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TABLE OF CONTENTS

TABLE OF AUTHORITIES:

CASES occ ce cece ee. ii, iii, iv

STATUTES 2000.0 ove cece eee. iv, v

REGULATIONS | 20000 ove cece cece ee. 7

STATEMENT OF CASE ..... 2000000000 eee cee ee eee.

SUMMARY OF THE ARGUMENT .......................... 9

ARGUMENT:

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT ERRED IN FIND- ~

ING THAT THE MERE EXISTENCE OF ONE

POSITIVE X-RAY; OR ONE SET OF QUALIFY-

ING VENTILATORY STUDIES; OR ONE SET OF

QUALIFYING ARTERIAL BLOOD GAS

STUDIES: OR ONE PHYSICIAN’S OPINION

AUTOMATICALLY INVOKES THE INTERIM

PRESUMPTION EVEN WHERE A PREPONDER-

ANCE OF THE EVIDENCE IN EACH SUB-

CATEGORY WOULD NOT WARRANT SUCH

SN Ccauaviorl. 4 can 6 banecaddecve éocesics

SE eas Choad aude scueeasskddeedechiéirswacesies

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(Til)

TABLE OF AUTHORITIES Pane

CASES: : Page

Halon v. Director,

Arnoni v. Director, Office of Workers’ Compensation LE 10

Programs, 6 BLR 1-423 (BRB 1983) .............. dexsenee

Haynes v. Jewell Ridge Coal Co.,

Bozick v. Consolidation Coal Company, Pi OUT, WOUED 6c cece cc ccc ccc ccc ucee 17

» |e ] ., *« BR = reper 16

Justice v. Jewell Ridge Coal Co.,

Cleavenger v. Director, EE 17

Pee RUE «ov oe cvecdees cece ueuenieeee sane

Lagamba v. Consolidation Coal Co..,

Cline v. Beatrice Pocahontas Coal Co.. ee ccc cence cece, 17

ff |. | 6s er eee 17

Meadows v. Westmoreland Coal Co.,

Consolidation Coal Co. v. Chubb, EEE 16

te | et ee cr eo 4,15

Moseley v. Peabody Coal Co.,

Consolidation Coal Co. v. Sanati, ES ccc c cw ccccecee 17

ip ek | + 0 rere oo 7, 8, 16,17

Orange v. Island Creek Coal Co..,

Director v. Alabama By-Products Corp.., 786 F.2d 724 (6th Cir. 1986) ............................... 20

_ 7 & bt rr 14

Patton v. Director,

Director v. Eastern Coal Corp., cc. ck ccc ccc cece cece 14

S61 F.2d 632 (6th Cir. 1977) 600eee éeede eee

Petry v. Califano,

Director v. National Mines Corp., I 15

TF « eh , rere rr en 14

Sharpless v. Califano,

Director v. National Mines Corp., me 15, 20

SOF ee tr es BED 6cves vvéndedéesee decane 14

Spencer v. Winston Mining,

Director v. Peabody Coal Co., ES 11

mF eer re 14

Stapleton v. Westmoreland Coal Co..,

Engle v. Director, Office of Workers’ 785 F.2d 424 (4th Cir. 1986) .................... 6, 8, 17, 21, 22

Compensation Programs, 792 F.2d 63

SRG, TI oc oiivedcccsnvsccvscsscsensauseeeeee 17 Steadman v. Securities and Exchange Commission,

450 U.S. 91. reh. den. 451 U.S. 933 (1981) ................ 14, 16

Engle v. Pagnotti Enterprises,

SLE CP CUED 6 0 6 6.6 vc vecsecwscenuseeeseeeeee 11 Strako v. Ziegler Coal Co.,

EE 17

(iv)

Page

Taranto v. Barnes and Tucker Co.,

4 BLR 1-308 (BRB 1981) ............ ce eee cece ee eee eee 11

Triplett v. Incoal Coal Co.,

2 BLR 1-633 (BRB 1979) ... 0... ccc cece eee ener eee 20

Usery v. Turner Elkhorn Coal Co., ;

SRBUDS, BATBRIIHe. ora wcrc cere cece ceccececcvecsecsecens 11

Webb v. Armco Steel Corp.,

6 BLE 11-1120 (BRB 1984) ... ccc cece cece een ereces 11

Winfrey v. Califano,

620 F.2d 37 (4th Cir. 1980) .. 2... ccc ccc cece eee eee cenes 20

STATUTES:

8 Fade 7 errr rer. oer 3,14

ER BOO 5 csc nccccccesecceselpecesedesiuncedeesneees 14

26 U.S.C. $8 4121 and D501... 6. ccc ccc cece cece er ewecennes 2

a CU, ., cosunnndubxdueonceuedtyeeewens 6

GD oii po ceccccensepout vUnscuesensese ees 2,3, 13

SR OD Cig ccna ceeesetdedesenduceuhaseeuns ree 2

90 U.S.C. $§ GO] ef SOG... 6. ccc cece eee rene cence eeerenes 3

POU.S.C. BE GOU-DES 2... ccc ccc ccc cece scree eercvescscesvons l

POET GO GREG cociwsceccccccdnsavecccucoesesnsteseees 2

30 U.S.C. §§ 925(a), 932(b), 933.0... eee ce eee eee eens 2

(v)

Page

33 U.S.C. § 91%a-c) ........... Co nea a Git apa ee 2

33U.S.C.§ 92Mc) .......... Pty ohea eae cee 3-4

REGULATIONS:

DERE See Pe A RARER MSC 4,5

20 C.F.R. § 419.490(b) and 410.414(b) «o.oo cece ccc ce ees 15

ni RE ee aera eRe Pte 9 6

nt I aR RET PSE RODS MRE TOTE a 2-3

RR ge aa ae SEE 6, 18

ee re 11, 16,17

WS 8 i ee Das oe 7

SE nn cu ccecaens et 17

CM 0 II ooo oe kno cceseedccsaccnctocens 7

WO eon ae 3

INS Cy os re, ae 3

i ee re. ee 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 86-327

MULLINS COAL COMPANY,

INCORPORATED OF VIKGINIA

OLD REPUBLIC INSURANCE COMPANY

and JEWELL RIDGE COAL CORPORATION,

Petitioner,

Vv.

THE DIRECTOR, OFFICE WORKERS’

COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

GLENN CORNETT, LUKE R. RAY,

GERALD R. STAPLETON and

WESTMORELAND COAL COMPANY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

RESPONDENT WESTMORELAND COAL COMPANY’S

BRIEF IN SUPPORT OF PETITIONER

I.

STATEMENT OF THE CASE

This matter arises under the Black Lung Benefits Act,

30 U.S.C. §§ 901-945 which provides for the payment of

compensation benefits where it is established that a

miner’s total disability or death was due to coal workers’

pneumoconiosis arising out of coal mine employment. '

The last coal mine operator which employed a coal miner

may be liable for the payment of benefits to a claimant

where the claim was filed after June 30, 1973. (30 U.S.C.

§§ 925(a), 932(b), 933) Claims filed prior to July 1, 1973

were filed with the Social Security Administration (30

U.S.C. §§ 921-924) Those claims filed after June 30, 1973

in which the last coal mine employment occurred prior to

January 1, 1970 or in which no coal mine operator can be

identified and held responsible, are paid by the Black

Lung Disability Trust Fund. (30 U.S.C. § 934) This Trust

Fund is funded through the collection of a tax on each ton

of coal mined within the United States. (26 U.S.C. §§ 4121

and 9501)

In those claims filed after June 30, 1973 the United

States Department of Labor processes and adjudicates the

application for benefits in accordance with procedures set

forth in the Plack Lung Benefits Act. (30 U.S.C. § 932(a))

These procedures involve the filing of an application be-

fore a Deputy Commissioner of the United States Depart-

ment of Labor and the determination of entitlement or

nonentitlement of benefits by that Deputy Commissioner.

(33 U.S.C. §§ 919(a-c)) The decision of the Deputy Com-

missioner may be appealed by either a claimant who is de-

nied benefits or an operator who has been held responsible

for the payment of benefits. This appeal takes the form of

a de novo hearing before an administrative law judge. (20

‘Title IV of the Federal Coal Mine Health and Safety Act of 1969,

83 Stat. 792. was amended by the Black Lung Benefits Act of 1972, 86

Stat. 150, the Black Lung Benefits Revenue Act of 1977, 92 Stat. 11,

the Black Lung Benefits Reform Act of 1977, 92 Stat. 95, the Black

Lung Benefits Amendments of 1981, 95 Sfat. 1635 and the Black Lung

Benefits Revenue Act of 1981, 95 Stat. 1635.

C.F.R. § 725.421) That hearing before an administrative

law judge is governed by the provisions of the Administra-

tive Procedure Act. (5 U.S.C. § 554) (hereinafter

“A.P.A.”). § 422(a) of the Black Lung Benefits Act, as

amended, incorporates 30 U.S.C. § 932(a), by referencing

the procedural provisions of the Longshoremen’s and Har-

bor Workers’ Compensation Act, as amended.?

Any party dissatisfied with an administrative law judge

decision may prosecute an appeal to the Benefits Review

Board of the United States Department of Labor. (30

U.S.C. §§ 901 et seq. and 20 C.F.R. §§ 801 et seg.). An ap-

peal to the Benefits Review Board is not a de novo appeal

and is limited in scope. (20 C.F.R. § 802.301) Any party

dissatisfied with a decision of the Benefits Review Board

may appeal as a matter of right to the United States Court

of Appeals for the Circuit in which the injury occurred or

in which substantial coal dust exposure took place. (33

2 Section 422(a) states that -

{djuring any period after December 31, 1973, in which a

state workmen’s compensation law is not included on the

list published by the Secretary under Section 421(b) of this

part, the provisions of Public Law 803, 69th Congress (44

Stat. 1424, approved March 4, 1927), as amended, and as

it may be amended from time to time (other than the provi-

sions contained in sections 1, 2, 3, 4, 8, 9, 10, 12, 13, 29,

30, 31, 32, 33, 37, 38, 41, 43, 44, 45, 46, 47, 48, 49, 50, and

51 thereof), shall (except. as otherwise provided in this

subsection or by regulations of the Secretary and except

that references in such Act to the employer shall be con-

sidered to refer to the trustees of the fund, as the

Secretary considers appropriate and as is consistent with

the provisions of [§ 424] § 9501(d) of the Internal Revenue

Code of 1954, be applicable to each operator of a coal

mine in such State with respect to death or total disability

due to pneumoconiosis arising out of employment in such

mine, ...

U.S.C. § 921(c); Consolidation Coa! Co. v. Chubb, 741

F.2d 968 (7th Cir. 1984)) The scope of review of the

United States Court of Appeals is similar to that of the

Benefits Review Board. The scope of review is limited to a

determination of whether or not the decision of the ad-

ministrative law judge is supported by the substantial

evidence in the record when considered as a whole and in

compliance with the law.

This matter involves the five statutory presumptions

which operate to ease the claimant’s burden of proving

each element of a claim by presuming one or more

elements upon the establishment of various invoking facts.

(30 U.S.C. § 921(c)) After the 1972 Amendments, the

Secretary of Health, Education and Welfare adopted

special interim rules for the adjudication of claims filed

under Part B of the Act which further eased the claimant’s

burden to establish a prima facie case. (20 C.F.R. §

410.490) :

These interim adjudicatory rules were directly respon-

sive to the concerns of Congress and premised solely on

administrative considerations. At that time Congress

noted

[the] backlog of claims which have been filed . . .

cannot await the establishment of new facilities

or the development of new medical procedures.

They must be handled under present circum-

stances in the light of limited medical resources

and techniques.

Accordingly the Committee expects the Secretary

fof Health, Education and Welfare] to adopt

such interim evidentiary rules and disability

evaluation criteria as will permit prompt and

vigorous processing of the large backlog of

claims consistent with the language and intent of

these amendments.

20 C.F.R. § 410.490 included a lengthy introductory

Statement quoting liberally from this legislative history.

The standards adopted did not represent, and did not pur-

port to represent, sound medical criteria for evaluating

disability due to pneumoconiosis. Instead the rules

presume total disability or death due to pneumoconiosis

upon the presentation of alternative kinds of evidence,

and were subject to rebuttal.

When the Act was amended by the Black Lung Benefits

Act of 1977, Pub. L. No. 95-239, 92 Stat. 95, Congress

noted that there was no indication that the concerns justi-

fying the interim rules governing claims under Part B had

been resolved when Part C became effective:

The Senate directives with regard to the “interim”

standards clearly spoke to standards that would

remain until “the establishment of new facilities

or the development of new medical procedures.”

(S. Rep. No. 743, at 18) That was the clear and

explicit condition underscoring the need for the

duration of “interim” medical standards. Under

the H.E.W. interpretation, these developments

somehow magically occurred at the onset of Part

C of the program. The Congress did not intend

in adopting the Senate initiative, as H.E.W. so

unequivocally asserts, that this “interim” ap-

proach should suddenly conclude at the determi-

nation date for new Part B filings

*S. Rep. No. 743, 92nd Cong., 2d Sess. 18 (1972), reprinted in U.S.

Cope Conc. & Apmin. News 2305, 2322-23.

“H.R. Rep. No. 1, 95th Cong. Ist Sess. 15 (1977), reprinted in 1978

U.S. Cope Conc. & Apmin. News 237, 251; and in House Comm. on

EDUCATION AND LaBor, BLACK LUNG BENEFITS REFORM ACT AND

BLack LuNG BENEFITS REVENUE Act oF 1977, 96th Cong. 522

(1979).

As a result, the Secretary of Labor was directed to adopt

criteria not more restrictive than the interim criteria for all

claims reviewed and filed prior to the adoption of perma-

nent standards. (30 U.S.C. § 902(f)(2)) These criteria ap-

pear at 20 C.F.R. § 727.203, and are commonly referred to

as the “interim presumption.”* Although the criteria

developed by the Secretary of Labor are not more restric-

tive than those applied under Part B, they operate in a

system which is distinct, in that the rules of evidence and

burdens of proof to be applied to the parties are derived

from different sources. These distinctions are the product

of the statute itself, and were acknowledged throughout its

legislative history. The question of the burden of proof to

be applied to the interim presumption constitutes the basic

issue for consideration by this Court.

In the case of Stapleton v. Westmoreland Coal Co.

(unpublished A.L.J. opinion, April 14, 1981), (App.

1096a), the administrative law judge invoked the interim

presumption based upon a single positive x-ray. He reach-

ed this conclusion even though the record contained two

additional x-rays which were read as negative for the

presence of coal workers’ pneumoconiosis. (App. 113a)

The administrative law judge concluded that ten years of

coal mine employment and a single positive x-ray were all

that were necessary for invocation of the interim presump-

tion. The administrative law judge felt that there was no

necessity for consideration of the two other negative chest

x-rays prior to invocation of the interim presumption. On

‘The Department of Labor’s permanent standards were adopted ef-

fective March 31, 1980 and are found at 20 C.F.R. § 718.1 ef. seq.

6 Westmoreland Coal -~Cemparny is an independent corporation

without parent, subsidiary or other corporate relationship requiring

disclosure under Rule 28.1.

considering rebuttal, however, the administrative law

judge weighed all the chest x-ray evidence, as well as the

medical opinions of record, and concluded that the clai-

mant did not suffer from pneumoconiosis and, therefore,

found rebuttal. (20 C.F.R. § 727.203(b)(4)) Stapleton

thereafter appealed to the Benefits Review Board. The

Benefits Review Board held that the administrative law

judge erroneously invoked the presumption pursuant to 20

C.F.R. § 727.203(a){1) without weighing all the x-ray

evidence prior to invocation to determine whether the

evidence as a whole supported invocation. However, the

Benefits Review Board held that this error is harmless, be-

cause the administrative law judge did consider the entire-

ty of the x-ray evidence on rebuttal and credited the

negative interpretations over the positive readings. The

Board concluded that substantial evidence supported the

administrative law judge’s finding that the x-ray evidence

did not establish the existence of coal workers’

pneumoconiosis. (App. 102a)

Stapleton appealed the Board’s order to the United

States Court of Appeals for the Fourth Circuit arguing

that the administrative law judge’s invocation under 20

C.F.R. § 727.203(a)(1) was correct, but that the ad-

ministrative law judge and Benefits Review Board erred in

allowing rebuttal under 20 C.F.R. § 727.203(b)(4) where

invocation had been established under subsection (a)(1).

Respondent Westmoreland Coal Company adopts the

statement of the case regarding the remaining claims as set

forth in the Brief of Petitioner.

On February 11, 1985 the United States Court of Ap-

peals for the Fourth Circuit on its own motion con-

solidated three cases for an en banc review. At this time

the Court of Appeals requested that two questions be ad-

dressed by the parties to this appeal. The first question

posed by the en banc panel is the same question which is

present before this Court; that is, “whether any single item

of evidence invokes the presumption, notwithstanding the

presence in the record of equally probative or more pro-

bative likekind evidence?” Regarding this question the

United States Court of Appeals for the Fourth Circuit

directed the parties to address the Circuit’s earlier decision

in Consolidation Coal v. Sanati, 713 F.2d 480 (4th Cir.

1983).

On February 26, 1986, the United States Court of Ap-

peals for the Fourth Circuit rendered its decision in

Stapleton (785 F.2d 424 (4th Cir. 1986) (App. 1a)). In do-

ing so, the Court overruled its prior decision in Sanati,

supra, and by a seven to four majority held that the in-

terim presumption is invoked when there is credible

evidence that a qualifying x-ray, ventilatory function

study, or arterial blood gas study meets the description of

standards set forth in the interim presumption. Further,

the Court held that a single reasoned medical opinion is

sufficient to provide for invocation of the interim

presumption even in the face of competing, opposite opin-

ions and conclusions.

The denial of benefits to Stapleton was affirmed as the

Court held that invocation by a single x-ray was appro-

priate and that rejection of the x-ray evidence on rebuttal

was also appropriate where a preponderance of the evi-

dence on rebuttal established that Stapleton did not have

coal workers’ pneumoconiosis. The Court vacated and re-

manded the denial of Ray’s claim and affirmed the award

of benefits in Cornette.

Il.

SUMMARY OF THE ARGUMENT

The standard of proof which governs the adjudication

process under the Black Lung Benefits Act, as amended, is

governed by the Administrative Procedure Act which pro-

vides for a preponderance of the evidence standard to be

utilized. The United States Court of Appeals for the

Fourth Circuit has erred in refusing to apply the prepon-

derance standard to the invocation of the interim pre-

sumption. This preponderance of the evidence standard

has been utilized since the inception of the interim pre-

sumption and has therefore been applied to a large num-

ber of cases which have either been resolved or are cur-

rently in the appellate process.

Because invocation of the interim presumption by any

one of five factors means two other critical factors neces-

sary for an award of benefits are presumed, the standard

for determining invocation by any one of the five methods

should be by a preponderance of the evidence, and not by

a mere scintilla.

10

iil.

ARGUMENT

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT ERRED IN FINDING THAT

THE MERE EXISTENCE OF ONE POSITIVE X-RAY;

OR ONE SET OF QUALIFYING VENTILATORY STU-

DIES; OR ONE SET OF QUALIFYING ARTERIAL

BLOOD GAS STUDIES; OR ONE PHYSICIAN’S OPIN-

ION AUTOMATICALLY INVOKES THE INTERIM

PRESUMPTION EVEN WHERE A PREPONDER-

ANCE OF THE EVIDENCE IN EACH SUB-CATE-

GORY WOULD NOT WARRANT SUCH INVOCA-

TION.

The regulatory section adopted by the Secretary of

Labor to implement the interim preseumption is bifur-

cated into sections dealing with the invocation and rebut-

tal of that presumption. There are five different ways in

which the presumption can be invoked. Each requires a

preliminary showing that the miner was engaged in coal

mine employment for a minimum period of ten years.’

With proof of employment, the miner is presumed totally

disabled as a result of coal workers’ pneumoconiosis if it is

established through any one of these criteria that: (1) he

has coal workers’ pneumoconiosis as evidenced by a chest

x-ray, biopsy or autopsy; (2) his performance on ventila-

tory function studies falls below certain specified levels;

(3) his performance on arterial blood gas studies falls be-

low certain specified levels; (4) he is totally disabled by a

respiratory or pulmonary condition as evidenced by other

medical evidence including the documented opinion of a

physician exercising reasoned medical judgment; or (5) in

the case of a deceased miner where no other medical evi-

dence is available, the affidavit of a surviving spouse or

” But see Halon .. Director, 713 F.2d 30 (3d Cir. 1983).

other person with knowledge of the miner’s physical con-

dition which demonstrates the presence of a totally disab-

ling respiratory or pulmonary impairment. (20 C.F.R. §

727.203(a))$

The interim presumption provides a claimant who has at

least ten years of coal mine employment with a powerful

advantage in the consideration of his claim. By showing by

a preponderance (or by a scintilla as mandated by Staple-

ton) of the evidence of the existence of one of these five

criteria, the claimant is presumed (1) to have coal workers’

pneumoconiosis; (2) to be totally disabled by a pulmonary

or respiratory impairment; and (3) that the impairment

arose out of his coal mine employment.® This advantage is

easily illustrated by referring to each of these five subsec-

tions. Under subsection (a)(1), a miner with ten years of

coal mine employment can establish by chest x-rays show-

ing simple coal workers’ pneumoconiosis not only that he

has the disease, but he will be presumed to be totally dis-

abled thereby. This presumption of total disability arises

dsepite the fact that x-ray evidence establishes only the ex-

istence of the disease and in no way indicates any level of

disability. See, Usery v. Turner Elkhorn Coal Co., 428

U.S. 1 (1969); Webb v. Armco Steel Corp., 6 BLR 1-1120

(BRB 1984); Arnoni v. Director, Office of Workers’ Com-

pensation Programs, 6 BLR 1-423 (BRB 1983); Engle v.

Pagnotti Enterprises, 5 BLR 1-746 (BRB 1983); Spencer v.

Winston Mining, 1 BLR 1-996 (BRB 1978).

* The fifth method of invocation because it relates only to deceased

miners, was not directly considered by the Court in Stapleton. How-

ever, the legal issues are the same as those relating to claims by a living

miner.

°A claimant need only invoke under any one of the five subsections

and once invocation is found by the trier of fact, no further inquiry

need be made reg arding the other possible methods of invocation. See,

Taranto v. Barnes and Tucker Co., 4 BLR 1-308 (BRB 1981).

| Pe

—

In the alternative, under subsections (a)(2) and (a)(3), a

claimant may establish by obtaining values lower than

those set forth in the table accompanying these subsections

not only that he suffers from a totally disabling pulmo-

nary or respiratory impairment, but that the impairment

arises from coal workers’ pneumoconiosis caused by coal

mine employment. Because values lower than those set

forth in these tables, in medical fact, at the most may il-

lustrate some degree of respiratory impairment of un-

known origin, this again illustrates the tremendous power

of the interim presumption. '°

Under subsection (a)(4), a claimant may establish en-

titlement to the interim presumption by presenting a doc-

umented opinion of a physician which establishes the pres-

ence of a totally disabling respiratory or pulmonary im-

pairment. A physician’s report or other medical evidence

which reflects the presence of a totally disabling respi-

ratory or pulmonary impairment also establishes that the

impairment is the result of coal workers’ pneumoconiosis

and that- the coal workers’ pneumoconiosis arose from

coal mine employment.

Finally, under subsection (a)(5) in the absence of other

medical evidence regarding a deceased miner, the claimant

need only provide an affidavit of a survivor of the miner

or other person with knowledge of the miner’s physical

condition for it to be presumed that the miner suffered

from pneumoconiosis, that the miner was totally disabled

'© The medical criteria of the interim presumption were not con-

sidered medically sound, were not intended to be medically sound,

and were in fact constructed without reference to meaningful medical

considerations for the evaluation of disability. No medical inference

whatever arises from the fact that results on a particular study fall

either above or below the tables set forth in these presumptions — the

tables have only legal significance and are only relevant in invocation.

13

due to pneumoconiosis at the time of death, or that the

miner’s death was due to pneumoconiosis.

The power of the interim presumption arises not from

its invocation by a scintilla of the evidence which meets

one of the sub-categories, but from the fact that once a

claimant establishes his ability to meet the requirements of

any one of these sub-categories by a preponderance of the

evidence, the rest of the elements of the claim are presum-

ed; the presumption acts to fill in the remaining pieces of

the puzzle necessary for entitlement to black lung benefits.

Where only simple coal workers’ pneumoconiosis is shown,

the presumption provides for a finding of total disability

due to pneumoconiosis unless that presumptive finding

can be rebutted.

The standard of proof requiring that a preponderance

of the evidence be weighed in any sub-cateogry prior to in-

vocation of the interim presumption is well-founded in

both the Act, regulations and case law. § 422(a) of the

Black Lung Benefits Act, as amended, 30 U.S.C. § 932(a)

incorporates by reference the procedural provisions of the

Longshoremen’s and Harbor Workers’ Compensation

Act, as amended, (hereinafter “Longshore Act”).'! Be-

'' § 422(a) During any period after December 31, 1973, in which a

State workmen’s compensation law is not included in the list published

by the Secretary under section 421(b) of this part, the provisions of

Public Law 803, 69th Congress (44 Stat. 1424, approved March 4,

1927), as amended, and as it may be amended from time to time (other

than the provisions contained in sections 1, 2, 3, 4, 8, 9, 10, 12, 13, 29,

30, 31, 32, 33, 37, 38, 41, 43, 44, 45, 46, 47, 48, 49, 50, and 51

thereof), shall (except as otherwise provided in this subsection or by

regulations of the Secretary and except that references in such Act to

the employer shall be considered to refer to the trustees of the fund, as

the Secretary considers appropriate and as is consistent, with the pro-

visions of [section 424] section 9501(d) of the Internal Revenue Code

of 1954), be applicable to each operator of a coal mine in such State

with respect to death or total disability due to pneumoconiosis arising

out of employment in such mine, .. .

14

cause this Act was passed in early 1972, and subsequently

the Longshore Act was amended on at least two occasions,

it has been contended that § 422 only incorporate the

Longshore Act in its form prior to the 1972 amendments.

The circuits have held, however, that § 422 effectively

incorporates the appropriate provisions of the Longshore

Act and any subsequent amendments.'? Section 19(d),

enacted with the 1972 amendments, provides that long-

shore hearings are to be conducted in accordance with the

A.P.A. (5 U.S.C. § 554). Furthermore, because the Black

Lung Benefits Act, as. amended, does not indicate a

specific standard of proof which governs the adjudication

process, § 5 of the APA, (5 U.S.C. § 554) applies, “. . . in

every case of adjudication required by statute to be deter-

mined on the record after opportunity for an agency hear-

ing.”'* This Court in the case of Steadman v. Securities

and Exchange Commission, 450 U.S. 91, reh. den. 451

U.S. 933 (1981), held that 5 U.S.C. § 556 (designated

§ 7(c) of the 1946 Act) provides for a preponderance of the

evidence standard. Mr. Justice Brennan for the Court

stated:

The language and legislative history of § 1(c) lead

us to conclude, therefore, that § 7(c) was intend-

ed to establish a standard of proof and that the

'>Patton v. Director, 763 F.2d 553 (3d Cir. 1985), Director v. Na-

tional Mines Corp., 554 F.2d 1267 (4th Cir. 1977), Director v. Ala-

hama By-Products Corp., 560 F.2d 710 (Sth Cir. 1977), Director v.

Eastern Coal Corp., 561 F.2d 632 (6th Cir. 1977) and Director v. Pea-

hody Coal Co., 554 F.2d 310 (7th Cir. 1977).

'9§ U.S.C. § 559 requires the application of the requirements of the

APA unless the statute expressly supersedes or modifies the re-

quirements of the APA. The Federal Black Lung Benefits Act, as

amended, does not expressly amend the requirements of the APA in

this area.

15

standard adopted is the traditional preponder-

ance of the evidence standard.

(450 U.S. 102)

The application of a preponderance standard to the in-

vocation of the interim presumption has been consistently

applied since the effective date of the interim presumption

by the United States Department of Labor. Further, the

Benefits Review Board, the United States Court of Ap-

peals for the Fourth Circuit and the United States Court of

Appeals for the Sixth Circuit have issued opinions setting

forth this preponderance standard. The Fourth Circuit in

Consolidation Coal Co. v. Sanati, 713 F.2d 480 (4th Cir.

1983) was confronted with the question of whether or not

the interim presumption under subsection (a)(4) must be

invoked by a single reasoned medical opinion of a physi-

cian who finds a totally disabling pulmonary or respira-

tory impairment. The Court noted that a preponderance

~ of the evidence standard has been required for invocation

of the interim presumption even under the more lenient

evidentiary criteria applied to claims under Part B and

held that:

Invocation of the § 727.203(a)(4) presumption

solely on the basis of one physician’s opinion,

without weighing it against other physicians’ con-

trary opinions, is contrary to our holdings in

Sharpless v. Califano, 585 F.2d 664 (4th Cir.

1978), and Petry v. Califano, 577 F.2d 860 (4th

Cir. 1978). Sharpless and Petry involved the

similar presumptions of total disability due to

coal workers’ pneumoconiosis provided for in 20

C.F.R. §§ 419.490(b) and 410.414(b), respective-

ly. In both cases, we held that the claimant has

the burden of proving by a preponderance of the

evidence all the facts necessary to establish the

presumption. 585 F.2d at 667; 577 F.2d at 864;

see Steadman v. S.E.C., 450 U.S. 91 (1981). Our

cases require the administrative tribunal to weigh

all the evidence relevant to a fact necessary to

establish a presumption before deciding to in-

voke the presumption. 585 F.2d at 667; 577 F.2d

at 863. We note in passing that in cases involving

at least two of the other presumptions set out in

727.203(a), the Board itself has held that an ALJ

must consider and weigh all the competent and

relevant evidence bearing on the fact in question

in determining whether to invoke the presump-

tion.

(713 F.2d at 481-82)

In Bozick v. Consolidation Coal Company, 735 F.2d 1017

(6th Cir. 1984), a panel of the Sixth Circuit recognized the

Fourth Circuit’s opinion in Consolidation Coal Co. v.

Sanati and adopted the Benefits Review Board’s decision

in Meadows v. Westmoreland Coal Co., 6 BLR 1-773

(BRB 1984). In Meadows, the Board noted,

Recently, however, in Consolidation Coal Com-

pany v. Sanati, 713 F.2d 480 (4th Cir. 1983), the

United States Court of Appeals for the Fourth

Circuit held that, ‘One such documented [opin-

ion] in the presence of other and contrary evi-

dence may not require the presumption to be in-

voked absent a weighing of the opinion against

the other evidence.’ Id., at 482, n. 3 (emphasis in

original.) The Court held that where the record

contains conflicting medical reports, it is the

obligation of the administrative law judge to

weigh all the medical reports of record and ascer-

tain whether or not claimant has established the

presence of a totally disabling respiratory or pul-

monary impairment pursuant to subsection (a)(4).

We find the Court’s reasoning persuasive. We

17

note, as did the Fourth Circuit, that a single

opinion may invoke the interim presumption.

That opinion must be weighed, however, against

the other medical opinions prior to invocation.

(6 BLR 1-776)

This decision citing Sanati was consistent with earlier

decisions of the Benefits Review Board in Justice v. Jewell

Ridge Coal Co., 3 BLR 1-547, 1-550 (BRB 1981) involving

chest x-rays and Strako v. Ziegler Coal Co., 3 BLR 1-136,

1-143 (BRB 1981) involving pulmonary function studies.

In July of 1985, the United States Court of Appeals for

the Sixth Circuit in Moseley v. Peabody Coal Co., 769

F.2d 357 (6th Cir. 1985) adopted the Fourth Circuit’s

Sanati opinion requiring a preponderance standard prior

to invocation under § 727.203(a)(4). This adoption of

Sanati was also followed by the Sixth Circuit in Engle v.

Director, Office of Workers’ Compensation Programs,

792 F.2d 63, 64, n. 1 (6th Cir. 1986).

In 1986, the United States Court of Appeals for the

Fourth Circuit rendered its decision in Stapleton v.

Westmoreland Coal Co., 785 F.2d 424 (4th Cir. 1986). In

Stapleton, seven members of the en banc panel set forth in

three separate opinions their belief that the interim pre-

sumption under § 727.203(a) is invoked where there is a

single credible piece of evidence under any of the five

means of invocation discussed by the Court.'* A different

group of seven judges, however, held that, under (a)(4)

where invocation is by any means other than a reasoned

medical opinion, it must be proven by a preponderance of

the evidence other than arterial blood gases, pulmonary

‘* Cline v. Beatrice Pocahontas Coal Co., 802 F.2d 1524 (4th Cir.

1986); Accord Lagamba v. Consolidation Coal Co., 787 F 2d 172 (4th

Cir. 1986); Haynes v. Jewell Ridge Coal Co., 790 F.2d 1113 (4th Cir.

1986).

18

function studies, chest x-rays or by a reasoned medical

report.

The decision of the Stapleton Court was, at best, incon-

sistent if not schizophrenic. As noted by Judge Phillips in

his concurring and dissenting opinion,

The burdens of persuasion borne by both claimant and

operator respectively are burdens to prove the relevant

facts by a preponderance of the evidence.* * *

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 presumption’s 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.

(785 F.2d at 442)

As Judge Phillips noted, it is the inexact language of the

individual subsections of the interim presumption which

have in no small part helped to obscure the requirements

of the APA that each subsection be proved by a prepon-

derance of the evidence prior to invocation. If we examine

the language of subsection (a)(1), it states that the interim

presumption will be triggered if, “A chest roentgenogram

(x-ray), biopsy or autopy establishes the existence of

pneumoconiosis. (See, § 410.428 of this title) (emphasis

added) In contrast, subsection (a)(2) states that the interim

presumption will be invoked if,

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 were equal to or less than the values

specified in the following table. (emphasis add-

ed)

Subsection (a)(1) speaks of “A chest roentgenogram .. .”,

clearly indicating that a chest x-ray, a biopsy or an autopsy

which establishes the presence of pneumoconiosis may re-

sult in invocation. Subsection (a)(2), however, speaks in

the plural form indicating that, “ventilatory studies . . . as

demonstrated by values . . .” must be considered before

determining whether or not the presumption is invoked.

Likewise, subsection (a)(3) dealing with arterial blood gas

studies again speaks in the plural. Subsection (a)(4) speaks

of, '

Other medical evidence, including the doc-

umented opinion of a physician exercising rea-

soned medical judgment, establishes the presence

of a totally disabling pulmonary or respiratory

impairment.

Subsection (a)(4) speaks in both the singular and the plural

in describing “other medical evidence (plural) and “. . . a

physician exercising . . .” (singular). Finally, subsection

(a(S) speaks in terms of, “The affidavit of the survivor

.”, which speaks in the singular while noting that it

would only be applicable in the absence of other medical

evidence. The inartfulness of the United States Depart-

ment of Labor’s drafting, however, does little to provide

insight as to whether the scintilla or preponderance stan-

dard should be applied to the interim presumption. It can

be fairly stated that the interim presumption internally

does not set forth any burden of proof different than that

required by APA.

Westmoreland concedes that a single x-ray, single pul-

monary function study, single arterial blood gas study, or

single reasoned medical report which finds a totally disabl-

ing pulmonary or respiratory impairment or in the absence

20

of any medical evidence, a single affidavit, may suffice to

invoke the interim presumption. However, where a pre-

ponderance of the chéST X-rays are negative for coal work-

ers’ pneumoconiosis; a preponderance of the ventilatory

studies are above those standards set forth in the interim

tables; where a preponderance of the arterial blood gas

studies have values above those in the interim tables;

where a preponderance of the physicians’ opinions exer-

cising reasoned medical judgment does not establish the

presence of a totally disabling pulmonary or respiratory

impairment; or where there are multiple affidavits present

with a preponderance not supporting that a decedent suf-

fered from a totally disabling pulmonary or respiratory

disease, then the interim presumption should not be invok-

ed by a single piece of medical or lay evidence.

In determining the preponderance of the evidence, an

administrative law judge traditionally has looked to the

relative qualifications of the individual physicians, the

adherence to quality standards and (due to the progressive

and irreversible nature of this disease) may place greater

reliance on more recent testing. See, Orange v. Island

Creek Coal Co., 786 F.2d 724 (6th Cir. 1986) Triplett v.

Incoal Coal Co., 2 BLR 1-633 (BRB 1979); and Cleaven-

ger v. Director, 2 BLR 1-557 (BRB 1979) As a result, an

administrative law judge in evaluating whether or not the

interim presumption is invoked under subsection (a)(1),

may credit the more recent chest x-rays as well as crediting

those Chest x-rays by “B” readers.'* Because these deter-

'S The National Institute for Occupational Safety and Health was re-

quired by the Federal Mine Safety and Health Act of 1977 to develop

and implement a certification program for readers of coal miners’

chest roentgenograms. A “B” reader certification is the highest

classification and thereby entitled to greater evidentiary weight. See,

42 C.F.R. §§ 37.1 et seq., Winfrey v. Califano, 620 F.2d 37 (4th Cir.

1980) and Sharpless v. Califano, 585 F.2d 664 (4th Cir. 1978).

21

—

minations are within the sound discretion of the trier of

fact, the invocation of the interim presumption does not

resolve itself down to a mere numbers game, where an

administrative law judge mechanically determines the

invocation of the interim presumption based upon the

amounts of qualifying or nonqualifying medical evidence.

Furthermore, because of the remedial nature of the Act, it

is appropriate for the administrative law judge to resolve

all true doubt [i.e., the doubt which arises when the evi-

dence tending to prove a fact and that tending to disprove

a fact is equally probative and persuasive] in favor of the

claimant in determining whether or not to invoke the in-

terim presumption.

Nowhere in the APA, Longshore Act or the Federal

Black Lung Benefits Act, however, is it suggested that a

standard other than that commonly utilized by the APA,

that of a preponderance, should be utilized in determining

invocation under the interim presumption. The Court’s

suggestion in Stapleton that a scintilla of positive evidence

in the face of a preponderance of negative evidence shall

result in findings of invocation is not supported in the Act,

regulations, or case law.

It is precisely because of the tremendous power of the

interim presumption that the issue of whether invocation

is by a scintilla or by a preponderance of the evidence be-

comes important. Under the rule of law set forth by the

Fourth Circuit in Stapleton, the medical record could con-

tain ten negative x-rays, all by Board-certified radiologists

and N.1.0.S.H. certified “B” Readers, with one positive

x-ray having been read by a general practitioner thus re-

sulting in invocation of the interim presumption. Notwith-

standing above-standard arterial blood gases and pulmo-

nary function studies, if there are no medical opinions in

the record, this single positive x-ray arising from a poorly

qualified practitioner, would in the absence of a reasoned

medical opinion to the contrary, result in invocation. The

presumption could then not be rebutted by the ten read-

ings of the same chest x-ray even if they were more recent

in time and by more qualified practitioners, due to the

prohibition in the Act that a claim shall not be rejected

solely on the basis of negative x-ray readings. This wholly

improper result fits the requirements laid down by Stapie-

ton while doing violence to the basic precepts of the Act

and regulations.

Vv.

CONCLUSION

Deference should be paid to the burden of proof pre-

scribed by the APA, to the interpretation of the Secretary

and to the practice of the administrative law judges and

Benefits Review Board which have governed the resolution

of thousands of federal black lung claims and continues to

govern their disposition in those circuits other than the

Third and Fourth Circuits. Therefore, Westmoreland

Coal Company requests that the opinion of the United

States Court of Appeals for the Fourth Circuit in Staple-

ton v. Westmoreland Coal Company be reversed consist-

ent with the arguments raised herein.

Respectfully submitted,

WESTMORELAND COAL COMPANY

By Counsel

DAVID ALLEN BARNETTE

JACKSON, KELLY, HOLT & O’FARRELL

1600 Laidley Tower

Post Office Box 553

Charleston, West Virginia 25322

(304) 340-1327