Appendix — Peabody Coal Co. v. Taylor

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Supreme Court, U.S.

89-1696 FILED

| MAY 2 1990

No. JQSEPH . atti JR.

APO, nO o--

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

PEABODY COAL COMPANY AND

OLD REPUBLIC INSURANCE COMPANY,

y Petitioners,

HUBERT C. TAYLOR AND DIRECTOR, OFFICE

OF WORKERS’ COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF LABOR,

Respondents.

APPENDIX TO THE

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MARK E. SOLOMONS

Counsel of Record

LAURA METCOFF KLAUS

Arter & Hadden

1919 Pennsylvaniz Avenue, N.W.

Washington, D.C. 20006

(202) 775-7154

Counsel for Petitioners

]

TABLE OF CONTENTS

DOCUMENT

Order of the United States Court-of Appeals for the

Seventh Circuit Denying Petitions for Rehearing

and Suggestion for Rehearing En Banc in Taylor v.

a Be Pe er a a ee

Order of the United States Court of Appeals for the

Seventh Circuit Granting Motions for Enlargement

of Time to File Petitions for Rehearing with

Suggestion of Rehearing En Banc in Taylor v.

Poapony Codi COMED onc ce eens

Opinion of the United States Court of Appeals for

the Seventh Circuit on Remand from The Supreme

Court of the United States in Taylor v. Peabody

ar rc eo ko ee he ee se eee

Order of the United States Court of Appeals for the

Seventh Circuit Denying Motion to Schedule Case for

Briefing and Oral Argument Following Supreme Court

Remand in 7aylor v. Peabody Coal Company ......

Order of the United States Court of Appeals for the

Seventh Circuit Denying Petition for Review of an

Order of the Benefits Review Board in Taylor v.

Pe Ce Ts TR Oe Ge hewes

Opinion of the United States Court of Appeals for

the Seventh Circuit in Taylor v. Peabody Coal

ee oe i a er I oa s/s

Memorandum Decision of the Supreme Court of the

United States Granting Petition for Writ of

Certiorari in Zaylor v. Peabody Coal Company ... .

Decision and Order of the United States Department

of Labor Benefits Review Board in Taylor v.

Pome La CO i iis eee ee ks

PAGE

Decision and Order of the United States Department

of Labor Administrative Law Judge in Taylor vy.

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20 CER § 727.203: . . 055 4 ee Sia

United States Court of Appeals

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

FEBRUARY 1, 1990.

Before

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

HUBERT C. TAYLOR,

Petitioner,

sateen On Petition for Review of

ve an Order of the Benefits

PEABODY COAL CO. AND Review Board United States

DIRECTOR, OFFICE OF Department of Labor.

WORKERS’ COMPENSATION

PROGRAMS,

Respondents.

ORDER

On consideration of the petitions for rehearing and sug-

gestions for rehearing en banc filed in the above-entitled cause

by the respondents, no judge in active service” has requested a

vote thereon, and all of the judges on the original panel have

voted to deny the petitions for rehearing and suggestions for

rehearing en banc.

The petitions filed by the respondents in this case con-

tend that HEW’s rules do not foreclose the use of medical

rebuttal evidence and thus our opinion was fatally flawed.

However, we note that the precise extent to which the HEW

regulations allowed rebuttal was not an issue in this case. We

* Circuit Judge Walter J. Cummings did not participate in any con-

sideration of the petitions for rehearing and suggestions for rehearing

en banc filed in the above cause.

held that to the extent the Department of Labor regulations

allow rebuttal:-—when HEW’s do not—the Labor rules are

invalid. We did not hold that there are no conceivable cir-

cumstances under which HEW rules might allow medical

rebuttal.

It is also argued in the petitions that the current statute

(30 U.S.C. § 923(b)) directs the Department of Labor to con-

sider “all relevant evidence.” This contention is certainly true

but it misses the point. While any trier of fact may be required

to consider all “relevant” evidence, such a requirement does

not alter any substantive rule of law. To what determination

is a piece of evidence “relevant’’? That is a distinct question,

and a standard of admissibility cannot control substantive

law. Cf. Collins v. Old Ben Coal Co., 861 F.2d 481, 493 (7th

Cir. $988) (Easterbrook, J., concurring).

With these comments,

IT IS HEREBY ORDERED that the aforesaid petitions

for rehearing and suggestions for rehearing en banc be, and

the same are hereby, DENIED.

United States Court of Appeals

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

SEPTEMBER 14, 1989.

Before

Hon. MICHAEL S. KANNE, Circuit Judge

Hon.

HUBERT C. TAYLOR,

Petitioner,

No. 86-2590

VS. Petition for Review of an

PEABODY COAL COMPANY, . Order of the Benefits

AND DIRECTOR, OFFICE OF | Review Board

WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

This matter comes before the court for its consideration

of the following documents:

1. “MOTION FOR ENLARGEMENT OF TIME TO

FILE PETITION FOR REHEARING WITH SUGGES-

TION OF REHEARING EN BANC” filed herein on

September 13, 1989, by counsel for the Peabody Coal

Company.

2. “MOTION FOR EXTENSION OF TIME TO FILE

PETITION FOR REHEARING” filed herein on Sep-

tember 14, 1989, by counsel for the Director, Office of

Workers’ Compensation Programs.

On consideration thereof,

IT IS ORDERED that said motions are hereby

GRANTED and the Petition for Rehearing with Suggestion

of Rehearing En Banc and the Petition for Rehearing will be

due on or before October 2, 1989.

IN THE

United States Court of Appeals

FOR THE SEVENTH CIRCUIT

No. 86-2590

HUBERT C. TAYLOR,

Petitioner,

Vv.

PEABODY COAL CO. AND DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION PROGRAMS, °

Respondents.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BENEFITS REVIEW BOARD

UNITED STATES DEPARTMENT OF LABOR

ARGUED OCTOBER 28, 1987—DECIDED

JANUARY 25, 1988—

REVERSED AND REMANDED JANUARY 11, 1989—

DECIDED AUGUST 28, 1989 ™

Before EASTERBROOK, RIPPLE, AND KANNE, Cir-

cuit Judges.

KANNE, Circuit Judge. This appeal has come before us

for the second time. In our earlier opinion in this case,

Taylor v. Peabody Coal Co., 838 F.2d 227 (7th Cir.), vacated,

__ ~-US. ___, 109 S. Ct. 548, 102 L. Ed. 2d 576 (1988)

** Pursuant to Circuit Rule 40(f), this opinion has been circulated

among all judges of this court in regular active service. No judge

favored a rehearing en banc on the issue of whether the Labor rebuttal

rules violated 30 U.S.C. § 902(f)(2).

(“Taylor I’), we denied petitioner Hubert C. Taylor’s peti-

tion for review of the Benefits Review Board’s order reversing

the decision of the Administrative Law Judge (““ALJ’’) that

Taylor was entitled to black lung benefits. On January 11,

1989, the United States Supreme Court reversed and

remanded our decision for reconsideration in light of its

recent decision in Pittston Coal Group v. Sebben, USS.

__, 109 S. Ct. 414, 102 L. Ed. 2d 408 (1988). On reconsider-

ation, we reverse the decision of the Benefits Review Board

and reinstate the ALJ’s award of benefits to Taylor.

I. Background

The black lung benefits program, as enacted by Con-

gress, consists of two parts. Part B is a temporary program of

federally financed benefits to be administered by the Secre-

tary of Health, Education, and Welfare (““HEW’’), and Part C

provides for a more permanent program to be administered

by the Secretary of Labor, relying on state workers’ compen-

sation programs where possible. Pittston Coal Group, 109

S. Ct. at 417. The Part B program, which applies to claims

filed by living miners before June 30, 1973 and before

December 31, 1973 for survivors’ claims, is administered

under regulations promulgated by HEW. Although HEW

promulgated both permanent and interim regulations, only

the interim regulations, 20 C.F.R. § 410.490 (1973), are at

issue here. These regulations set out criteria under which the

presumption of entitlement to black lung benefits under

Part B can be invoked by the claimant and rebutted by the

employer. !

' Because we only are concerned at this point with the validity of the

Labor rebuttal rules, we will discuss those rules and the HEW rebuttal

rules where appropriate. The validity of the Labor invocation rules

already has been decided in Pittston Coal Group, where the Supreme

Court discussed in detail these rules, the HEW invocation rules and the

differences between the two sets of rules, 109 S. Ct. at 417-19. Hence,

for brevity’s sake, we will not discuss the invocation rules here.

In enacting the Black Lung Benefits Reform Act of 1977,

Pub. L. No. 95-239, 92 Stat. 95 (codified in scattered sections

of 30 U.S.C.), which gave the Secretary of Labor authority to

establish total disability regulations for Part C cases, Con-

gress provided that “[c]riteria applied by the Secretary of

Labor . . . shall not be more restrictive than the criteria

applicable to a claim filed on June 30,1973... ° 30 U.S.C.

§ 902(f)(2). In response to the Black Lung Benefits Reform

Act, the Secretary promulgated the interim regulations for

Part C cases at issue here.? See 20 C.F.R. § 727.203.

The petitioner in this case, Hubert C. Taylor, filed his

claim for black lung benefits on June 6, 1977. The Office of

Workers’ Compensation Programs approved his claim on

March 31, 1980. Respondent Peabody Coal Company, how-

ever, filed a notice of controversion and the matter was

referred to the Office of Administrative Law Judges. On

August 29, 1985, the ALJ issued his decision and order

awarding benefits to Taylor.

In this decision and order, the ALJ examined Taylor's

claim under both the Part C regulations and the Part B regula-

tions. Examining Taylor’s claim under the Part C regulations,

the ALJ found that Taylor successfully had invoked the pre-

sumption under 20 C.F.R. § 727.203(a), but that Peabody

Coal successfully had rebutted the presumption under 20

C.F.R. § 727.203(b)(2). Peabody Coal was able to rebut the

presumption by presenting medical evidence that Taylor had

only a mild pulmonary impairment which did not prohibit

him from performing his work. Under the Part B regulations,

however, the ALJ found that Taylor successfully had invoked

the presumption, and that Peabody Coal had failed to rebut

the presumption.

Peabody Coal appealed the ALJ’s decision to the Bene-

fits Review Board. The Benefits Review Board reversed the

2 The permanent Labor regulations took effect-on April 1, 1980.

20 C.F.R. § 718.2: see also Pittston Coal Group, 109 S. Ct. at 419.

ALJ’s decision, determining that Taylor’s claim should be

resolved exclusively under the Part C (Labor) rules. The Ben-

efits Review Board determined that Halon y. Director,

OWCP, 713 F.2d 21 (3d Cir. 1983), a case in which the Third

Circuit interpreted the “not . . . more restrictive” language

of 30 U.S.C. § 902(f)(2) as entitling a claimant to application

of the Part B (HEW) rules in a claim disposed of by the

Department of Labor, only applied to claims in the Third

Circuit and in other circuits having adopted this standard.

Taylor appealed to this court. We affirmed the decision

of the Benefits Review Board in our opinion in Taylor I.

There, we determined that this case was controlled by our

then-recent decision in Strike v. Director, OWCP, 817 F.2d

395 (7th Cir. 1987). In Strike, we held that in enacting 30

U.S.C. § 902(f)(2), Congress only intended to prohibit the

Secretary of Labor from applying more restrictive medical

criteria in reviewing claims pursuant to 30 U.S.C. § 945.

Thus, in 7aylor I, we interpreted Strike as “reject[ing] the

argument that Congress intended 20 C.F.R. § 410.490 [the

Part B rules] to be applied to Part C claims when it ‘liberal-

ized’ the Black Lung Benefits Act.” Taylor J, 838 F.2d at 229.

Taylor filed a petition for certiorari to the Supreme

Court. This petition was held in abeyance because of the

Supreme Court's pending decision in Pittston Coal Group. On

December 6, 1988, the Supreme Court decided Pittston Ceal

Group. In that case, the Supreme Court held that the interim

Labor rules violated the prohibition in 30 U.S.C. § 902(f)(2)

against the Secretary of Labor’s employing “‘[c]riteria . . .

not... more restrictive than the criteria applicable to a

claim filed on June 30, 1973.” The Supreme Court deter-

mined that the word “criteria” did not refer solely to medical

criteria. 109 S. Ct. at 419-23. It also considered, but left open,

the question whether § 902(f)(2) applied solely to total disa-

bility criteria. Jd. at 420.

The decision in Pittston Coal Group, however, only dis-

cussed, and refuted, the validity of the Labor /nvocation rules.

In oral argument before the Supreme Court, the respondents

in that case conceded the validity of the Labor rebuttal rules,

“even though [these ruies] permit rebuttal of more elements

of statutory entitlement than did the interim HEW regula-

tion.” /d. at 423. Thus, the Supreme Court did not have to

decide the question of the validity of the Labor rebuttal rules

under § 902(f\(2), nor did it have to consider the dve process

arguments raised by the petitioners. /d.

On January 11, 1989, the Supreme Court vacated our

decision in T7aylor I, and remanded this case to us for further

consideration in light of its decision in Pittston Coal Group.

Because the ALJ’s decision and order determined that

Peabody successfully rebutted the presumption under the

interim Labor rebuttal rules. we are presented squarely with

the issue whether these rules violate 30 U.S.C. § 902(f\(2).

II. Discussion

A. Statutory Language

The criteria under the interim Labor rules for determin-

ing whether the presumption has been rebutted differ from

the rebuttal criteria in the HEW rules in one important

respect. The HEW rules provide that the presumption can be

rebutted by a showing that the miner was working or could

work at his former coal mine employment or the equivalent.

20 C.F.R. § 419.490(c)(1), (2). In Cook y. Director, OWCP.

816 F.2d 1182. 1185 (7th Cir. 1987), we observed in another

context that “the [HEW] presumption cannot be rebutted by

medical evidence.” On the other hand, the interim Labor

rebuttal rules provide that “all relevant medical evidence

shall be considered.” 20 C.F.R. § 727.203(b). Once invoked,

moreover. the presumption can be rebutted not only on the

grounds listed in the HEW regulation, but also on the basis

that “the total disability or death of the miner did not arise in

whole or in part out of coal mine employment” or that “the

miner does not, or did not, have pneumoconiosis.” 20 C.F.R.

§§ 727.203(b)(1)-(4); Pittston Coal Group, 109 S. Ct. at 419.

Although Pittston Coal Group did not address, and

indeed declined to consider, the validity of the Labor rebuttal

rules, we believe that the Supreme Court’s decision leaves no

room for distinguishing the Labor rebuttal rules from the

Labor invocation rules. Because the Labor rebuttal rules

allow the consideration of medical evidence on rebuttal,

while the HEW rebuttal rules do not, the former clearly are

more restrictive than the latter. We note that this is so even if

we were to read the term “criteria” as being limited solely to

medical criteria, the interpretation of the statute specifically

rejected by the Supreme Court in Pittston Coal Group.’

We respectfully disagree, therefore, with our colleagues

in the Sixth Circuit that a valid distinction can be made

between the Labor invocation and rebuttal rules regarding

the application of § 902(f)(2). See, e.g., Youghiogheny & Ohio

Coal Co. v. Milliken, 866 F.2d 195, 202 (6th Cir. 1989); Kyle

v. Director, OWCP, 819 F.2d 139, 144 (6th Cir. 1987), cert.

denied, -___ U.S. __, 109 S. Ct. 566, 102 L. Ed. 2d 591

(1988); Ramey v. Kentland Elkhorn Coal Corp., 755 F.2d 485,

3 The result would be the same even if we were to read 30 U.S.C.

§ 902(f)(2) as being limited to total disability criteria. This is a reading

of the statute which, the Supreme Court noted, “has considerable

merit, though it is by no means free from doubt,” Pittston Coal Group,

109 S. Ct. at 420. Total disability is defined as the inability of the

claimant to perform his usual coal mine employment or the equivalent.

Id. As the Court also noted, “The various criteria that go into determin-

ing a claim of entitlement under the interim HEW regulation are

closely—indeed, inextricably—intertwined,” id. at 421 (noting that

claimants who do not meet the ten-year requirement under the interim

Labor invocation rules must submit affirmative proof of total disabil-

ity, which would involve principally medical proof of disability). Like-

wise, with regard to the rebuttal rules, it appears that evidence of total

disability that could not come in under the HEW scheme could come in

under the Labor scheme. This is what occurred in this case. The ALJ

concluded that Peabody Coal had rebutted the presumption under 20

C.F.R. § 727.203(b\(2), determining that Taylor could perform his

usual coal mine employment. He also concluded, however, that

Peabody Coal had not rebutted the presumption under the HEW rebut-

tal rules, which contain a provision identical to § 727.203(b)(2).

10a

489 (6th Cir. 1985). In Youghiogheny, which was decided

after Pittston Coal Group, the Sixth Circuit distinguished the

Labor rebuttal rules from the Labor invocation rules based

upon its prior precedent, which made such a distinction.

We believe that the Supreme Court’s decision in Pittston

Coal Group forecloses the distinction the Sixth Circuit makes

for the reasons it gives. Compare Youghiogheny, 866 F.2d at

199 n.1 (“[T]he Pittston opinion sheds no light on the issue

before us today”’’). The Sixth Circuit distinguishes the invoca-

tion rules from the rebuttal rules based upon the following

legislative history:

The conferees intend that the Secretary of Labor

shall promulgate regulations for the determination

of total disability or death due to pneumoconiosis.

With respect to a claim filed or pending prior to the

promulgation of such regulations, such regulations

shall not provide more restrictive criteria than those

applicable to a claim filed on June 30, 1973, except

that in determining claims under such criteria all

relevant medical evidence shall be considered in

accordance with standards prescribed by the Secre-

tary of Labor and published in the Federal Register.

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

U.S. Code Cong. & Admin. News 237, 308-09 (emphasis

supplied).4 The Sixth Circuit has interpreted this legislative

history to mean that “the conferees intended to establish a

medical test for rebuttal by showing the claimant was able to

do his usual coal mine work.” Ramey, 755 F.2d at 489-90. It

4 By way of explanation. the House version of the Black Lung Bene-

fits Reform Act of 1977 would have applied the HEW rules to both

Part B and Part C claims. The Senate version of the bill, however.

authorized the Secretary of Labor to draft his own medical eligibility

criteria to be used in adjudicating Part C claims. The Conference Com-

mittee, which adopted the Senate bill with several provisos, made the

above observations. Ramey, 755 F.2d at 489.

lla

has distinguished application of the “not more . . . restric-

live... criteria” language in 30 U.S.C. § 902(f)(2) to the

invocation rules but not to the rebuttal rules on the ground

that Congress did not intend this language to require applica-

tion of the same evidentiary rules to Part B and Part C cases,

but rather intended for these rules to change over time. Ky/e,

819 F.2d at 144; Ramey, 755 F.2d at 490.

We disagree with this rationale for several reasons. First,

the Court in Pittston Coal Group determined that the text of

§ 902(f)(2) “plainly embraces criteria of more general applica-

tion” than medical criteria. 109 S. Ct. at 420-21. This

includes evidentiary rules and adjudicatory standards,

whether they be applied on invocation or on rebuttal. See

Halon, 713 F.2d at 24 (legislative history of the Black Lung

Benefits Reform Act suggests that “criteria” referred to both

adjudicatory and medical standards); but see Pittston Coal

Group, 109 S. Ct. at 430-37 (Stevens, J., dissenting) (argues

that Congress in fact meant to distinguish between medical

criteria and evidentiary rules). Even if the text conflicts with

the legislative history of the statute, moreover, “‘[i]t is not the

law that a statute can have no effects which are not explicitly

mentioned in its legislative history,” Pittston Coal Group, 109

S. Ct. at 420-21; accord Belisle v. Plunkett, No. 88-3189, slip

op. at 8 (7th Cir. June 6, 1989). Thus, we conclude that the

Labor rebuttal rules violate 30 U.S.C. § 902(f){2).

B. Due Process

Because we have determined that the Labor rebuttal

rules violate the prohibition in 30 U.S.C. § 902(f)(2) against

“not more... restrictive . . . criteria,” we must address

Peabody Coal’s due process challenge. Unlike the majority of

due process arguments advanced in this area, which have

been in the vein that the applicable statutes and/or regula-

tions regulate too much, Peabody Coal argues here that with

respect to private parties, the HEW invocatior-and rebuttal

rules regulate too little. With respect to the invocation rules,

l2a

Peabody Coal contends that they violate due process because ,

they do not provide any minimum period of coai mine

employment to invoke the presumption. It claims that those

cases that have upheld the Labor rules on due process

grounds have relied heavily on the requirement of ten years of

employment to invoke the presumption. With respect to the

HEW rebuttal rules, Peabody Coal seems to argue that appli-

cation of these rules violates due process because other legiti-

mate means of rebutting the presumption (to wii, those

means embodied in 20 C.F.R. §§ 727.203(b)(3), (b)(4)) exist,

yet they are unavailable to responsible operators.°

This is not the proper case to address Peabody Coal’s

first argument.® Even if we were to decide that due process

requires a ten-year minimum period of coal mine employ-

ment, Taylor, who worked as a coal miner for approximately

forty-two years, has satisfied this condition. Hence, it is not

necessary for us to consider here whether there should be such

a requirement. Cf Kaiser Steel Corp. v. Director, OWCP, 748

F.2d 1426, 1431 (10th Cir. 1984) (court of appeals declined to

consider constitutional attack on the validity of two of the

four parts of the Labor invocation regulation because in that

case, even were they to strike down those two parts, disability

still would be presumed under the remaining two parts). In

general, courts will not consider constitutional arguments

where a case may be disposed of on alternate, nonconstitu-

tional grounds. Jean v. Nelson, 472 U.S. 846, 854-55, 105

S. Ct. 2992, 2997, 86 L. Ed. 2d 664 (1985); United States v.

Sec. Indus. Bank, 459 U.S. 70, 78, 103 S. Ct. 407, 412-13, 74

L. Ed. 2d 235 (1982); Hagans v. Lavine, 415 U.S. 528, 546-47

& n.12, 94S. Ct. 1372, 1383-84 & n.12, 39 L. Ed. 2d 577

(1974); Ashwander v. Tennessee Valley Auth., 297 U.S. 288,

5 Sections 727.203(b)(1), (2) of Title 20 of the Code of Federal Regu-

lations parallel 20 C.F.R. §§ 410.490(c)(1), (2).

® Peabody Coal argues that allowing the presumption to be invoked

on the basis of x-ray evidence alone flunks the “rational connection”

test used by the Supreme Court in Usery v. Turner-Elkhorn Mining Co.,

428 U.S. 1, 28, 96 S. Ct. 2882, 2898, 49 L. Ed. 2d 752 (1976).

13a

347, 56 S. Ct. 466, 483, 80 L. Ed. 688 (1936) (Brandeis, J..

concurring).

Peabody Coal’s second argument, with respect to the

rebuttal rules, is without merit. What it essentially argues (in

light of our holding above with respect to § 902(f)(2)’s restric-

tion on the rebuttal rules) is that it has been deprived of due

process because Congress could have made available more

factors under which the presumption could be rebutted. yet it

did not do so. We rejected a similar argument in Battaglia vy.

Peabody Coal Co., 690 F.2d 106, 112-13 (7th Cir. 1982). In

holding that 30 U.S.C. § 921(c)(5) did not violate the due

process clause because it did not distinguish between surface

and underground miners, we relied in part on the Supreme

Court’s words in Usery v. Turner Elkhorn Mining Co., 428

U.S. 1, 96S. Ct. 2882, 49 L. Ed. 2d 752 (1976) where it said:

In its “rough accommodations,” . . . Congress was

surely entitled to select duration of employment, to

the exclusion of the degree of dust exposure and

other relevant factors, as signaling the point at which

the operator must come forward with evidence of

the cause of pneumoconiosis or death, as the case

may be. We certainly cannot say that the presump-

tions, by excluding other relevant factors, operate in

a “purely arbitrary”’ manner.

428 US. ai 29-30, 96 S. Ct. at 2899 (citations omitted). Like-

wise, we do not think that 30 U.S.C. § 902(f)(2), in forbidding

consideration of certain criteria on rebuttal, operates in a

“purely arbitrary”’ manner.

III. Conclusion

The Supreme Court’s opinion in Pittston Coal Group

indicates that we must apply the HEW invocation rules to

this Part C case. We have concluded that Pittston Coal

Group's reasoning requires us to apply the HEW rebuttal rules

as well. The ALJ determined, as discussed above, that Taylor

l4a

successfully invoked the presumption under the HEW rules

and that Peabody Coal failed to rebut it. Therefore, we

REVERSE the determination of the Benefits Review Board

and reinstate the ALJ’S award of benefits to Hubert C.

Taylor.

A true Copy:

Teste:

Clerk of the United States

Court of Appeals for the

Seventh Circuit

15a

United States Court of Appeals

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

JANUARY 30, 1989.

Before

FRANK H. EASTERBROOK, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

Hon.

HUBERT C. TAYLOR,

Petitioner,

No. 86-2590

VS.

PEABODY COAL COMPANY,

AND DIRECTOR, OFFICE OF

WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

Petition for Review of an

} Order of the Benefits

Review Board.

This matter comes before the court for its consideration

of the foliowing documents:

1. “MOTION TO SCHEDULE CASE FOR BRIEF-

ING AND ORAL ARGUMENT FOLLOWING

SUPREME COURT REMAND” filed herein on Janu-

ary 17, 1989 by counsel for the respondents.

2. ““PETITIONER’S POSITION FOLLOWING

SUPREME COURT REMAND AND RESPONSE TO

THE DIRECTOR’S MOTION AND PEABODY’S

REQUEST TO SCHEDULE CASE FOR BRIEFING

AND ORAL ARGUMENT” filed herejn on January 23,

1989.

l6a

On consideration thereof,

IT IS ORDERED that the “MOTION TO SCHEDULE

CASE FOR BRIEFING AND ORAL ARGUMENT FOL-

LOWING SUPREME COURT REMAND” is DENIED.

17a

JUDGMENT—ORAL ARGUMENT

United States Court of Appeals

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

JANUARY 25, 1988.

Before

Hon. FRANK H. EASTERBROOK, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

HUBERT C. TAYLOR,

Petitioner,

No. 86-2590

VS. Petition for Review of an

PEABODY COAL COMPANY, — } Order of the Benefits

AND DIRECTOR, OFFICE OF Review Board

WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

This cause was heard on the record from the Benefits

Review Board, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND

ADJUDGED by this Court that the petition seeking review

of the Board’s decision is DENIED, with costs, in accordance

with the opinion of this Court filed this date.

18a

United States Court of Appeals

FOR THE SEVENTH CIRCUIT

No. 86-2590

HUBERT C. TAYLOR,

Petitioner,

Vv.

PEABODY COAL COMPANY AND DIRECTOR,

OFFICE OF WORKERS’ COMPENSATION,

Respondents.

ARGUED Oct. 28, 1987.

DECIDED JAN. 25, 1988.

JACK N. VANSTONE, VANSTONE & KROCHTA,

EVANSVILLE, IND.,

for petitioner.

W.C. BLANTON, ICE, MILLER, DONADIO & RYAN,

INDIANAPOLIS, IND..

for respondents.

Before

EASTERBROOK, RIPPLE, and KANNE.

Circuit Judges.

KANNE,

Circuit Judge.

Petitioner is Hubert C. Taylor, (“Taylor”), a retired

miner. Respondent is Peabody Coal Co., (““Peabody’’), his

former employer. This appeal concerns Taylor’s 1978 claim

for benefits under the Black Lung Benefits Act, 30 U.S.C.

19a

§§ 901-945. We have jurisdiction pursuant to § 21(c) of the

Longshoreman’s and Harbor Workers’ Compensation Act, as

amended, 33 U.S.C. § 921(c), as incorporated by § 422(a) of

the Black Lung Benefits Act, 30 U.S.C. § 932(a). Congress

divided black lung benefits claims into two separately admin-

istered programs, one formerly regulated by the Secretary of

Health, Education and Welfare under 20 C.F.R. § 410.490

(Part B) and another regulated by the Secretary of Labor

under 20 C.F.R. § 727.203 (Part C). Claims filed beiore

December 31, 1973 are resolved under Part B’s provisions

and those filed after that date are administered under Part C’s

provisions. We agree with the analysis of the Benefits Review

Board, which found that because Taylor’s claim was filed

after the December 31, 1973 cut-off date, it must be resolved

under the Part C provisions found at 20 C.F.R. § 727.203. We

therefore deny Taylor’s petition for review.

The Office of Workers’ Compensation Programs

approved Hubert Taylor’s application for benefits on

March 31, 1981. Peabody filed a Notice of Controversion on

April 8, 1980 and requested a formal hearing.

The Administrative Law Judge (““ALJ’’) held a hearing

on December 4, 1984. Because Taylor’s claim was filed after

the deadline for Part B claims, the ALJ initially applied

Part C regulations promulgated by the Secretary of Labor.

The ALJ found that Taylor met his initial burden under 20

C.F.R. § 727.203 by establishing a rebuttable presumption

that he was entitled to benefits. The ALJ concluded, however,

that Peabody successfully rebutted the interim presumption

pursuant to 20 C.F.R. § 727.203(b\(2) by presenting medical

evidence that Taylor had only a mild pulmonary impairment

which did not prohibit him from performing his work.

Taylor argued that Congress intended to liberalize eligi-

bility for black lung benefits. The ALJ next examined Taylor’s

claim under the Part B regulations. He found that Taylor was

entitled to benefits and that Peabody failed to rebut the pre-

sumption that Taylor should receive black lung benefits.

20a

Peabody thes appealed the ALJ’s decision to the Bene-

fits Review Board (““Board’’). The Board reversed the ALJ's

application of Part B regulations and held that claims for

black lung benefits filed after December 31, 1973 must be

resolved through an exclusive application of Part C

regulations.

Petitioner argues that in amending the Black Lung Bene-

fits Act, Congress intended to liberalize the eligibility require-

ments. Title 30 U.S.C. §902(f)(2)(C) mandates that

‘(rjegulations promulgated under this subsection by the Sec-

retary of Labor; shall not be more restrictive than the criteria

applicable to a claim filed on June 30, 1973.... (Part B).”

Taylor interprets the “not more restrictive” language of the

statute as a direction to consider his claim under the more

“liberal” criteria of Part B. Petitioner contends that this

interpretation is more consistent with the policy of liberaliza-

tion underlying the amended Black Lung Benefits Act. In his

initial brief, petitioner cites Halon y. Office of Workers’ Com-

pensation Programs, 713 F.2d 21 (3rd Cir. 1982) in which a

claim for black lung benefits was filed after the 1973 deadline

and disposed of by the Department of Labor. In Halon, the

Third Circuit interpreted the “not more restrictive” language

of 30 U.S.C. § 902(f)(2) as entitling the claimant to tht benefit

of disposition under Part B.

The Halon court wrote:

We agree... that if the Board is to effectuate the

intent of Congress in enacting the 1977, Amend-

ments to the Black Lung Benefits Act, of which 30

U.S.C. § 902(f)(2) is a part, it must apply the pre-

sumption in C.F.R. §410.490(b) whenever the

claimant establishes pneumoconiosis by x-ray.

biopsy or autopsy, and also establishes that the

pneumoconiosis arose out of coal mine

employment.

2la

Halon, 713 F.2d at 31. Other circuits are in accord. Coughlan

v. Director, OWCP, 757 F.2d 966, 968 (8th Cir. 1985): Ky/e v.

Director, OWCP, 819 F.2d 139, 143 (6th Cir. 1987): Brovles v.

Director, OWCP, 824 F.2d 327 (4th Cir. 1987); In re Sebben.

815 F.2d 475 (8th Cir. 1987) (petition for cert. filed).

However, we do not agree with this interpretation. In

Strike v. Director, 817 F.2d 395 (7th Cir. 1987), as in the case

at bar, the claimant sought consideration under the Part B

regulations of 20 C.F.R. § 410.490 because the criteria for the

Part C regulations under 20 C.F.R. § 727.203 were ‘more

restrictive.”

We reviewed the legislative history of the term “‘crite-

ria,” and held that:

[W]e are nonetheless convinced that the statute and

the relevant legislative history do make clear that in

enacting § 902(f)(2), Congress only intended to pro-

hibit the Secretary of Labor from applying more

restrictive medical criteria in reviewing previously

denied and pending claims pursuant to § 945.

Strike, 817 F.2d ai 404. (Emphasis added.)

Thus, this circuit has rejected the argument that Con-

gress intended § 410.490 to be applied to Part C claims when

it “liberalized” the Black Lung Benefits Act.

Petitioner, in his initial brief, said the case is like Ha/on.

In his reply brief (after Strike) he distinguishes this case from

Halor Petitioner cannot have it both ways. It is well settled

that issues appearing for the first time in a reply brief will not

be considered by this court. See Rule 9(c) of the Rules of the

United States Court of Appeals for the Seventh Circuit: Mar-

ter of Bear, 789 F.2d 577, 579 (7th Cir. 1986); Christmas v.

Sanders, 759 F.2d 1284, 1292 (7th Cir. 1985); Beerly v.

Department of Treasury, 768 F.2d 942, 949 (7th Cir. 1985).

Because we adhere to our holding in Strike that “(t]he

Part B and Part C programs were intended to be separate and

22a

distinct,” /d. p. 405, we find that the Board correctly resolved

Taylor's claim by exclusively applying the Part C regulations.

Taylor did not establish eligibility for black lung benefits

under Part C, and the ALJ cannot refer to the procedural

provisions of Part B. Thus, Taylor’s petition seeking review

of the Board’s decision is DENIED.

23a

United States Supreme Court

MEMORANDUM DECISION

HUBERT C. TAYLOR,

petitioner,

Vv.

PEABODY COAL COMPANY, et al.

No. 87-1720

Case below, 838 F.2d 227.

Dec. 12, 1988. On petition for writ of certiorari to the

United States Court of Appeals for the Seventh Circuit. The

petition for writ of certiorari is granted. The judgment is

vacated and the case is remanded to the United States Court

of Appeals for the Seventh Circuit for further consideration

in light of Pittston Coal Group v. Sebben, 488 U.S. —_, 109 S.

Ct. 414, ___L. Ed. 2d ___ (1988).

Justice BRENNAN took no part in the consideration or

decision of this case.

24a

U.S. Department of Labor

Benefits Review Board

1111 20th Street, N.W.

Washington, D.C. 20036

BRB No. 85-2177 BLA

OWCP No. 310-10-4934

HUBERT C. TAYLOR )

Claimani-Respondent

PEABODY COAL COMPANY

Emplover-Petitioner

DIRECTOR, OFFICE OF

WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR

Party-in-Interest

DECISION AND ORDER

NOT PUBLISHED

July 29, 1986

Appeal of the Decision and Order of Robert L. Hillyard.

Administrative Law Judge. United States Department of

Labor.

Jack N. VanStone (VanStone and Krochta). Evansville,

Indiana. for claimant.

David J. Mallon, Jr. (Ice, Miller, Donadio and Ryan).

Indianapolis. Indiana, for employer.

Michael J. Denney (Donalc S. Shire, Associate Solicitor

of Labor: Rae Ellen Frank James, Counsel for Benefit Pro-

grams), Washington, D.C.. for the Director, Office of Work-

ers’ Compensation Programs, United States Department of

Labor.

25a

Before: BROWN and DOLDER, Administrative

Appeals Judges, and CLARKE, Administrative Law Judge.”

PER CURIAM:

Employer appeals the Decision and Order (82-BLA-

3822) of Administrative Law Judge Robert L. Hillyard

awarding benefits on a claim filed pursuant to the provisions

of Title IV of the Federal Coal Mine Health and Safety Act of

1969, as amended, 30 U.S.C. § 901 et seg. The administrative

law judge found the evidence sufficient to invoke the interim

presumption under 20 C.F.R. § 727.203(a)(1) and to establish

rebuttal under 20 C.F.R. § 727.203(b)(2). The administrative

law judge concluded that the Section 727.203(b)(2) rebuttal

finding precluded a finding of entitlement under the perma-

nent criteria of 20 C.F.R. Part 410, Subpart D. Upon applica-

tion of the interim criteria of Part 410 to the facts of this case,

however, the administrative law judge determined that

claimant had established invocation of the Section 410.490

presumption. See Halon vy. Director, OWCP, 713 F.2d 30,

5 BLR 2-20 (3d. Cir. 1982), aff'd on rehearing, 713° F.2d 21

(1983); 20 C.F.R. § 410.490(b). Notwithstanding his finding

of rebuttal pursuant to Section 727.203(b)(2), the administra-

tive law judge found that rebuttal of the Section 410.490

presumption had not been established under Haywood v. Sec-

retary of Health and Human Services, 699 F.2d 277, 5 BLR 2-

30 (6th Cir. 1983). See 20 C.F.R. § 410.490(c). Employer

assigns error to the administrative law judge’s application of

the provisions of Section 410.490 against an employer and

Carrier in a case arising in the Seventh Circuit, Employer's

brief at 4-5, 6-9, Employer’s reply brief at 1-3, and to the

administrative law judge’s application of the vocational disa-

bility rule set forth in Haywood, supra to this Part C claim.

Employer’s brief at 3-4; see Ramey v. Kentland Elkhorn Coal

* Sitting as a temporary Board member by designation pursuant to

the Longshore and Harbor Workers’ Compensation Act as amended in

1984, 33 U.S.C.A. § 921(b)(5) (West 1986).

26a

Corp., 755 F.2d 485, 490 (6th Cir. 1985). Employer addition-

ally contends that the administrative law judge’s assessment

of interest against employer commencing with the putative

month of entitlement, /.e., June 1977, constitutes error.

Employer’s brief at 5-6.

The Board’s scope of review is governed by statute. If the

administrative law judge’s findings of fact are supported: by

substantial evidence, are rational, and are in accordance with

law, they are binding upon the Board and may not be dis-

turbed. 33 U.S.C. § 921(b)(3), as incorporated by 30 U.S.C.

§ 932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates,

Inc., 380 U.S. 359 (1965).

Employer’s challenge to the administrative law judge’s

award of benefits on the basis of Halon, supra, 713 F.2d 30, 5

BLR 2-20 (3d. Cir. 1982), Coughlan v. Director, OWCP, 757

F.2d 966, 7 BLR 2-177 (8th Cir. 1985), and the presumption

found at Section 410.490, is dispositive of this appeal. The

Board has held that the Ha/on holding will be followed only in

the Third Circuit and in other circuits having adopted Halon,

viz., the Eighth Circuit. See Stanton v. Director, OWCP, 8

BLR 1-438 (1986): Hunley v. Director, OWCP, 8 BLR 1-323

(1985); Thornton v. Director, OWCP, 8 BLR 1-277 (1985);

Marsiglio v. Director, OWCP, 8 BLR 1-190 (1985). The

instant case arises in The Seventh Circuit.'! See Hon v. Direc-

tor, OWCP, 699 F.2d 441, 444 (8th Cir. 1983); Tobin vy. Direc-

tor, OWCP, 8 BLR 1-115, 1-118 n. 2 (1985). We therefore

! The administrative law judge erroneously assumed that this case is

governed by the law of the United States Court of Appeals for the Sixth

Circuit. See Decision and Order at !1 n. 3. Although neither the hear-

ing transcript nor the documentary evidence of record clearly identifies

the state in which claimant’s coal mine employment occurred, the

record indicates that the hearing was convened in claimant’s home

state of Indiana, counsel for claimant and employer practice in Indi-

ana, claimant was married in Indiana (Director’s Exhibit 4), and claim-

ant obtained medical treatment in Indiana. Consequently, we hold, as

urged by employer and the Director (see Employer’s brief at 4; Direc-

tor’s brief at 3) that the present case arises in the Seventh Circuit.

27a

reverse the administrative law judge’s award of benefits since

it was predicated on the erroneous application of Halon,

supra, and the Section 410.490 presumption. Because we

reverse the award, we need not reach employer’s arguments

concerning the invalidity of Section 410.490 as applied to an

employer and carrier, the inapplicability of the Haywood

vocational disability rule, or the assessment of interest.

Finally, we affirm the administrative law judge’s finding of

rebuttal under Section 727.203(b)(2) since this determination

was not challenged on appeal.

Accordingly, the Decision and Order awarding benefits

is reversed.

SO ORDERED.

/s/ James F. Brown

JAMES F. BROWN

Administrative Law Judge

/s/ Nancy S. Dolder

NANCY S. DOLDER

Administrative Appeals Judge

/s/ David A. Clarke, Jr.

DAVID A. CLARKE, JR.

Administrative Law Judge

Dated this 29th day

of July 1986

28a

U.S. Department Of Labor

Office of Administrative Law Judges

304A U.S. Post Office and Courthouse

Cincinnati, Ohio 45202

(513) 684-3252

In the Matter of

HUBERT C. TAYLOR

Claimant

Vv.

PEABODY COAL COMPANY

Employer

and

OLD REPUBLIC INSURANCE

COMPANY

Carrier

and

DIRECTOR,

OFFICE OF WORKERS’

COMPENSATION PROGRAMS

Party-in-Interest

APPEARANCES: !

JACK N. VANSTONE, ESQ.

For the Claimant

JACQUELINE A. SIMMONS, Esa.

For the Employer/Carrier

BEFORE:

ROBERT L. HILLYARD

Administrative Law Judge

)

Date Issued: Aug. 29, 1985

Case No. 82-BLA-3822

OWCP No. CO 310-10-4934 LM

Not-Published

' The Director, Office of Workers’ Compensation Programs, was not

represented by counsel at the hearing.

——tt—S

29a

DECISION AND ORDER—AWARD OF BENEFITS

This proceeding arises from a claim for benefits under

the Black Lung Benefits Act, 30 U.S.C. Section 901 et seg. In

accordance with the Act, and the Regulations issued thereun-

der, this case was referred to the Office of Administrative Law

Judges by the Director, Office of Workers’ Compensation

Programs, for a formal hearing.

Benefits under the Act are awardable to persons who are

totally disabled within the meaning of the Act due to pneu-

moconiosis or to the survivors of persons who were totally

Cisabled at the time of their death or whose death was caused

by pneumoconiosis. Pneumoconiosis is a dust disease of the

lungs arising from coal mine employment and is commonly

known as black lung.

A formal hearing in this case was held in Evansville,

Indiana, on December 4, 1984. Each of the parties was

afforded full opportunity to present evidence. and argument at

the hearing as provided in the Act and the Regulations issued

thereunder which are found in Title 20 of the Code of Federal

Regulations. Regulation section numbers mentioned in this

Decision and Order refer to sections of that title.

The findings and conclusions which follow are based

upon my observation of the appearance and the demeanor of

the witnesses who testified at the hearing, and upon a careful

analysis of the entire record in light of the arguments of the

parties, applicable statutury provisions, regulations, and per-

tinent case law.

I. STATEMENT OF THE CASE

The Claimant, Hubert C. Taylor, on June 6, 1977, filed a

claim for benefits under the Federal Coal Mine Health and

30a

Safety Act of 1969, as amended (DX 1).2 His claim was

approved by the Office of Workers’ Compensation Programs

on March 31, 1980 (DX 15). Peabody Coal Company was

identified as the responsible operator and filed its notice of

controversion on April 8, 1980 (DX 13-16). A formal hearing

was requested and the case was referred to the Office of

Administrative Law Judges on December 18, 1981 (DX 23).

II. ISSUES

The specific issues presented for resolution are:

1. Whether the miner has pneumoconiosis as defined

by the Act and the regulations;

2. Whether the miner’s pneumoconiosis arose out of

coal mine employment:

3: Whether the miner is totally disabled; and

4. Whether the miner’s disability is due to

pneumoconiosis.

An Administrative Law Judge is precluded from ruling

on the constitutionality of the Act and regulations he is called

upon to interpret. Therefore, this issue will not be addressed

(DX 23; Tr. 12).

lif. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Claimant’s Background

1. The Claimant, Hubert C. Taylor, was born on April 8,

1915 and was 69 years of age at the time of the hearing. He has a

fifth grade education (DX 1).

2 “DX” refers to the Director’s exhibits, “CX” refers to the Claim-

ant’s exhibits, “EX” refers to the Employer's exhibits, and “Tr.” refers

to the transcript of the hearing.

31a

2. The Claimant has one dependent for purposes of aug-

mentation of benefits, his wife, Ida Mae Taylor, whom he married

on October 4, 1941 (DX 4; Tr. 14).

B. Coal Mine Employment

Length of coal mine employment is not a contested issue in

this case. On his application for benefits, the Claimant alleged

42 years of coal mine employment ending in November, i976

(DX 1). The personnel records of Peabody Coal Company show

that the Claimant was employed by Peabody Coal or its predeces-

sor companies from May, 1934, and was still active through

March 24, 1976 (DX 3). The last job which the Claimant per-

formed over a substantial period of time was as a ramp operator

(Tr. 14). Therefore, I find that the Claimant has established 42 years

of coal mine employment ending in 1976.

IV. MEDICAL EVIDENCE

A. X-ray Studies

Date Exhibit Doctor Reading Standards

l. 7-9-84 CX 2 Baker 1/2 q Acceptable

Bd. Cert. Rad.

ya 7-9-84 EX 6 McGraw 1/0 s Acceptabie

(reread) B reader,

Bd. Cert. Rad.

3. 7-9-84 EX 8 Bndges 1/0 st Acceptable

(reread) B reader,

Bd. Cert. Rad

4. 7-9-84 EX 8 Renn No pneumo- Acceptable

(reread) B reader coniosis

5. 7-5-84 EX 6 McGraw 1/0 s Acceptable

(reread) B reader,

Bd. Cert. Rad.

6. 7-5-84 EX 8 Bridges 1/0 st Acceptable

(reread) B reader,

Bd. Cert. Rad.

+ 7-5-84 EX 8 Renn 1/0 st Acceptable

(reread) B reader,

8. 12-19-79 DX Noveroske Completely Not noted

10, Bd. Cert. Rad. negative

Date

9. 12-19-79

(reread)

10. 12-19-79

(reread)

ll. 12-19-79

(reread)

12. 12-19-79

(reread)

13. 12-10-79

(reread)

14. 12-15-76

15. 12-1-76

16. 9-1-70

17 9-6-67

B. Pulmonary Function Studies

1. 7-5-84

> oil

EX 8

EX 3

32a

Doctor

Greene

B reader

McGraw

B reader,

Bd. Cert. Rad.

Bridges

B reader,

Bd. Cert. Rad.

Renn

B reader

Beeler

Bd. Cert. Rad.

Harmon

Hendershot

Cook

Hovda

Exhibit Doctor Height

CX 2,

CX 3

Houser ri tad

Reading Standards

1/0t Acceptable

1/0 s/s Acceptable

1/0 st Acceptable

No pneumo- Acceptable

coniosis

l/l s Not noted

Normal chest Not noted

(not read for

pneumo-

coniosis)

Essentially Not noted

normal chest

Mild aortic Not noted

artenosclerosis;

pleural

scarring

Normal chest Not noted

(not read for

pneumo-

coniosis)

, MY Standards

73.3 Comprehension

& cooperation

not noted:

3 tracings

Comment: Mild reduction in forced vital capacity with no evidence

of airway obstruction; moderate reduction in MVV noted.

Note: Dr. James Vest found this pulmonary function study invalid

for accurate interpretation due to suboptimal patient effort (EX 8).

Note: Dr. Peter Tuteur found the forced expiratory maneuvers and

MVV maneuvers invalid for interpretation of maximum pulmo-

nary function and stated that the absolutely normal FEV, and FVC

suggested the absence of a significant ventilatory defect (Ex 8).

33a

Date Exhibit Doctor Height’ «FEV, = MY Standards

2. 12-19-79 DX6 ~~ Ali 70 Good

comprehension

& cooperation; 3

tracings

In a validation study, Dr. Long found vents unacceptable because

of poor effort, especially on FEV, (DX 6).

In a validation study, Dr. J. Vest found vents unacceptable due to

suboptimal patient effort (EX 1).

71” 1.98

3. 11-29-76 EX 3 Kom sad 2.67 35 = Some difficulty

following

instructions;

no tracings

C. Blood Gas Studies

cana — «#s [Bf

l. 7-5-84 CX 2 35.0 100.3

2. 12-19-79 DX6, 23.1 63.4

DX 8

Comment: These functions are consistent with a severe restrictive

ventilatory defect. There is no evidence of obstruction. Blood gases

indicate hypoxemia with hyperventilation.

Note: In a validation study, Dr. Long found these results unaccept-

able and not feasible, due to probable mechanical or technical error

(DX 6).

Note: Dr. Vest doubted the validity of these results due to the low

pCO, and the normal pH (EX 2).

D. Narrative Medical Evidence

1. Dr. Syed A. Ali examined the Claimant on December 28,

1979, at which time he reviewed the Claimant’s symptoms and his

occupational (coal mine employment from 1934 to 1977), medical,

smoking (one and one-half packs of cigarettes per day for 32 years,

stopped on June 14, 1975), and family histories, and performed a

physical examination, pulmonary function study, blood gas study

and x-ray. He diagnosed (1) Restrictive lung disease without

obstructive component; (2) Obesity; and (3) Arthritis, left knee,

34a

status post op. In his opinion, some of the Claimant's disability

could be attributed to obesity and some to arthnitis of the left knee,

and he stated that exposure to dust in coal mines did not seem to be

a major factor. Dr. Ali also stated that the Claimant stopped cough-

ing when he quit smoking on June 14, 1975 (DX 7).

Dr. Ali stated in a deposition taken on January 30, 1985, that

he examined the Claimant on December 28, 1979. He reviewed the

medical report that he prepared at that time, and stated that he also

saw the Claimant six times after the initial examination for his

heart and knee problems. Dr. Ali stated that, in his opinion, the

Claimant was not severely disabled, but what disability he did have

was caused by a combination of factors. Dr. Ali believed that

obesity was the major cause of his disability, but also thoughi that

cigarette smoking, 42 years of coal mine employment, and the

Claimant’s knee condition also contributed to his disability. Dr. Ali

also noted that the Claimant suffered from congestive heart failure

due to arteriosclerotic heart disease (EX 7).

2. Dr. David W. Howard testified in a deposition taken on

January 11, 1985, that he reviewed the Claimant’s hospital record,

x-rays, pulmonary function studies, blood gas studies, the report of

Dr. Ali and the telephonic deposition of the Claimant taken on

November 22, 1984, concerning his coal mine employment. He

stated that he disagreed with Dr. Ali’s finding ofa restrictive disease

and believed that the pulmonary function study of December 19,

1979 showed a moderate obstructive pulmonary impairment

rather than a restrictive impairment because a restrictive impair-

ment could not be diagnosed without other studies. Dr. Howard

concluded that the Claimant had simple pneumoconiosis, very

mild impairment, and stated that his heart disease and obesity

could contribute to this impairment. After reviewing the Claim-

ant’s description of his job as a ramp operator, Dr. Howard stated

that the Claimant could perform this job from a pulmonary stand-

point (EX 5).

3. Records from St. Mary’s Hospital in Evansville, Indiana,

show that the Claimant was admitted on September 9, 1967 and

discharged on September |2, 1967 with a final diagnosis of

35a

macrofollicular adenoma of thyroid. A subtotal thyroidectomy was

performed (DX 19).

Records show that the Claimant was admitted to St. Mary’s

Hospital on August 31, 1970 and discharged on September 8, 1970

with a final diagnosis of Arteriosclerotic cardiovascular disease:

Peripheral arteriosclerosis; Phlebothrombosis, right leg; Pulmonary

emphysema (DX 19).

The Claimant was admitted to St. Mary’s on December 6,

1976 with severe osteoarthritic change of the left knee for total knee

arthroplasty. Dr. Korn reported that several medical problems

prompted surgical admission for treatment of organic heart disease

with significant nght and left sided congestive heart failure. He

performed a physical examination and EKG, and stated that a left

toial knee arthroplasty was performed by Dr. 4. Percinel. He also

noted a 54 pack-year smoking history, none in the last year.

Dr. Korn diagnosed (1) Destructive arthritis of the left knee:

(2) History of syphilis with positive FTA-ABS; (3) Exogenous obes-

ity; (4) Organic heart disease; and (5) Hyperuricemia. A left total

knee replacement was performed (DX 19).

4. Dr. A. K. Percinel stated in a letter dated November 24,

1980, that he first saw the Claimant on November 17, 1976 and

treated him for degenerative arthritis of his left knee. He did not

evaluate him for black lung (DX 18).

Vv. DISCUSSION AND APPLICABLE LAW

Since the Claimant has established more than ten years of coal

mine employment, he will be entitled to a rebuttable presumption

of total disability due to pneumoconiosis provided one of the four

conditions in §727.203(a) is met.

Under §727.203(aX1), the presumption will be invoked by

autopsy, biopsy or x-ray evidence establishing the existence of

pneumoconiosis. In this case, there is no autopsy or biopsy evi-

dence. The record contains !7 readings of seven separate x-rays.

The x-ray of July 9, 1984 was read as positive for pneumoconiosis

by Dr. Baker, a board certified radiologist, and by Drs. McGraw

36a

and Bridges, who are both B readers and board certified radiolo-

gists, and was read as negative for pneumoconiosis by Dr. Renn,

also a B reader and board certified radiologist. The x-rays of July 5,

1984 and December 19, 1979 were read as positive for pneumo-

coniosis by Drs. McGraw, Greene (a B reader), and Bridges, and

were read as negative by Dr. Renn. The x-ray of December 19,

1979 was read as negative by a board certified radiologist and the

x-ray taken on December 10, 1979 was read as positive by a board

certified radiologist. Two additional x-rays, taken on December 15,

1976 and September 6, 1967, vere not read for pneumoconiosis.

and the x-rays of December |, 1976 and September 1, 1970 did not

mention pneumoconiosis. I place greater weight on the nine posi-

live x-ray readings because five different board certified radiologists

and/or B readers found x-ray evidence of pneumoconiosis, whereas

~ only two radiologists and/or B readers found no evidence of pneu-

moconiosis. Therefore, the presumption is invoked under

§727.20(aM 1).

Under §727.203(aX2), the presumption will be invoked by

ventilatory studies with results equal to or less than the listed table

values. In order to invoke the presumption under this section, the

study must be both qualifying (equal to or below the table values)

and conforming (meeting the requirements of §410.430). In this

case. the pulmonary function studies of December 19, 1979 and

July 5, 1984 both produced qualifying values. However, Drs. Long

and Vest both found the pulmonary function study of Decem-

ber 19, 1979 unacceptable due to sub-optimal patient effort.

Drs. Vest and Tuteur also found the pulmonary function study of

July 5, 1984 invalid due to sub-optimal patient effort, and

Dr. Houser, the performing physician, did not note the Claimant's

cooperation or comprehension. The qualifications of Drs. Vest and

Tuteur are included in the record and I find that their opinions are

sufficient to discredit the pulmonary function study. Therefore, the

presumption is not invoked under §727.203(a\ 2).

To invoke under §727.203(aX3), there must be blood gas

studies with results equal to or less than the listed table values. In

this case, the blood gas study of December 19, 1979 produced

qualifying values, but Dr. Long found that these results were not

37a

feasible and probably the result of mechanical or technical error,

and Dr. Vest doubted the validity of this test due to the low pCO,

and the normal pH. Dr. Howard stated that these blood gases could

be valid, but that he would like to see a repeat test. In addition, the

blood gas study of July 5, 1984 produced non-qualifying values and

this study is more probative of the Claimant’s current condition

because it was performed four years later. Therefore, due to the

questionable validity of the December 19, 1979 study and the fact

that the more recent study of July 5, 1984 did not produce qualify-

ing values, I find that the blood gas studies do not invoke the

presumption under §727.203(a\3).

Under §727.203(aX4), the presumption will be invoked by

other medical evidence, including the documented opinion of a

physician exercising reasoned medical judgment establishing the

presence of a totally disabling respiratory or pulmonary impair-

ment. In Meadows v. Westmoreland Coal Company, 6 BLR 1-773

(1984), the Benefits Review Board held that all medical reports

must be weighed before determining whether the presumption

should be invoked under §727.203(aX4). In this case, Dr. Ali

examined the Claimant, but did not express an opinion as to the

Claimant’s disability and Dr. Howard, who reviewed the medical

evidence, stated that from a pulmonary standpoint, the Claimant

would still be able to perform his usual coal mine job as a ramp

operator. Therefore. since there are no medical opinions finding

that the presence of a totally disabling respiratory orf pulmonary

impairment, the presumption is not invoked under §727.203(a\4).

Once the presumption is invoked, the Claimant will be enti-

tled to benefits unless the presumption is rebutted under

§727.203(b). In this case, the presumption is not rebutted under

§727.203(b\ 1) because the evidence is clear that the miner last

worked in 1976 (DX 1; Tr. 14).

To rebut under §727.203(b\2), the Employer must present

evidence that the miner either has no respiratory or pulmonary

impairment or that the impairment he does have does not prevent

him from performing his usual coal mine work. Sykes v. Itmann

Coal Company, 2 BLR 1-1089 (1980). In this case, Dr. Howard

38a

found a mild impairment, but stated that, from a pulmonary stand-

point, the Claimant could perform his usual coal mine employ-

ment. Although Dr. Howard did not examine the Claimant, he

based his opinion on the Claimant’s histories, including a descrip-

tion of the Claimant’s coal mine duties, and on the results of

objective testing, and his opinion is uncontradicted. Worthington v.

United States Steel Corporation, 7 BLR 1-522 (1984). Therefore, I

find that the Employer has established that the Claimant’s impair-

ment does not prevent him from performing his usual coal mine

employment and the presumption is rebutted under

§727.203(b\2).

Section 727.203(bX3) provides for rebuttal of the presump-

tion where the evidence establishes that the total disability of the

miner did not arise, in whole or in part, out of coal mine employ-

ment. Gibas v. Saginaw Mining Company, 748 F.2d 1112, 1120

(6th Cir. 1984); Carozza v. United States Steel Corporation,

727 F.2d 74, 78 (3rd Cir, 1984). In this case, Dr. Ali found that the

Claimant's coal mine employment contributed to his disability and

Dr. Howard found a mild impairment due to his pneumoconiosis.

Therefore, the presumption has not been rebutted under

§727.203(b 3).

Under §727.203(b\4), the presumption will be rebutted if the

evidence establishes that the Claimant does not have pneumoconi-

osis. In this case, the x-ray evidence establishes the presence of

pneumoconiosis. Therefore, the presumption is not rebutted under

§727.203(b\4).

Because the Claimant has not established entitlement to bene-

fits under §727.203, he must establish entitlement under 20 C.F.R.

Part 410 to be awarded benefits. My finding that the Claimant has

not established a totally disabling pulmonary or respiratory impair-

ment precludes an award of benefits under the permanent criteria

39a

of Part 410. Clay v. Director, 7 BLR 182 (1984). Under §410.490,5 a

miner will be presumed to be totally disabled by pneumoconiosis if

the x-ray, biopsy or autopsy evidence establishes pneumoconiosis

and it is established that the pneumoconiosis arose out of the

miner’s coal mine employment. In this case, as discussed under

§727.203(aX1), the x-ray evidence establishes pneumoconiosis.

Under §410.416(a), pneumoconiosis will be presumed due to coal

mine employment, where, as here, the miner had over ten years of

coal mine employment. In addition, neither physician found that

the miner’s pneumoconiosis did not arise from his coal mine

employment. Therefore, I find that the evidence establishes that the

miner’s pneumoconiosis arose out of his coal mine employment

under §§410.416(a) and 410.490.

The §410.490 presumption of total disability due to pneumo-

coniosis can be rebutted only by evidence establishing that the

Claimant is not vocationally disabled. Haywood v. Secretary of

Health and Human Services, 699 F.2d 277 (6th Cir. 1983). Since no

evidence was offered to show that the miner could have returned to

his coal mine employment, I find that the §410.490 presumption is

unrebutted. Accordingly, I find under §410.490 that the miner was

totally disabled by pneumoconiosis and, therefore, he is entitled to

benefits.

VI. ENTITLEMENT

The Claimant, Hubert C. Taylor, is entitled to benefits under

the Act.

3 Section 410.490 appears to preclude the use of this section in a Part C

claim. However, the Third and Eighth Circuits have held that this regulation is

applicable to all cases adjudicated under 30 U.S.C. §945. Coughlan v. Director,

757 F.2d 966 (8th Cir. 1985), Halon vy. Director, 713 F.2d 21 (3rd Cir. 1983).

Since this case was pending on March 1, 1978, it is being adjudicated under 30

U.S.C. §945(b\ 1). While Halon is not binding on cases arising in the Sixth

Circuit, | am persuaded by this Decision and a review of the Act that the use of

§410.490 is appropriate. In addition, while the Sixth Circuit has not specifically

addressed this issue, the court held in Dickson v. Califano, 590 F.2d 616 (6th

Cir. 1978), that the Black Lung Benefits Reform Act of 1977 had the effect of

making the interim presumption of the 1972 Act fully applicable to claims filed

after June 30, 1973.

40a

Vil. ATTORNEY’S FEES

No award of attorney’s fees for services to Claimant is made

herein because no application has been received from counsel. A

period of thirty (30) days is hereby allowed for Claimant’s counsel

“to submit an application. The application must conform to

20 C.F.R. §§725.365 and 725.366, which set forth the criteria on

which the request will be considered. The application must be

accompanied by a service sheet showing that service has been made

upon all parties, including the Claimant and Solicitor as counsel for

the Director. Parties so served have ten days (10) following receipt

of any such application within which to file their objections. Coun-

sel is forbidden by law to charge the Claimant any fee in the absence

of the approval of such application.

; Vill. ORDER

The Employer, Peabody Coal Company, is hereby ordered to:

1. Pay to the Claimant all benefits to which he is entitled

under the Act, commencing June, 1977, augmented by reason of

his dependent wife;

2. Pay to the Claimant all medical benefits to which he may

be entitled;

3. Reimburse the Secretary of Labor for any payments the

Secretary has made to the Claimant, and to deduct such amounts,

as appropriate, from the amount the Employer is ordered to pay

under paragraphs | and 2 above: and

4. Pay to the Secretary of Labor interest as provided by law

from the date upon which any payment would originally have been

due if payment had been made from the date set forth above until

the date upon which payment is actually made.

/s/ Robert L. Hillyard

ROBERT L. HILLYARD

Administrative Law Judge

4la

U.S. CONST.

AMENDMENT V—GRAND JURY INDICTMENT FOR

CAPITAL CRIMES; DOUBLE JEOP-

ARDY; SELF-INCRIMINATION; DUE

PROCESS OF LAW; JUST COMPEN-

SATION FOR PROPERTY

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury, except in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or public danger, nor

shall any person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private property be

taken for public use, without just compensation.

42a

30 U.S.C. § 901(a)

§ 901. Congressional findings and declaration of purpose; short

title -

(a) Congress finds and declares that there are a significant

number of coal miners living today who are totally disabled due to

pneumoconiosis arising out of employment in one or more of the

Nation’s coal mines; that there are a number of survivors of coal

miners whose deaths were due to this disease; and that few States

provide benefits for death or disability due to this disease to coal

miners or their surviving dependents. It is, therefore, the purpose of

this subchapter to provide benefits, in cooperation with the States,

to coal miners who are totally disabled due to pneumoconiosis and

to the surviving dependents of miners whose death was due to such

disease; and to ensure that in the future adequate benefits are

provided to coal miners and their dependents in the event of their

death or total disability due to pneumoconiosis.

43a

30 U.S.C. § 902(f)

§ 902. Definitions

For purposes of this subchapter—

* * *

(f(1) The term “total disability” has the meaning given it by regu-

lations of the Secretary of Health and Human Services for claims

under part B of this subchapter, and by regulations of the Secretary

of Labor for claims under pari C of this subchapter, subject to the ~

relevant provisions of subsections (b) and (d) of section 923 of this

title, except that—

(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

totally disabled; and (ii) in the case of a living miner, if

there are changed circumstances of employment indica-

tive of reduced ability to perform his or her usual coal

mine work, such miner’s employment in a mine shall not

be used as conclusive evidence that the miner is not

totally disabled; :

tive criteria than those applicable under section 423(d) of

Title 42; and

44a

(D) the Secretary of Labor, in consuitation 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).

(2) Criteria applied by the Secretary of Labor in the case of—

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

Secretary of Health and Human Services, or subject to a

determination by the Secretary of Labor, under sec-

tion 945(a) of this title;

(B) any claim which is subject to review by the Sec-

retary of Labor under section 945(b) of this title; and

regulations promulgated under this subsection by the Sec-

retary 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.

45a

30 U.S.C. § 923(b)

§ 923. Filing of notice of claim

(b) Utilization of personnel and procedures; evidence

required to establish claim; medical evidence; affidavits;

autopsy reports; reimbursement of expenses

In carrying out the provisions of this part, the Secretary shall

to the maximum extent feasible (and consistent with the provisions

of this part) utilize the personnel and procedures he uses in deter-

mining entitlement to disability insurance benefit payments under

section 223 of the Social Security Act [42 U.S.C.A. § 423], but no

claim for benefits under this part shall be denied solely on the basis

of the results of a chest roentgenogram. In determining the validity

of claims under this part, all relevant evidence shall be considered,

including, where relevant, medical tests such as blood gas studies,

X-ray examination, electrocardiogram, pulmonary function stud-

ies, or physical performance tests, and any medical history, evi-

dence submitted by the claimant’s physician, or his wife’s affidavits,

and in the case of a deceased miner, other appropriate affidavits of

persons with knowledge of the miner’s physical condition, and

other supportive materials. Where there is no medical or other

relevant evidence in the case of a deceased miner, such affidavits,

from persons not eligible for benefits in such case with respect to

claims filed on or after the effective date of the Black Lung Benefits

Amendments of 1981, shall be considered to be sufficient to estab-

lish that the miner was totally disabled due to pneumoconiosis or

that his or her death was due to pneumoconiosis. In any case, other

than that involving a claim filed on or after the effective date of the

Black Lung Benefits Amendments of 1981, in which there is other

evidence that a miner has a pulmonary or respiratory impairment,

the Secretary shall accept a board certified or board eligible radiolo-

gist’s interpretation of a chest roentgenogram which is of a quality

sufficient to demonstrate the presence of pneumoconiosis submit-

ted in support of a claim for benefits under this subchapter if such

roentgenogram has been taken by a radiologist or*qualified techni-

clan, except where the Secretary has reason to believe that the claim

46a

has been fraudulently represented. In order to insure that any such

roentgenogram is of adequate quality to demonstrate the presence

of pneumoconiosis, and in order to provide for uniform quality in

the roentgenograms, the Secretary of Labor may, by regulation,

establish specific requirements for the techniques used to take

roentgenograms of the chest. Unless the Secretary has good cause to

believe that an autopsy report is not accurate, or that the condition

of the miner is being fraudulently misrepresented, the Secretary

shall accept such autopsy report concerning the presence of pneu-

moconiosis and ‘the stage of advancement of pneumoconiosis.

Claimants under this part shall be reimbursed for reasonable medi-

cal expenses incurred by them in establishing their claims. For

purposes of determining total disability under this part, the provi-

sions of subsections (a), (b), (c), (d), and (g) of section 221 of such

Act [42 U.S.C.A. § 421(a) to (d), (g)] shall be applicable. The provi-

sions of sections 204, 205(a), (b), (d), (e), (g). (h), (j), (k), (1), and (n),

206, 207, and 208 of the Social Security Act [42 U.S.C.A. §§ 404,

405(a), (b), (d). (e), (g), (h), (J), (k), (I), and (n), 406, 407, 408], shall be

applicable under this part with respect to a miner, widow, child,

parent, brother, sister, or dependent, as if benefits under this part

were benefits under Title II of such Act [42 U.S.C.A. § 401 et seq.].

Each miner who files a claim for benefits under this subchapter

shall upon request be provided an opportunity to substantiate his or

her claim by means of a complete pulmonary evaluation.

—e_~

47a

30 U.S.C. § 932(c)

§ 932. Failure to meet workmen’s compensation requirements

Benefits shall be paid during such period by each such opera-

tor under this section to the categories of persons entitled to benefits

under section 922(a) of this title in accordance with the regulations

of the Secretary applicable under this section: Provided, That,

except as provided in subsection (i) of this section, no benefit shall

be payable by any operator on account of death or total disability

due to pneumoconiosis (1) which did not arise, at least in part, out

of employment in a mine during a period after December 31, 1969

when it was operated by such operator; or (2) which was the subject

of a claim denied before March 1, 1978, and which is or has been

approved in accordance with the provisions of section 945 of this

title.

48a

20 C-E.R. § 410.490

§ 410.490 Interim adjudicatory rules for certain Part B claims filed

by a miner before July i, 1973, or by a survivor where the

miner died before January 1, 1974.

(a) Basis for rules. In enacting the Black Lung Act of 1972, the

Congress noted that adjudication of the large backlog of claims

generated by the earlier law could not await the establishment of

facilities and development of medical tests not presently available

to evaluate disability due to pneumoconiosis, and that such claims

must be handled under present circumstances in the light of limited

medical resources and techniques. Accordingly, the Congress stated

its expectancy that the Secretary would adopt such interim eviden-

tiary rules and disability evaluation criteria as would permit

prompt and vigorous processing of the large backlog of claims

consistent with the language and intent of the 1972 amendments

and that such rules and criteria would give full consideration to the

combined employment handicap of disease and age and provide

for the adjudication of claims on the basis of medical evidence

other than physical performance tests when it is not feasible to

provide such tests. The provisions of this section establish such

interim evidentiary rules and criteria. They take fu!l account of the

congressional expectation that in many instances it is not feasible to

require extensive pulmonary function testing to measure the total

extent of an individual’s breathing impairment, and that an impair-

ment in the transfer of oxygen from the lung alveoli to cellular level

can exist in an individual even though his chest roentgenogram (X-

ray) or ventilatory function tests are normal.

(b) /nterim presumption. With respect to a miner who files a

claim for benefits before July 1, 1973, and with respect to a survivor

of a miner who dies before January 1, 1974, when such survivor

timely files a claim for benefits, such miner will be presumed to be

totally disabled due to pneumoconiosis, or to have been totally

disabled due to pneumoconiosis at the time of his death, or his

Cer RD eat: A Salat Ma

49a - a

death will be presumed to be due to pneumoconiosis, as the case

may be, if:

(1) One of the following medical requirements is met:

(i) A chest roentgenogram (X-ray), biopsy, or autopsy

establishes the existence of pneumoconiosis (see § 410.428);

(ii) In the case of a miner employed for at ieast 15 years

in underground or comparable coal mine employment, venti-

latory studies establish the presence of a chronic respiratory or

pulmonary disease (which meets the requirements for dura-

tion in § 410.412(a2)) as demonstrated by values which are

equal to or less than the values specified in the following table:

Equal to or less than—

FEV, MVV

ft le Ce 2.3 92

a 2.4 96

GP eas hyd 00 6d 400 0 ee 2.4 96

We xia eee snake eee 2.5 100

TE’ vaca sek scs Kea 2.6 104

Ta vidliaes Ede kw we a ee 2.6 104

Te Oe as So re ee 2.7 108

(2) The impairment established in accordance with para-

graph (bX 1) of this section arose out of coal mine employment (see

§§ 410.416 and 410.456).

(3) With respect to a miner who meets the medical require-

ments in paragraph (b) 1 ii) of this section, he will be presumed to

be totally disabled due to pneumoconiosis arising out of coal mine

employment, or to have been totally disabled at the time of his

death due to pneumoconiosis arising out of such employment, or

his death will be presumed to be due to pneumoconiosis arising Out

of such employment, as the case may be, if he has at least 10 years

of the requisite coal mine employment.

50a

of this section may be rebutted if:

(1) There is evidence that the individual is, in fact, doing his

usual coal mine work or comparable and gainful work (see

§ 410.412(a\(1)), or

(2) Other evidence, including physical performance tests

(where such tests are available and their administration is ‘not

contraindicated), establish that the individual is able to do his usual

coal mine work or comparable and gainful work (see

§ 410.41 2(a\(1)).

(d) Application of presumption on readjudication. Any claim

initially adjudicated under the rules in this section will, if the claim

is for any reason thereafter readjudicated, be readjudicated under

the same rules.

(e) Failure of miner to qualify under presumption in para-

graph (b) of this section. Where it is not established on the basis of

the presumption in paragraph (b) of this section that a miner is (or

was) totally disabled due to pneumoconiosis, or was totally disabled

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

was due to pneumoconiosis, the claimant may nevertheless estab-

lish the requisite disability or cause of death of the miner under the

rules set out in §§ 410.412 to 410.462.

Sla

20 C.F.R. § 727.203

§ 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

employment, if one of the following medical requirements is met:

(1) A chest roentgenogram (X-ray), biopsy, or autopsy estab-

lishes the existence of pneumoconiosis (see § 410.428 of this title);

(2) Ventilatory studies establish the presence of a chronic

respiratory or pulmonary disease (which meets the requirements

for duration in § 410.412(aX2) of this title) as demonstrated by

values which are equal to or less than the values specified in the

following table:

Equal to or less than—

_FEV,_ MVV

re, a eas cee eee pe 92

eee ON er arene ae era 2.4 96

sry ae a ss toe ee ee 2.4 96

De eerie are tea RC hey, Pa 100

Wy it nian a og tere ack ete oa 2.6 104

BE re ee ae 2.6 104

Fart ME tke ert te ela aad + 108

(3) Blood gas studies which demonstrate the presence of an

impairment in the transfer of cxygen from the lung alveoli to the

52a

blood as indicated by values which are equal to or less than the

values specified in the following table:

Arterial pCO,

equal to or

Arterial pO, less than (mm. Hg.)

og cai ee a 70.

ae Sa pa ee eee rr area 69.

CAS are rig ea Re ae 68.

at een ee 67.

te ene cialis eee 66.

ae te he ea a are 65.

Ge AREY eRe arenes rain gs Pay eee 64.

| OS Ce rem re 63.

Sea eee eer es eres ee 62.

ee ee a ae a ea 61

ee ato we ae ce ae 60.

Rs os eis oe kee eo Any value.

(4) Other medical evidence, including the documented opin-

ion of a physician exercising reasoned medical judgment, estab-

lishes the presence of a totally disabling respiratory or pulmonary

impairment;

(5) In the case of a deceased miner where no medical evi-

dence is available, the affidavit of the survivor of such miner or

other persons with knowledge of the miner’s physical condition,

demonstrates the presence of a totally disabling respiratory or pul-

monary impairment.

(b) Rebuttal of interim presumption. In adjudicating a claim

under this subpart, all relevant medical evidence shall be consid-

ered. The presumption in paragraph (a) of this section shall be

rebutted if:

(1) The evidence establishes that the individual is, in fact,

doing his usual coal mine work or comparable and gainful work

(see § 410.412(aX1) of this title); or

53a

(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 (see § 410.412(aX1) of this title); or

(3) The evidence establishes that the total disability or death

of the miner did not arise in whole or in part out of coal mine

employment; or

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

not, have pneumoconiosis.

this section, the provisions of Part 718 of this subchapter as

amended from time to time, shall also be applicable to the adjudi-

cation of claims under this section.

(d) Failure of miner to qualify under the presumption in para-

graph (a) of this section. Where eligibility is not established under

this section, such eligibility may be established under Part 718 of

this subchapter as amended from time to time.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.