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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 997

## Text

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,
se
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

7

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Unpublished Opinion of the Benefits Review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

la

FRED KYLE, Petitioner,
V.

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

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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

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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....

(c) Rebuttal of presumption. The presumption in
paragraph (b) of this section may be rebutted if:

(1) There is evidence that the individual is, in
fact, doing his usual coal mine work or comparable
and gainful work. ...

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—

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

(C) any claim filed on or before the effective date
[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,

Sa

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

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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

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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).

8a

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

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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

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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.

EE

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,
Vv

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.

j

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.

(c) After notice required by this section, the agency
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;
or

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;

(C) such regulations shall not provide more
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

(C) any claim filed on or before the effective date
of regulations promulgated under this subsection by
the Secretary of Labor;

shall not be more restrictive 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.

(c) Rebuttal of presumption. The presumption in para-
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:

EL

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.

(c) Applicability of Part 718. Except as is otherwise
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0612%3A2. Public record. Not legal advice.