PART V STATUTORY PRESUMPTIONS IN MINERS' CLAIMS
PART V
STATUTORY PRESUMPTIONS IN MINERS' CLAIMS
Section 411(c)(1) of the Act, 30 U.S.C. §921(c)(1), as implemented by 20 C.F.R. §§410.416(a), 718.203 and 718.302, provides that, in the case of a miner who was employed for ten or more years in one or more coal mines and who is suffering from pneumoconiosis, there is a rebuttable presumption that his pneumoconiosis arose out of employment in the nation's coal mines. In any other case, the regulations provide that a miner suffering from pneumoconiosis must submit the evidence necessary to establish that his pneumoconiosis arose out of employment in the nation's coal mines. For additional explanation of this presumption and case law, see Part VI.D. and Part VII.C. of the Black Lung Desk Book.
Section 411(c)(3) of the Act, 30 U.S.C. §921(c(3), and its implementing regulations found at 20 C.F.R. §§410.418 and 718.304, provide that if a miner is suffering or suffered from complicated pneumoconiosis, then there is an irrebuttable presumption that s/he is totally disabled due to pneumoconiosis, that death was due to pneumoconiosis, or that, at the time of death, s/he was totally disabled due to pneumoconiosis.
Complicated pneumoconiosis may be proven by x-ray evidence only if the x-ray evidence, which must be weighed, reveals one or more large opacities (greater than one centimeter in diameter), classified as category A, B, or C. 30 U.S.C. §921(c)(3)(A); 20 C.F.R. §§410.418(a), 718.304(a). Complicated pneumoconiosis may be established by autopsy or biopsy evidence, if such evidence establishes massive pulmonary lesions. 30 U.S.C. §921(c)(3)(B); 20 C.F.R. §§410.418(b), 718.304(b). Section 410.418(b) also states that a biopsy or autopsy will be accepted as evidence of complicated pneumoconiosis if the histological findings establish simple pneumoconiosis and progressive massive fibrosis. Section 718.304(b) does not contain this additional provision. Finally, a provision is made for diagnosis of complicated pneumoconiosis by other means, if the condition diagnosed would yield results similar to those described above if diagnosed by x-ray, autopsy or biopsy. 30 U.S.C. §921(c)(3)(C); 20 C.F.R. §§410.418(c), 718.304(c). The Board has construed this standard strictly in several cases. See Lohr v. Rochester & Pittsburgh Coal Co., 6 BLR 1-1264 (1984); Clites v. Jones & Laughlin Steel Corp., 2 BLR 1-1019 (1980); Gaudiano v. United States Steel Corp., 1 BLR 1-949 (1978).
The introduction of legally sufficient evidence of complicated pneumoconiosis does not automatically qualify the claimant for the irrebuttable presumption found at Section 411(c)(3). Rather, the administrative law judge must examine all of the evidence on this issue, i.e., evidence of simple and complicated pneumoconiosis, as well as evidence of no pneumoconiosis, resolve the conflicts, and make a finding of fact. See Truitt v. North American Coal Corp., 2 BLR 1-199 (1979), aff'd sub nom. Director, OWCP v. North American Coal Corp., 626 F.2d 1137, 2 BLR 2-45 (3d Cir. 1980). If the record contains any evidence indicating the existence of complicated pneumoconiosis, the administrative law judge must specifically address it, and, if it is rejected, must provide a legitimate explanation. Shultz v. Borgman Coal Co., 1 BLR 1-233 (1977). If there is no evidence of complicated pneumoconiosis in the record, however, no specific finding of fact is required as to the existence or non-existence of complicated pneumoconiosis. Lewandowski v. Director, OWCP, 1 BLR 1-840 (1978).
This presumption is not rebutted by the fact that the miner continues or continued to work after being diagnosed as suffering from complicated pneumoconiosis. Moreover, once a claimant is found entitled to the benefit of this presumption, he is entitled to monthly benefits without any offset for earned wages. See Kelley v. Brookside Pratt Mining Co., 1 BLR 1-619 (1978); Fisher v. Bethlehem Mines Corp., 1 BLR 1-591 (1978); see also Gaul v. Bethlehem Mines Corp., 1 BLR 1-911 (1978).
Before making a determination pursuant to 30 U.S.C. §921(c)(3), [20 C.F.R. §718.304] all relevant evidence must be considered. Lester v. Director, OWCP, 993 F.2d 1143, 17 BLR 2-114 (4th Cir.1993).
The presumption at Section 718.305 is available in claims filed before January 1, 1982 where the miner worked at least 15 years in underground mining or comparable surface mining, and the evidence establishes the existence of a totally disabling respiratory or pulmonary impairment. At invocation, claimant is not required to establish that the miner's totally disabling respiratory or pulmonary impairment is chronic or that it arose out of coal mine employment. See Tanner v. Freeman United Coal Co., 10 BLR 1-85 (1987). Rather, the inquiry is concerned with the severity of the respiratory impairment irrespective of its cause. The determination of the existence of a totally disabling respiratory or pulmonary impairment, for purpose of applying this presumption, shall be made in accordance with Section 718.204. See 20 C.F.R. §718.305(c); Tanner, supra.
At rebuttal, the specific etiology of the totally disabling respiratory impairment need not be established. See Tanner, supra. Rather, the party opposing entitlement must establish either that the miner does not or did not have pneumoconiosis or that the miner's impairment did not arise out of or in connection with coal mine employment. See Alexander v. Island Creek Coal Co., 12 BLR 1-44 (1988), aff'd sub nom. Island Creek Coal Co. v. Alexander, No. 88-3863 (6th Cir., Aug. 29, 1989)(unpub.); Defore v. Alabama By-Products, 12 BLR 1-27 (1988); Tanner, supra.
It should be noted that the Section 411(c)(4) presumption was deleted by the Black Lung Benefits Amendments of 1981, and the presumption is, therefore, inapplicable to claims filed on or after January 1, 1982. 30 U.S.C. §921(c)(4); 20 C.F.R. §718.305(e).
Section 718.305 contains provisions that clarify the use of lay testimony to establish the Section 411(c)(4) presumption. Section 718.305(a) states that, in the case of a living miner, a spouse's affidavit or testimony may not be used by itself to establish the applicability of the presumption. Section 718.305(b) provides that, in the case of a deceased miner where there is no medical or other relevant evidence, affidavits of persons having knowledge of the miner's condition shall be considered to be sufficient to establish the existence of a totally disabling respiratory or pulmonary impairment.
Section 718.305(c) provides that the determination of the existence of a totally disabling respiratory or pulmonary impairment shall be made in accordance with Section 718.204.
The Seventh Circuit declined to hold that as a matter of law an individual who has worked for a coal mine company above ground for 15 years or more need not demonstrate that his working conditions on the surface were "substantially similar" to those underground to proceed under 30 U.S.C. §921(c)(4). Summers v. Freeman United Coal Mining Co., 14 F.3d 1220, 18 BLR 2-105, (7th Cir. 1994).
Disagreeing with the Board, the Seventh Circuit reversed the Board and concluded that the evidence established invocation of the Section 718.305 presumption and that rebuttal was not established. The Court held that the ALJ's preoccupation with the existence of pneumoconiosis, prior to addressing the existence of a totally disabling respiratory impairment was error. The Court further noted that to qualify for the Section 718.305 presumption, claimant only has the burden to establish at least 15 years of coal mine employment and a totally disabling respiratory impairment (and have filed before January 1, 1982). The Court held that claimant did not have to establish pneumoconiosis or a cause of disability to invoke the presumption. Mitchell v. Director, OWCP, 25 F.3d 500, 18 BLR 2-257 (7th Cir. 1994).
The Fourth Circuit held that the application of Section 718.305 supported an award of benefits as the evidence, even though containing two autopsy-based diagnoses of no clinical pneumoconiosis, did not support a finding of rebuttal, i.e., proof that the miner's pulmonary impairment was not related to or aggravated by dust exposure in the mines. [Note: in this case, while both physicians ruled out clinical pneumoconiosis based on a review of the autopsy evidence, the Court was concerned that there was no evidence indicating that the miner's "manifest pulmonary impariments" were not related to or aggravated by coal dust exposure.] Barber v. Director, OWCP, 43 F.3d 899, 19 BLR 2-61 (4th Cir. 1995).
The Seventh Circuit affirmed the ALJ's findings that employer established rebuttal pursuant to 20 C.F.R. §718.305 holding that the ALJ properly weighed the conflicting testimony and determined that the medical evidence did not establish the existence of pneumoconiosis or that the miner's pneumoconiosis arose in whole or in part out of coal dust exposure. The Court indicated that the standard for determining whether the miner's pneumoconiosis arose in whole or in part out of coal dust exposure was whether coal dust exposure was a contributing cause of the miner's disabling pulmonary impairment or whether mining was a necessary but not a sufficient condition of the miner's disability. Blakley v. Amax Coal Co., 54 F.3d 1313, 19 BLR 2-192 (7th Cir. 1995).