Petition for Review of an Order of the Benefits Review Board
Cummings, Chief Judge, Posner and Coffey, Circuit Judges.
The Peabody Coal Company and its insurer the Old Republic Insurance Company petition for review of a decision of the Benefits Review Board of the United States Department of Labor, awarding benefits for "black lung" disease to Howard Lowis under the Federal Mine Safety and Health Act, 30 U.S.C. sections 901-945 (1978). We reverse.
Congress first enacted the Federal Coal Mine Health and Safety Act of 1969, and later passed amendments contained in the Federal Mine Safety and Health Amendments of 1977*fn1 in an effort to improve working conditions and safety in the nation's mines. Congress established a compensation program to provide benefits to disabled miners and survivors of deceased miners if the miner was disabled or killed by coal workers' pneumoconiosis, an occupational disease commonly known as "black lung,"*fn2 in addition to imposing safety and health regulations on the coal industry with this legislation.
The Act defines pneumoconiosis 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) (amended 1977). The Act provides that the coal mine operator or its insurance carrier is financially responsible for all claims filed after December 31, 1973 unless an approved state workers' compensation program exists in the state in which the coal mine is located.*fn3 30 U.S.C. § 932(a), (b) (no state to date has adopted such a program).
In addition to the statutes previously discussed, Congress authorized the Department of Labor to promulgate regulations to implement the protection afforded under the Act, including an expanded definition of pneumoconiosis:
"For the purposes of the act, 'pneumoconiosis' means a chronic dust disease of the lung and its sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment. This definition includes, but is not limited to, coal workers' pneumoconiosis, anthracosilicosis, anthracosisanthro-silicosis, massive pulmonary fibrosis, progressive massive fibrosis silicosis, or silicotuberculosis arising out of coal mine employment. For purposes of this definition, a disease 'arising out of coal mine employment ' includes any chronic pulmonary disease resulting in respiratory or pulmonary impairment significantly related to, or aggravated by, dust exposure in coal mine employment."
20 C.F.R. § 727.202.*fn4 The Labor Department regulations also established a so-called "interim presumption," setting forth certain medical criteria which, if proven by a claimant, establish a rebuttable presumption of pneumoconiosis arising out of coal mine employment. The "interim presumption" set forth in 20 C.F.R. § 727.203, provides that a miner who engaged in coal mine employment for at least ten years is presumed (subject to rebuttal) to be totally disabled by or to have died from work-related pneumoconiosis if one of the following elements is proven: (1) a chest roentgenogram (X-ray), biopsy or autopsy establishes the existence of pneumoconiosis; (2) ventilatory studies establish the presence of sufficiently severe chronic respiratory or pulmonary disease; (3) blood gas studies demonstrate the existence of a sufficient 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 impairment; or (5) in instances where no medical evidence is available, the affidavit of a deceased miner's survivor or other persons with knowledge of the miner's physical condition demonstrate the presence of a totally disabling respiratory or pulmonary impairment. Underhill v. Peabody Coal Co., 687 F.2d 217, 220 (7th Cir. 1982), 20 C.F.R. § 727.203(a)(1)-(a)(5).
The same Labor Department regulations further provide that the "interim presumption" described above may be rebutted in the following manner:
"(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:
(1) The evidence establishes that the individual is, in fact, doing his usual coal mine work or comparable and gainful work (see § 420.412(a)(1) of this title); or
(2) In light of all relevant evidence it is established that the individual is able to do his usual coal mine work or comparable and gainful work (see § 420.412(a)(1) of this title); or
(3) The evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment; or
(4) The evidence establishes that the miner does not, or did not, have pneumoconiosis."
Howard Lowis, a former employee of Peabody Coal Company (Peabody Coal), filed a claim for "black lung" benefits on October 23, 1978. The United States Department of Labor, Workers' Compensation Programs Office, approved Lowis's claim and determined that Peabody Coal was responsible for payment of the benefits. Peabody Coal and Old Republic Insurance Company, Peabody Coal's insurer, denied liability and requested a hearing. Lowis was awarded benefits by an Administrative Law Judge after a hearing on April 15, 1980 and the Benefits Review Board affirmed the ALJ's liability determination.
Lowis was employed by the petitioner Peabody Coal Company at its coal mine in Pawnee, Illinois from December of 1966 through October of 1978. At the hearing before the Administrative Law Judge, Lowis described his coal mine employment as follows:
"Q. During the twelve years that you worked for Peabody, would you tell me the different types of jobs that you had, different types of job classification?
A. Well, I was about three years a laborer, and I scooped on the belt. I run a ramp car, a buggy, and just ...