PART VI REGULATORY PRESUMPTIONS
PART VI
REGULATORY PRESUMPTIONS
A. 20 C.F.R. § 727.203 INTERIM PRESUMPTION IN GENERAL
In Pittston Coal Group v. Sebben, 109 S.Ct. 414, 12 BLR 2-89 (1988), the Court concluded that 20 C.F.R. §727.203 was more restrictive than the HEW regulations to the extent that 20 C.F.R. §727.203(a) did not permit invocation of the presumption without ten years of coal mine employment. Thus, in its remand Order in Director, OWCP v. Broyles, No. 87-1095 (a companion case), the Court ordered the Board to apply a criteria no more restrictive than Section 410.490 regarding the affirmative factors for invoking the presumption. Sebben, supra.
Subsequently, in Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 15 BLR 2-155 (1991), the Court upheld the validity of the rebuttal methods provided by 20 C.F.R. §727.203(b)(3), (4), thus affirming the holding of the Third Circuit in Bethenergy Mines, Inc. v. Director, OWCP, 890 F.2d 1295, 13 BLR 2-162 (3d Cir. 1989), and reversing the holding of the Fourth Circuit in Taylor v. Clinchfield Coal Co., 895 F.2d 178, 13 BLR 2-294 (4th Cir. 1990) and Dayton v. Consolidation Coal Co., 895 F.2d 173, 13 BLR 2-307 (4th Cir. 1990). Based on the Court's decision in Pauley, the Board will apply Section 727.203 as written to claims where the claimant establishes ten or more years of coal mine employment. Where the miner establishes less than 10 years of coal mine employment, claimant can avail themselves of the presumption of total disability due to pneumoconiosis pursuant to the criteria in Section 410.490(b), by establishing that this pneumoconiosis arose from coal mine employment. This presumption may be rebutted by any one of the available methods contained at 20 C.F.R. §727.203(b). Phipps v. Director, OWCP, 17 BLR 1-39 (1992).
In light of the fact that the language of the Act does not preclude the regulations found at 20 C.F.R. §727.203(a), and the legislative history does not disclose a contrary intent on the part of Congress, the Section 727.203(a) interim presumptions are valid. Peabody Coal Co. v. Director, OWCP, 778 F.2d 358 (7th Cir. 1985).
All like-kind evidence must be weighed prior to invocation. While one item can establish invocation, it does not compel invocation. Invocation must be established by a preponderance of the evidence. Mullins Coal Company, Inc. of Virginia v. Director, OWCP, 484 U.S. 135, 11 BLR 2-1 (1987), reh'g denied, 484 U.S. 1047 (1988).
A claimant invoking Section 727.203(a) need not demonstrate that his pneumoconiosis is employment-related. Section 727.203(a) does not require proof of the presence of pneumoconiosis or a totally disabling respiratory impairment, affording significant evidentiary advantages to the black lung claimant not otherwise available under the statutory presumptions. Peabody Coal Co. v. Director, OWCP, 778 F.2d 358 (7th Cir. 1985).
The digests that follow are presented in five groups, covering the subsections of the Section 727.203(a) presumptions:
Section 727.203(a)(1) is valid. Kaiser Steel Corp. v. Director, OWCP, 757 F.2d 1078, 7 BLR 2-150 (10th Cir. 1985); Alabama By-Products Corp. v. Killingsworth, 733 F.2d 1511, 6 BLR 2-59 (11th Cir. 1984); Jones v. The New River Co., 3 BLR 1-199 (1981).
Invocation pursuant to subsection (a)(1) precludes rebuttal pursuant to subsection (b)(4). Mullins, supra. See also Freeman United Coal Mining Co. v. OWCP [Forsythe], 20 F.3d 289, 18 BLR 2-189 (7th Cir. 1994).
The Seventh Circuit remanded this case for reconsideration where the ALJ had relied on Stapleton and Kuehner. Old Ben Coal Co. v. Director, OWCP [Mitchell], F.3d , No. 94-2110 (7th Cir. Aug. 16, 1995).
Section 727.203(a)(2) is valid. Peabody Coal Co. v. Director, OWCP, 778 F.2d 358 (7th Cir. 1985); Kaiser Steel Corp. v. Director, OWCP, 757 F.2d 1078, 7 BLR 2-150 (10th Cir. 1985); McCluskey v. Ziegler Coal Co., 2 BLR 1-1248 (1981).
The cause of the diminished pulmonary function study results is a factor to consider prior to invocation, citing to Mullins, supra, and Casella v. Kaiser Steel Corp., 9 BLR 1-131, 1-134 (1986). Twin Pines Coal Co. v. USDOL, 854 F.2d 1212, 11 BLR 2-198 (10th Cir. 1988).
Invocation of the interim presumption pursuant to subsection (a)(2) requires a finding as to whether the studies are both conforming and qualifying. See Twin Pines Coal Co. v. United States Dep't of Labor, 854 F.2d 1212, 11 BLR 2-198 (10th Cir. 1988); Zeigler Coal Co. v. Sieberg, 839 F.2d 1280, 11 BLR 2-80 (7th Cir. 1988); Saginaw Mining Company v. Ferda, 879 F.2d 198, 12 BLR 2-376 (6th Cir. 1989).
When considering the validity and reliability of qualifying and conforming pulmonary function studies, the ALJ may not consider opinions of non-examining physicians which are based on factors outside Sections 410.430 and 718.103. These opinions may be considered, however, at rebuttal. Wiley v. Consolidated Coal Co., 892 F.2d 490, 13 BLR 2-214 (6th Cir. 1989), modified, 915 F.2d 1076, 14 BLR 2-89 (6th Cir. 1990).
Non-conforming tests may not be used to discredit other potentially qualifying studies. Wiley, supra.
In a Part 727 case, the Part 718 quality standards apply to pulmonary function studies performed after March 31, 1980. Wiley, supra.
Section 727.203(a)(3) is valid. Martino v. United States Fuel Co., 6 BLR 1-33 (1983); Robertson v. Alabama By-Products Corp., 7 BLR 1-793 (1985).
The Court citing, Mullins, supra, held that all evidence relevant to subsection (a)(3) should be considered at the invocation stage. Regarding the issue of altitude, the court held that the adjusted tables found at 20 C.F.R. Part 718, Appendix C, are not incorporated into Part 727. However, the court noted:
Big Horn Coal Co. v. Director, OWCP, 897 F.2d 1045, 13 BLR 2-372 (10th Cir. 1990). See also Temple v. Big Horn Coal Co., 14 BLR 1-142 (1990).
This regulation's validity has not been specifically addressed by the courts or the Board except generally in Peabody Coal Co., supra. See item J - 3 above.
Invocation pursuant to subsection (a)(4) does not preclude rebuttal pursuant to subsections (b)(1) and (b)(2). Mullins, supra, n. 26.
Invocation pursuant to subsection (a)(4) may be rebutted under subsection (b)(4) with evidence "different in kind," or with the same evidence if rebuttal is based on the cause of the miner's pneumoconiosis Keeling v. Peabody Coal Co., 984 F.2d 857, 17 BLR 2-38 (7th Cir. 1993).
No need to establish that the cause of total disability is due to coal mine employment to invoke pursuant to subsection (a)(4). Mullins, supra, n.18.
While the validity of this regulation has never been addressed by the courts or the Board, the Board found it to be presumptively valid in Gessner v. Director, OWCP, 11 BLR 1-1 (1987).
Where medical evidence exists regarding the issue of miner's pulmonary condition, subsection (a)(5) is not available. Coleman v. Director, OWCP, 829 F.2d 3, 10 BLR 2-287 (6th Cir. 1987).
Consideration of the lay evidence under subsection (a)(5) is available where the medical evidence of record is insufficient to establish total disability or lack thereof under subsection (a)(1)-(4). Dempsey v. Director, OWCP, 611 F.2d 1154, 9 BLR 2-226 (7th Cir. 1987); Hillibush v. U. S. Department of Labor, 853 F.2d 197, 11 BLR 2-223 (3d Cir. 1988); Collins v. Old Ben Coal Co., 861 F.2d 481 (7th Cir. 1988); Koppenhaver v. Director, OWCP, 864 F.2d 287, 12 BLR 2-103 (3d Cir. 1988); Cook v. Director, OWCP, 901 F.2d 29, 13 BLR 2-427 (4th Cir. 1990); Pekala v. Director, OWCP, 13 BLR 1-1 (1989).
When considering the severity of the deceased miner's respiratory impairment the ALJ may consider the miner's work history and the fact that he had continued to work until his death. Pendleton v. Director, OWCP, 882 F.2d 101, 12 BLR 2-411 (4th Cir. 1989).
B. REBUTTAL OF THE INTERIM PRESUMPTION
1. SECTION 727.203(b)(1), (b)(2) REBUTTAL
The validity of these regulations has not been specifically addressed by the courts or the Board.
a. Total disability is without regard to cause
b. Rebuttal can not be established on the basis of no impairment
c. Total disability from a respiratory standpoint
Rebuttal may be based on proof that claimant has no totally disabling pulmonary or respiratory impairment. Mitchelson v. Director, OWCP, 880 F.2d 265, 12 BLR 2-399 (10th Cir. 1989). See Maddaleni v. Pittsburg & Midway Coal Mining Co., 14 BLR 1-135 (1990).
An ALJ's finding that the miner does not have a disabling respiratory impairment is equivalent to a finding that the miner can perform his usual coal mine work where there is no evidence of any other impairment. Neace v. Director, OWCP, 867 F.2d 264, 12 BLR 2-160 (6th Cir. 1989), affirmed on reh'g, 877 F.2d 495 (6th Cir. 1989); Bartley v. L & M Coal Co., 901 F.2d 1311, 13 BLR 2-414 (6th Cir. 1990).
Sections 727.203(b)(1) and 727.205(b) apply only to living miners' cases. Farmer v. Rogers, 839 F.2d 269, 11 BLR 2-53 (6th Cir. 1988).
At rebuttal, the ALJ must discuss not only medical evidence that would qualify to invoke the interim presumption, but all medical evidence, including examinations and tests that were not conducted in compliance with the regulations and therefore would not be sufficient to invoke the interim presumption. Saginaw Mining Company v. Ferda, 879 F.2d 198, 12 BLR 2-376 (6th Cir. 1989).
For purposes of subsections (b)(1) and (b)(2), the "usual coal mine employment" phrase was not meant to encompass only mining tasks that the claimant had at one time or another performed. Rather, the phrase was meant to insure that a presumption of disability would not be rebutted by a situation in which a claimant: (i) obtains only "make work" or sporadic mining jobs; (ii) makes only marginal earnings; (iii) performs poorly due to his health; or (iv) through extraordinary physical effort, continues to work in mines to insure survival during the pendency of his claim. Meyer v. Zeigler Coal Co., 894 F.2d 902, 13 BLR 2-285 (7th Cir. 1990).
The cause of the miner's disability is irrelevant to rebuttal under subsection (b)(2). Robbins v. Jim Walter Resources, Inc., 898 F.2d 1478, 13 BLR 2-400 (11th Cir. 1990).
The relevant inquiry under subsections (b)(1) and (b)(2) is the severity of claimant's disability on the date of the hearing. Cooley v. Island Creek Coal Co., 845 F.2d 622, 11 BLR 2-147 (6th Cir. 1988); Freeman United Coal Co. v. Benefits Review Board, 912 F.2d 164, 14 BLR 2-53 (7th Cir. 1990).
The Seventh Circuit held that a miner who has pneumoconiosis but is disabled by a condition occurring during coal mine employment unrelated to pneumoconiosis cannot be considered totally disabled due to pneumoconiosis. Here, the miner established invocation of the interim presumption pursuant to Section 727.203(a)(1) by virtue of the existence of pneumoconiosis. The Court held that rebuttal of this presumption had been established pursuant to Section 727.203(b)(2), as the evidence established that the miner's inability to work was due to a back injury, even though it was undisputed that the back injury occurred during coal mine employment. Freeman United Coal Mining Co. v. Foster, 30 F.3d 834, 18 BLR 2-329 (7th Cir. 1994).
The Seventh Circuit remanded this case for reconsideration where the Board, relying on Wetherill dicta, had vacated the ALJ's finding of rebuttal that claimant did not suffer from any disabling respiratory impairment. The Court noted that they "repudiated our previous Wetherill dicta and held that a miner whose pneumoconiosis was not disabling and who could have worked except for workrelated back injury was not totally disabled by pneumoconiosis and was not entitled to benefits" in Freeman United Coal Mining Co. v. Foster, 30 F.3d 834 (7th Cir. 1994). Old Ben Coal Co. v. Director, OWCP [Mitchell], F.3d , No. 94-2110 (7th Cir. Aug. 16, 1995).
The Sixth Circuit rejected employer's argument that Pauley v. Bethenergy Mines, Inc., 501 U.S. 680 (1991) overrules York v. Benefits Review Board, 819 F.2d 134 (6th Cir. 1987), citing to Youghiogheny & Ohio Coal Co. v. Webb, 49 F.3d 244, 249 n.7 (6th Cir. 1995). Peabody Coal Co. v. Greer, 62 F.3d 801, 19 BLR 2- 235 (4th Cir. 1995).
d. Comparable and Gainful Work
Rebuttal under Section 727.203(b)(1) requires a finding that a miner is doing work comparable to his usual coal mine work; Section 727.203(b)(2) rebuttal requires a finding that the miner is capable of doing such work. The distinction between the two sections is obvious. A claimant might not be working at all at the time of his hearing, yet is capable of working. Similarly, a claimant might be working at the time of his hearing at a job not comparable to his usual coal mine work, yet be found able to do comparable work. It would thus appear the Section 727.203(b)(2) rebuttal is normally considered after it is determined that Section 727.203(b)(1) rebuttal is not available. Bowling v. Director, OWCP, 920 F.2d 342, 14 BLR 2-125 (1990).
In determining the availability of such work for a non-working miner, the Board announced "the reasonable opportunity to be hired" test in Fletcher v. Central Appalachian Coal Co., 1 BLR 1-980 (1978), affirmed 3 BLR 1-10 (1981). The court, however, rejected the Board's use of the "reasonable opportunity to be hired" test in determining whether claimant could do comparable and gainful work. See Fletcher v. Central Appalachian Coal Co., 679 F.2d 1086, 4 BLR 2-92 (4th Cir. 1982). The "reasonable opportunity to be hired" test, the court stated, "could be construed as requiring that the operator be successful as an employment agency to find the claimant a job" and ruled that Congress did not intend such a result. Benefits are to be based on an inability to work due to disability not due to unemployment. The proper inquiry is whether "in light of the impairment, age, education, and work experience or skills of the miner, he is unable to engage in any comparable and gainful work that is available to him in the immediate area of his residence." See also Shamrock Coal Co. v. Lee, 751 F.2d 187, 7 BLR 2-96 (6th Cir. 1985).
The Sixth Circuit reversed ALJ's finding that claimant's present job as a foreman in a steel and wire factory is comparable under Section 727.203(b)(1) to his former coal mine work of loading and shoveling coal underground. The test is not whether the present job is better, from an economic standpoint, than the former coal mine work. (The jobs are being compared to determine health impairment, not earning capacity.) The test is whether the skills and abilities in the present job are comparable to the duties in the former mine work, in order to determine whether the claimant is physically sound. Ratliff v. Benefits Review Board, 816 F.2d 1121, 10 BLR 2-76 (6th Cir. 1987). [This test has also been adopted by the Tenth Circuit. Big Horn Coal Co. v. Director, OWCP, 897 F.2d 1050, 13 BLR 2-372 (10th Cir. 1990).]
In the Third Circuit, the test of comparability at Section 727.203(b)(1) involves the relevant factors of relative compensation, working conditions, levels of exertion, educational requirements, location of employment, and skills and abilities required. Compensation is the prime criterion of comparability in that, if present wages are lower, it is unlikely that employment is comparable. Echo v. Director, OWCP, 744 F.2d 327, 6 BLR 2-110 (3d Cir. 1984); see also Fidler v. Director, OWCP, No. 83-3702 (3d Cir., Mar. 29, 1989)(unpub.)[Echo is applied to Part 718].
The proper legal standard in the Fourth Circuit for comparing employment [in a determination of comparable employment] should include a range of factors, with no single factor assuming paramount importance as a matter of law. The range of factors may include compensation, skills and abilities required, levels of exertion, status, responsibility, working conditions and work location - the weight to be assigned a given factor in a particular case is within the province of the fact finder. Harris v. Director, OWCP, 3 F.3d 103, 18 BLR 2-1 (4th Cir. 1993).
The Seventh Circuit discussed Echo and Ratliff, supra, and ruled that the statute requires job comparability, not identity, and that ALJ should consider comparability in skills, abilities, status, responsibility, and pay. Pate v. Director, OWCP, 834 F.2d 675, 10 BLR 2-339 (7th Cir. 1987).
2. SECTION 727.203(b)(3) REBUTTAL
This regulation is valid. Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 2524, 15 BLR 2-155 (1991). See also Carozza v. United States Steel Corp., 727 F.2d 74, 6 BLR 2-15 (3d Cir. 1984); Patrich v. Old Ben Coal Co., 926 F.2d 1482 (7th Cir. 1991) and cases cited therein.
In Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 15 BLR 2-155 (1991), the U.S. Supreme Court upheld the validity of the rebuttal methods provided by 20 C.F.R. §727.203(b)(3), (4), thus affirming the holding of the United States Court of Appeals for the Third Circuit in Bethenergy Mines, Inc. v. Director, OWCP, 890 F.2d 1295, 13 BLR 2-162 (3d Cir. 1989), and reversing the holding of the United States Court of Appeals for the Fourth Circuit in Taylor v. Clinchfield Coal Co., 895 F.2d 178, 13 BLR 2-294 (4th Cir. 1990) and Dayton v. Consolidation Coal Co., 895 F.2d 173, 13 BLR 2-307 (4th Cir. 1990).
Bernardo v. Director, OWCP, 790 F.2d 351, 353, 9 BLR 2-26, 2-29 (3d Cir. 1986):
Carozza v. United States Steel Corp., 727 F.2d 74, 78, 6 BLR 2-15, 2-21 (3d Cir. 1984):
Cort v. Director, OWCP, 996 F.2d 1549, 17 BLR 2-166 (3d Cir. 1993). Rebuttal pursuant to subsection (b)(3) cannot be satisfied by proof that a claimant is not disabled or impaired. At subsection (b)(3) one must accept the assumption that the claimant is totally disabled and proceed to address the source of the disability.
Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 123, 7 BLR 2-72, 2-78 (4th Cir. 1984):
Phillips v. Jewell Ridge Coal Co., 825 F.2d 408 (table), 10 BLR 2-160 (4th Cir. 1987):
Cox v. Shannon-Pocahontas Mining Co., 6 F.3d 190, 18 BLR 2-31 (4th Cir. 1993).
The Fourth Circuit confirmed the Marcum rule regarding rebuttal pursuant to Section 727.203(b)(3), i.e., a finding of no pulmonary impairment is sufficient to rule out any connection between coal mine employment and the miner's total disability. The Court included, however, specific language regarding how the Marcum rule was to be applied: (1) the Massey "rule out" standard is the law of the circuit, and a "mere citation" to Marcum is not conclusive; (2) a medical opinion must state without equivocation that the miner suffers no respiratory or pulmonary impairment of any kind with such opinions being more persuasive if the actual cause(s) of the disability are provided by the physician; (3) application of Marcum is limited to cases where the interim presumption is invoked under Section 727.203(a)(1), (4). A diagnosis of no respiratory impairment is suspect and cannot satisfy the Massey standard if the physician also diagnosed no pneumoconiosis. The Court continued that the opinion of a miner's treating physician, even if s/he is not as highly qualified as other physicians of record, is entitled to "great, though not necessarily dispositive" weight. Grigg v. Director, OWCP, 28 F.3d 416, 18 BLR 2-299 (4th Cir. 1994).
The Fourth Circuit applyed the standard in Bethlehem Mines Corp. v. Massey, 736 F.2d 120(4th Cir. 1984), and held that under Grigg v. Director, OWCP, 28 F.3d 416 (4th Cir. 1994), the ALJ's finding of rebuttal at Section 727.203(b)(3) cannot stand because two of the three physicians he relied on premised their opinions of no respiratory impairment on a belief that claimant did not have pneumoconiosis, and the interim presumption was invoked by stipulation at 727.203(a)(1). No physician relied on diagnoised "without equivocation that claimant suffered no respiratory or pulmonary impairment of any kind." As there was no other evidence supportive of rebuttal at subsection (b)(3) and the three opinions relied on by the ALJ do not suffice under Massey and under Grigg's erroneous premise holding the denial of benefits was reversed and benefits awarded. Curry v. Beatrice Pocahontas Coal Co., 67 F.3d 517, 523-524, BLR (4th Cir. 1995)(Luttig, J., dissenting), rev'g 18 BLR 1-59 (1994).
Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1120, 7 BLR 2-53, 2-65 (6th Cir. 1984), cert. denied, 471 U.S. 1116, 105 S.Ct. 2357, 86 L.Ed 258 (1985):
Warman v. Pittsburg & Midway Coal Mining Co., 839 F.2d 257, 11 BLR 2-62 (6th Cir. 1988):
Roberts v. Benefits Review Board, 822 F.2d 636, 639, 10 BLR 2-153, 2-157 (6th Cir. 1987):
Noting statements, arguably to the contrary, made by the court in Meyer v. Zeigler Coal Co., 894 F.2d 902, 13 BLR 2-285 (7th Cir. 1990) and Taylor v. Peabody Coal Co., 892 F.2d 503, 11 BLR 2-43 (7th Cir. 1989), reh'g denied, 14 BLR 2-79 (1990), the court construed Section 727.203(b)(3) as one of the three means of rebuttal available under Section 727.203(b). Patrich v. Old Ben Coal Co., 926 F.2d 1482 (7th Cir. 1991). Note: The decision of the U.S. Supreme Court in Pauley, supra, resolves the question of the validity of Section 727.203(b)(3) rebuttal in the affirmative, and upholds the validity of the fourth rebuttal method, provided by Section 727.203(b)(4). The Court, citing Patrich, noted in Pauley that the Seventh Circuit had upheld the validity of rebuttal pursuant to Section 727.203(b)(3). Pauley, slip op. at 13, n.5.
The Seventh Circuit held in Wetherill v. Director, OWCP, 812 F.2d 376, 380, 9 BLR 2-239, 243 (7th Cir. 1987):
See also Peabody Coal Co. v. Helms, 859 F.2d 486 (7th Cir. 1988); Freeman United Coal Co. v. Benefits Review Board, 912 F.2d 164, 14 BLR 2-53 (7th Cir. 1990); Amax Coal Co. v. Beasley, 957 F.2d 324, 16 BLR 2-45 (7th Cir. 1992).
The Seventh Circuit held that rebuttal had been established pursuant to subsection (b)(3) where the miner had become totally disabled in 1971 by a stroke that was not caused by exposure to coal dust and where there was no evidence establishing a nexus between this 1971 stroke and the respiratory condition established by the 1979 pulmonary function studies [subsection (a)(2) invocation had been established by pulmonary function tests taken in 1979]. Peabody Coal Co. v. Vigna, 22 F.3d 1388, 18 BLR 2-215 (7th Cir. 1994).
The Seventh Circuit remanded this case for reconsideration for application of the recent rulings in Freeman United Coal Mining Co. v. Benefits Review Board, 912 F.2d 164, 172 (7th Cir. 1992) and Amax Coal Co. v. Beasley, 957 F.2d 324 (7th Cir. 1992). The Court reiterated its current (b)(3) standard, stating that "although we have previously noted that an employer must show that pneumoconiosis "was in no way related to the claimant's disability," [Freeman at 172], we more recently stated that "this does not mean that the employer must prove its rebuttal case beyond a reasonable doubt. Rather, the employer need only rule out CWP as a contributing cause by a preponderance of the evidence." [Beasley at 327]." Old Ben Coal Co. v. Director, OWCP [Mitchell], F.3d , No. 94-2110 (7th Cir. Aug. 16, 1995).
In Consolidation Coal Co. v. Smith, 837 F.2d 321, 323, 11 BLR 2-37, 2-41 (8th Cir. 1988), the court applied an "in part" standard, stating:
Palmer Coking Coal Co. v. Director, OWCP, 720 F.2d 1054, 1058, 6 BLR 2-11, 2-13 (9th Cir. 1983):
Rosebud Coal Sales Co. v. Weigand, 831 F.2d 926, 10 BLR 2-317 (10th Cir. 1987):
In Kaiser Steel Corp. v. Director, OWCP (Sena), 757 F.2d 1078, 1083, 7 BLR 2-150, 2-160 - 2-161 (10th Cir. 1985), the court stated that to establish rebuttal under subsection (b)(3), the opposing party must offer viable evidence ruling out pneumoconiosis as at least a contributing cause of the claimant's disability.
In Alabama By-Products Corp. v. Killingsworth, 733 F.2d 1511, 1516 n.10, 6 BLR 2-59, 2-65 n.10 (11th Cir. 1984), the court adopted the Carozza holding that rebuttal established under subsection (b)(3) does not permit the award of benefits for partial disability, but only for total disability of which pneumoconiosis is a contributing cause.
3. SECTION 727.203(b)(4) REBUTTAL
This regulation is valid. Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 2524, 15 BLR 2-155 (1991).
The decision of the U.S. Supreme Court in Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 15 BLR 2-155 (1991) reversed the decisions of the United States Court of Appeals for the Fourth Circuit in Taylor v. Clinchfield Coal Co., 895 F.2d 178, 13 BLR 2-294 (4th Cir. 1990) and Dayton v. Consolidation Coal Co., 895 F.2d 173, 13 BLR 2-307 (4th Cir. 1990), which held that Section 727.203(b)(4) did not provide a valid means of establishing rebuttal. Pauley also stated that the Seventh Circuit court had not addressed the fourth method of rebuttal, citing Patrich v. Old Ben Coal Co., 926 F.2d 1482 (7th Cir. 1991), although that court had upheld the method of rebuttal provided by Section 727.203(b)(3) in Patrich. Pauley, slip op. at 13, n.5. But see Taylor v. Peabody Coal Co., 892 F.2d 503, 11 BLR 2-43 (7th Cir. 1989).
To rebut, the party must establish by persuasive evidence that the miner has neither clinical pneumoconiosis nor presumed pneumoconiosis. Pavesi v. Director, OWCP, 758 F.2d 956, 7 BLR 2-184 (3d Cir. 1985); Campbell v. Consolidation Coal Co., 811 F.2d 302, 9 BLR 2-221 (6th Cir. 1987); Chastain v. Freeman United Coal Mining Co., 919 F.2d 485, 14 BLR 2-130 (7th Cir. 1990).
Rebuttal requires affirmative proof that pneumoconiosis does not and did not exist, not silence, as to whether the miner's severe lung condition is or is not pneumoconiosis. Black Diamond Coal Mining Co. v. Benefits Review Board, 758 F.2d 1532, 7 BLR 2-209, reh'g denied, 768 F.2d 1353 (11th Cir. 1985). See also Kline v. Director, OWCP, 877 F.2d 1175, 12 BLR 2-346 (3d Cir. 1989) which deals with negative inferences drawn from the evidence.
Subsection (b)(4) differs from subsection (b)(3) in that subsection (b)(4) permits rebuttal if the party opposing entitlement establishes that the miner's respiratory disorder is not significantly related to coal mine employment since Section 727.202 requires the disorder to be significantly related to, or aggravated by, coal mine employment in order for it to be pneumoconiosis. Tennessee Consolidated Coal Co. v. Crisp, 866 F.2d 179, 12 BLR 2-121 (6th Cir. 1989).
The Blevins test (see Part I, B.2.i above) is applicable to rebuttal under subsection (b)(4). Chastain v. Freeman United Coal Mining Co., 919 F.2d 485, 14 BLR 2-130 (7th Cir. 1990).
The Fourth Circuit reserved the "never-or-sometimes" issue of whether Section 727.203(a)(1) invocation always precludes subsection (b)(4) rebuttal, and held that even if the "sometimes" view were adopted here [rebuttal based on evidence "different in kind from and of greater technical accuracy" than that used to invoke, demonstrating that the clinical pneumoconiosis established by the x-rays is not related to coal mine employment], that evidence does not "meet any of the limited bases for permitting (b)(4) rebuttal." The Court noted that two doctors based their opinions of no pneumoconiosis on negative rereadings of x-rays, which flatly contradict invocation at (a)(1) "based on the same type of evidence," and that neither opinion is based on "later-developed and more accurate diagnostic techniques...." Curry v. Beatrice Pocahontas Coal Co., 67 F.3d 517, 523-524, BLR (4th Cir. 1995)(Luttig, J., dissenting), rev'g 18 BLR 1-59 (1994).
C. 20 C.F.R. §410.490 INTERIM
PRESUMPTION
(Claims filed prior to March 31, 1980)
1. MINERS WITH TEN OR MORE YEARS OF COAL MINE EMPLOYMENT
In Pittston Coal Group v. Sebben, 488 U.S. 105, 12 BLR 2-89 (1988), the Supreme Court held that Section 727.203(a) violates Section 402(f) of the Act in that it disqualifies a class of claimants who were eligible for consideration under the Section 410.490 presumption. In its remand Order in Director, OWCP v. Broyles, No. 87- 1095 (a companion case), the Supreme Court ordered the Board to apply a criteria no more restrictive than Section 410.490 regarding the affirmative factors for invoking the presumption. The Supreme Court declined to address the validity of the rebuttal methods contained in Section 727.203(b) based upon the respondent's concession that the methods are valid. With respect to Section 410.490, the Court further observed that:
Sebben at 12 BLR 2-90; see also Mullins v. Director, OWCP, 484 U.S. 135, 11 BLR 2-1 (1987), reh'g denied, 484 U.S. 1047 (1988); Sharpless v. Califano, 585 F.2d 664 (4th Cir. 1978).
The validity of 20 C.F.R. §727.203(b)(3) and (4), however were addressed by the Court in Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 15 BLR 2-155 (1991), in which the Court held that subsections (b)(3) and (4) were valid methods of rebuttal of the presumption provided by 20 C.F.R. §727.203. In Pauley the Court affirmed the holding of the Third Circuit in Bethenergy Mines v. Director, OWCP, 890 F.2d 1299, 13 BLR 2-162 (3d Cir. 1989) that a finding of rebuttal pursuant to 20 C.F.R. §727.203(b)(3) precluded entitlement to benefits pursuant to both 20 C.F.R. §727.203 and 20 C.F.R. §410.490. [The Court in Pauley also reversed the holding of the Fourth Circuit in Taylor v. Clinchfield Coal Co., 895 F.2d 178, 13 BLR 2-294 (4th Cir. 1990) and Dayton v. Consolidation Coal Co., 895 F.2d 173, 13 BLR 2-307 (4th Cir. 1990) which had found 20 C.F.R. §727.203(b)(3), (4) invalid.] Pursuant to the Court's holding in Pauley, where a claim is adjudicated pursuant to Section 727.203, it is not necessary to additionally adjudicate the claim pursuant to 20 C.F.R. §410.490.
2. MINERS WITH LESS THAN TEN YEARS OF COAL MINE EMPLOYMENT
In Pittston Coal Group v. Sebben, 109 S.Ct. 414, 12 BLR 2-89 (1988), the Court concluded that 20 C.F.R. §727.203 was more restrictive than the HEW regulations to the extent that 20 C.F.R. §727.203(a) did not permit invocation of the presumption without 10 years of coal mine employment. Thus, in its remand Order in Director, OWCP v. Broyles, No. 87-1095 (a companion case), the Court ordered the Board to apply a criteria no more restrictive than Section 410.490 regarding the affirmative factors for invoking the presumption. Sebben, supra. As all three cases addressed by the Court in Pauley involved claims where the miner had more than 10 years of coal mine employment, Pauley did not discuss the criteria to be applied to claims where the miner has less than 10 years of coal mine employment.
Subsequently, however, the Board held that where the miner has established less than ten years of coal mine employment, claimants may avail themselves of the presumption of total disability due to pneumoconiosis pursuant to the criteria in Section 410.490(b) by establishing the existence of pneumoconiosis by x-ray, autopsy or biopsy evidence, and by establishing that this pneumoconiosis arose out of coal mine employment. This presumption may be rebutted by any one of the available methods contained at 20 C.F.R. §727.203(b).
Section 410.490 applies in survivors' cases. Farmer v. Weinberger, 519 F.2d 627 (6th Cir. 1975).
The Section 410.490 presumption may not be invoked by lay testimony. Lloyd v. Mathews, 413 F.Supp. 1161 (E.D. Pa. 1976).
X-rays are to be weighed prior to invocation. Riley v. National Mines Corp., 852 F.2d 197, 11 BLR 2-182 (6th Cir. 1988); Staten v. Califano, 598 F.2d 328 (4th Cir. 1979).
Failure to establish the cause of the miner's pneumoconiosis precludes invocation at Section 410.490. Grant v. Director, OWCP, 857 F.2d 1102, 12 BLR 2-1 (6th Cir. 1988).
Where the evidence is insufficient to establish invocation pursuant to subsections (a)(1) and (a)(2) of Section 727.203, invocation pursuant to Section 410.490 is precluded. Slone v. Director, OWCP, 12 BLR 1-92 (1988).