
tion was adequately rebutted by other medical evidence
under 20 C.F.R. § 727.203(b)(4), which included the more
recent negative x-ray report of Dr. Byers. The ALJ also
concluded that no other evidence qualified Stapleton as
disabled due to a respiratory or pulmonary impairment.

The one set of positive ventilatory studies was discounted
because of poor cooperation. The ALJ, therefore, denied
benefits. In reviewing this decision, the Board concluded
that, although the ultimate decision denying benefits was
correct, the ALJ had improperly invoked the presumption
on the basis of the one positive x-ray.

B. Ray

Ray is a forty-seven-year-old former coal miner who
had sixteen years of coal mining employment when he quit
working in 1973 due to stomach problems. Ten x-rays, six
ventilatory studies, and six medical reports were introduc-
ed at the hearing on his claim for black lung benefits.

Among the x-ray reports was one in 1974 which was
postive for pneumoconiosis but which was submitted by
an unidentified reader with an illegible signature. A 1977
x-ray was interpreted as positive by one radiologist. The
most recent x-ray in 1980 showed a “suspicion” of pneu-
moconiosis. All of the remaining x-rays were negative.

Two of the six doctors’ reports showed pulmonary
disability, but these were not given great weight by the
ALJ because they failed to conclude definitively that the
disability was from exposure to coal dust. One doctor
reported in 1975 that it was “probably” due to coal dust.
Another physician concluded in 1980 that it was due to
cigarette smoking. A third doctor found Ray totally dis-
abled in 1977; however, the blood gas and ventilatory
studies performed by this physician were normal. Ray's
treating physician diagnosed anxiety neurosis and chronic
gastritis and stated in a letter dated July, 1979, “[a]s far as
his pulmonary complaints are concerned, | think they are
rather insignificant.”

12a

There were two positive ventilatory studies. The ALJ,
however, found them to be outweighed by more recent ne-
gative studies. The ALJ, concluding that the presumption
had not been triggered, denied benefits, and the Board af-
firmed.

C. Mullins

Cornett, who was employed in coal mines for approxi-
mately thirty-six years, worked for Mullins from June,
1967, to April 30, 1976. In 1977, claimant suffered a heart
attack. At that time his family physician, L.J. Fleenor,
M.D., informed him he was suffering from black lung di-
sease. Claimant tried to return to his coal mine employ-
ment, but suffered from shortness of breath and cough-
ing. In less than a year, he completely ceased work at the
coal mine and began to work at his family’s hardware
store.

The medical evidence, introduced in connection with
Cornett’s claim for black lung benefits, included both
positive and negative x-rays, as well as qualifying and non-
qualifying ventilatory and blood gas studies. In addition,
there were conflicting opinions of two physicians. Dr.
Fleenor submitted a report, dated February, 1979, in
which he diagnosed black lurg disease. Robert A. Aber-
nathy, M.D., a specialist in internal medicine, examined
Cornett in January, 1980, and concluded that his “major
problem appears to be related chiefly to his hypertension
and to his heart disease.” Dr. Abernathy recognized that
Cornett “does appear to have some pulmonary impair-
ment” and was precluded from returning to coal mining
work; however, in a supplemental report dated August 1,
1980, Dr. Abernathy expressed his belief that claimant's
breathing problems were related not to his exposure to

13a

coal dust but to his hypertension, cardiovascular im-
pairments, and possibly smoking.

Following the administrative hearing on Cornett’s
claim, the ALJ found that claimant was entitled to invoke

the presumption under 20 C.F.R. § 727.203(a)(1), (a)(2),
and (a3). As for rebuttal, the ALJ concluded that:

the medical evidence consisting of Claimant's
ventilatory studies, blood-gas tests, and Dr.
Abernathy’s opinion that the Claimant is
substantially precluded from doing any work
beyond what he appears to be doing at the hard-
ware store overwhelming [sic] establishes a
respiratory impairment that causes Claimant to
be incapable of performing his usual or com-

Dr. Fleener also diagnoses cardiovascular
disease in addition to category | pneumoconiosis
and he attributed Claimant's disability to both
impairments. Testimonial evidence has establish-
ed that Dr. Fleenor is Claimant's treating physi-
cian. Further, there is no indication that Dr.
Abernathy has examined the Claimant more than
once. Therefore, Dr. Fleenor’s opinion may be
given greater weight than that of a physician who
has examined the Claimant on only one occa-
sion.

The ALJ awarded benefits, and also awarded interest at
a rate of six percent per year to commence as of July,

1978, the date of claimant's eligibility. The Board affirm-
ed.’

The brief submitted by Mullins in this appeal informs us that Cor-
nett died on June 22, 1983, from acute congestive heart failure.

l4a

Ill.
Discussion

In our order setting these three appeals for en banc
argument, the parties were requested to address the fol-
lowing issues:

(1) Whether, despite the evidence of negative
or non-qualifying x-rays, ventilatory studies,
blood gas studies, and/or physicians’ opinions,
the interim presumption of pneumoconiosis un-
der 20 C.F.R. § 727.203(a) is automatically t
gered by any one of the following: -

(a) One positive x-ray;

(b) one set of positive ventilatory studies;

5 8

(d) one physician's opinion.

(2) Once the interim presumption of pneu-
moconiosis is triggered, whether and to what ex-
tent is non-qualifying medical evidence permitted
to rebut the presumption under 20 C.F.R. §
727.20Mb).

In addition to these common issues, the Court must
consider in Mu/llins whether it is proper in black lung cases
to award interest to a claimant on past due benefits from
the date he is eligible for payment rather than from the
time a favorable decision is issued.

In Section III. A. of this opinion, | will address first the
issues Concerning the interim presumption. | am authoriz-
ed to state that Chief Judge Winter, Judge Sprouse, and
Judge Sneeden join me in Section III. A. Section III. B.
sets forth the Court's unanimous opinion concerning the
pre-judgment interest issue raised in Mullins.

1Sa

A. Interim Presumption

Black lung disease, or pneumoconiosis, is a severe and
frequently crippling chronic respiratory impairment which
is caused by long-term inhalation of coal mine dust. See
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 6-7
(1976). The federal black lung program was enacted to
provide benefits for total disability due to black lung
disease. The program was originally enacted in Title IV of
the Federal Coal Mine Health and Safety Act of 1969,
Pub. L. No. 91-173, 83 Stat. 792 (1969). The program has
been amended on three occasions: Black Lung Benefits
Amendments of 1972, Pub. L. No. 92-303, 86 Stat. 150
(1972) (the “1972 amendments”); Black Lung Benefits
Revenue Act of 1977, Pub. L. No. 95-227, 92 Stat. 11
(1977) and Black Lung Benefits Reform Act of 1977, Pub.
L. No. 95-239, 92 Stat. 95 (1977), signed into law on
March 1, 1978 (the “1978 amendments”); and Black Lung
Benefits Amendments of 1981, Pub. L. No. 97-119, 95
Stat. 1643 (1981) (the “1981 amendments”).

The responsibility for adjudicating claims has shifted
from the Social Security Administration (the “SSA”) to the
Department of Labor (the “DOL”). The 1972 amendments
provided that claims filed on or before June 30, 1973 (Part
“B” claims) would be adjudicated by SSA. See generally 20
C.F.R. Part 410. Claims filed after that date (Part “C”
claims) would be adjudicated by DOL. Under this system,
Part “C” claimants were subjected to more restrictive
eligibility criteria than Part “B” claimants. The 1978
amendments, however, eliminated the restrictive stand-
ards applicable to Part-“C” claims, liberalized the stat-
utory eligibility criteria, and authorized the Secretary of
Labor to adopt new criteria which were no more restrictive
than the eligibility standards governing Part “B” claims. 30
U.S.C. § 902(f)(2). In accordance with this intent and pur-

16a

suant to 30 U.S.C. § 902(f),* the Secretary promulgated
interim criteria at 20 C.F.R. § 727.200 ef seq., including

*30 U.S.C. § 902(f) provides as follows:

(1) The term “total disability” has the meaning given it
by regulations of the Secretary of Health and Human Ser-
vices for Claims under Part B of this subchapter, and by
regulations of the Secretary of Labor for claims under part
C of this subchapter, subject to the relevant provisions of
ae (b) and (d) of section 923 of this title, except

(A) in the case of a living miner, such regulations
shall provide that a miner shall be considered totally
disabled when pneumoconiosis prevents him or her from
engaging in gainful employment requiring the skills and
abilities comparable to those of any employment in a mine
or mines in which he or she previously engaged with some
regularity and over a substantial period of time.

(B) Such regulations shall provide that (i) a deceased
miner’s employment in a mine at the time of death shall not
be used as conclusive evidence that the miner was not total-
ly disabled; and (ii) in the case of a living miner, if there are
changed circumstances of employment indicative of reduc-
ed ability to perform his or her usual coal mine work, such
miner’s employment in a mine shall not be used as con-
clusive evidence that the miner is not totally disabled;

(C) such regulations shall not provide more restrictive
criteria (han those applicable under section 423(d) of Title
42; and

. (D) the Secretary of Labor, in consultation with the
Director of the National Institute for Occupational Safety
and Health, shall establish criteria for all appropriate
medical tests under this subsection which accurately reflect
total disability in coal miners as defined in subparagraph
{A).

= Criteria applied by the Secretary of Labor in the case
oO —_—

(A) any claim which is subject to review by the

te OE

17a

the presumption at issue in these appeals at § 727.203,°
which is set out in full in the Introduction to this opinion.

The employers in each case, as well as the Director of
the Office of Workers’ Compensation Programs (“Direc-
tor”), whom we permitted to intervene in these appeals,
contend that the regulation at 20 C.F.R. § 727.203(a) re-
quires the ALJ to weigh all evidence, both positive and ne-
gative, before invoking the interim presumption. Under
this view, the presumption is triggered only if there is a
preponderance of like-kind positive evidence. According
to the employers and the Director, the presumption is not
triggered by a single positive x-ray, ventilatory or blood
gas test, or by one physician’s opinion, unless that single
piece of evidence stands uncontradicted by like-kind evi-
dence. I cannot agree. Although, as the opinion of Judge
Phillips indicates, the Director’s view on this issue is, if
reasonable, entitled to judicial deference, I find that the
agency’s interpretation renders the regulation internally in-
consistent and is plainly erroneous. Moreover, I concluded

Secretary of Health and Human Services, or subject to a
determination by the Secretary of Labor, under section
945(a) of this title;

(B) any claim which is subject to review by the
Secretary of Labor under section 945(b) of this title; and

(C) any claim filed on or before the effective date of
regulations promulgated under this subsection by the
Secretary of Labor;
shall not be more restrictive than the criteria applicable 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.

‘Permanent criteria, applicable to claims filed after March 31, 1980,
are contained at 20 C.F.R. Part 718.

that the agency’s interpretation conflicts with congres-
sional intent.

Legal presumptions, such as the one at issue in these ap-
peals, are encountered in a variety of civil, criminal and
administrative settings. A presumption is raised by a basic
fact or facts which, when accepted as true by the fact-
finder, give rise to a mandatory inference called a presum-
ed fact. Graham C. Lilly, An Introduction to the Law of
Evidence, Chapter III, at 49 (1978). “Once the basic [fact
or] facts are believed, the resulting presumed fact must be
accepted by the trier un/ess it is rebutted by contravening
evidence.” /d.

The initial burden of meeting the factual prerequisite
for triggering a presumption is distinct from the u/timate
burden of convincing the factfinder of the existence of all
the essential elements of a claim or defense. Meeting the
initial burden, however, has the effect of shifting the bur-
den of persuasion, or at least the burden of coming for-
ward with rebuttal evidence, onto the aa party. /d.
at 49, 54-58.

With these principles in mind, I have examined the
statutory and regulatory scheme of the presumption at
issue in these appeals. At the outset I note that Congress
has mandated that in deciding black lung clanns all rele-
vant evidence be considered:

In determining the validity of claims under this
part, all relevant evidence shall be considered, in-
cluding, where relevant, medical testes such as
blood gas studies, X-ray examination, electrocar-
diogram, pulmonary function studies, or phys-
ical performance tsets, and any medical history,
evidence submitted by the claimant’s physician,
or his wife’s affidavits, and in the case of a

19a

deceased miner, other appropriate affidavits of
pers: is with knowledge of the miner’s physical
condition, and other supportive materials.

30 U.S.C. § 923(b).

The Conference Report, accompanying the 1978
amendments, states that:

With respect to a claim filed or pending prior to
the promulgation of such [new] regulations such
regulations shall not provide more restrictive cri-
teria than those applicable to a claim filed on
June 30, 1973, except that in determining claims
under such criteria all relevant medical evidence
shall be considered in accordance with standads
prescribed by the Secretary of Labor and pub-
lished in the Federal Register.

H.R. Rep. No. 864, 95th Cong., 2d Sess., reprinted in
[1978] U.S. Code Cong. & Ad. News 308, 309. As pointed
out in an article analyzing the legislative history of the in-
terim presumption, “[b]y this [Conference Report] state-
ment, the conferees alerted the Secretary of Labor that he
was not to treat the interim presumption as irrebuttable.”
Solomons, A Critical Analysis of the Legislative History
Surrounding the Black Lung Interim Presumption and a
Survey of its Unresolved Issues, 83 W.VA.L.REV. 869,
893 (1981). Thus, by statute, the disposition of a black
lung claim must be based on all relevant evidence and the
presumption which the Secretary was directed to promul-
gate must be rebuttable. The statute, however, leaves to
the Secretary how the presumption is to be triggered and
rebutted and how the various burdens of persuasion and
production are to be allocated between the claimant and

the employer.
The regulation promulgated by the Secretary is divided

into two parts. The first part, Part (a), enumerates four
distinct medical requirements which, if met, “establish”
the interim presumption. The second part of the reguia-
tion, Part (b), addresses the requirements for rebutting a
presumption which has been established under Part (a).
Part (a) by its own terms calls for the presumption to be
triggered under (a)(1) by “[a] chest roentgenogram (x-
ray),” and under (a)(4) if “{o}ther medical evidence, in-
cluding the documented opinion of @ physician exercising
reasoned medical judgment, establishes the presence of a
totally disabling respiratory or pulmonary impairment”
(emphasis added). Thus, with respect to these two medical
requirements, I can only conclude that a single qualifying
X-ray Or a single physician’s opinion that a claimant has a
disabling pulmonary impairment will clearly suffice to
trigger the presumption. Of course, certain minimal re-
quirements of reliability and authenticity must be met, in-
cluding identification of the physician reading the x-ray or
rendering the opinion, the date of the report, and com-
pliance with any applicable quality standards for x-rays
found elsewhere in the regulations. See 20 C.F.R. §§
727.206(a), 718.102, 718.104, 410.428.

Concerning the medical requirements under §727.203
(a)(2) and (aX(3), the regulation employs the terms “ven-
tilatory studies” and “blood gas studies” in the plural.
Nevertheless, | conclude that a reasonable interpretation
of this language requires the presumption to be triggered if
the results of one set of ventilatory or blood gas studies
demonstrate values above those listed in the tables.* I note
that this interpretation is fully supported by the regula-
tions which define how ventilatory and blood gas tests are

*As with x-ray evidence, ventilatory and blood gas studies must also
comply with applicable quality standards. See 20 C.F.R. §§ 206(a),
718.103, 718.105, 410.430.

2la

to be conducted. These regulations demonstrate that each
pulmonary function study consists of several tests and
must be accompanied by two to three tracings of each test
performed. 20 C.F.R. § 718.103; 410.430. Similarly, a
blood gas study may also have separate components, one
reflecting the results obtained at rest, and the other report-
ing the results of testing during exercise. 20 C.F.R. §
718.105.

Certainly, I find nothing in Part (a) of the regulation
which permits — much less requires — the weighing of
conflicting like-kind evidence by the factfinder before
triggering the presumption. In fact, the view espoused by
the Director that all evidence must be weighed before in-
voking the presumption renders the rebuttal phase of the
inquiry superfluous. Judge Phillips’ opinion, in finding
the Director’s position on this point reasonable, effectively
rewrites the rebuttal portion of the regulation and makes
the presumption once triggered, at least in part, irrebut-
table.’ This interpretation, which renders the regulation
internally inconsistent and contradictory, cannot with-
stand the test of reasonableness under any conceivable
criteria. Moreover, insofar as it makes the presumption ir-
rebuttable, it clearly conflicts with congressional intent.

’ According to the construction offered in Judge Phillips’ opinion,
once the evidence is weighed and the presumption is triggered, it may
be rebutted under § 727.203(b)(1)-(4) unless it was triggered by proof
under § 727.203(a\4) that the claimant had a totally disabling res-
piratory or pulmonary impairment or unless it was invoked by proof
under § 727.203(a)(1) that the claimant has pneumoconiosis. the word
“unless” appears nowhere in the regulation. Similarly, under Judge
Phillips’ view, invocation of the presumption conclusively, i.e. ir-
rebuttably establishes that the claimant has pneumoconiosis under
§ 727.203(a)(1), has certain levels of respiratory or pulmonary impair-
ment under (a2) or (a3), and is totally disabled by a respiratory or
pulmonary impairment under (a4).

22a

I would accordingly overrule our previous decision in
Consolidation Coal Co. v. Sanati, 713 F.2d 480 (4th Cir.
1983), which held that the ALJ must weigh conflicting evi-
dence before determining whether the presumption hes
been triggered. | would hold instead that under the plair
meaning of 20 C.F.R. § 727203(a), the claimant satisfies
his initial burden of production if he introduces into evi-
dence one qualifying x-ray, one set of qualifying ventila-
tory or blood gas studies, or the documented opinion of
one physician exercising reasoned medical judgment .*
Contrary to the conclusion reached by Judge Widener and
@ majority of this Court that in the absence of a physi-
cian’s opinion other medical evidence must be weighed
before the (a4) presumption is triggered, | conclude that
a physician’s opinion is an absolute prerequisite to invok-
ing the presumption under (a)4) and that consequently
weighing of the evidence is not appropriate.

Once the claimant's initial burden has been satisfied and
the presumption is triggered, the burden necessarily shifts

*I am not persuaded by the contention advanced by the employers
and the Director that the Administrative Procedure Act (APA), $
U.S.C. §§ 554 et seq., requires the presumption to be invoked under a
preponderance of evidence standard. To the extent that the APA
would normally be applicable on this question, | find that the
Statutory and regulatory scheme establishing the interim presumption

Nor am I convinced by Judge Phillips’ view, that the regulation’s
use of the word “establish” in both the trigerring and rebuttal portions
compels a conclusion that to trigger the presumption the claimant
bears the burden of persuasion under a preponderance standard
“Establish,” as used in Part (a) simply means that the claimant must
prove at least one of the factual prerequisites to invoke the
tion, i.¢., one qualifying x-ray, one set of qualifying ventilatory or
blood gas studies, or the documented opinion of one physician. As
used in Part (b), “establish” means that the employer must prove the
facts necessary to rebut the presumption and ultimately to persuade
the factfinder that the claimant is not entitled to benefits.

. A Sr ee cee -

23a

to the employer to rebut it. Under Part (b) of the regula-
tion, rebuttal of the interim presumption is subdivided in-
to four categories. The presumption is rebutted if the
employer establishes that (1) the miner cortinues in his
usual coal mine work or in gainful employment requiring
similar skills and abilities; (2) the miner is able to do his
usual coal mine work or gainful work requiring similar
skills and abilities; (3) the miner’s death or disability did
not arise, in whole or in part, out of coal mine employ-
ment; or (4) the miner does not have pneumoconiosis. 20
C.F.R. § 727.203(b).

It is in the rebuttal portion of the regulation, after the
burden has shifted to the employer, that the Secretary in-
corporated Congress’ “all relevant evidence” language, re-
quiring that “[i]n adjudicating a claim under this subpart,
all relevant medical evidence shall be considered.” 20
C.F.R. § 727.203(b). In my view, placement of this lan-
guage is not, as the employers argue, awkward or inexact,
but entirely appropriate and consistent with congressional
intent. For it is after hearing the rebuttal phase of a case
where the presumption has been invoked, and determining
whether the employer has sustained its burden of proving
by a preponderance of the evidence that the claimant does
not have pneumoconiosis, or does not otherwise meet the
criteria for eligibility found at § 727.203(b)\(1)-(b)(4), that
the factfinder is in a position to make a final decision on
the claim based on the weighing of “all relevant evidence.”

As we concluded in addressing the employer’s rebuttal
obligation under § 727.203(b\(3), in Bethlehem Mines
Corp. v. Massey, 736 F.2d 120, 123-124 (4th Cir. 1984):

[T]he employer must ru/e out the causal relation-
ship between the miner’s total disability and his
coal mine employment in order to rebut the in-
terim presumption . . . The reality of coal mine

i4a

employment is such that many physical and envi-

letter and spirit of the Black Lung Act and tradi-
tional workers’ compensation principles, places
the burden on the employer to disprove the cau-
sal relationship between coal mine employment
and total disability once the claimant establishes
the existence of a qualifying medical condition.
(emphasis added).

Massey correctly recognized the effect of shifting the bur-
den of persuasion onto the employer once the presumption
under § 727.203(a) had been invoked. In Alabama By-
Products v. Killingsworth, 733 F.2d 1511, 1514 (11th Cir.
1984), the Eleventh Circuit similarly concluded that:

The plain meaning of the regulatory language of
20 C.F.R. § 727.203(b) demonstrates that the
burden of persuasion shifts to the employer on
rebuttal. Under section 727.203(b), the employer
is recuired to “establish” the elements of rebut-
tal. “Establish” is clearly synonymous with
“prove.” Furthermore, under section 727.203(b),
the factfinder must consider “all relevant medical
evidence” to determine if the presumption has
been rebutted, thus indicating that the factfinder
mu*. consider evidence introduced by both sides
and that the operator must persuade the fact-
finder.

(footnote omitted). The Sixth and the Tenth Circuits have
likewise concluded that the burden of persuasion under
§ 727.203(b) shifts to the employer on rebuttal. Gibas v.
Sagi.1w Mining Company, 748 F.2d 1112, 1120 (6th Cir.

25a

1984), cert. denied, __. ~ U.S. ___, 53 U.S.L.W. 3824
(U.S. May 20, 1985) (No. 84-1344); Kaiser Steel Corpora-
tion v. Director, Office of Workers’ Compensation Pro-
grams, 748 F.2d 1426, 1430 (10th Cir. 1984).

This statement of the employer’s rebuttal obligation is,
moreover, consistent with the interpretation of the em-
ployer’s burden under the fifteen-year statutory presump-
tion. Cf. United States Steel Corp. v. Gray, $88 F.2d 1022,
1028 (Sth Cir. 1979). (“The statute shifts to the Secretary
Or to the mine operator the burden of disproving disability
due to pneumoconiosis once the claimant makes the thresi-
old showing that he worked fifteen or more years in the

mines and suffers a totally disabling respiratory or
pulmonary impairment. The burden on the Secretary or
operator is then to prove by a preponderance of evidence
that the claimant does not suffer pneumoconiosis, as de-
fined by the Act, or that the impairment is not connected

with his employment in the mines.”)*

Neither the statute nor the regulation addresses the
quantum of evidence that constitutes a preponderance of
all relevant evidence. To me, however, it is significant that
Congress qualified the “all relevant evidence” standard by
specifically providing that “no claim for benefits under
this part shall be cenied solely on the basis of the results of
a chest roentgenogram.” 30 U.S.C. § 923(b). /d. Thus, |
would find that neithe a single negative x-ray nor multiple
negative x-rays may constitute the sole basis for den ying

"The fifteen-year rebuttable presumption at issue in United States
Steel Corp. v. Gray, 588 F.2d 1022, 1028 (Sth Cir. 1979), is found at
W U.S.C. § 921(eH4).

benefits.'® Furthermore, | would continue to adhere to
our holding in Whicker v. U.S. Dept. of Labor Benefits
Review Board, 733 F.2d 346, 349 (4th Cir. 1984), that
“/njon-qualifying test results . . . cannot be used as the prin-

conflict
with the authorizing statute and is in and of itself a sufficient ground
for finding the Director's interpretation invalid.

27a

the claimant to trigger the presumption must conform to
pertinent standards for quality and authenticity. Once the
initial burden is satisfied, | would find that the burden of
persuasion shifts to the employer, who then must prove by
a preponderance of evidence that the claimant does not
have pneumoconiosis, or that he continues to perform or
is capable of performing his usual coal mine work, or that
the impairment is not connected with his employment in
the mines.

In deciding whether the presumption has been rebutted,
and ultimately whether the claimant is entitled to black
lung benefits, | agree that the factfinder must consider all
relevant evidence, but with the proviso that (1) a claim
may not be denied solely on the basis of any negative x-ray
and (2) non-qualifying test results may not be the primary
or exclusive means of rebutting the presumption.

In applying these views to the facts of the three cases
before us, I conclude as follows:

|. Stapleton

| would find that in Stapleton’s case the ALJ correct-
ly concluded that the 1976 positive x-ray was sufficient to
invoke the interim presumption under (a1). Moreover, |
would find that the presumption was also triggered under
(a2) by the positive ventilatory study. Nevertheless, |
would affirm the Board's denial of benefits on the ground
that there is substantial evidence to demonstrate that the
presumption was sufficiently rebutted. This evidence in-
cluded the reports of Stapleton's treating physician and
other examining physicians that claimant suffered from a
cardiac disability rather than from a pulmonary impair-
ment.

2. Ray

In Ray's case, | cannot accept appellant's contention
that the presumption was triggered under (aX1) by the
1974 positive x-ray. This x-ray was not sufficiently iden-
tifiable to meet the regulatory requirements for an x-ray
under 20 C.F.R. § 718.102(c), which provides, inter alia,
that “[t}he report shall specify the name and qualifications
of the person who took the film and the name and qualifi-
cations of the physician interpreting the film.” | would
find, however, that because of the two qualifying venti-
latory studies and the opinion of at least one physician
that Ray was totally disabled due to a respiratory impair-
ment, the presumption was triggered under (a\(2) and
(a4). Because the ALJ incorrectly concluded that the
presumption was not invoked, | would remand this case
for a determination of whether the presumption was re-
butted.''

3. Mullins

I would find that there was sufficient evidence to invoke
the presumption on behalf of the claimant, Cornett, under
(al), (a2), (aX3), and (a4). Furihermore, | would af-
firm the Board's decision granting benefits on the ground
that it is supported by substantial evidence and that the
employer did not meet its rebuttal obligation.

As stated in the per curiam opinion summarizing the
results in these cases, the award of benefits to Cornett is
affirmed. However, in accordance with Part III. B. of this
opinion, infra, in which all the judges have joined, that

‘In reviewing the record, | note that the ALJ overlooked the reading
of an x-ray dated January }, 1977, as positive. | would require this
\-ray to be evaluated on remand along with the other evidence.

29a

portion of the decision below which awarded interest on
Cornett’s claim back to July, 1978, is reversed and the case
is remanded with directions that an appropriate award of
interest be entered to commence thirty days after the date
of the initial determination of eligibility.

B. Pre-judgment Interest
The interest regulation at issue in Mullins, 20 C.F.R. §
725.608(a)( 1979), provides that:

If an operator or other employer fails or refuses
to pay any or all benefits due under the terms of
an initial determination by a deputy commission-
er (§ 725.420), a decision and order filed and
served by an administrative law judge (§ 725.478)
or a decision filed by the Board or a United
States court of appeals, including any penalty
awarded in addition to benefits in accordance
with § 725.607, such operator shall be liable for 6
percent simple annual interest on all past due
benefits computed from the date on which such
benefits were due and payable... .

(Emphasis added).

The Director interprets the regulation to provide for the
assessment of interest only from the date thirty days after
the first favorable decision, whether made by the Deputy
Commissioner in an initial determination, or by an ALJ,
the Board, or a court uf appeals. The Board has rejected
the Director’s interpretation and, as in this case, has con-
strued 20 C.F.R. § 725.608(a) to provide for the assess-
ment of interest from the date of « claimant’s eligibility
under the Act, i.e., from the due date of any retroactive
payment to which a claimant ultimately becomes entitled
under a decision awarding benefits.

30a

On appeal, Mullins and the Director contend that the
Director’s interpretation must be accorded deference and
that the Board’s substitution of its own interpretation of
the interest regulation constitutes improper rulemaking
and is erroneous as a matter of law. We agree.

The “common law rule is that the one who owes a sum
of money at a date certain is obliged to pay interest for
withholding payment.” Howmet Aluminum Corp. v. Hart-
ford Accident & Indemnity Co., 665 F.2d 476, 479 (3d
Cir. 1981). Thus, as a general rule, interest may be award-
ed only for the wrongful withholding of payment on a li-
quidated claim, after the payment obligation arises. Milgo
Electronic Corp. v. United Business Communications,
Inc., 623 F.2d 645, 667 (10th Cir.), cert. denied, 449 U.S.
1066 (1980); New York Shipping Ass’n v. Federal Mari-
- time Commission, 571 F.2d 1231, 1242 (D.C. Cir. 1978).'?

Moreover, although there was no statutory provision re-
garding interest on benefit awards until 1981, the 1981
amendments adopted the Director’s interpretation. 30
U.S.C. § 932(d) now provides that:

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 [Janu-

'?The reasonableness of this rule, as applied by the Director in his
interpretation of 20 C.F.R. § 725.608(a), is illustrated by the cir-
cumstances of this case. Cornett’s eligibility date is July 1, 1978. Cor-
nett, however, had terminated his employment with Mullins on April
30, 1976. He waited for more than two years after ceasing work to file
a claim for benefits in July, 1978. Another fifteen months passed
before Mullins first had knowledge of Cornett’s claim on October 9,
1979. It was not until five months thereafter, on March 22, 1980, that
Mullins first incurred liability on the claim, thirty days after the Depu-
ty Commissioner issued his intitial determination on February 20,
1980. 20 C.F.R. 725.522(a) and .530(a).

3la

ary 1, 1982], such interest shall commenc~ to
accumulate 30 days after the date of the dei :r-
mination that such an award should be made

We have held that “later acts of Congress should be ac-
corded ‘significant weight’ in determining the intent of
earlier legislation.” Director, OWCP v. National Mines
Corp., 554 F.2d 1267, 1275 (4th Cir. 1977), quoting NLRB
v. Bell Aerospace Co., 416 U.S. 267, 275 (1974). The
Board, however, rejected the Director’s interpretation as
the interpretation intended by Congress, relying (1) upon
the position taken by the Director on the interest question
in an earlier case, Honaker v. Jewell Ridge Coal Corp., 2
BLR 1-947 (Benefits Review Board, 1980), aff'd on other
grounds mem. sub. nom. Jewell Ridge Coal Corp. v. Ho-
naker, No. 80-1593 (4th Cir. March 26, 1981); (2) upon the
decision of this Court in Clinchfield Coal Co. v. Cox, 611
F.2d 47 (4th Cir. 1979); and (3) upon case law developed
under the Longshoremen’s and Harbor Workers’ Compen-
pensation Act, 33 U.S.C. § 901 ef seq., many of the provi-
provisions of which are incorporated into the Black Lung
Benefits Act. We agree with Mullins and the Director that
the Board’s reliance was misplaced.

The claims in Cox and Honaker were processed and ap-
proved in accordance with the Black Lung Benefits Act of
1972, under which no interest regulation had been promul-
gated. Section 725.608(a), first promulgated in 1978 to im-
plemerit the 1978 Amendments, was inapplicable to those
claims. Neither the regulation nor the Director’s interpre-
tation of that regulation was at issue in either case. We
hold, therefore, that the Board erred in relying on Cox and
the Director’s position in Honaker to reject the Director’s
interpretation of 20 C.F.R. § 725.608(a) in the instant
case. Udall v. Tallman, 380 U.S. 1, 16 (1965).

The Board also erred in relying on the Longshoremen’s
Act. Interest under the Longshoremen’s Act, like interest
under the Director’s interpretation of 20 C.F.R. §

32a

725.608(a), accrues only from the date that an employer
first incurs a payment obligation for a liability on a
disability claim. Cf. 32 U.S.C. § 914(b), 918 and Strachan
Shipping Co. v. Wedemeyer, 452 F.2d 1225 (Sth Cir.
1971), cert. denied, 406 U.S. 958 (1972) with 20 C.F.R. §
725.522(a). Given that fact, the Director’s interpretation
of 20 C.F.R. § 725.608(a) comports with the manner in
which interest is awarded under the Longshoremen’s Act.

Even assuming otherwise, however, we conclude that
the Board erred in relying on the Longshoremen’s Act to
interpret 20 C.F.R. § 725.608(a). As this Court stated in
National Mines Corp., supra, “[{t}he Black Lung Act does
not inflexibly incorporate every provision of the Long-
shoremen’s Act.” 554 F.2d at 1273. Instead, “Title 30
U.S.C. § 932(a) specifically states that the provisions of
the Longshoremen’s Act shall be applicable ‘except as the
Secretary shall by regulation otherwise provide.’ ” Jd. This
indicates a “congressional intention to empower the Sec-
retary to depart from specific requirements of the Long-
shoremen’s Act in order to administer the black lung com-
pensation program properly.” /d. at 1274. Thus, the
Board’s review of the Director's interpretation of 20
C.F.R. § 725.608(a) was governed not by the Longshore-
men’s Act, but, instead, by the Black Lung Benefits Act.

For the foregoing reasons, we uphold the Director’s in-
terpretation of the interest regulation as reasonable and
find that interest shall accrue only from the date beginning
thirty days afier the first agency decision awarding black
lung benefits. We accordingly reverse that portion of the
decision in Mullins which awarded interest as of July 1,
1978.'3

''We note that the Seventh Circuit has recently reached the same
conclusion on this issue in Peabody Coal Company v. Blankenship,
_. F.2d —__, No. 83-2399 (7th Cir. September 19, 1985).

33a

1 am authorized to say that Judge Winter, Judge Sprouse,
and Judge Sneeden join in this opinion.

Ma

PHILLIPS, Circuit Judge, concurring in part
and dissenting in part:

I concur in the result in No. 83-2193 (Stapleton/ West-
moreland affirmed), in the resul* in No. 84-1528 (Cornett/
Mullins affirmed in part and reversed in part), and in Part
II] B of Judge Hall’s opinion dealing with prejudgment in-
terest.

1 dissent from the result in No. 84-1520 (Ray/Jewell
Ridge reversed) and | disagree with major elements of the
opinions of Judge Hall, Judge Widener, and Judge
Sprouse respecting the meaning and application of 20
C.F.R. § 727.203, the “interim presumption” regulation.

I note at the outset that my perception of our proper
function in interpreting this “interim presumption” regula-
tion may differ in a critical respect from that of my
brethren who come to different interpretations than mine.
As I read their opinions, they reflect (though in different
degrees) a general perception that we are free to interpret
this regulation in the same way that we would interpret
any statute or procedural rule having the force of statute,
drawing on logic and legal reasoning and aided by the or-
dinary canons of statutory construction (including the
_ “plain meaning” canon) to divine the promulgator’s intent
as reflected in the regulation’s text.

The problem with that approach here is two-fold. First,
we are not interpreting a statute or procedural rule having
statutory force, but an agency's regulation promulgated by
authority and direction of Congress. Second, we have be-
fore us the agency’s own interpretation of the regulations’

3Sa

intended meaning and operation in the context of the cases
we are reviewing. '

In this situation, our interpretive role in judicial review
is narrowly circumscribed. It is not direct, free “construc-
tion” of the legal meaning -of the regulations’ text, but
something quite different. We should address, in se-
quence, only two questions.

First: wheth.: the agency's interpretation is “plainly er-
roneous or inconsistent wit the regulation”? United States
v. Larionoff, 431 U.S. 864, 872 (1977). If it is not so, that
interpretation is the “ultimate criterion” for determining
legal meaning, and has “controlling weight” for that pur-
pose. /d. (citing and quoting Bowles v. Seminole Rock
Co., 325 U.S. 410, 414 (1945)).

Second: If the agency’s interpretation passes that
deferential test and thereby supplies the regulation’s legal
meaning, whether the regulation as so construed is “con-
sistent with the statute under which [it was] promulgated”?
Larionoff 431 U.S. at 873. The regulation’s ultimate

'The relevant agency interpretation is that formally represented to
us on these appeals by the Director, Office of Workers’ Compensation
Programs who, as administrator of the Black Lung program by
delegation of the Secretary of Labor, is authorized to make the agency
interpretation. See 20 C.F.R. §§ 701.201, .202 (1979). The Director is
before the court as a formal party by permitted intervention in these
appeals, for the stated purpose of defending that interpretation.

Judge Sprouse fairly makes the point that agency interpretations
advanced, as here, as litigation positions may be the least weighty type
so far as judicial deference is concerned. Nevertheless, the one before
us is given us as the official interpretation by the agency head. It is the
only one we have. We effectively invited it from an interested agency
not an original party to the actions. We have no indication that this in-
terpretation, though advanced in specific litigation, is not the agency's
general position, nor that it is not “consistently applied” by the agency
in its base-line administration of tne regulation.

36a

validity — whether it has the force of law — may turn on
this. Jd.

In effect, this requires that we take the agency’s inter-
pretation as the starting point for our judicial review of
the disputed issue of the regulation’s legal meaning. Agen-
cy interpretation controls and has the force of law unless it
is in the first instance “plainly erroneous or inconsistent
with the regulation” itself or, beyond that, would yield a
meaning for the regulation that is inconsistent with the
authorizing statute. Only if the agency’s interpretation
were impermissible as interpretation or produced an in-
valid regulation should we decline to apply the regula-
tion as so interpreted (and possibly substitute our own
“saving” interpretation). See generally K. Davis, Admin-
istrative Law, § 7.22 (24 2d. 1980).

Applying these principles of judicial review, | would
hold the agency’s interpretation here not plainly erroneous
Or inconsistent with the regulation, and the regulation as
so interpreted not inconsistent with the authorizing stat-
utes. On that basis, I would interpret and apply the regu-
lation in accordance with the agency’s interpretation
rather than any conflicting one that we might come up
with as a matter of original and independent construction,
including that partially conflicting interpretation reached
here by the en banc court.

?A critical reason for the principle of deference to an agency’s inter-
pretation of its own regulations — aside from the obvious fact of
authorship — is to encourage national uniformity of application.
Given the range of arguably reasonable interpretations that are possi-
ble with respect to the details of a regulation such as that here in issue,
the principle is particularly compelling here. Faithful adherence to the
principle simply does not permit courts to substitute their own
possibly “better” views of what a regulation should have provided in
order best to carry out congressional intent as divined by the courts.
Among other unhappy consequences of that approach is the inevitable

37a
II
The first question is whether the agency’s interpretation
is “plainly erroneous or inconsistent with the regulation.”
In addressing that, our only tools are “the plain words of

the regulation and any relevant interpretations of the
[agency].” Bowles, 325 U.S. at 414.

The agency interpretation, as presented in the Director’s
brief, can be summarized and paraphrased in its most sa-
lient aspects as follows.

1. Under the proof scheme of 20 C.F.R. § 727.203,
which creates a rebuttable presumption of compensable
black lung disability, both clainiant and operator bear op-
posing burdens of persuasion, the former to invoke the
presumption, the latter to rebut the presumption if it is in-
voked.3

2. Under § 727.203(a)(1)-(4), the claimant bears the ini-
tial burden of proving specified factual predicates: (a) that
he is‘ a miner who engaged in coal mine employment

divergence of views and applications that will emerge in judicial inter-
pretations from circuit to circuit. Only if courts confine their review of
agency interpretations to holding them within the outer bounds of the
range of reasonableness contemplated by the principle of deference
can the principle’s aims be achieved. This necessarily requires courts
sometimes to yield their possibly “better” judgments about what an
agency should have written, or about how an agency should have in-
terpreted what it, after all, has written.

*Where, as here, a presumption is to be applied by an administrative
fact-finder (or a bench trial judge) rather than by a judge controlling a
jury trial, its essential function is not to prescribe a rigid order of
proof, but simply to dictate an orderly process of evidence assessment.
A ready analogy is the process of applying the judicially created
McDonnel [Douglas presumption of discrimination in Title VII bench
trials, as explained in Furnco Construction Co. vy. Waters, 438 U.S.
567, 577 (1978) (“merely a sensible, orderly way to evaluate the
evidence”); see also McCormick on Evidence, § 344 n.2 (3d ed. 1984).

‘For simplicity’s sake, this discussion is confined to living miner’s
claims — those being the only ones technically before us on these ap-

peals.

~ 38a

for at least 10 years, and either that (b), as established by
x-ray, biopsy, or autopsy, he has pneumoconiosis, § 727.
203(a)(1), or that (c) as established by ventilatory studies,
he has a chronic respiratory or pulmonary disease as meas-
ured by specified clinical requirements and values, § 727.
203(a)(2), or that (d), as demonstrated by blood gas stu-
dies, he has a specified clinical level of impairment of his
system’s ability to transfer oxygen from lungs to blood, §
727.203(a)(3), or that (e), as established by “fo]ther
medical evidence, including the documented opinion of a
physician exercising reasoned medical judgment,” he has a
totally disabling respiratory or pulmonary impairment, §
727.203(a)(4).

3. If the claimant invokes the presumption by proving
(a) and anyone (or more) of. (b)-(d), he has established a
prima facie case of compensable disability. The burden of
persuasion thereupon shifts to the operator to rebut the
presumption, failing which the claimant is entitled to
benefits.

4. Under § 727.203¢b)(1)-(4), the operator’s burden of
proof in rebuttal may only be carried by proof of facts
that negate elements of the disability claim ve/ non that
were not established to invoke the presumption. Thus, the
presumption may be rebutted (a) by proof that the claim-
ant is in fact doing or is able to do his usual coal mine
work or comparable and gainful employment, uniess the
presumption was invoked by proof under § 727.203(a)(4)
that claimant had a totally disabling respiratory or pulmo-
nary impairment, § 727.203(b)(1), (2); or it may be rebut-
ted (b) by proof that the disability established did not in
fact arise in whole or in part out of coal mine employment,
whatever the basis for invocation of the presumption, §
727.203(b)(3); or it may be rebutted (c) by proof that the
claimant does not have pneumoconiosis, uniess the pre-

ee, ee ee

a aN

39a

sumption was invoked by proof under § 727.203(a)(1) that
claimant does have pneumoconiosis, § 727.203(b)(4).°

‘Judge Hall’s analysis, slip op. pp. 23, 24 & n.7, of this aspect of the
Director’s interpretation simply, with all deference, mistakes its im-
port. In no way does the Director’s interpretation make the “presump-
tion,” as opposed to the “basic facts” of the presumption, “irrebut-
table” in whole or in part, and thus in conflict with the statutory re-
quirement that any presumption of this sort be rebuttable.

Judge Hall’s analysis seemingly fails to grasp that, as interpreted by
the Director and as its text plainly contemplates, the presumption may
be invoked under (a)(1)-(4) by the establishment (along with miner
status and 10 years mine employment) of any one or more of four dif-
ferent “medical requirements.” As established, these then constitute
the “basic facts” of the presumption, whose “presumed facts” then
vary depending upon which of the “medical requirement” basic facts
have been established. For example, if pneumoconiosis’ existence is
established as a “basic fact” under (a)(1), its mine-relatedness and its
totally disabling effect become the “presumed facts” of the presump-
tion, and this combination of basic and presumed facts make out a
prima facie claim of compensable black lung disability. Under any
possible combination of basic and presumed facts arising under
(a)(1)-(4) there will be some “presumed facts” subject to rebuttal under
(b)(1)-(4). But only the “presumed facts” are rebuttable, nor the “basic
facts.” Thus, continuing the example, if pneumoconiosis’ existence
has been “established” as a basic fact under (a)(1), that fact may not be
“rebutted” (as the “basic facts,” once “proven,” of presumptions in
general may not be), but the “presumed facts” of mine-relatedness and
of total resulting disability may of course be rebutted under, respec-
tively, (b)(3) (not mine-related) or (b)(1) or (b)(2) (not totally disabl-
ing).

The analysis in text of this opinion, using the word “unless,” which
to Judge Hall suggests an irrebuttable operation, simply describes the
interrelation between the particular basic facts as established under
(aX(1)-(4) and the resulting presumed facts that remain rebuttable
under one or more of (b)(1-(4). That is, the existence of
pneumoconiosis may be rebutted under (b)(4) uniess that “fact” has
been established as a basic fact under (a)(1); but in the latter case, the
“presumption” yet remains rebuttable, by disproof of the “presumed
facts” of mine-relatedness or of total resulting disability.

lrunically, it is Judge Hall’s interpretation that would make the
presumption effectively irrebuttable in some situations. See slip op.
pp. 55-56, infra.

40a

5. The burdens of persuasion borne by both claimant
and operator respectively are burdens to prove the relevant
facts by a preponderance of the evidence.

6. In applying this presumption-based proof scheme,
claim adjudicators are required to consider “all relevant
medical evidence,” both in assessing whether the presump-
tion has been invoked and whether it has then been rebut-
ted.

I do not see how this interpretation, either in its general
sweep or in its specific parts, could be declared “plainly er-
roneous or inconsistent with the regulation,” looking, as
we are required to do, only to the “plain words of the reg-
ulation” and the agency’s interpretation of its own han-
diwork.

It is notorious in legal scholarship that the nature and
intended operation of evidentiary presumptions rank
among the greatest conceptual puzzles in the law. At-
tempts to categorize presumptions in systematic ways have
long occupied and divided our best procedural scholars.
See generally McCormick on Evidence §§ 342-344 (3d ed.
1984). Only the most artful and knowledgeable legislative
drafting (or judicial opinion) is likely to produce an evi-
dentiary presumption whose intended operation — whe-
ther as rebuttable or irrebuttable,” “bubble-bursting” or
more drastic, etc. — is manifest from its plain text. Given
the conceptual and practical difficulties involved, it is
therefore no reproach to the drafters of the “interim
presumption” of 20 C.F.R. § 727.203 to start with the pro-
position that this presumptions’ intended operation is by
no means manifest from its “plain words.” That very fact,
however, makes it difficult to find any particular interpre-
tation of its intended operation “plainly erroneous or in-
consistent” in relation to its text. So it is with the Director’s
interpretation.

Looking first to the overall sweep of that interpertation,

ee

4la

it might possibly be thought “plainly erroneous” if it com-
ported with no known pattern of presumptions. But that
cannot be said. While its most distinctive feature — cast-
ing persuasion burdens both to invoke and then to rebut
the presumption — is not the only or even the most com-
mon presumption pattern, it is certainly one not unknown
in traditional usage. See generally id. at § 344, pp. 974-76.

Neither is there any internal inconsistency within the
Director’s interpretation of the presumption’s basic opera-
tion that might be thought to make it “plainly erroneous.”
Indeed, the Director’s interpretation makes sense as a mat-
ter of practical operation. As so interpreted, the regulation
meshes the opposing burdens of proof in a coherent proof
scheme that addreses and permits resolution, without con-
flicting findings, of all elements of the basic statutory
claim of black lung disability: (a) that claimant is a miner
(b) who has pneumoconiosis (c) due to mine employment
(d) that totally disables him. 30 U.S.C. §§ 901(a), 902.

Turning next to the most critical specifics of the Direc-
tor’s interpretation, the plain words of the presumption do
not negate the Director’s interpretation that the proof
burdens borne by both sides are persuasion burdens under
a preponderance of evidence standard. The most directly
operative word suggesting the nature of the burdens
borne, both as to invocation and rebuttal, is “establish.”®

6This is the operative word in each of the invocation and rebuttal
subsections of § 727.203 except subsection § 727.203(a)(3) which inex-
plicably shifts to the word “demonstrate” in referring to proof by
blood gas studies.

The Director’s related interpretation that the persuasion burden is
one of proof by a preponderance of the evidence is at the least not
plainly erroneous or inconsistent with the regulation’s text. In fact, it
is unassailable. Quite typically, the regulation expresses no standard.
In such a circumstance, the preponderance standard, as the usual one
in civil litigation, is presumptively the proper one. Beyond that, as the
Director points out, this is the standard dictated by the Administrative

42a

In common usae this imports proof of a fact, see Alabama
By-Products Corp. v. Killingsworth, 733 F.2d 151 1, 1514
(11th Cir. 1984), rather than the mere production of evi-
dence of a fact’s existence. Cf, e.g., Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)
(in interpreting the judicially constructed presumption of
disparate treatment in Title VII litigation, “articulating” a
non-discriminatory reason connotes a mere burden of pro-
duction). While a persuasion burden interpretation may
not be compelled by the word “establish,” that interpreta-
tion is surely consistent with the term. Indeed, it would ap-
pear to be the interpretation most consistent with the
regulation’s “plain words.” Certainly it would be a ques-
tionable interpretation that found different burdens con-
noted by the same word “establish” as used on opposite
sides of the presumption.’

The Director’s related interpretation that “all relevant
medical evidence shall be considered” both in assessing in-
vocation and rebuttal of the presumption, finds flat sup-

Procedure Act in the absence of any specific standard’s expression. 5
U.S.C. §§ 554, 559.

. Judge Hall’s basic disagreement on this point, which the court ma-
jority must accept apparéntly goes to whether a persuasion burden
under any standard is borne by the claimant rather than to the nature
of the standard. But Judge Hall concludes that the APA standard is
inapplicable because “superseded” by the relevant Black Lung statutes
and regulations. Slip op. pp. 24-25 & n.8. No support is advanced for
this cryptic “conclusion” of something akin to implied repeal of the
APA provisions.

| ’But that is necessarily the interpretation of Judge Hall and a ma-
jority of the en banc court, when Judge Hall writes, at odds with the
Director’s internally consistent interpretation, that the claimant's
burden to invoke the presumption is not one of persuasion by a
preponderance of the evidence, but is merely one of “producing
evidence which meets one of the medical requirements [of
§ 727.203(a)(1)-(4)].” Slip op. p. 29.

a a ee «

43a

port in the plain words of the regulation.* While the clause
sO stating appears in the rebuttal subsection, § 727.203(b),
of the regulation, it is found there in an introductory
passage which refers to the total process of “adjudicating a
claim under this subpart,” i.e., Subpart C, which deals at
large with the “Criteria for Determining Eligibility for
Benefits.” Certainly this aspect of the Director’s inter-
pretation cannot be declared plainly erroneous or inconsis-
tent in relation to the regulation’s text.

Ill

There remains only the question whether the regulation
as interpreted by the Director consistently with its text is
nevertheless inconsistent with the statutes under which it
was promulgated. Aagain, I do not see how it could be so
found; indeed, it is perfectly consistent with both the letter
and spirit of the relevant statutes.

The relevant statutory authorization begins by giving to
the Secretary of Labor the responsibility and commensu-
rate power to define by regulation the meaning of compen-
sable black lung “total disability.” 30 U.S.C. §§ 902(f)
(1), 921(b). This general power to define is obviously not
unlimited; it is constrained in certain respects relevant to
the Director’s interpretation of 20 C.F.R. § 727.203, but
the Director’s interpretation lies well within all the stat-
utory constraints. I take these in order. :

1. By statute, any regulations promulgated must pro-
vide that a living miner is “considered totally disabled
when pneumoconiosis prevents him or her from engaging
in gainful employment requiring the skills and abilities
comparable to those [of his or her former mine employ-
ment].” The regulation as interpreted by the Director is

®Indeed, it derives ultimately from a statutory provision to the same
express effect in 30 U.S.C. § 923(b).

44a

consistent with this statutory constraint, by expressing it
as a basis for rebutting the presumption by disproving the
presumed fact of total disability. 20 C.F.R. § 727.
203(b)(2); see also 20 C.F.R. § 410.412(a)(1).

2. By statute, the regulation may not “provide more
restrictive criteria than those applicable under Section
423(d) of Title 42,” the criteria for establishing “disability”
for disability insurance purposes under the Social Security
Act. Under the Director’s interpretation, a black lung
claimant’s proof burden to establish disability is signi-
ficantly lighter than is that of a social security disability
insurance claimant. The black lung claimant need only
establish, by any of various clinical tests, that he suffers
one of specific medical conditions in order to place the
burden of disproving his total disability from mine-
employment related pneumoconiosis upon his employer.
20 C.F.R. § 727.203(a)(1)-(4). By contrast, the social
security disability claimant must establish a disabling im-
pairment that at least prevents his return to former work
to place on the government the burden of disproving his
compensable disability. See Hall v. Harris, 658 F.2d 260,
264 (4th Cir. 1981). The black lung criteria provided by §
727.203 are therefore significantly less restrictive than are
those imposed on social security disability claimants.

3. By statute, the regulations may not impose criteria
more restrictive than those applicable to Part “B” claims.
30 U.S.C. § 902(f)(2). The criteria are now identical, hence
there is no inconsistency with this statutory constraint.

4. Built into the statutory criteria for determining black
lung disability is a 10-year “rebuttable presumption” that
pneumoconiosis suffered by a miner wiht ten or more
years of mine employment is employment related. 30
U.S.C. §921(c)(1). The interim presumption of 20 C.F.R.
§ 727.203 is clearly consistent with, indeed directly im-
plements, this special proof dispensation conferred on
claimants by statute.

ee CF

ee en -

On ee

4Sa

5. By statute, any regulations promulgated are made
expressly subject to the provisions of 30 U.S.C. § 923(b).
30 U.S.C. § 902(f)(1). Among the provisions of § 923(b) is
the provision that “no claim for benefits . . . shall be
denied solely on the basis of the results of a chest roent-
genogram.” As interpreted by the Director, the interim
presumption is not inconsistent with this limitation on the
denial of claims. Nothing in the Director’s interpretation
prevents a claim adjudicator, in assessing “all relevant
evidence,” including X-rays, from honoring his provision.
The statutory provision simply makes impermissible any
adjudication either that the presumption has not been in-
voked or that it has been rebutted “solely on the basis of
the results of a chest [X-ray]” (emphasis supplied).? Con-
formably with the Director’s interpretation, a single
negatiye X-ray may not therefore be drawn upon either as
the sole basis for finding the invocation burden under
(a)(1) not carried nor as the sole basis for finding the
rebuttal burden under (b)(4) carried.

*Judge Hall draws upon this statutory provision as support for an in-
terpretation that negative X-ray readings may not be considered at ail
in assessing whether the presumption has been invoked under
§ 727.203(a)(1). To hold otherwise, he says, would “in some cases. . .
subvert the congressional intention” expressed in this provision. Slip
op. p. 28-29, no. 10.

With respect, this claims too wide an effect for the limitation.
Unless it means something other than “a negative chest X-ray,” it does
not compel a reading that negative X-rays in general may not be con-
sidered at this stage, but only that a single one may not defeat the
claim either at this or any stage.

Under Judge Hall’s apparent interpretation, negative X-rays simply
have no place in assessing claims under the interim presumption when
the triggering provision of § 727.213(a)(1) (“a chest [X-ray]”) is con-
sidered in conjunction with the limitation on proof expressed in 30
U.S.C. § 923(b). This simply flies in the face of the obvious
understanding, expressed in many ways in statutes and regulations
and exemplified in practice, that negative X-ray readings may be in-
troduced in evidence and considered in assessing claims under the in-
terim presumption, subject only to the express limitation in 923(b).

46a

Accordingly, neither in its general nor any of its specific
aspects does the Director’s interpretation give the regula-
tion a meaning inconsistent with the authorizing statutes.
That interpretation should therefore be accepted and ap-
plied by the court in conformity with the principles of con-
struction expressed in Bowles and Larionoff.

IV

Judge Hall’s interpretation conflicts with that of the
Director in two critical respects. '° First, it would hold that
the claimant’s burden of proof to invoke the interim pre-
sumption is only a burden to produce evidence meeting
one of the “medical requirements” of § 727.203(a)(1)-(4),
i.é., One positive X-ray, or one set of qualifying ven-
tilatory or blood gas studies, or one physician’s opinion
and that if such evidence meets “pertinent standards for
quality and authenticity,” conflicting “like kind” evidence
cannot be weighed against it. Slip op. pp. 28, 29.'' Se-

'°The disagreement on critical elements is not total. On the critical
aspect of the nature of the employer’s burden of proof in rebuttal, the
Director’s interpretation is also that the burden is one of persuasion.
This, of course, is the single most important aspect of the presumption
so far as the tipping the substantive balance is concerned. It insures a
tremendous practical litigation advantage to claimants, given the nar-

row proffer of proof required to place this risk of nonpersuasion on
employers.

''Critical to this aspect of Judge Hall’s interpretation, as now
accepted by a majority of the en banc court, is its emphasis on the
word “a” that appears in subsections (al) and (a)(4) of the
regulation. This is said necessarily to import that “one” X-ray (or
biopsy or autopsy?) and “one” physician’s opinion suffice to trigger
the presumption (and to preclude consideration of any contrary “like-
kind” evidence).

With all respect, the word “a” in these two contexts seems to me
better explained as a careless imprecision than as a deliberate means of
conveying the critical meaning ascribed to it by Jduge Hall’s analysis.
The regulation at large is no more a grammarian’s dream than it is a
proceduralist’s. Inexplicable oddities of syntax abound: e.g., the one-

a I ie) oe

47a

cond, it would hold that “ ‘non-qualifying test results. . .
cannot be used as the principal or exclusive means of
rebutting an interim presumption of pneumoconiosis un-
der 20 C.F.R. § 727.203(b),” although such test results
“may be part of the rebuttal inquiry . . . and are particular-
ly relevant when they are given a detailed interpretation by
an examining physician in reaching a medical conclusion
as to a cClaimant’s impairment.” Jd. (emphasis in original).

The first of these holdings would require us to overrule
our panel decision in Consolidation Coal Co. v. Sanati,
713 F.2d 480 (4th Cir. 1983), while the second would re-
quire us to reaffirm the panel decision in Whicker v.
United States Department of Labor Benefits Review
Board, 733 F.2d 346, 349 (4th Cir. 1984).

Laying aside all concerns of deference to the agency’s in-
terpretation of its own regulation, and with all respect to

time shift to the word “demonstrate” in place of “establish’ in
§ 727.203(a)(3); the ungrammatical abandonment of parallelism
caused by intrusion of the word “which” in § 727.203(a)(3); the am-
biguous placement of the “all relevant medical evidence” mandate in
the regulation.

Interestingly, Judge Hall’s analysis has to abandon this literalist ap-
proach in order to bring the plural language of (a)(2) and (a)(3) (ven-
tilatory and blood gas “sfudies”) into line with its single test interpreta-
tion. This is accomplished by reading the singular word “set” into
those two provisions. Slip op. p. 29.

In the final analysis, this all serves merely to illustrate the futility of
trying to interpret this regulation by a pick-and-choose literalist ap-
proach. The word “a” is present both in § 727.203(a)(1) and (a)(4),
and in 30 U.S.C. § 923(b), and cannot be read out of either. Looking
to total context, the most rational interpretation is that “a” single
positive X-ray (or physician’s opinion) may, but need not necessarily,
trigger the presumption under § 727.203(a)(1) or (4), and that a single
negative X-ray may never provide the sole basis either for finding the
presumption not invoked or for finding it rebutted once invoked
under 30 U.S.C. § 923(b). So I think, should we interpret it. See Part
V, infra.

48a

Judge Hall’s conflicting view, I think that view is simply
wrong as a matter of original interpretation of a text’s
legal meaning. On that basis, independently of any special
deference to the Director’s contrary interpretation, |
would interpret the regulation as does the Director and in
consequence would reaffirm the critical holding in
Sanati'? and overrule that in Whicker and its precursor,
Hampton v. United States Department of Labor Benefits
Review Board, 678 F.2d 506 (4th Cir. 1982).

Though, as indicated, there are a number of detailed
respects in which I think Judge Hall’s interpretation is
logically flawed, the underlying flaws are in its violation of
the statutory mandate that “[i]n determining the validity
of claims . . . all relevant evidence shall be considered,” 30
U.S.C. § 923(b), and in its failure to appreciate the inter-
relation of the invocation and rebuttal elements of the in-
terim presumption of 20 C.F.R. § 727.203.

An unmistakable consequence of this interpretation
would be to preclude the consideration in many cases of
highly relevant medical evidence respecting the validity of

'2Sanati actually dealt directly only with the triggering effect of
medical opinion under § 727.203(a)(4), but its analysis related more
broadly to the operation of all the “triggering” provisions, (a)(1)-(4).
Critically, and correctly in my judgment, Judge Widener’s conclusion
for the panel majority was that the presumption can only be triggered
under any of these subsections by a preponderance of the evidence,
i.e., that conflicting “like-kind” evidence must be considered. See
Sanati, 713 F.2d at 482.

With all respect, I think Judge Widener’s retreat now from Sanati is
not warranted, certainly not by the cryptic (indeed legally incom-
prehensible) comment by the Secretary that he thinks compels his
retreat. See slip op. 104,107 n-1. If this comment proves anything it is
that it was intended by the Secretary that a// like-kind medical
evidence should be considered both in determining whether the
presumption is invoked and whether it is rebutted.

49a

black lung disability claims. For example, under that inter-
pretation, if a claimant merely “produces” one positive
X-ray, i.e., one that a reader has “read positive,” and that
meets “pertinent standards of quality and authenticity,”
this effectively precludes the fact-finder’s consideration, at
any stage, of conflicting X-ray evidence, no matter what

its relative quality aad quantity. From such possibly mea-

ger, but uncontrovertible, evidence of the existence of a

mere trace of pneumoconiosis, profound consequences en-
sue. The central element of the claim — that pneumoco-
niosis exists — is conclusively established. Additionally,
the other elements of the claim — that the condition is due
io mine employment and is totally disabling — are estab-
lished unless rebutted by evidence that carries the burden
of persuasion to disprove the presumed facts. Further-
more, the employer may then be prevented from rebutting
the presumed facts of causation and totally disabling ef-
fect by bringing to bear what may be the very best and
most trustworthy clinical evidence of the actual nature and
extent of any respiratory or pulmonary impairment suf-
fered by the claimant — ventilatory and blood gas studies.
For that evidence may not be relied upon as the “principal
or exclusive” means of rebuttal.'?

'3Aside from the fundamental point that this limitation on proof
flies in the face of the statutory and regulatory mandate for considera-
tion of “all relevant evidence,” its exact meaning as expressed in
Whicker seems to me so unclear that it is bound to produce great con-
fusion in the adjudication of claims. Presumably it would spawn ma-
jor inquiry into the exact extent that ventilatory and blood gas studies
may have influenced medical opinions. The standard of “principal or
exclusive” would seem unmanageable on any principled basis. Cer-
tainly it would provide a wider latitude for judicial review of par-
ticular determinations than can be healthy for either the administering
agency or for the courts or, more importantly, for primary agencv ad-
ministration of the program as intended by Congress.

50a

With all respect, such a consequence seems to me to re-
veal the unacceptability of such an interpretation of this
presumption’s intended operation. Indeed, it might well
draw the constitutionality of such an interpretation in
question by making the presumption effectively irrebut-
table under some circumstances. See Usery v. Turner Elk-
horn Mining Co., 428 U.S. 1, 36-37 (1976) (constitution-
ality of statutory or regulatory presumptions may turn on
admissibility of all medical evidence relevant to their
rebuttal). For as I read this proposed interpretation, if a
claimant invokes the presumption by putting in evidence
one (or more) X-rays read positive for pneumoconiosis,
and the employer then offers in evidence the testimony of
any number of the most highly qualified medical experts
that, based principally upon the results of properly ad-
ministered ventilatory and blood gas studies, they are of
the opinion that the claimant is not significantly disabled
by any respiratory or pulmonary condition, that evidence
simply may not be considered in rebuttal of the presumed
fact of total disability by reason of pneumoconiosis.

With deference, it seems to me that the court got off the
track in Whicker (actually in Hampton v. United States
Department of Labor Benefits Review Board, 678 F.2c
506 (4th Cir. 1982), which Whicker followed with modest
refinement) in failing to recognize that such rebuttal evi-
dence is not aimed at disproving the “established” fact of
the existence of pneumoconiosis, but at the presumed fact
of resulting total disability. See Whicker, 733 F.2d at 348.
When this point is appreciated, consideration of such
rebuttal evidence does not, as the Whicker panel saw it,
“force{ | the claimant to come forward with proof of
pneumoconiosis by two or more accepted testing techni-
ques before he could derive any practical benefit from the
interim presumption.” Jd. It merely gives the employer a

Sla

fair opportunity — which may be constitutionally required
— to prove, if proof is available, that any pneumoconiosis
had is not totally disabling within the statutory meaning.
Other circuits have so held. See Drummond Coal Co. v.
Freeman, 733 F.2d 1523, 1527 (11th Cir. 1984); Peabody
Coal Co. v. Lowis, 708 F.2d 266, 275 (7th Cir. 1983). Of
course, bare “non-qualifying” test results offered in
evidence without supporting medical in.erpetation related
directly to the degree of disability revealed might well not
suffice to carry the rebuttal burden. See Peabody, 708
F.2d at 274. But it surely goes too far flatly to preclude all
consideration of a qualified medical opinion of non-dis-
ability based, even “principally,” upon such clinical test re-
sults. Jd. at 275.

Vv

Following the above analysis, I would interpret 20
C.F.R. § 727.203 as follows, conformably with the Direc-
tor’s interpretation.

1. A living claimant may invoke the presumption that
ne is totally disabled by pneumoconiosis due to mine em-
ployment by proving by a preponderance of the evidence

(a) that he is a miner, (b) that he worked for at least 10

years in coal mines, and (c) that (1) he has pneumoco-
niosis, as established by X-ray or biopsy results, or (2) he
has a respiratory or pulmonary impairment, as established
by ventilatory studies yielding specified clinical values, or
(3) he has a blood-oxygen impairment, as established by
blood gas studies yielding specified clinical results, or (4)
he has a totally disabling respiratory or pulmonary impair-
ment as established by other medical evidence including
the documented opinion of a physician. 20 C.F.R. § 727.
203(a)(1)-(4).

52a

2. Whether the “medical requirements” of (1)-(4) have
been established is determined by weighing, under a pre-
ponderance of evidence standard, the type evidence re-
quired and produced as to each. For this purpose, no more
than one such item (i.e., one positive X-ray under (a)(1)
may suffice, depending upon its quality and the quality
and quantity of any opposing X-ray evidence. However, a
single negative X-ray may not be relied upon to prevent
proof of the existence of pneumoconiosis by a prepon-
derance of the evidence under (a)({1). 30 U.S.C. § 923(b).

3. Invocation of the presumption under (a)(1) con-
clusively establishes that the claimant has pneumoconio-
sis; it raises a further rebuttable presumption that the
pneumoconiosis arose out of mine employment, see 30
U.S.C. § 921(c)(1), and that it is totally disabling, see 30

U.S.C. § 902(f)(1).

4. Invocation of the presumption under (a)(2) or (a)(3)
conclusively establishes only that the claimant has certain
levels of respiratory or pulmonary impairment; it raises
the further rebuttable presumption that the impairment re-
sults from pneumoconiosis, that the pneumoconiosis arose
from mine employment, and that it is totally disabling.

5. Invocation of the presumption under (a)(4) conclu-
sively establishes that the claimant is totally disabled by a
respiratory or pulmonary impairment; it raises the further
rebuttable presumption that the totally disabling impair-
ment results from pneumoconiosis, and that it arose from
mine employment.

6. Upon invocation of the presumption under either
one, or more, of (a)(1)-(4), the burden of persuasion is
placed upon the employer to disprove by a preponderance
of evidence any essential element of the claim that is only
rebuttably presumed by reason of the claimant’s proof in-

:

53a

voking the presumption. Thus, if the presumption was in-
voked under (a)(1) (X-ray or biopsy evidence) the em-
ployer may only rebut the presumption by proving by a
preponderance of the evidence that the conclusively estab-
lished pneumoconiosis did not arise out of mine employ-
ment or was not totally disabling within the statutory
meaning.

If the presumption was invoked under (a)(2) or (a)(3),
the employer may rebut it by proving by a preponderance
of the evidence that the claimant’s clinically established
impairment does not result from pneumoconiosis, or that
if it does, the pneumoconiosis did not arise from mine em-
ployment or is not totally disabling.

If the presumption was invoked under (a)(4), the em-
ployer may rebut it by proving by a preponderance of the
evidence that conclusively established totally disabling
respiratory or pulmonary impairment is not pneumoco-
niosis, or that if it is, it did not arise from mine em-

ployment.

In any event, a single negative X-ray may not be relied
upon as the sole basis for finding the presumption rebut-
ted by disproving the presumed existence of pneumoconio-
sis. 30 U.S.C. § 923(b).

7. If the employer fails to carry the burden of persua-
sion in rebuttal by the available means, the claimant is en-
titled to benefits by virtue of the unrebutted presumption.

VI

Applying the presumption in this way to the appeals
before us, I would decide them as follows.

S4a

A

Stapleton. | wouid affirm the denial of benefits though
not on the basis relied upon by the majority.

The ALJ improperly found the presumption invoked by
virtue of the single positive X-ray reading, without con-
sidering the several negative X-rays. The Benefits Review
Board, however, properly upheld the denial of benefits on
_ the alternative ground that the presumption should not
have been found invoked under (a)(1) by reason of the
negative X-ray evidence, or that if invoked under (a)(2) or
(a)(4) it was sufficiently rebutted by medical testimony
establishing that claimant’s impairment was cardiac in
origin.

B
Ray. I would affirm the denial of benefits.

The ALJ’s determination that the presumption was not
invoked under (a)(1) because of the overwhelming weight
of seven “B” readers’ negative readings in relation to one
unidentified reader’s positive reading and another’s read-
ing only of “suspicious for early pneumoconiosis” is sup-
ported by substantial evidence.

Similarly, the ALJ’s determinations that, on conflicting
test results, the presumption was not invoked under (a)(2),
and that on conflicting medical opinion, it was not invok-
ed under (a)(4), are also supported by substantial evi-
dence.

Cc

Cornett. I would affirm the award of benefits but re-
mand for calculation of interest.

The ALJ’s finding that the presumption was invoked

ee ee ee

5Sa

under (a)(1) on conflicting X-ray readings is dubious.
However, the finding that the presumption was invoked
under (a)(2) by qualifying and near-qualifying blood gas
studies, notwithstanding the evidence of non-qualifying
results, cannot be reversed for lack of substantial evi-
dence. Neither may we reverse for lack of substantial evi-
dence the finding that, on conflicting medical testimony as
to the degree of disability and as to its source, the pre-
sumption of total disability from pneumoconiosis was not
rebutted.

I am authorized to say that Judge Russell, Judge Mur-
naghan, and Judge Ervin join in this opinion.

56a

SPROUSE, Circuit Judge, concurring:

I concur in Judge Hall’s opinion. That opinion, with the
author’s characteristic clarity of style, correctly resolves
the black lung presumption issues in a manner which both
advocates and claims adjudicators would easily under-
stand. i write separately only to respond to several issues
raised in Judge Phillips’ opinion. I feel it tends to confuse
the issues by trying to form into a traditional mold an evi-
dentiary scheme designed by Congress to be singularly
untraditional.

The first task in our appellate review of these con-
solidated cases is to determine the Secretary’s meaning
when he published the presumption regulation. If we can
determine that meaning, then we, of course, give defer-
ence to it unless it is clearly erroneous. United States v.
Larionoff, 431 U.S. 864, 872 (1977); Udall v. Tallman,
380 U.S. 1, 16-18 (1965); Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410, 414 (1945). If, as Judge Phillips con-
cludes, the Director’s' interpretation of section 203 as con-
tained in his brief were of the character that required judi-
cial deference, we must accept that meaning unless it is
contrary to the statute authorizing it. Our only task in that
event would be to determine if that interpretation exceed-
ed the authority delegated by Congress.

In my view, however, the Director’s contentions advanc-
ed here as a litigant are not entitled to deference as an ex-

'The Secretary of Labor is the delegated authority to administer the
relevant portion of the Black Lung Program and he promulgated the
regulations which we now review. The Director of the Department's
Workers’ Compensation Program is the Secretary’s designated ad-
minstrator.

57a

pression of the regulation’s meaning. The posture of the
Director on this appeal is essentially that of an advocate.
Having received permission to intervene, he has briefed his
arguments as to the meaning of the regulation creating the
interim presumption. He makes no contention in his brief
that he has previously or consistently interpreted the
regulation as he now interprets it as an advocating party.
To accept such a bald litigation statement as a binding
agency interpretation is, to me, an ill-conceived applica-
tion of the “deference rule.”

I feel that Judge Hall’s opinion captures the exact mean-
ing of the regulation and that the position advanced by the
Director is contrary to its purpose. This conflict becomes
apparent upon examination of the Secretary’s actions in
promulgating the regulation together with a review of the
statute and congressional intent in enacting its various sec-
tions. Since Judge Phillips places such great reliance on
deference to the Director’s position, however, I feel it im-
portant to divert here from the main thesis of my concur-
ring opinion to explain why I think the Director’s appeal
position is not entitled to the judicial deference described
in Bowles and its progeny.

In Bowles, the Supreme Court articulated the now fre-
quently queted rule that:

a court must necessarily look to the ad-
ministrative construction of the regulation if the
meaning of the words used is in doubt. . . the
ultimate criterion is the administrative inter-
pretation, which becomes of controlling weight
unless it is plainly erroneous or inconsistent with
the regulation.

325 U.S. at 414. The Court did not then nor has it since,
however, described the type of interpretative action which

58a

is of sufficient dignity and reliability to deserve such
preclusive judicial deference. In fact, the simplicity of the
Bowles statement belies the extremely complex problem of
judicial review of administrative regulations generally and
of review of an agency’s interpretation of its regulation in
particular. One commentator has stated that the defer-
ence rule is not only a series of rules, but that a court’s
choice in using them ve/ non is frequently dictated by the
result oriented inclination of some judges or justices.? See
also 2 K. Davis, Administrative Law § 7.22 (1979). Apply-
ing the Bowles decision, many courts, including this one,
will not defer to an agency’s interpretation of its previous-
ly issued regulations unless that interpretation has been

2?Weaver, Judicial Interpretation of Administrative Regulations;

The Defererve Rule, 45 U. Pitt. L. Rev. 587 (1984). The author states:

The Supreme Court has never acknowledged the fact
that it has created multiple deference standards. Instead,
when it wants to apply the deference rule, it simply chooses
one of the deference standards and acts as if that one is the
only standard. Thus, the Court never explains either why it
has chosen one standard over another or when each should
be applied. The Court has indicated that the
“demonstrably irrational” standard, a controlling stan-
dard, is of limited applicability. However, it appears to
treat the “plainly erroneous” standard as generally ap-
plicable, even though it is also controlling, and it gives an
administrative interpretation as much deference as the
“demonstrably irrational” standard. Furthermore, the
Court has not indicated when the “plainly erroneous” stan-
dard should be applied as opposed to the “reasonable, con-
sistently applied” standards, or some non-controlling one
such as the “greatest weight,” “deference,” and “respect”
standards. Each of these latter standards appears to be
generally applicable.

Id. at 595. (emphasis in original) (footnotes omitted).

LA eo a, eel

59a

“reasonably and consistently applied.” Burnley v. Short,
730 F.2d 136, 139 (4th Cir. 1984); Allen v. Bergland, 661
F.2d 1001, 1004 (4th Cir. 1981); see also United States v.
Board of Supervisors of Arlington County, 611 F.2d 1367,
1372 (4th Cir. 1979). That requirement certainly makes
sense considering the significant changes an agency could
effect under the guise of interpretations. The Ad-
ministrative Procedure Act, 5 U.S.C. § 551 et seq. (1982 &
Supp. 1985), imposes restraints on an agency’s authority
to make such changes. Section 552(a) provides that an
agency interpretation of general application shal! not be
binding unless it is published in the Federal Register. 5
U.S.C. § 552(a)(1)(D) (1982). Likewise, section 552(a) pro-
vides in part that
A final order, opinion, statement of policy, in-
terpretation, or staff manual or instruction that
affects a member of the public may be relied on,
used, or cited as precedent by an agency against a
party other than an agency only if [it has been in-

3Weaver has observed:

Political considerations may also discourage an agency
from interpreting its regulations consistently and fairly.
Often a regulation is promulgated by an agency under one
presidential administration and then interpreted by that
agency under a subsequent administration. If the
regulatory philosophy of the later administration differs
from that of the promulgating administration, an agency
may alter its interpretation of its regulations. Such shifts in
reguiatory philosophies are not uncommon. Evidence of
alternating political philosophies appears in the transition
from the Johnson administration to the Nixon, Ford,
Carter, and Reagan administrations. Without drawing any
conclusions about the desirability of any particular
regulatory philosophy, the fact remains that agencies will
change their interpretations of regulations over time.

Weaver, The Deference Rule, supra note 2, at 612-13 (footnotes omit-
ted).

60a

dexed and published or a party has actual and
timely notice of its terms.]

5 U.S.C. § 552(a)(2)(C) (1982). While the relationship be-
tween these provisions under section 552 and the deference
rule is not fully developed, these APA sections neverthe-
less illustrate the problems inherent in agency attempts to
establish interpretation by intervening in litigation. There
is no notice to affected members of the public that a reg-
ulation is to be interpreted in a new or controversial way.
Logic and principle dictate that an agency’s interpetative
action be undertaken with some formal dignity.

It is true that an agency acting in the capacity of an ad-
judicator is usually allowed to initially interpret its regula-
tions during the adjudication of the rights affected by the
agency action. That is quite different, however, from the
agency acting as a party litigant offering its litigation posi-
tion for the first time as the official interpretation of the
regulation in issue. This is precisely what happened here.‘
I hesitate to extend the concept of deference so as to
permit any agency in such a posture effectively to resolve
appeals by its own actions. This would abdicate much of
the responsibility for appellate review of federal admin-
istrative agencies to the agencies for self review. I do not
think Bowles contemplates such a result. Rather, agencies
should be able to present their views in persuasive efforts
but should only be able to present them as settled law if the

‘In this case, we granted the Director’s motion to intervene. There is
a question in my mind, however, whether such motion is necessary
because he may have standing as a matter of right in every appeal. The
Act provides: “{t]he Secretary shall be a party in any proceeding
relative to a claim for benefits under part (C).” 30 U.S.C. § 932(k)
(1982). See Director, Office of Workers’ Compensation Programs v.
Newport News Shipbuilding and Dry Dock Co., 676 F.2d 110, 113-14
(4th Cir. 1982).

6la

interpretations have been previously and consistently ap-
plied.

Therefore, we should interpret the regulation under
review either from its plain meaning or by utilizing rules of
statutory construction including rules relating to the docu-
mented intent of the drafters.

II.

I agree with my colleagues that the meaning of the
regulation is not facially obvious. It is appropriate,
therefore, to examine other sources including the statute
and its legislative history for assistance in discerning its
meaning. If we were to accept Judge Phillips’ view of
deference, we would look to see if the Director’s inter-
pretation is contrary to the statute. Accepting my view, it
is helpful to look at the statute and its legislative history
because they had a direct bearing on the substance of the
regulation. Thus under either approach, it is necessary to
examine the statute and, due to its complexity, its legis-
lative history. An examination of legislative history is par-
ticularly appropriate here because the circumstances sur-
rounding the drafting and promulgation of the interim
presumption regulation represent an unusual turn in ad-
ministrative law. Contrary to the usual interpretative pos-
ture, agency intent here can be inferred directly from con-
gressional action because congressional staff worked
directly with the Labor Department to tailor the final ver-
sion of the interim presumption.‘ The tailoring was detail-

‘Solomons, A Critical Analysis of the Legislative History Surroun-

ding the Black Lung Interim Presumption and a Survey of Its
Unresolved Issues, 83 W. VA. L. Rev. 869 (1981). The author states:

The final draft of the Labor Department’s regulations were
approved within the Department and, prior to publication,
sent to selected congressional staff members for review and

62a

ed.Importantly, in this process congressional staff struck
from preliminary drafts of the regulation a proposed pro-
vision requiring the weighing of all medical test evidence
to invoke the presumption. Solomons, supra note 5, at 896
n.138. Additionally, the Labor Department would have
triggered the presumption with fifteen years mine employ-

presumably for approval. These regulations were reviewed
by both congressional staff and professional persons
associated with the various black lung associations. As a
result of this initial review, the Department’s proposed “in-
terim presumption,” after close scrutiny, was severely
criticized, thus failing to win the approval of those review-
ing the proposal.
Id. at 896. In particular, Solomons notes:

One of the proposed sections would have prohibited the
approval of a claim unless the file demonstrated that a full
series of medical tests had been conducted. The Black
Lung Association and congressional staff objected
strenuously and the section was removed. Another provi-
sion would have required the adjudicator to weigh all the
medical test evidence to determine whether the weight of
this evidence established total disability. This too was
stricken by congressional command. One very important
section in the draft attempted to clarify the confusion over
whether qualifying pulmonary function studies would in-
voke the interim presumption with 15 or 10 years of coal
mine employment. The SSA presumption seemed to re-
quire 15 years but in practice SSA awarded benefits with
qualifying pulmonary function scores and 10 years. The
draft Labor presumption required 15 years. The clarifica-
tion was also vetoed by the group in favor of the SSA prac-
tice of using 10 years for this purpose.

id. at 896 n. 138 (emphasis supplied). Finally, Solomons observes:

In light of the severe criticism evoked by these proposed regulations,
the Department of Labor sought to formulate more acceptable regula-
tions. This was accomplished and the new interim standards were
published as a proposal on April 25, 1978.

Id. at 897. Mr. Solomons was counsel for the involved Labor Depart-
ment Branch from 1973-1978 when the regulation was drafted.

63a

ment. Congressional staff reduced the minimum service to
ten years. Jd. With or without deference to the Dircctor’s
position, then, the statute and Congressional intent in
drafting it is a focal point of this appeal.

Turning now to the regulation, the starting point for
determining its meaning is the language itself. Section
727.203 provides:

§ 727.203 Interim presumption

(a) Establishing interim presumption. A miner
who engaged 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 pneumoconiosis, arising out of that em-
ployment, if one of the following medical re-
quirements is met:

(1) A chest roentgenogram (X-ray), biopsy, or
autopsy establishes the existence of pneumoco-
niosis . . .;

(2) Ventilatory studies establish the presence
of a chronic respiratory or pulmonary disease
(which meets the requirements for duration in
§ 410.412(a)(2) of this title) as demonstrated by
values which are equal to or less than [certain
values specified in the regulation’s tables;}

(3) Blood gas studies which demonstrate the
presence of an impairment in the transfer of oxy-
gen from the lung alveoli to the blood as indi-
cated by values which are equal to or less than
[certain values specified in the regulation’s ta-
bles;]}

(4) Other medical evidence, including the
documented opinion of a physician exercising

64a

reasoned medical judgment, establishes the pre-
sence of a totally disabling respiratory or pul-
monary impairment; .. .

(b) Rebuttal of interim presumption. \n ad-
judicating a claim under this subpart, all relevant
medical evidence shall be considered. The pre-
sumption in paragraph (a) of this section shall be
rebutted if:

(1) The evidence establishes that the in-
dividual is, in fact. doing his usual coal mine
work or comparable and gainful work. . .; or

(2) In light of all relevant evidence it is
established that the individual is able to do his

usual coal mine work or comparable and gainful
work .. .; 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.

20 C.F.R. § 727.203 (1985).

The Secretary designed section 203(a) to give the coal
miner the liberal advantages mandated by Congress, and
- section 203(b) to preserve to the mine employer its rights
by rebuttal to present all probative evidence relative to its
defense of the claim. It is difficult to consider the meaning
of section 203(a) without considering section 203(b) be-
cause they were designed as inteeral parts of one scheme.
The Director’s position on the meaning of section 203(a)
varies crucially from Judge Hall’s interpretation in which I
enthusiastically join. There is, however, virtually no dif-
ference between our opinion concerning the meaning of
section 203(b) and the interpretation placed on that sub-

.

OS te he A A OR A gn

oe.

65a

section by the Director on this appeal. Moreover, Judge
Phillips’ opinion seriously misinterprets the Director’s
briefed interpretation of section 203(b) — further com-
plicating our holdings. In sum I agree with Judge Hall that
a claimant, to invoke the presumptions provided by sec-
tion 203(a), must only produce one positive x-ray, one
positive pulmonary function test, one positive blood gas
study, or one reasoned medical opinion. I believe that the
Director’s position requiring proof of the invoking pre-
sumption by a preponderance of the evidence is not only
erroneous under an interpretation of the regulation’s
language, but that it is contrary to the Congressional
authority delegated to the Secretary of Labor to pro-
mulgate this regulation. In my opinion, however, Judge
Hall’s opinion concerning the meaning of section 203(b) is
essentially the same as that advanced by the Director. The
interpretation of section 203(b) espoused by Judge Phillips
is contrary to the position of all parties to this appeal, in-
cluding the Director.

The relevance of section 203(a)’s language was succinct-
ly explored by Judge Hall and announced in a way that
presents a useful tool for the statute’s future utilization.
On the other hand, Judge Phillips’ attempt to universalize
language designed to cover one specific social problem
confuses the issue. The unique juxtaposition of concepts
faced by the drafters of section 203(a) provides lively am-
munition for academic exercise, but it seems to me that
there is sufficient challenge in the more focused task of
determining what the regulation means in light of the so-
cial ill it attempts to rectify. I find the straightforward
meaning attributed to the language by Judge Hall ideal for

this purpose.

66a

Judge Phillips, however, postulates that all x-rays must
be weighed by the factfinder and the presumption only
triggered if, in his opinion, a preponderance of the x-ray
evidence proves pneumoconiosis. If the pulmonary func-
tion, blood gas or reasoned medical opinion category is
used to invoke the presumption, it must be proven to the
factfinder’s satisfaction that all of the evidence in that
category preponderates, proving that the claimant has
either pneumoconiosis or a totally disabling respiratory or
pulmonary impairment®

Congressional direction aside, Judge Phillips’ conclu-
sion that a triggering or invoking category must be proven
by a preponderance of the evidence misconstrues both the
language of the regulation and the nature of the presump-
tion. The most striking example of this is the conclusion
that section 203(a)(1) requires a trier of fact to weigh all
x-rays and find from a preponderance of x-ray evidence
that a claimant has pneumoconosis before triggering a pre-
sumption that he is afflicted with the disease.’

The language could not be clearer.

(a) Establishing interim presumption. A miner
who engaged in coal mine employment for at
least ten years will be presumed to be totally
disabled due to pneumoconiosis . . . . if one of
the following medical requirements is met:

(1) A chest roentgenogram (x-ray), biopsy, or

*The Labor Department’s proposed regulation would have included
a similar requirement for weighing, but this provision was stricken at
the insistence of congressional staff. Solomons, supra note 5.

’ Judge Phillips’ conclusions as to § 203(a)(2) and (3) are equally er-
roneous. My reasoning in Consolidation Coal Co. v. Sanati, 713 F.2d
480, 483 (4th Cir. 1983) (Sprouse, dissenting), was also erroneous in
this respect. I am well persuaded by Judge Hall’s reasoning on page 19
of his opinion.

67a

autopsy establishes the existence of pneumoco-
niosis....

20 C.F.R. § 727.203 (emphasis is supplied).

It is easy to fault legislative draftsmanship, but if, as
Judge Hall would hold, the drafters of this regulation in-
tended only one x-ray to trigger the presumption, I cannot
think of a better or simpler way of saying it. On the other
hand, to hold that the drafters intended a preponderance
standard to apply would be to accept section 203(a)(1) as
an example of intolerable drafting.

With all respect, I feel that Judge Phillips’ extrapolation
of his section 203(a) “preponderance” requirement in para-
graph 4 of part II of his opinion disproves rather than
establishes the validity of his theory. He reiterates that a
presumption would be triggered ve/ non by weighing all of
the x-ray evidence under section 203(a)(1) and deciding
from a preponderance of that evidence whether the claim-
ant was proven to have pneumoconiosis. If he is proven to
have pneumoconiosis and has ten years of coal mine em-
ployment, then he is entitled to the benefit of the pre-
sumption. According to this theory, the coal mine em-
ployer may then defend under only three rebuttal provi-
sions of section 203(b) instead of all four, i.e., (1) doing
his usual coal mine work, (2) is able to do his usual work,
or (3) disability not caused by coal mine work. The em-
plover may not defend on the basis of section 203(b)(4)
that he does not have pneumoconiosis because pneumo-
coniosis has already been proven by a preponderance of
the x-ray evidence at the invocation stage.

In the same vein, Judge Phillips concludes that once the
presumption is invoked under section 203(a)(4) (“other
medical evidence” of a totally disabling respiratory or
pulmonary impairment) the employer is entitled to defend

68a

under section 203(b)(3) not caused by employment and (4)
does not have pneumoconiosis but cannot rely on section
203(b)(1) working in coal mine or (2) able to work in coal
mine.

One problem with that syllogistic formulation is that it
is internally inconsistent. Judge Phillips would eliminate
the regulation’s allowance of rebuttal possibilities (b)(1)
and (b)(2) when the presumption had been invoked by sec-
tion 203(a)(4) because if a miner is totally disabled, he is
unable to work. By the same token, however, if a miner
has proven that he has pneumoconiosis by x-ray, he is, by
virtue of ten years of coal mine employment, presumed to
be totally disabled and equally unable to work. To be con-
sistent then, once a claimant proves pneumoconiosis by
x-ray at the invocation stage, the employer should be strip-
ped of three of his defenses and could rely only on section
203(b)(3).*

*I recognize Judge Phililps’ sua sponte division of the presumptions
as explained in the text of his opinion and in his footnote $. No one
could disagree that the fundamental nature of a presumption presup-
poses facts upon which the presumption is to be based and the
presumed effect whether it be a presumed legal effect or a presumed
factual effect. I, like Judge Hall, simply cannot agree, however, that a
presumption can be split into operating on basic facts on the one hand
and presumed facts on the other in such a manner as to defeat the pur-
pose of the presumption. This can be done easily with any presump-
tion as Judge Phillips has done by simply assigning attributes to the
basic facts which were not conceived by the designers of the presump-
tion. In the first place, I do not recognize this subdivision of the
presumption regulation as the position of the Director or of any party.
It is certainly not to be found in any of the regulatory language nor in
the Director’s interpretation contained in his brief. A proper function
of a court, to be sure, may be to devise new ways to solve old problems
and I do not quarrel with that. In this instance, however, I feel it con-
travenes the meaning of the statute directing the Department of Labor
to design these regulations and the intention of the Director in design-
ing them. As I indicate, infra, the fact of ten years or more employ-
ment was considered to be probative of the presence of pneumoco-
niosis, its disabling effect, and its coal mine causation. the showing of

69a

The section 203(a) “preponderance” theory espoused by
Judge Phillips, moreover, is-inconsistent in a more direct
sense. Again, the extrapolation in paragraph 4 of Part II
of his opinion illustrates the problem. The Secretary, at
the prodding of Congress, designed a proof scheme which
corrected perceived inequities suffered by claimants by
providing them with evidentiary advantages. The regula-
tion preserved, as constitutionally required, the right of
the private party employer to defend claims, albeit from a
restructured evidentiary scheme.* There is no indication

pneumoconiosis or a total respiratory disability by the means express-
ed in § 203(a)(1)-(4) also was meant to be probative of but not proof
of coal mine related, totally disabling pneumoconiosis. neither this
triggering data nor a combination of such data is irrebuttable because
it is emphatically provided that the combined effect is to raise a
presumption which can be rebutted by utilizing all relevant evidence in
accordance with § 203(b). I can only conclude from all of this that the
presumptions are unitary; it takes a combination of ten years plus
satisfying one of the categories to invoke the presumption. Both the
ten year increment and an x-ray, pulmonary test, blood gas test or
other medical evidence have probative values relating to all three
elements of the presumption, i.e., disease, disability and causation. In
one sense, Judge Phillips’ theory would convert the rebuttal presump-
tion to an irrebuttable one. Another view, however, is that in proving
pneumoconiosis at a place designed for mere invocation of a presump-
tion, a claimant has (given the ten years of employment) proven his
case — that he is totally disabled from pneumoconiosis as a result of
coal mine employment.

*Congress was well aware that medical evidence in black lung cases
generally is treated differently at every stage than in traditional litiga-
tion. In the first place, there is very little testimony and opportunity
for cross examination. Ninety-five percent of all medical evidence
consists of doctors’ reports received by the ALJ without the doctors’
presence at the hearing. Smith, The Basics of Federal Black Lung
Litigation, 83 W. Va. L. Rev. 763, 788-89 (1981). In appropriate in-
stances, the ALJ should weigh the medical reports and decide medical
issues On a proponderance standard. There is no realistic way to en-
force that standard, however, since necessarily administrative and
judicial bodies affirm the factfinding if there is only substantial
evidence to support it.

70a

that what were created are highly sophisticated presump-
tions or that they came to fruition only after long meta-
physical introspection by their designers. They are simply
presumptions designed to accomplish two basic purposes.
The first is to compensate for the deficiency of traditional
evidentiary rules, under which it was not always possible
to accurately portray pneumoconiosis. The second is to
switch the burden of proof to the defendant employer so
as to make it easier for miners to receive benefits. The
Director’s litigation position, which Judge Phillips adopts,
would turn this design on its head. As Judge Phillips con-
cedes, if a weighing of the x-rays at the presumption-
invoking stage would prove the existence of pneumoco-
niosis, that part of the proof scheme could not be disprov-
ed on rebuttal. Similarly, once total respiratory disability
is proved in invoking the presumption, it cannot be
disproved on rebuttal. That result is simply impossible to
square with the thoughtfully created design of the reg-
ulation, which requires the erection of presumption only
in the first (section 203(a)) stage but unconditionally
allows the employer to rebut the presumption under the se-
cond (section 203(b)) stage. The structuring of section 203
into two parts clearly contemplates that any ultimate prov-
ing is to be accomplished only in the second (section
203(b)) stage.

A presumption, whether you view it as evidence or as a
consequence of evidence, is not ultimate proof. It is part
of the equation that results in ultimate proof. Assuming
there is rebuttal evidence, the ultimate proof under the
section 203 scheme is decided in the rebuttal stage. Noth-
ing could be clearer. To require ultimate proof in the in-
vocation stage not only shifts the burden of proof, placing
it on the claimant, but enmeshes in frustration the
defenses allotted to the employer. The regulation allows

Tla

the employer to defend on four basic grounds. Judge
Phillips’ theory could reduce these to only two grounds. '°®

Judge Phillips asserts that the Director’s briefed posi-
tion does not offend “known patterns of presumptions.”
The truth is that there is very little pattern to presumptions

'°There is yet another failing to this “preponderance on invocation”
reasoning. Judge Phillips reasons that a “(b)(4)” defense cannot be
raised in rebuttal to an “(a)(1)” presumption; and that “(b)(1) & (2)”
defenses cannot be raised in rebuttal to an “(a)(4)” presumption. This
fails to recognize the basic interrelation between presumptions and
evidence. According tc the Director’s briefed position, a number of
x-rays are weighed, and a presumption invoked by a preponderance of
the evidence. Judge Phillips goes even farther and would hold that this
would irrebuttably prove pneumoconiosis to the exclusion of any
rebuttal evidence.

Section 203(b), however, states that all relevant evidence can be
considered on rebut’»’. It is true that nothing would be gained oy
weighing all x-ray evidence at invocation and, again, on rebuttal, but
x-ray evidence is only one type of medical evidence bearing on the fac-
tual issue of pneumoconiosis. A lung biopsy or autopsy, for example,
would be superior evidence. Section 203(b)(2) & (3) test results accom-
panied by appropriate supporting documentation would not be direct
evidence of pneumoconiosis but would be circumstantial evidence
probative of its presence vel non.

Likewise, a doctor’s opinion of total respiratory disability is one
kind of evidence of inability to work — there are several other types of
medical and nonmedical evidence which might counter the medical
evidence. Section 203(b) preliminarily speaks to relevant medical
evidence, but 203(b)(2) speaks only to relevant evidence generally. In
other words, under the proof scheme originally conceptualized by the
regulation, a part of the factfinder’s function in the section 203(b)
rebuttal phase is to weigh one kind of evidence against another. Judge
Phillips’ extrapolation would limit this function and make it more dif-
ficult both for a claimant to invoke a presumption and for an
employer to rebut it. The regulation is designed to have the exact op-
posite effect. The presumption is to be easily invoked, but the
employer is to have wide latitude in presenting its rebuttal evidence.

72a

generally.'' Nothing in the general nature of presumptions
provides clues as to whether a particular presumption can
be invoked by the production of a single basic or operative
fact or whether a number of such facts must be weighed
under a preponderance standard in order to get the pre-
sumption’s ben

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0813%3A03. Public record. Not legal advice.