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Underhill v. Peabody Coal Co.

decided: August 27, 1982.


On Petitions and Cross-Petitions for Review of an Order of the Benefits Review Board, United States Department of Labor.

Bauer, Circuit Judge, Nichols,*fn* Associate Judge, and Wood, Circuit Judge.

Author: Bauer

BAUER, Circuit Judge.

Louis E. Underhill filed a black lung benefits claim on May 25, 1977. The Office of Workers' Compensation Programs approved his claim on October 16, 1978, and notified Peabody Coal Company (Peabody), the responsible coal mine operator. After Peabody disputed the findings supporting Underhill's benefits claim, an administrative law judge (ALJ) reviewed the matter and upheld Underhill's award. The ALJ ruled that Underhill suffered from totally disabling pneumoconiosis because the results of Underhill's pulmonary function tests fell below the minimum level set by 20 C.F.R. § 727.203(a)(2), which creates a presumption of pneumoconiosis in such cases. In the ALJ's opinion, the pneumoconiosis presumption was not rebutted.

Unsatisfied with this decision, Peabody and its insurer, Old Republic Insurance Company (Old Republic), sought review by the Benefits Review Board (Board). On June 17, 1981, the Board reversed the ALJ's award and denied Underhill's benefits, holding that the pneumoconiosis presumption had been rebutted and that the "aggravation theory" created by the Secretary of Labor and applied by the ALJ was unconstitutional. Underhill now petitions this court to reverse the Board's determination, as does the Director of Workers' Compensation Programs (Director) in No. 81-2290. Peabody and Old Republic cross-petition for review in Nos. 81-2391 and 81-2393, respectively. We affirm.



Concern for the health and safety of the nation's coal miners, together with the inadequacy or absence of state workers' compensation coverage for such laborers, prompted Congress to enact the Federal Coal Mine Health and Safety Act of 1969 (FCMHSA), 30 U.S.C. § 801 et seq. (1970), as amended by Federal Mine Safety and Health Amendments Act of 1977, 30 U.S.C. §§ 901-945 (1976, Supp. I 1977 & Supp. II 1978). In passing this legislation, Congress sought to prevent death and serious physical harm by improving working conditions and practices in the nation's mines. To further these important ends, Congress adopted or authorized the promulgation of various regulatory standards, exemplified by the limitation on the permissible amount of dust in the ambient air of coal mines, found in Title II of the FCMHSA, 30 U.S.C. § 841 et seq. (1970), and the requirements for illumination of coal mines, prescribed by 30 C.F.R. §§ 75.200-75.200-14 (1980). Congress also authorized powerful sanctions to ensure compliance with these standards, such as the peremptory mine closure provisions of sections 104(a) and 104(c) of the FCMHSA, 30 U.S.C. §§ 814(a) & (c) (1970). See generally Moriarty & Pierce, The Federal Mine Safety and Health Amendments Act of 1977: Closure Encounters of the Third Kind, 80 W. Va. L. Rev. 429 (1978).

In addition to imposing safety and health regulations on the coal industry, Congress established a compensation program embodied in Title IV of the FCMHSA, 30 U.S.C. §§ 901-960 (1970, Supp. V 1975) (amended 1978). Title IV provides benefits to disabled miners and the survivors of deceased miners when the miner was disabled or killed by coal workers' pneumoconiosis, an occupational disease more commonly known as black lung. Because the issues in this appeal concern Title IV and certain regulations thereunder, we detail below pertinent parts of the statutory and regulatory framework of Title IV.


Title IV has been amended twice since 1969, first by the Black Lung Benefits Act of 1972, Pub. L. No. 92-303, and 86 Stat. 150, and more recently by the Black Lung Benefits Reform Act of 1977, Pub. L. No. 95-239, 92 Stat. 95. Prior to the 1972 amendments, a large number of black lung claims filed before July 1, 1973 (Part B claims)*fn1 were denied under the adjudication procedures and standards of the Social Security Administration (SSA). The 1972 amendments were intended to alleviate the SSA's overly restrictive approach by liberalizing the eligibility criteria, expanding coverage, and extending the time period for recovery. To implement the 1972 Congressional mandate, the SSA promulgated medical standards and adjudicatory rules commonly termed the "interim criteria" or "interim presumption."*fn2 See 20 C.F.R. § 410.490 (1980). The frequency of claimant recovery increased greatly under this new, more liberal interim presumption.

Despite these improvements, problems persisted for claims filed after December 31, 1973 (Part C claims). Under the 1972 amendments, responsibility for Part C claims shifted to the Department of Labor (DOL), which was to process such claims pursuant to an adjudication procedure comporting with the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. It soon became apparent that the DOL's claims approval rate was significantly lower than that of the SSA, largely because the SSA's liberal interim presumption was inapplicable to DOL cases. See Solomons, A Critical Analysis of the Legislative History Surrounding the Black Lung Interim Presumption and a Survey of Its Unresolved Issues, 83 W. Va. L. Rev. 869, 873 (1981) (hereinafter Solomons). Because the need for additional legislative revision was evident, Congress responded with the Black Lung Benefits Reform Act of 1977, Pub. L. No. 95-239, 92 Stat. 95.

The Congressional intent behind the 1977 reform legislation was the same as that underlying the 1972 amendments: to expand the coverage contemplated by the original act and to liberalize claim awards by removing certain eligibility restrictions from the program. As amended, section 402(f) (2), 30 U.S.C. § 902(f) (2), authorized the Secretary of Labor to adopt new medical and evidentiary criteria for determining total disability or death due to pneumoconiosis. The DOL's new criteria, however, was to be no more restrictive than the SSA's interim presumption. Id. The 1977 amendments also broadened the term pneumoconiosis, which is now defined as "a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment." 30 U.S.C. § 902(b).*fn3 In addition, financial responsibility for Part C black lung claims passed from the federal government, which pays Part B claims, to the miner's coal mine employer or its insurance carrier, unless an approved state workers' compensation programs exists. Id. § 932(a), (b). Thus, the United States becomes liable for Part C claims only when no financially responsible coal mine operator or insurer can be found. Id. at § 934.

Following the statute's 1977 modifications, the DOL issued its regulations, including its interim criteria or presumption, found at 20 C.F.R. § 727.200 et seq. (1980). The regulations provide an expanded definition of pneumoconiosis that encompasses respiratory or pulmonary impairments merely "aggravated by" dust exposure in coal mine employment.*fn4 20 C.F.R. § 727.202. In addition, the regulations' new interim presumption is less stringent than that of the SSA. Basically, the DOL version provides that after 10 years of coal mine employment a miner is presumed to be totally disabled by or to have died from pneumoconiosis if one of several requirements is satisfied: (1) a chest x-ray, biopsy, or autopsy establishes the existence of pneumoconiosis; (2) ventilatory studies establish the presence of a chronic respiratory or pulmonary disease; (3) gas studies demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood; (4) other medical evidence, including the documented opinion of a physician exercising reasoned medical judgment, establishes the presence of a totally disabling respiratory or pulmonary ...

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