Title Cort v. Director, Office of Workers' Compensation Programs
Date 1993
By Alito
Subject Misc
Contents
Page 1
LEXSEE 996 F2D 1549
HENRY CORT, Petitioner v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor, Respondent
No. 92-3544
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
996 F.2d 1549; 1993 U.S. App. LEXIS 15911
May 17, 1993, Argued
June 30, 1993, Filed
PRIOR HISTORY: **1 ON PETITION FOR REVIEW OF AN ORDER OF THE BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR (BRB No. 91-1264 BLA).
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant worker sought review of a judgment from respondent Office of Workers' Compensation Review Board, which affirmed an Administrative Law Judge's decision denying appel- lant's claim for benefits under the Black Lung Benefits Act, 30 U.S.C.S. § 901 et seq.
OVERVIEW: Appellant worker was intermittently em- ployed as a coal mine worker for over 11 years and filed a claim under the Black Lung Benefits Act, 30 U.S.C.S.
§ 901 et seq. An Administrative Law Judge (ALJ) found that appellant was entitled to the presumption of total disability under 20 C.F.R. § 727.203(a) but that it was rebutted by § 727.203(b). Respondent Office of Workers' Compensation Review Board remanded for errors, and on remand approved the ALJ's decision that appellant was not eligible under § 727.203(b). On review, the court re- versed respondent's order and granted appellant's petition. The court noted that a presumption of total disability due to pneumoconiosis was established under § 727.203(a) if a claimant worked for more than 10 years as a miner and met one of four medical requirements. The court held that respondent and the ALJ misinterpreted the rebuttal presumptions of § 727.203(b)(2) and (b)(3). The court further held that because appellant could work did not mean he could do mining work, and that (b)(3) was con- cerned with the source of his disability, not the degree. The court granted appellant's petition and remanded back to respondent for entry of an award.
OUTCOME: The court reversed respondent Office of
Workers' Compensation Review Board's Order and re-
manded for entry of an award for appellant worker. The court held that respondent and the Administrative Law Judge misinterpreted the rebuttal presumptions and that appellant was entitled to benefits.
LexisNexis(R) Headnotes
Workers' Compensation & SSDI > Black Lung Claims
> Compensability > Miner Status
HN1 A presumption of total disability under 20 C.F.R.
§ 727.203(a) due to pneumoconiosis is established if a claimant has worked for more than 10 years as a miner and meets one of four medical requirements.
Workers' Compensation & SSDI > Black Lung Claims
> Compensability > Causation & Proof
HN2 See 20 C.F.R. § 727.203(b).
Workers' Compensation & SSDI > Black Lung Claims
> Compensability > Causation & Proof
HN3 20 C.F.R. § 727.203(b)(3) assumes total disability and limits rebuttal to those instances where disability is caused by some other disease and § 727.203(b)(3) provi- sion for rebuttal is concerned with the source of disability, not the degree of disability.
COUNSEL: HELEN M. KOSCHOFF, ESQ. (Argued),
303 Greco Lane, Wilburton, Pennsylvania 17888, Attorney for Petitioner.
MARSHALL J. BREGER, Solicitor of Labor, DONALD S. SHIRE, Associate Solicitor, BARBARA J. JOHNSON, Counsel for Appellate Litigation, MATTHEW P. LEVIN, ESQ., HELEN H. COX, ESQ. (Argued), U.S. Department of Labor, Suite N-2605, 200 Constitution Avenue, N.W., Washington, D.C. 20210, Attorneys for Respondent.
JUDGES: Before: STAPLETON, ALITO, and SEITZ, Circuit Judges.
996 F.2d 1549, *; 1993 U.S. App. LEXIS 15911, **1
Page 2
OPINIONBY: ALITO
OPINION: *1550 OPINION OF THE COURT
ALITO, Circuit Judge:
Henry Cort petitions for review of an order of the Department of Labor's Benefit Review Board (the
"Board") that affirmed the decision of an administrative law judge denying Cort's claim for benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. Because the Board and the ALJ misinterpreted the regulation on which they relied, we grant the petition and reverse the Board's order.
I.
Henry Cort worked intermittently in various coal mines for approximately 11 years between 1940 and 1956. In 1979, Cort **2 filed a claim under the Black Lung Benefits Act. After his claim was administratively denied by a deputy commissioner, Cort requested a formal ad- ministrative hearing, and an administrative law judge (the
"ALJ") heard Cort's claim in 1987.
Under the Department of Labor interim regulations, n1 HN1 a presumption of total disability due to pneumo- coniosis is established if a claimant has worked for more than 10 years as a miner and meets one of four medical re- quirements. See 20 C.F.R. § 727.203(a). Cort established that he met one of these requirements -- that set out in 20
C.F.R. § 727.203(a)(1) -- by submitting an X-ray estab- lishing the existence of pneumoconiosis. Consequently, the ALJ found that Cort was entitled to the presumption of total disability under Section 727.203(a).
n1 The Department's "interim" regulations, 20
C.F.R. Part 727, are applied to claims filed before the "permanent" criteria promulgated under Part
718 became effective. 20 C.F.R. § 727.200.
The ALJ also found, however, that this presump- tion had **3 been rebutted. HN2 Title 20 C.F.R. §
727.203(b) states that the presumption is rebutted if:
(1) The evidence establishes that the indi- vidual is, in fact, doing his usual coal mine work or comparable and gainful work (see §
410.412(a)(1) of this title); or
(2) In light of all relevant evidence it is es- tablished that the individual is able to do
*1551 his usual coal mine work or compa- rable and gainful work (see § 410.412(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 employ- ment; or
(4) The evidence establishes that the miner does not, or did not, have pneumoconiosis.
In this case, the ALJ concluded that the presumption had been rebutted under subsections (b)(1) and (b)(2). n2 With respect to subsection (b)(1), the ALJ found that Cort was gainfully employed in comparable work because he was working as a wire cutter. With respect to subsection (b)(2), the ALJ found that Cort was capable of engaging in his usual coal mine employment. In reaching this conclu- sion, the ALJ relied on the reports of two physicians. One of these physicians stated that "no disability" was **4
"evident"; the other stated that there was "no evidence of significant respiratory impairment."
n2 Although the ALJ's opinion stated that he had considered rebuttal under subsections (b)(1)-
(4), the opinion drew no express conclusions about subsections (b)(3) or (4).
In 1990, the Board affirmed the decision of the ALJ, but on a motion for reconsideration the Board determined that the ALJ had erred by failing to follow this court's precedents. As to subsection (b)(1), the Board found that the ALJ had misapplied the salary comparability stan- dard adopted in Echo v. Director, OWCP, 744 F.2d 327
(3d Cir. 1984). As to subsection (b)(2), the Board found that the ALJ's reasoning was inconsistent with our deci- sion in Gonzales v. Director, OWCP, 869 F.2d 776 (3d Cir.
1989). In that case, we held that the interim presumption may not be rebutted under subsection (b)(2) by medical reports that contain a general conclusion that a claimant is not impaired but that do not **5 take into account the particular demands of the claimant's usual coal mine employment. We reasoned that a claimant might be fit enough to justify a finding of "no impairment" but not fit enough to perform "'the heavy labor of a coal miner.'" Id. at 779-80 (quoting Oravitz v. Director, OWCP, 843 F.2d at
738, 740 (3d Cir. 1988)). The Board therefore remanded the case to the ALJ for further consideration of rebuttal under subsections (b)(1)-(3). n3
n3 Because the parties stipulated to the exis- tence of pneumoconiosis, rebuttal under subsec- tion (b)(4) was precluded. See Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 150, 98 L. Ed. 2d
450, 108 S. Ct. 427 (1987).
996 F.2d 1549, *1551; 1993 U.S. App. LEXIS 15911, **5
Page 3
On remand, the ALJ stated that "the purpose of the
Board's remand was obscure." The ALJ wrote: Although I did not address rebuttal under subsection (b)(3) in my decision, evidence that the miner has no medical impairment must rebut the interim presumption under subsection (b)(3), "that the total **6 dis- ability . . . of the miner did not arise in whole or in part out of coal mine employment . . .
." Therefore, I find that the interim presump- tion is rebutted under subsection (b)(3), and it is unnecessary to further address rebuttal under subsection (b)(2).
**7
See Liberty Mutual Ins. Co. v. Commercial Union Ins. Co., 978 F.2d 750, 757 (1st Cir. 1992) (cit- ing cases). We have held, albeit in a case decided prior to Chevron U.S.A. Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d
694, 104 S. Ct. 2778 (1984) and Martin, that the Director's interpretation is not owed "great defer- ence." Director, OWCP v. O'Keefe, 545 F.2d 337,
343 (3d Cir. 1976). In the present case, we need not confront this question. Even if the Director's interpretation of the regulations is entitled to some deference, we hold that his interpretation is not reasonable (see Martin, 59 U.S.L.W. at 4199) and accordingly cannot be sustained.
App. at 35a.
The Board affirmed the ALJ's decision and denied Cort's subsequent motion for reconsideration. Cort now petitions for review.
II.
The primary question before us is whether, as the Board held, the interim presumption may be rebutted un- der 20 C.F.R. § 727.203(b)(3) by showing that a claimant has no respiratory or other impairment. n4 We hold that it may not.
n4 The Benefits Review Board did not promul- gate the regulations at issue here, is not charged with their enforcement, and "is not a policymaking agency." Potomac Electric Power Co. v. Director, OWCP, 449 U.S. 268, 278, 66 L. Ed. 2d 446, 101
S. Ct. 509 n.18 (1980). Consequently, its inter- pretation of the regulations is not entitled to any special deference. Id. The Director, however, who has been delegated the Secretary of Labor's author- ity with respect to the Black Lung Benefits Act (
20 C.F.R. § 701.202(f)), advocated the same inter- pretation in the Board proceedings. See Director's Response Br. at 4-5, Rec. at 25-26. Therefore, under Martin v. Occupational Safety and Health Review Commission, 499 U.S. 144, 111 S. Ct.
1171, 113 L. Ed. 2d 117, 59 U.S.L.W. 4197, 4201
(1991) (Secretary's interpretation advanced as liti- gating position in administrative proceedings is en- titled to some deference), it could be argued that the Director's interpretation merits deference. See Estate of Cowart v. Nicklos Drilling Co., 120 L. Ed. 2d 379, 60 U.S.L.W. 4692, 4694, 112 S. Ct.
2589 (1992). The courts of appeals are divided on the question whether the Director's interpretation of the statutes he administers is entitled to deference.
*1552 As previously observed, the interim pre- sumption, unless rebutted, establishes that a claimant is totally disabled due to pneumoconiosis arising out of coal mine employment. 20 C.F.R. § 727.203(a). This presump- tion may be separated into three distinct elements: first, that the claimant has pneumoconiosis; second, that the claimant is totally disabled; and third, that the claimant's total disability arose in whole or in part out of coal mine employment. Cf. Mullins Coal Co. v. Director, OWCP,
484 U.S. 135, 141, 98 L. Ed. 2d 450, 108 S. Ct. 427 (1987). Title 20 C.F.R. § 727.203(b) contains four subsec- tions, each of which sets out a specific way of rebut- ting this presumption. Subsection (b)(4) concerns what we have described above as the first element, i.e., that the claimant has pneumoconiosis. Subsections (b)(1) and
(b)(2) concern what we have described as the second ele- ment, i.e., that the claimant is totally disabled. Subsection
(b)(3) -- the provision at issue here -- is solely concerned with what we have described as the third element, i.e., that the claimant's total liability results in whole or in part from coal mine employment. As noted, subsection (b)(3) states that the interim **8 presumption is rebutted if
"the evidence establishes that the total disability . . . of the miner did not arise in whole or in part out of coal mine employment." Thus, as we observed in Oravitz, 843 F.2d at 740 n.3 (3d Cir. 1988), HN3 subsection (b)(3) "as- sumes total disability and limits rebuttal to those instances where disability was caused by some other disease." See also Bernardo v. Director, OWCP, 790 F.2d 351, 353 (3d Cir. 1986) ("The (b)(3) provision for rebuttal is concerned with the source of disability," not "the degree of disabil- ity"); Kertesz v. Crescent Hills Coal Co., 788 F.2d 158,
162 n.5 (3d Cir. 1986).
Here, the ALJ and the Board reasoned that the in- terim presumption was rebutted under subsection (b)(3) based on evidence that Cort has "no impairment." In other
996 F.2d 1549, *1552; 1993 U.S. App. LEXIS 15911, **8
Page 4
words, the ALJ and the Board reasoned: Cort has no
"impairment"; therefore, he cannot be totally disabled; therefore, he cannot be totally disabled due to coal mine employment. While this process of reasoning is logical, it subverts the carefully structured rebuttal scheme of 20
C.F.R. § 727.203(b). By injecting the question **9 of total disability into subsection (b)(3), this approach might permit total disability to be rebutted in ways that are not allowed under the rebuttal provisions that were framed to deal specifically with that element, subsections (b)(1) and
(2). Indeed, there is no other apparent reason for attempt- ing to inject the question of total disability into subsection
(b)(3) -- and in the present case it is transparent that the ALJ took the approach that he did for precisely such a purpose. As noted, the ALJ initially held that the interim presumption had been rebutted under subsection (b)(2) because Cort had no impairment. The Board properly re- versed that decision in light of our decision in Gonzales,
869 F.2d 776, where we held that a general medical find- ing of "no impairment" is not sufficient to establish that a claimant "is able to do his usual coal mine work or com- parable and gainful work." 20 C.F.R. § 727.203(b)(2). When the case was remanded to the ALJ, the ALJ tried to evade the impact of Gonzales by squeezing the same bit of reasoning (no impairment means no total disability) into subsection (b)(3).
We are convinced that the rebuttal scheme set **10 out in 20 C.F.R. § 727.203(b) does not permit such ma- neuvers. We hold that subsection (b)(3) may not be satis- fied by proof that a claimant is not disabled or impaired. Rebuttal under this provision must accept *1553 the assumption that the claimant is totally disabled and go on to address the source of the disability; rebuttal regarding the existence of total disability must proceed instead un- der subsection (b)(1) or (2). We thus hold that the Board's decision rests on a fundamental misinterpretation of sub- section (b)(3) and must therefore be reversed.
III
Having held that rebuttal on the ground adopted by the ALJ and the Board cannot be sustained, we must con- sider whether we should remand so that the Board and
the ALJ can address other possible grounds for rebuttal or whether, as Cort requests, we should simply order the award of benefits. In prior similar cases in which there had been great administrative delay, we have taken the latter course where it was apparent from an examination of the administrative record that there was no substantial evidence to support rebuttal. See Kline v. Director, OWCP,
877 F.2d 1175, 1181 (3d Cir. 1989); Sulyma v. Director, OWCP, 827 F.2d 922, 924 (3d Cir. 1987). **11 We find this approach appropriate here.
Since Cort is no longer employed, rebuttal is unavail- able under subsection (b)(1). Moreover, because Cort in- voked the interim presumption under subsection (a)(1), the Board and the Director acknowledge that rebuttal is unavailable under subsection (b)(4). n5 As for subsec- tions (b)(2) and (3), we have examined the administrative record, and we find that there is not substantial evidence n6 establishing rebuttal under either provision. We also note that, although Cort's brief prominently argues that we should direct the award of benefits, the Director's brief makes no attempt to explain how the record could support a finding of rebuttal under subsection (b)(2). Indeed, the Director's brief itself refers to "the insufficiency of the record evidence to prove claimant's ability to perform his usual coal mine work." Respondent's Br. at 12.
n5 Respondent's Br. at 6; App. 34e n.4. See n.3, supra.
n6 See, e.g., Hillibush v. U.S. Dept. of Labor,
853 F.2d 197, 202 (3d Cir. 1988).
**12 IV
We therefore grant Cort's petition for review; we reverse the April 30, 1992 Decision and Order of the Benefits Review Board; and we remand this case solely for the entry of an award by the Board.
Contents
Prev
Next
Last
