Appendix — Director, Office of Workers' Compensation Programs v. Kyle

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DEC 2) Be

| > ROSEPH F. sPANOL, un,

: CLERK

No.

In the

Supreme Court of the Anited States

October Term, 1987

NATIONAL COUNCIL ON

COMPENSATION INSURANCE,

Petitioner,

FRED KYLE and DIRECTOR,

OFFICE OF WORKERS’

COMPENSATION PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

MarRK GORDON, ESQUIRE

DANIEL D. HARSHMAN, ESQUIRE

PIETRAGALLO, BOSICK & GORDON

13th Floor, One Oxford Centre

Pittsburgh, PA 15219

(412) 263-2000

Counsel of Record

BEST AVAILABLE COPY

Pe oe See eee eee ee ee ee eee re eee ae ee Par a ae eee 5 is

TABLE OF CONTENTS

Description of Document Page

Opinion of the United States Court of Appeals

for the Sixth Circuit in Kyle v. Director ........... la

Order of the United States Court of Appeals for

the Sixth Circuit Denying Petition for Rehearing

ee eS ee. en rer lla

Order of the United States Court of Appeals for

the Sixth Circuit Granting Leave to Intervene

Ok I Cnc dedi e aye deabbwcs cd sns 12a

Motion for Leave to Intervene and tc File a Petition

for Rehearing filed by the National Council on

Compensation Insurance in Kv/e vy. Director ...... 13a

Unpublished Opinion of the Benefits Review

ES ere 19a

Decision and Order of the Administrative Law

Judge Denying Benefits in Kyle v. Director ....... 24a

oR Ba ee ers ae ree 30a

Administrative Procedure Act

Pe Gao i wk cae ea ce R ae 30a

Pr os ow a cde ein bss Ko Maddsek eon 32a

Black Lung Benefits Reform Act of 1977, § 402(f)(2),

BP Ree ED ocak ak 605 hae A AS hea ea 33a

Regulations of Health, Education & Welfare,

poe ae SS | ee 34a

Regulations of Department of Labor,

Po 2 Se a er ere 37a

FRED KYLE, Petitioner,

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS.

UNITED STATES DEPARTMENT OF LABOR,

Respondents

No. 85-3535.

United States Court Of Appeals,

Sixth Circuit,

Argued Oct. 2, 1986.

Decided May 18, 1987.

Julian N. Henriques (argued), Legal Asst. Foundation

of Chicago, Jean Goodwin, Legal Asst. Foundation, Chi-

cago, Ill., for petitioner.

J. Michael O’Neill, Sylvia T. Kaser (argued), Washing-

ton, D.C., for respondents.

Before MERRITT, GUY and NORRIS, Circuit

Judges.

ALAN E. NORRIS, Circuit Judge.

Fred Kyle seeks review of an order of the Benefits

Review Board of the United States Department of Labor

which affirmed the decision of the Administrative Law

Judge to deny him benefits under the Black Lung Benefits

Act, 30 U.S.C. § 901 et seq.

In essence, Kyle’s appeal is grounded on two conten-

tions—first, that the A.L.J. erred by failing to consider his

entitlement to an “interim presumption” of disability

under 20 C.F.R. § 401.490 in connection with his claim for

benefits, and second, that when that “interim presump-

tion” is utilized he is entitled to black lung benefits as a

matter of law. In addition, Kyle disputes some of the fac-

tual findings of the A.L.J., but, as our review of the record

leads us to conclude that these findings are supported by

substantial evidence, they may not be set aside on appeal.

Moore v. Califano, 633 F.2d 727, 729 (6th Cir. 1980). How-

ever, because we agree with Kyle’s first contention, we

reverse the Board’s decision and remand for further

proceedings.

On February 15, 1980, petitioner Kyle filed his claim

for benefits. This claim was subsequently denied and Kyle

requested a hearing. This hearing was held on May 25,

1982, and the A.L.J. made the following findings of fact:

that Kyle was a coal miner for approximately eight and

one-half years, ending in 1951; that he had pneumoconio-

sis which was depicted by X-ray; that blood gas and pul-

monary function studies were within normal limits; that

S.M. Hessl, M.D., examined Kyle in May 1980 and diag-

nosed chronic bronchitis and coal miner’s pneumoconiosis

arising out of his coal mine employment; that Dr. Hessl

also found Kyle had an AMA Class III respiratory impair-

ment, arteriosclerotic heart disease and right bundle

branch block; and that Kyle’s file was referred to a medical

consultant, who concluded that he was not totally disabled

from pneumoconiosis and that any respiratory disability

that he had was the result of smoking. The A.L.J. deter-

mined that Kyle had not met his burden on proving that

he was totally disabled from pneumoconiosis, and that he

was therefore not entitled to black lung benefits.

In order to be eligible for benefits under the Act, a

miner must demonstrate that he is totally disabled due to

pneumoconiosis. 30 U.S.C. §§ 901(a), 902(b). To aid claim-

ants in meeting this burden, the agencies which have

administered the benefits program have provided a num-

ber of presumptions. The presumption at issue here is the

one found in 20 C.F.R. § 410.490, which states, in part:

(b) Interim presumption. With respect to a miner

who files a claim for benefits before July 1,

1973...such miner will be presumed to be totally

disabled due to pneumoconiosis . . . if:

(1) One of the following medical requirements is

met:

(i) A chest roentgenogram (X-ray)... establishes

the existence of pneumoconiosis...

(2) The impairment established in accordance

with paragraph (b)(1) of this section arose out of coal

mine employment....

paragraph (b) of this section may be rebutted if:

(1) There is evidence that the individual is, in

fact, doing his usual coal mine work or comparable

and gainful work. ...

Because Kyle’s claim was filed long after July 1, 1973,

it would seem that he would not be able to claim the

benefit of this presumption. However, Kyle contends that

he is entitled to the presumption in view of a 1977 amend-

ment to the Black Lung Benefits Act:

(f)(1) The term “total disability” has the meaning

given it by regulations of...the Secretary of

Labor... except that—

(2) Criteria applied by the Secretary of Labor in

the case of—

[March 31, 1980] of regulations promulgated under

this subsection by the Secretary of Labor:

shall not be more restrictive than the criteria applicable

to a claim filed on June 30, 1973, whether or not the

final disposition of any such claim occurs after the

date of such promulgation of regulations by the Secre-

tary of Labor.

30 U.S.C. § 902(f)(2) (emphasis added).

Kyle argues that the effect of the “shall not be more

restrictive” language of this amendment is to require that

his case be decided in light of legal criteria in place on June

30, 1973, and that includes 20 C.F.R. § 410.490. Because

the A.L.J. found that an X-ray established the existence of

pneumoconiosis, and Dr. Hessl concluded that Kyle’s

pneumoconiosis arose out of coal mining, it is apparent

that, had the A.L.J. considered Kyle’s claim in the light

of Section 410.490 and also concluded that Dr. Hessl’s

report established causation, then Kyle would have been

entitled to the presumption of total disability due to

pneumoconiosis.

However, the Department of Labor contends that

Kyle failed to raise this issue at any stage of the proceed-

ings below, and he is therefore precluded from raising it

before this court for the first time.

While an appellate court generally will not address an

issue which was not presented below, an exception is made

when raising the issue would have been futile. See, e.g.,

Youakim v. Miller, 425 U.S. 231, 235, 96 S.Ct. 1399, 1402,

47 L.Ed.2d 701 (1976); Penland v. Warren County Jail,

759 F.2d 524, 531 n. 6 (6th Cir. 1985). At the time of the

A.L.J.’s decision, the Board had rejected the application of

Section 410.490 sought by Kyle. See Lynn vy. Director,

Office of Workers’ Compensation Programs, 3 BLR 1-125,

126 (1981). The Board has also consistently held that it

will not allow an A.L.J. to consider 20 C.F.R. § 410.490 in

connection with claims filed after July 1, 1973, unless that

consideration is required by the court of appeals of that

particular circuit. See, e.g., Kimmel v. Diamond Coal Co.,

6 BLR 1-288, 291-93 (1983). In Kimmel, which was

decided almost two years before the Board’s decision in

this case, the Board held that it would not apply Section

410.490 to claims arising in the Sixth Circuit which were

filed after July 1, 1973. Accordingly, it would have been

futile for Kyle to raise the argument.

The department next argues that, because Kyle’s claim

was not filed before July 1, 1973, the language of Section

410.490 itself precludes his reliance upon its presumption.

It disputes Kyle’s contention that the “shall not be more

restrictive” language of the 1977 amendment to 30 U.S.C.

§ 902(f)(2) revives the application of the Section 410.490

presumption to him, since the department contends that

the language refers not to evidentiary or adjudicatory crite-

ria such as length of service, but only to medical criteria. It

further maintains that the congressional mandate was

complied with in the promulgation of 20 C.F.R. § 727.203,

which is the regulation governing entitlement to an interim

presumption, in later filed claims like Kyle’s. That regula-

tion establishes medical standards similar to those in Sec-

tion 410.490, but it also includes an additional require-

ment that the miner have ten years of coal mine

employment before he can qualify for the presumption of

total disability due to pneumoconiosis.

While courts often defer to an interpretation given a

statute by an agency charged with its administration, see,

e.g., United States v. Riverside Bayview Homes, 474 US.

121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), this deference is

tempered by the role of the courts as “the final authorities

on issues of statutory construction...[who] ‘are not

obliged to stand aside and rubber-stamp their affirmance of

administrative decisions that they deem inconsistent with

a statutory mandate or that frustrate the congressional pol-

icy underlying a statute.’ Federal Maritime Commission

v. Seatrain Lines, 411 U.S. 726, 745-46, 93 S.Ct. 1773,

1784-85, 36 L.Ed.2d 620 (1973) (citations omitted). Mani-

festly, the term “criteria” is subject to numerous possible

interpretations. Accordingly, we need to examine its utili-

zation by the Congress, in the context of other statutory

ianguage, and of the history and purpose of the Black Lung

Benefits Act, in order to determine whether it should be

assigned the narrow meaning urged by the department. See

Local 705. International Brotherhood of Teamsters v.

Daniel, 439 U.S. 551, 565-66, 99 S.Ct. 790, 799-800, 58

L.Ed.2d 808 (1979); Southeastern Community College v.

Davis, 442 U.S. 397, 411, 99 S.Ct. 2361, 2369, 60 L.Ed.2d

980 (1979).

An examination of legislative history reveals that

adopting such a narrow meaning of the term “criteria”

would be inconsistent with the purpose of the Act as

articulated by several congressional sources. The general

purpose of both the 1972 and 1978 amendments to the Act

appears to have been to liberalize the standards under

which black lung benefits were being awarded at the time.

See S.Rep. No. 743, 92d Cong.2d Sess. 17, reprinted in

1972 U.S. Code Cong. & Ad.News 2305, 2320-21;

H.R.Rep. No. 151, 95th Cong.2d Sess. 4, reprinted in 1978

U.S. Code Cong. & Ad. News 237, 240. The Third Circuit,

in Echo v. Director, Office of Workers’ Compensation Pro-

grams, 744 F.2d 327, 330 (3d Cir. 1984), exhaustively

reviewed congressional purpose in regards to the Act and

concluded that:

The legislative history of the Black Lung Program

demonstrates a clear pattern. Congress passed a stat-

ute intended to provide wide-spread benefits to min-

ers disabled by black lung disease. The benefits, while

never very high, were intended to be liberally

awarded. Administrative practice, however, did not

comport with legislative intent, and twice Congress

was impelled to specify its intentions more clearly, “in

order to insure as broad coverage as possible.” (Cita-

tion and footnote omitted.)

Examination of the language of the statute also leads

us to reject the department’s interpretation of the term

“criteria.” The department insists that its reading of the

term is correct because a sentence found in the subsection

immediately preceding 30 U.S.C. § 902(f)(2) states that

“the Secretary of Labor... shall establish criteria for all

appropriate medical tests under this subsection which

accurately reflect total disability in coal miners” [30 U.S.C.

§ 902(f)(1)(D) (emphasis added)], and the use of ihe word

“criteria” in the following subsection must be parallel to its

previous use. To further buttress this contention, the

department cites the opinion in Peabody Coal Co. v. Direc-

tor, Office of Workers’ Compensation Programs, 778 F.2d

358, 362 (7th Cir. 1985).

We find that argument less than convincing. since use

of the word “criteria” in the previous subsection was spe-

cifically limited to the context of “‘medical tests,” while

omission of that restrictive terminology in the subsequent

subsection only serves to indicate a general usage of the

word “criteria” was intended, unencumbered by the limit-

ing terminology. Obviously, Congress did not qualify its

use of the term “criteria” in one subsection, but did in

another. Since Congress is presumed to act intentionally

when it includes particular language in one provision of a

statute, but omits that language from another provision,

we conclude that “criteria” should be accorded the broader

meaning. See, e.g., Russello v. United States, 464 U.S. 16,

23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983).

Our view of the statute is not necessarily in conflict

with Peabody Coal, since the reference to “medical crite-

ria” in that opinion may be viewed as dictum since it was

not necessary to the court’s holding that the Secretary of

Labor did not exceed his authority in promulgating the

Section 727.203(a) interim presumption.

We also note that the department’s argument, that its

position is supported by the legislative history of 30 U.S.C.

§ 902(f)(2), was made and rejected in Halon vy. Director,

Office of Workers’ Compensation Programs, 713 F.2d 21

(3d Cir. 1983), and Coughan vy. Director, Office of Workers’

Compensation Programs, 757 F.2d 966, 968 (8th Cir.

1985). On this point, the Halon court held that:

The plain language of the statute does not suggest that

Congress intended any such modification of the

generic term “criteria.” The legislative history is, at

best, equivocal. References in debate to medical crite-

ria are not dispositive.... The occasional Specific

mention of medical criteria does not support an infer-

ence that non-medical criteria were to be excluded.

Other remarks in the debate suggest that the criteria

referred to include adjudicatory standards as well as

medical standards.

Id. at 24. (Citation omitted.)

Our review of the legislative history leads us to the

same conclusion. Accordingly, we see no reason to place

ourselves at odds with the position already taken by the

Third and Eighth Circuits on the issues raised by this

appeal.

Nor does that conclusion conflict with our opinion in

Ramey vy. Kentland Elkhorn Coal Corp., 755 F.2d 485 (6th

Cir. 1985), as suggested by the department.

In Ramey, this court was concerned with what specific

evidence was required to rebut a presumption of pneumo-

coniosis under regulations promulgated pursuant to Part C

of the Black Lung Act. See 20 C.F.R. § 727.203(a). Specifi-

cally, Ramey held that, even though vocational and medi-

cal evidence had been required to rebut the Part B pre-

sumption, the Secretary’s presentation of medical evidence

alone would be sufficient to rebut the Part C presumption.

The court reasoned that such a holding was not inconsis-

tent with the no “more restrictive” language because the

exact evidence necessary to rebut the presumption was not

permanently fixed by the language in 30 U.S.C. § 902(f)(2),

which establishes the no “more restrictive” standard.

Ramey should not be read to suggest that the Part B

presumptions no longer apply. On the contrary, Ramey

should be interpreted to hold that, although the Part B

10a

presumptions are preserved, under certain limited circum-

stances, the specific evidence necessary to rebut those pre-

sumptions may be altered over time.

In the case before us, the question is whether the Part

B criteria to invoke the presumption of disability are appli-

cable. Ramey is not controlling in this context. Since the

issue is one of criteria, as opposed to mere evidence, 30

U.S.C. § 902(f)(2) mandates that we apply the criteria set

forth in Part B of the regulations. Accordingly, we must

remand for a determination of whether the claimant can

meet the Part B criteria.

The Board’s decision is reversed and this cause is

remanded in order that Kyle’s claim to the benefit of an

interim presumption may be considered in the context of

20 C.F.R. § 410.490.

RALPH B. GUY, Jr., Circuit Judge, concurring in

part and dissenting in part.

I agree with the majority that the issue of Kyle’s enti-

tlement to an “interim presumption” of disability under

20 C.F.R. § 410.490 is properly before us, but respectfully

disagree with their resolution of this issue.

I would read the statute as the Secretary suggests, as

requiring that no less restrictive medical criteria be incor-

porated into the regulations. In support of my conclusion,

I would offer the reasoning of the dissent in Halon v. Direc-

tor, Office of Workers’ Compensation Programs, 713 F.2d

21 (3rd Cir. 1983). In Halon, Judge Weis made a thorough

analysis of the purpose and legislative history of the statu-

tory language in question, and I find this analysis more

persuasive than that of the majority here.

lla

No. 85-3535

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FRED KYLE,

Petitioner,

v. > ORDER

U.S. DEPARTMENT OF LABOR, ET AL.,

Respondents.

BEFORE: MERRITT, GUY and NORRIS, Circuit Judges

The court having received two petitions for rehearing

en banc, and the petitions having been circulated not cnly

to the original panel members but also to all other active

judges of this court, and less than a majority of the judges

having favored the suggestion, the petitions for rehearing

have been referred to the original hearing panel.

The panel has further reviewed the petitions for

rehearing and concludes that the issues raised in the peti-

tions were fully considered upon the original submission

and decision of the case. Accordingly, the petitions are

denied.

ENTERED BY ORDER

OF THE COURT

i in ae ee ses ee 6 6 © 6 e 6 6 8 8 le

JOHN P. HEHMAN, CLERK

Filed

Sep. 22, 1987

12a

/ No. 85-3535

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

)

FRED KYLE,

Petitioner,

VS.

U.S. DEPARTMENT OF LABOR, > ORDER

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAM

Respondents.

Upon consideration of the motion of the National

Council on Compensation Insurance for leave to intervene

in behalf of respondent,

IT IS ORDERED that the motion be and it hereby is,

GRANTED.

ENTERED BY ORDER

OF THE COURT

JOHN P. HEHMAN, CLERK

Filed

Jul. 15, 1987

13a

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FRED KYLE, ’

Petitioner,

DIRECTOR, OFFICE OF WORKERS’ . No. 86-3535

COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT

OF LABOR

Respondents.

MOTION FOR LEAVE TO INTERVENE AND TO

FILE A PETITION FOR REHEARING

NOW COMES, the National Council on Compensa-

tion Insurance (“NCCI”), by and through its attorneys,

Pietragallo, Bosick & Gordon, and herewith presents this

Motion for Leave to Intervene in the above-styled matter

pursuant to F.R.A.P. 15(d) and F.R.C.P. 24. The movants

seek intervention to file a Petition for Rehearing and other-

wise participate in the litigation, stating as follows:

1. This Honorable Court issued its opinion in the

above-styled matter on or about May 18, 1987. The

Kyle decision interpreted 30 U.S.C.A. Section

902(f)(2) as requiring the application of 20 C.F.R. Sec-

tion 410.490 (“interim regulations”) to Part C claims

under the Federal Coal Mine Health and Safety Act of

1969, as amended, 30 U.S.C.A. Section 901 (‘the

Act’). This decision effectively invalidated the

Department of Labor regulations at 20 C.F.R. Section

727.203 (“DOL regulations’’) finding them contrary to

the statutes’ “not more restrictive” language. Accord-

ingly, Kyle revived the interim regulations making

14a

them applicable to industry-responsible claims previ-

ously thought to be governed by the DOL regulations.

2. This Honorable Court granted Respondents’

request for enlargement of time to present a Petition

for Rehearing. Said extension extended the time for

Petitions for Rehearing until July 1, 1987.

3. The NCCI is a voluntary, nonprofit, statistical

research and rate-making organization supported by

the insurance industry. Its primary function is the

preparation and administration of rates, rating plans

and systems for workmen’s compensation insurance

in thirty-five (35) states. It also administers several

multi-state “insurance pools” providing re-insurance

for workmen’s compensation policies accepted by

various pool members, including over 600 insurance

company-poo! members across the nation. One such

“pool” is the National Workers’ Compensation Rein-

surance Pool, pertaining to policies under the Act. In

addition to reinsuring commercially viable policies,

the national pool also offers workmen’s compensation

coverage to coal operators unable to secure coverage

in the open market. This assigned-risk function is an

interest unique to the NCCI national pool. The NCCI

is also a rate-making body which provides actuarial

data upon which workmen’s compensation rates are

based in numerous states. Since such rates are deter-

mined, in part, upon past underwriting experience, the

revival of the interim regulations and their application

to Part C claims against coal mine operators and

insurers will effectively nullify the rates and rating

plans in thirty-five states. Individual pool members

will also be directly affected as they reinsure work-

men’s compensation policies providing coverage to

operator’s potentially liable for benefits under Part C

of the Act. Insurance reserves set from prior claims

experience under the DOL regulations may now be

1Sa

insufficient to fund liabilities devolving upon NCCI

industry members and the national pool.

4. The Ky/e decision substantially impacts coal

mine operators and their insurance carriers by altering

the rules upon which their interests will be adjudi-

cated for thousands of pending claims. Yet, the

Respondent in Kyle was the Department of Labor rep-

resenting the Black Lung Disability Trust Fund

(“Trust Fund’), which.is responsible for benefits

largely where no responsible coal mine operator can

be identified. See, 20 C.F.R. Section 725.490(a). No

coal mine operator nor carrier participated in the

instant litigation. Thus, the rights and interests of the

coal and insurance industries have been determined in

their absence without notice or opportunity to be

heard on these important issues. The presence of the

Trust Fund is inadequate to protect those interests as

the Fund is not directly liable for Part C benefits, nor

does the Fund prepare insurance rates or rating plans.

5. Absent intervention in the present controversy,

the Movants will be deprived of any opportunity to

protect their interests as Ky/e substantially determines

the rights of Part C litigants in the total absence of

Part C defendants.

6. The NCCI only recently learned of the pen-

dency of the rehearing in the Kyle matter. As the

NCCI will endeavor to comply with the July 1, 1987

deadline hereinbefore mentioned, no undue delay or

prejudice will befall the original parties to the

litigation.

7. The NCCI seeks intervention to, inter alia raise

the following arguments:

(a) The 1977 Reform Act setting forth the “not

more restrictive” language applied only to

(b)

(d)

(e)

l6a

medical criteria as the indentification of Sec-

tion 410.490, as the “interim medical stan-

dard” throughout iegislative history clearly

indicates. Based upon recommendations

from the HEW, DOL and the General

Accounting office, Congress rejected the con-

tinued use of Section 419.490 to new DOL

claims. Congress intended only that the med-

ical standards of Section 419.490 be used as a

benchmark for new DOL standards. Since

the statutory language refers only to medical

standards and since the DOL regulations util-

ize medical criteria as liberal as Section

419.490, the DOL regulations comport with

the “not more restrictive” criterion.

Application of Section 419.490 to responsible

operator claims violates the Administrative

Procedure Act (“APA”), as the 1972 publica-

tion of the proposed Section 410.490 failed to

afford coal operators “notice” that the regula-

tory standard would be applied to operator

claims after June 30, 1973. Thus, Section

410.490 is invalid as to coal operators being

devoid of compliance with the APA require-

ments. See, 5 U.S.C.A. Section 553.

Section 410.490 is an invalid exercise of

administrative rule-making as the regulation

is inconsistent with its enabling legislation.

Application of Section 410.490 to responsi-

ble-operator claims deprives operators and

carriers of constitutional due process by elim-

inating all but two defenses to the presump-

tion of entitlement. The elimination of these

defenses further deprives the operator/carrier

17a

of a full and fair hearing as required by the

APA. See, 5 U.S.C.A. Section 556(d).

WHEREFORE, the NCCI respectfully moves this

Court to grant this Motion for Leave to Intervene and to

File a Petition for Rehearing in the above-styled matter.

Respectfully submitted,

PIETRAGALLO, BOSICK & GORDON

RR ROR: /s/ MARK GORDON

MARK GORDON, ESQUIRE

OY cccas /s/ DaNiEL D. HARSHMAN

PC CED Oe Ce ee OU eescenve)s ee eee s 8

DANIEL D. HARSHMAN, ESQUIRE

18a

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing Motion was served upon the following parties of

record by U.S. Mail, postage prepaid, this 23rd day of

June, 1987:

Julian Henriques, Esq.

Legal Assistance Foundation of Chicago

343 South Dearborne Street

Chicago, Illinois 60604

Sylvia T. Kaser, Esq.

Suite N

2620 Office of the Solicitor of the

U.S. Department of Labor

200 Constitution Avenue, N.W.

Washington, D.C. 20210

eeeee"e @eeeeeeeeeeeeeeseeeeeeeeee

19a

U.S. DEPARTMENT OF LABOR

Benefits Review Board

1111 20th Street, N.W.

Washington, D.C. 20036

BRB No. 82-1968 BLA

OWCP No. 405-03-3687

FRED KYLE, |

Claimant-Petitioner, NOT-PUBLISHED

Vv. FILED

DIRECTOR, OFFICE OF WORKERS’ | MAY 17, 1985

COMPENSATION PROGRAMS, DECISION

UNITED STATES DEPARTMENT and

OF LABOR ORDER

Respondent.

Appeal of the Decision and Order of Arthur C. White,

Administrative Law Judge, United States Department

of Labor.

Louise Katz, Houston, Texas, for claimant.

Roscoe C. Bryant III (Francis X. Lilly, Solicitor of

Labor; Donald S. Shire, Associate Solicitor; Rae Ellen

Frank James, Counsel for Benefits Programs), Wash-

ington, D.C., for the Director, Office of Workers’

Compensation Programs, United States Department

of Labor.

Before: RAMSEY, Chief Administrative Appeals

Judge, SMITH and DOLDER, Administrative

Appeals Judges.

PER CURIAM:

20a

Claimant appeals the Decision and Order (81-BLA-

4521) of Administrative Law Judge Arthur C. White deny-

ing 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 ef seg. (the Act). The

administrative law judge found that claimant had estab-

lished 81/2 years of coal mine employment and, thus, con-

sidered claimant’s entitlement pursuant to Subpart D of 20

C.F.R. Part 410. He determined that claimant has pneu-

moconiosis, but concluded that claimant had failed to

establish that he is totally disabled from pneumoconiosis

or a chronic lung disease which arose out of his coal mine

work.

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

the administrative law judge’s findings of fact are sup-

ported by substantial evidence, are rational, and are con-

sistent with applicable law, they are binding upon this

Board and may not be disturbed. O’Keeffe v. Smith, Hinch-

man & Grylls Associates, Inc., 380 U.S. 359 (1965); 33

U.S.C. § 921(b)(3), as incorporated by 30 U.S.C. § 932(a).

An administrative law judge’s finding of length of coal

mine employment will be affirmed where it :s based upon a

reasonable method of computation and supported by sub-

stantial evidence in the record considered as a whole. Hal!

v. Director, OWCP, 2 BLR 1-998 (1980). The administra-

tive law judge’s finding that claimant’s principal occupa-

tion from 1937 to 1951 was that of coal miner reflects that

he did take claimant’s testimony into consideration. The

administrative law judge, however, may credit and rely

upon Social Security records where claimant’s memory is

unreliable. Tackett v. Director, OWCP, 6 BLR 1-839

(1984). Since claimant’s testimony regarding his coal mine

work did not fill in the gaps in the Social Security earnings

2la

record and reflects that he had a difficult time recalling the

details of his coal mine employment, the administrative

law judge properly relied upon the earnings record. We,

therefore, affirm the administrative law judge’s finding of

81/2 years of coal mine employment as it is based upon

substantial evidence. '

In finding that claimant had not met the requirements

of 20 C.F.R. Part 410, Subpart D, the administrative law

judge considered the results of a physical examination per-

formed by Dr. Strauss in January 1979 and medical reports

of Dr. Stephen M. Hessl and Dr. Sarah B. Long. Claimant

contends that the administrative law judge erred in finding

claimant not totally disabled pursuant to Section

410.426(d) in light of the x-rays, medical reports, and lay

evidence. Specifically, claimant contends that the adminis-

trative law judge erred in relying upon Dr. Long’s opinion

of no total disability because it is merely a recitation of

claimant’s medica! history rather than a reasoned medical

report. Dr. Long’s opinion contains an evaluation of the

objective data in the record, including the pulmonary func-

tion studies and blood gas studies, in addition to a recita-

tion of claimant’s symptoms. Her report states her profes-

sional opinion that claimant is not disabled by his

pneumoconiosis based upon that data.

Claimant also argues that the administrative law judge

erred in finding Dr. Long’s report consistent with the posi-

tive x-ray of record and reports of examining physicians

indicating the presence of chronic ob«tructive lung disease

‘Claimant argues that, assuming ten years of coal mine employ-

ment, the sole x-ray of record, which was positive, would invoke the

interim presumption pursuant to subsection (a)(1) of 20 C.F.R.

§ 727.203. Since we affirm the administrative law judge’s finding of 81/2

years of coal mine employment, we need not address fhis contention.

22a

and pneumoconiosis. The positive x-ray and other medical

reports finding lung disease and pneumoconiosis have no

bearing upon the issue of Dr. Long’s determination of no

disability due to pneumoconiosis. See Arnoni v. Director,

OWCP, 6 BLR 1-423 (1983), petition for review denied, 738

F.2d 420 (3d Cir. 1984) (table).

In addition, there is no evidence of record which

could support a finding that claimant is totally disabled

pursuant to Section 410.426. The pulmonary function

studies of record do not meet the criteria set forth in Sec-

tion 410.426(b). Dr. Strauss did not evaluate the severity

of claimant’s impairment. Dr. Long explicity stated that

claimant is not totally disabled from pneumoconiosis and

that any impairment he may have is due to smoking. Dr.

Hessl’s evaluation of claimant’s disability as a “Class III

respiratory impairment” amounts to only 25-35% impair-

ment, which the administrative law judge chose not to

interpret as establishing total disability. American Medical

Association Guides to the Evaluation of Permanent Impair-

ment at 75 (1977); see Kozele v. Rochester and Pittsburgh

Coal Co., 6 BLR 1-378 (1983). Claimant’s lay testimony

alone, absent corroborating medical evidence, is insuff-

cient to establish total disability by a respiratory or pulmo-

nary impairment pursuant to Part 410. Centak vy. Director,

OWCP, 6 BLR 1-1072 (1984). Accordingly, we affirm the

administrative law judge’s determination that claimant has

not met his burden of proving that he is totally disabled

from a chronic lung disease arising out of coal mine

employment.?

?Claimant also argues that it was error for the administrative law

judge to rely upon Dr. Long’s report because she relied heavily on the

documented five years of coal mine employment in determining that

(Continued on next page)

23a

Accordingly, the Decision and Order of the adminis-

trative law judge denying benefits is affirmed.

SO ORDERED.

ROBERT L. RAMSEY, CHIEF

ADMINISTRATIVE APPEALS JUDGE

ROY P. SMITH

ADMINISTRATIVE APPEALS JUDGE

eee O14 CUP es. 8 8.8. 6.9.64 815.5 62 2.6 8 2 8. a 6 6.8.6

NANCY S. DOLDER

ADMINISTRATIVE APPEALS JUDGE

Dated this 17th

day of May 1985

(Continued)

any disability claimant may have did not arise out of coal mine employ-

ment, but rather was caused by his smoking. Claimant also argues that

Dr. Long’s opinion regarding causation does not meet Blevins stan-

dards. See Blevins v. Peabody Coal Co., 6 BLR 1-750 (1983). We need

not address these contentions because the administrative law judge’s

denial of benefits was based primarily on his finding that claimant is not

totally disabled. The discrepancy between five years and 81/2 years of

coal mine employment would not alter Dr. Long’s conclusion of no

total disability. See O'Neal v. Director, OWCP, 6 BLR 1-i1132 (1984).

24a

U.S. DEPARTMENT OF LABOR

Office of Administrative Law Judges

1111 20th Street, N.W.

Washington, D.C. 20036

DATE ISSUED: SEPT 22, 1982

In the Matter of

FRED KYLE,

Claimant,

DIRECTOR onan OF , Case No. 81-BLA-4521

OWCP No. 405-03-3687

WORKERS’ COMPENSATION

PROGRAMS

Party in Interest.

LoulIse Katz, Esa.

For the Claimant

Rosoce C. BRYANT, III, Esa.

For the Party In Interest

Before: ARTHUR C. WHITE

Administrative Law Judge

DECISION AND ORDER-REJECTION OF CLAIM

This proceeding arises from a claim for benefits under

the Black Lung Benefits Act, 30 U.S.C. § 901 ef seg. In

accordance with the Act, and the regulations issued there-

under, this case was referred to the Office of Administra-

tive Law Judges by the Director, Office of Workers’ Com-

pensation 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

pneumoconiosis or to the survivors of persons who were

25a

so totally disabled 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 was held! in Chicago, Illinois, on

May 25, 1982, at which all parties were afforded full oppor-

tunity to present evidence and argument, as provided in

the Act and the regulations issued thereunder, found in

Title 20 of Federal Regulations. Regulation section num-

bers mentioned in this Decision and Order refer to sec-

tions of that Title.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

Coal Miner

The claimant was a coal miner within the meaning of

§ 402(d) of the Act and § 725.202 of the regulations for

approximately 8!/2 years ending in 1951. J find that Mr.

Kyle’s principal occupation from 1937 to 1951 was that of

a coal miner except for the 31/2 years he spent in military

service. However, he had earnings from coal mine employ-

ment for only 34 quarters, so it can be seen that his coal

mine work was rather sporadic. Even though he worked as

a coal miner during 19 quarters between the second quar-

ter of 1937 to the second quarter of 1942, and he did some

coal mine work during approximately 17 quarters between

1946 and 1951, I am unable to credit him with more than

8!/2 years of coal mine work. I have given him credit for

several quarters in which the Social Security records reflect

less than one month of work, assuming he was paid the

'The transcript of hearing will be hereafter referred to as T.; other

abbreviations will be as follows: Director’s exhibits D.; and Claimant’s

exhibits, C.

26a

minimum wage rate then in effect. Mr. Kyle has the bur-

den of establishing his period of coal mine work. See Ren-

nie v. United States Steel Corp., 1 BLR 1-859 (1978). He

has established less than 10 full years of work in the mines.

Date of Filing

The claimant filed his claim for benefits under the Act

on February 15, 1980. The claim is timely filed since no

limitations in the Act on the time within which claims may

be filed are applicable to claims filed on the date the claim

was filed in this case.

Pneumoconiosis and Total Disability

Mr. Kyle underwent a chest x-ray in April 1980 (D.

12, 13) which was interpreted by J. J. Fitzpatrick, M.D., a

board-certified radiologist, to show 1/o pneumoconiosis. In

view of the opinion of the Benefits Review Board in the

case of Tobias v. Republic Steel Corp., 2 BLR 1-1277

(1981), I consider the opinion of Dr. Pitman (D. 13) only

to the extent he found the x-ray film to be of acceptable

quality. I, therefore, determine that Mr. Kyle has pneumo-

coniosis and that it has been depicted by x-ray

§ 410.414(a)).

As Mr. Kyle had less than 10 years of coal mine work

and his claim was filed prior to the effective date of Part

718 of the regulation, his claim must be adjudicated under

the provisions of Part 410.

Under the provisions of § 410.424(a), a miner may be

presumed to be totally disabled if blood gas studies reveal

impairment of the transfer of oxygen from the lungs to the

blood as set forth in the appendix of Part 410, or if cor

pulmonale or congestive heart failure with the symptoms

described in the appendix are manifest. As claimant’s

27a

blood gas studies have been substantially within normal

limits and as cor pulmonale or congestive heart failure has

not been established, Mr. Kyle is not presumed to be

totally disabled under § 410.424(a).

The next criterion for considering the question of total

disability, is set forth in § 410.426. In this regard, pulmo-

nary function studies with findings at or below the levels

set forth in subparagraph (b) would invoke the presump-

tion of total disability. Initially, I conclude that claimant is

70” tall. It would be necessary for his pulmonary function

studies to show an FEV, of 1.8 or lower and a MVV of 65

or lower for Mr. Kyle to be presumed to be totally disabled

under this subsection. In March 1979, Mr. Kyle’s FEV,

was 3.1 and his MVV was 106. In April 1980, his FEV,

was 2.5 and his MVV was 46.8. Hence, he may not be

presumed to be totally disabled under § 410.426(b).

Mr. Kyle could also be presumed to be totally disabled

under § 410.426(d). This regulation would be applicable if

other relevant medical evidence established the existence

of a chronic pulmonary disease which was of such severity

that it precluded the claimant from accomplishing his pre-

vious coal mine work and also considering his age, his

education and his work experience, prevented him from

performing comparable and gainful work. It would also be

necessary to show that the chronic pulmonary disease

arose out of employment in the nation’s coal mines.

(§ 410.414(c)).

When claimant was examined in January 1979 (D. 6),

tactile fremitus, percussion, resonance and vocal resonance

were equal or normal bilaterally. There were no rales,

rhonchi or wheezing. X-rays showed overaeration of the

lungs, which apparently formed the basis for the diagnosis

of chronic obstructive lung disease. S.M. Hessl, M.D.,

aia eile

28a

examined claimant in May 1980 (D. 15). The doctor diag-

nosed chronic bronchitis and coal workers’ pneumoconio-

sis which he attributed to coal mine work. He concluded

that claimant had an AMA Class III respiratory impair-

ment. Diagnosis were also reported of arteriosclerotic heart

disease and right bundle branch block.

Claimant’s file was referred to a medical consultant

(D. 17) who concluded that he was not totally disabled

from pneumoconiosis or a respiratory standpoint. The

physician also concluded that the claimant’s history of

smoking was the primary cause of any respiratory disabil-

ity he had. ‘

Mr. Kyle has the burden of proving that his pneumo-

coniosis arose out of his coal mine work and that he is

totally disabled because of the disease. (§ 410.414(b)).

While Dr. Hessl states that Mr. Kyle has an AMA Class III

respiratory impairment which arose out of his coal mine

work, the Department of Labor medical consultant con-

cludes that claimant is not totally disabled from a respira-

tory standpoint and that any respiratory disability he has is

unrelated to his coal mine work.

I am not bound by the theory or opinion of any given

medical witness. See Todd Shipyard Corp. v. Donovan, 300

F.2d 741 (5th Cir. 1962). However, I do consider Dr.

Long’s opinion to be in keeping with the objective findings

or lack thereof, which are normally considered to be indic-

ative of a significantly disabling respiratory disease. Fur-

ther, claimant’s post-1951 work history as demonstrated

by his Social Security records in addition to his smoking

history could very well account for his chronic obstructive

lung disease and the overaeration of his lungs. In any

event, I conclude that Mr. Kyle has not met his burden of

proving that he is totally disabled from pneumoconiosis or

29a

a chronic lung disease which arose out of his coal mine

work.

Entitlement

The claimant is not entitled to black lung benefits.

Attorney’s Fee

The award of an attorney’s fee under the Act is per-

mitted only in cases in which the claimant is fownd to be

entitled to the receipt of benefits. Since benefits are not

awarded in this case the Act prohibits the charging of any

fee to the claimant for representation services rendered to

him in pursuit of his claim.

ORDER

The claim of Fred Kyle for benefits under the Act is

denied.

I Oe ee a ee ea eee ae ee ee Oe ae Se

ARTHUR C. WHITE

ADMINISTRATIVE LAW JUDGE

30a

UNITED STATES CONSTITUTION

AMENDMENT V

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 shail private property be taken for public use,

without just compensation.

ADMINISTRATIVE PROCEDURE ACT

* * *

§ 553. Rule making

(a) This section applies, according to the provisions

thereof, except to the extent that there is involved—

(1) a military or foreign affairs function of the

United States; or

(2) a matter relating to agency management or

personnel or to public property, loans, grants, benefits,

or contracts.

(b) General notice of proposed rule making shall be

published in the Federal Register, unless persons subject

thereto are named and either personally served or other-

wise have actual notice thereof in accordance with law.

The notice shall include—

(1) a statement of the time, place, and nature of

public rule making proceedings;

3la

(2) reference to the legal authority under which

the rule is proposed; and

(3) either the terms or substance of the proposed

rule or a description of the subjects and issues

involved.

Except when notice or hearing is required by statute, this

subsection does not apply—

(A) to interpretative rules, general statements of

policy, or rules of agency organization, procedure, or

practice; or

(B) when the agency for good cause finds (and

incorporates the finding and a brief statement of rea-

sons therefor in the rules issued) that notice and pub-

lic procedure thereon are impracticable, unnecessary,

or contrary to the public interest.

shall give interested persons an opportunity to participate

in the rule making through submission of written data,

views, Or arguments with or without opportunity for oral

presentation. After consideration of the relevant matter

presented, the agency shal! incorporate in the rules

adopted a concise general statement of their basis and pur-

pose. When rules are required by statute to be made on the

record after opportunity for an agency hearing, sections

556 and 557 of this title apply instead of this subsection.

(d) The required publication or service of a substan-

tive rule shall be made not less than 30 days before its

effective date, except—

(1) a substantive rule which grants or recognizes

an exemption or relieves a restriction;

(2) interpretative rules and statements of policy;

32a

(3) as otherwise provided by the agency for good

cause found and published with the rule.

(e) Each agency shall give an interested person the

right to petition for the issuance, amendment, or repeal of

a rule.

§ 556. Hearings; presiding employees; powers and

duties; burden of proof; evidence; record as basis

of decision

* * *

(d) Except as otherwise provided by statute, the pro-

ponent of a rule or order has the burden of proof. Any oral

or documentary evidence may be received, but the agency

as a matter of policy shall provide for the exclusion or

irrelevant, immaterial, or unduly repetitious evidence. A

sanction may not be imposed or rule or order issued except

on consideration of the whole record or those parts thereof

cited by a party and supported by and in accordance with

the reliable, probative, and substantial evidence. The

agency may, to the extent consistent with the interests of

justice and the policy of the underlying statutes adminis-

tered by the agency, consider a violation of section 557(d)

of this title sufficient grounds for a decision adverse to a

party who has knowingly committed such violation or

knowingly caused such violation to occur. A party is enti-

tled to present his case or defense by oral or documentary

evidence, to submit rebuttal evidence, and to conduct such

cross-examination as may be required for a full and true

disclosure of the facts. In rule making or determining

claims for money or benefits or applications for initial

licenses an agency may, when a party will not be

33a

prejudiced thereby, adopt procedures for the submission of

all or part of the evidence in written form.

BLACK LUNG BENEFITS REFORM ACT OF 1977

§ 402. Definitions

For purposes of this title—

*x* * *

(f)(1) The term “total disability” has the meaning

given it by regulations of the Secretary of Health, Educa-

tion, and Welfare for claims under part B of this title, and

by regulations of the Secretary of Labor for claims under

part C of this title, subject to the relevant provisions of

subsections (b) and (d) of section 413, except that—

(A) in the case of a living miner, such regulations

shall provide that a miner shail 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 employ-

ment 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 indicative of reduced ability to perform

his or her usual coal mine work, such miner’s employ-

ment in a mine shall not be used as conclusive evi-

dence that the miner is not totally disabled;

restrictive criteria than those applicable under section

223(d) of the Social Security Act; and

34a

(D) the Secretary of Labor, in consultation with

the Director of the Nationai Institute for Occupational

Safety and Health, shai! establish criteria for all appro-

priate medical tests under this subsection which accu-

rately 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, Education, and Welfare, or sub-

ject to a determination by the Secretary of Labor,

under section 435(a);

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

Secretary of Labor under section 435(b); and

of regulations promulgated under this subsection by

the Secretary of Labor;

shall not be more restrictive that 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.

REGULATIONS OF

HEALTH, EDUCATION, & WELFARE

§ 410.490 Interim adjudicatory rules for certain Part B

claims filed Sy a miner before July 1, 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

35a

medical tests not presently available to evaluate disability

due to pneumoconiosis, and that such claims must be han-

died under present circumstances in the light of limited

medical resources and techniques. Accordingly, the Con-

gress stated its expectancy that the Secretary would adopt

such interim evidentiary 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 feasi-

ble to provide such tests. The provisions of this section

establish such interim evidentiary rules and criteria. They

take full account of the congressional expectation that in

many instances it is not feasible to require extensive pul-

monary 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 ievel 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 diabled due to

pneumoconiosis at the time of his death, or his death wil!

be presumed to be due to pneumoconiosis, as the case may

be, if:

36a

(1) One of the following medical requirements is

met:

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

autopsy establishes the existence of pneumoconi-

osis (see § 410.428); or

(ii) In the case of a miner employed for at.

least 15 years in underground or comparable coal

mine employment, ventilatory studies establish

the presence of a chronic respiratory or pulmo-

nary disease (which meets the requirements for

duration in § 410.412(a)(2)) 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

Be WE 6 oss caseeuecaeus 2.3 92

Mckee Se saRet atid e erent 2.4 96

ag PR REF E Ghs Nera opera eae Any 2.4 96

pg ED Ra ape rene Beate tae 100

| gan RNa sam Aas Aarne Sartre aan nae 2.6 104

1 SSE er OR a ear 2.6 104

gt 20) OR eer 2.7 108

(2) The impairment established in accordance

with paragraph (b)(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 medi-

cal requirements in paragraph (b)(1)(ii) of this section,

he will be presumed to be totally disabled due to pneu-

moconiosis 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 employ-

ment, or his death will be presumed to be due to

pneumoconiosis arising out of such employment, as

37a

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

requisite coal mine employment.

graph (b) of this seciion 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 perfor-

mance tests (where such tests are available and their

administration is not contraindicated), establish the

the individual is able to do his usual coal mine work

or comparable and gainful work (see § 410.412(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

paragraph (b) of this section. Where it is not established on

the basis of the presumption in paragraph (b) of this sec-

tion that a miner is (or was) totally disabled due to pneu-

moconiosis, 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 establish

the requisite disability or cause of death of the miner under

the rules set out in ** 410.412 to 410.462.

REGULATIONS OF

DEPARTMENT OF LABOR

§ 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,

38a

or to have been fotally disabled due to pneumoconiosis at

the time of his 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 establishes 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(a)(2)

of this title) as demonstrated by values which are

equal to or less than the values specified in the follow-

ing table:

Equal to or

less than—

FEV, MVV

vee S| Serer wr to 2.3 92

Benth nite eks Gon Se eran ea 2.4 96

Te TE Te er ey” 2.4 96

fhe RRR eee PAE Pry tye ye 100

sf Pees Pee TS TET rn ee 2.6 104

rrr PE eee ees 2.6 104

i 3 Pee errrrs eee 2.7 108

(3) Blood gas studies which demonstrate the pres-

ence of an impairment in the transfer of oxygen from

the lung alveoli to the blood as indicated by values

which are equal to or less than the values specified in

the following table:

39a

Arterial

pco,

equal

to or

less

than

(mm.

Arterial pO, Hg.)

MI, st... 70.

ST te cao 69.

oe 68.

ce eae no 67.

ae SAE a la 66.

Ge 65.

a 64.

ee 63.

ON SS 62.

A 61.

dk. 60.

SE Any value.

(4) Other medical evidence, including the docu-

mented opinion of a physician exercising reasoned

medical judgment, establishes the presence of a totally

disabling respiratory or pulmonary impairment;

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

medical evidence is available, the affidavit of the sur-

vivor of such miner or other persons with knowledge

of the miner’s physical condition, demonstrates the

presence of a totally disabling respiratory or pulmo-

nary impairment.

(b) Rebuttal of interim presumption. In adjudicating a

claim under this subpart, all relevant medical evidence

shall be considered. The presumption in paragraph (a) of

this section shall be rebutted if:

40a

(1) The evidence establishes that the individual is,

in fact, doing his usual coa! mine work or comparable

and gainful work (see § 410.412(a)(1) of this titie); or

(2) In light of all relevant evidence it is estab-

lished that the individual is able to do his usual coal

mine work or comparable and gainful work (see

§ 410.412(a)(1) of this title); or

(3) The evidence establishes that the total disabil-

ity 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.

provided in this section, the provisions of Part 718 of this

subchapter as amended from time to time, shall also be

applicable to the adjudication of claims under this section.

(d) Failure of miner to qualify under the presumption

in paragraph (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.