Petition for Review of Decision and Order of the Benefits Review Board, United States Department of Labor.
Bauer, Circuit Judge, Nichols,*fn* Associate Judge, and Wood, Circuit Judge.
On December 27, 1978, an administrative law judge (ALJ) awarded black lung survivor benefits to Sible J. Freeman, the widow of a deceased coal miner. Old Ben Coal Company and Standard Oil Company (collectively Old Ben), the responsible operator and insurer, appealed to the Benefits Review Board (Board), which reversed the ALJ's decision and denied Freeman's benefits. Freeman now petitions this court for review. We affirm.
The structure and evolution of Title IV of the Federal Coal Mine Health and Safety Act of 1969 (FCMHSA), as amended through 1977, are set out in our companion opinion in Underhill v. Director, 687 F.2d 217, slip op. at 2-6 (7th Cir. 1982). Of importance to this appeal, which concerns a "Part C claim" as described in Underhill, are two amendments to the FCMHSA not discussed in Underhill. First, pursuant to section 2(c) of the Black Lung Benefits Reform Act of 1977, Pub. L. No. 95-239, 92 Stat. 95, section 402(f) (1) (B) of Title IV, 30 U.S.C. § 902(f) (1) (B), was amended to provide that coal mine employment at death is not conclusive evidence that a deceased miner was not totally disabled.*fn1 Second, section 3(a) (3) of the 1977 legislation added section 411(c) (5), 30 U.S.C. § 921(c) (5),*fn2 which states that eligible survivors of a deceased miner are entitled to benefits upon demonstrating that the miner was employed at least 25 years in the nation's coal mines before June 30, 1971, and that the miner's death occurred on or before the effective date of the 1977 amendments. The miner's survivors are not entitled to such benefits, however, if it is shown that the miner was neither partially nor totally disabled by pneumoconiosis at death.*fn3
Subsection (d), 20 C.F.R. § 727.204(d), establishes limits upon the evidence which is sufficient to rebut the section 411(c) (5) presumption. The regulation states that the following evidence "alone" is insufficient for rebuttal purposes: (1) evidence that a deceased miner was employed in a coal mine at death; (2) evidence pertaining to a deceased miner's level of earnings prior to death; (3) a chest x-ray interpreted as negative for the existence of pneumoconiosis; (4) a death certificate which fails to mention pneumoconiosis. This appeal concerns the application of 20 C.F.R. § 727.204(d).
Sible Freeman's late husband worked as a coal miner for more than 30 years before his employment with Old Ben. After Old Ben hired him, Mr. Freeman served as a mine examiner for eight years up to his death in 1975. Mr. Freeman was never disabled during his lifetime, nor was his death due to pneumoconiosis.*fn4 He was not absent from work during normal work days, suffered no decrease in his level of earnings prior to death, and even worked substantial amounts of overtime the week before his death. In fact, Mr. Freeman worked a full shift as a mine examiner the day before he died.
The ALJ concluded that Mr. Freeman's mining employment history of more than 25 years prior to June 30, 1971, entitled his widow to invoke the pneumoconiosis presumption created by section 411(c) (5). Although Old Ben offered evidence in rebuttal, the ALJ ruled that Old Ben had "failed to establish that the deceased miner 'was not during the latter years of his career disabled by pneumoconiosis from engaging in work which was comparable to the most arduous employment in which he engaged with some regularity and over a substantial period of time during his career as a coal miner.'" The ALJ therefore awarded benefits to Freeman's widow.
In its appeal to the Board, Old Ben did not dispute the propriety of invoking the section 411(c) (5) presumption. Instead, Old Ben, along with the Director of Workers' Compensation Programs (Director), argued that the "most arduous work" test was legally incorrect and that the deceased miner's disability, if any, should have been measured against his ability to perform the duties of a mine examiner, the only job he performed for Old Ben. Old Ben and the Director also argued that under 20 C.F.R. § 727.204(d) the evidence of record was sufficient to rebut the pneumoconiosis presumption.
The Board agreed that a finding of total or partial disability depends upon whether the miner has reduced ability to perform his last coal mine job held regularly over a substantial period of time, not his most arduous job. The Board also considered 20 C.F.R. § 727.204(d) and held that evidence satisfying more than one of the four criteria listed in that regulation was sufficient to rebut the section 411(c) (5) presumption. After reviewing the evidence introduced by Old Ben, the Board concluded that the pneumoconiosis presumption had been rebutted. Accordingly, Freeman's benefits were denied. This appeal followed.
On appeal, Freeman does not challenge the Board's invalidation of the "most arduous work" theory. Rather, it is her position that the pneumoconiosis presumption was not rebutted because Old Ben failed to introduce sufficient evidence. Specifically, she contends that the Board misconstrued the meaning ...