Petition for Review of an Order of the United States Department of Labor.
Baker, Chief Judge, Cummings and Flaum, Circuit Judges.*fn*
Opal Strike, the widow of Roy Strike, petitions for review of an order of the Department of Labor's Benefits Review Board ("the Board") affirming the decision of an Administrative Law Judge denying her claim for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945. Mrs. Strike contends that the Board's decision that she was not entitled to the benefit of the interim presumption of total disability violates 30 U.S.C. § 902(f)(2). We agree with the respondent Director,*fn1 however, that the Board's interpretation of § 902(f)(2) is consistent with Congress' intent. The petition for review is therefore denied.
I. Statutory and Regulatory Framework
Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972, was designed to provide benefits to miners who were "totally disabled" as a result of pneumoconiosis arising out of coal mine employment and to survivors of miners who had died due to the disease. See 30 U.S.C. § 901(a). In an attempt to divide financial responsibility between the federal government and the coal industry, the legislative scheme created two separate and distinct programs for awarding black lung benefits. The first, designated as Part B, applied to claims filed on or before December 31, 1973. See 30 U.S.C. §§ 921-925 (1976). This program was to be administered by the Secretary of Health, Education, and Welfare*fn2 through the Social Security Administration, and benefits were to be payable from federal funds. The second, designated as Part C, applied to claims filed after December 31, 1973. See id. §§ 931-941 (1976). This program was intended to function like workers' compensation. As a result, it was to be administered by the Department of Labor, and benefits were generally to be payable by the employer.*fn3 Under the original legislation, the Secretary of HEW was authorized to promulgate regulations, applicable to claims under both Part B and Part C, prescribing standards for determining whether a miner was totally disabled due to pneumoconiosis or whether a miner's death was due to the disease. Id. §§ 902(f), 921(b), 932(h) (1976). The Secretary of Labor, however, retained the authority to establish his own standards for determining whether a miner's pneumoconiosis arose out of coal mine employment. Id. § 932(h) (1976).
In response to dissatisfaction with HEW's administration of Part B, Congress enacted the Black Lung Benefits Act of 1972 which liberalized the eligibility requirements for benefit awards. In addition, to reduce the large backlog of unadjudicated Part B claims, Congress urged HEW to adopt "such interim evidentiary rules and disability evaluation criteria as [would] permit prompt and vigorous processing" of those claims. S. Rep. No. 743, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Admin. News 2305, 2322. Congress noted that the facilities and medical tests necessary to evaluate disability due to pneumoconiosis were not then available and that the Part B claims had to be handled notwithstanding the limited medical resources and techniques. Id.
HEW responded by adopting a set of interim adjudicatory rules set out at 20 C.F.R. § 410.490. Section 410.490(b) created a rebuttable presumption of total disability due to pneumoconiosis arising out of coal mine employment if certain conditions were met:
(b) Interim 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 disabled due to pneumoconiosis at the time of his death, or his death will be presumed to be due to pneumoconiosis, as the case may be, if:
(1) One of the following medical requirements is met:
(i) A chest roentgenogram (X-ray), biopsy, or autopsy establishes the existence of pneumoconiosis (see § 410.428); or
(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).
Under the regulations set out at 20 C.F.R. §§ 410.416 and 410.456, a miner could satisfy the (b)(2) condition if he had worked in coal mines for 10 or more years. Otherwise the miner was required to prove that his disease arose out of coal mine employment.
The interim adjudicatory rules of § 410.490 applied only to Part B claims filed by miners before June 30, 1973, and to claims filed by survivors of miners who died before January 1, 1974. They did not apply to Part C claims, which were to be governed by a set of permanent regulations promulgated by HEW. See 20 C.F.R. §§ 410.401-410.476. The Part C permanent regulations were significantly more demanding than the Part B interim rules, and as a consequence, the claim approval rate was much lower under Part C than Part B. This discrepancy led to over two years of hearings and debate in Congress between 1975 and 1977 on various bills proposing amendments to the standards employed in adjudicating Part C claims. The end result of this lengthy legislative process was the Black Lung Benefits Reform Act of 1977.
In addition to modifying the evidentiary requirements necessary to establish entitlement to benefits and eliminating certain restrictions on the filing of claims, the 1977 Act made two significant changes in the administration and processing of black lung benefits claims. First the Act transferred the authority to promulgate regulations for Part C claims from the Secretary of HEW to the Secretary of Labor. 30 U.S.C. § 902(f)(1). The Secretary of Labor was directed to define "total disability," id., and to "establish criteria for all appropriate medical tests under this subsection which accurately reflect total disability in coal miners," id. § 902(f)(1)(D).
The Act also directed the Secretary of HEW and the Secretary of Labor to undertake a review of all pending and previously denied claims in light of the amendments made by the Act. Id. § 945. Upon the request of a claimant, the Secretary of HEW was to review all pending and previously denied Part B claims based on the evidence in the file, but taking into account the 1977 amendments. Id. § 945(a)(1). If the claim was not approved, it was to be referred to the Secretary of Labor "with an opportunity for the claimant to present additional medical or other evidence." Id. §§ 945(a)(2)(B)(i) and 945(a)(1)(B). Any such claim was to be treated as if it had been originally filed under Part C. Id. § 945(a)(3)(A). The Secretary of Labor was similarly instructed to review all pending and previously denied Part C claims in light of the 1977 amendments. Id. § 945(b)(1). In reviewing any Part B claim referred by HEW under § 945(a) or any Part C claim under § 945(b), the Secretary of Labor was required to apply "criteria . . . not . . . more restrictive than the criteria applicable to a claim filed on June 30, 1973." Id. § 902(f)(2).*fn4
In 1978 the Secretary of Labor promulgated a set of regulations governing the review of pending and previously denied claims under § 945. 20 C.F.R. § 727.203(a) creates a rebuttable presumption of total disability incorporating medical criteria identical to those used in § 410.490. It provides in pertinent part:
(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, or to have been totally disabled due to pneumoconiosis at the time of 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 ...