Rose v. Clinchfield Coal Co.

• Decision Date: 06 February 1980
• Docket Number: No. 79-1187,79-1187
• Citation: 614 F.2d 936
• Parties: Pauline D. ROSE (Widow of Charlie C. Rose), Petitioner, v. CLINCHFIELD COAL COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 936

614 F.2d 936

Pauline D. ROSE (Widow of Charlie C. Rose), Petitioner, v. CLINCHFIELD COAL COMPANY, Respondent.

No. 79-1187.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 7, 1979.

Decided Feb. 6, 1980.

Frederick W. Adkins, Norton, Va. (Cline, McAfee & Adkins, Norton, Va., on brief), for petitioner.

Elizabeth S. Woodruff, Abingdon, Va. (Penn, Stuart, Eskridge & Jones, Abingdon, Va., on brief), for respondent Clinchfield Coal Co.

Virginia B. Ragle, U. S. Dept. of Labor (Carin Ann Clauss, Sol. of Labor, Laurie M. Streeter, Associate Sol., Judith E. Wolf, Co-Counsel for Black Lung Benefits, Lee D. Richardson, U. S. Dept. of Labor, Washington, D. C., on brief), Washington, D.C., for respondent Director, Office of Workers' Compensation Programs.

Before BRYAN, Senior Circuit Judge, and BUTZNER and MURNAGHAN, Circuit Judges.

ALBERT V. BRYAN, Senior Circuit Judge:

Petitioner, Pauline D. Rose, seeks the reversal of a decision by the United States Department of Labor, Benefits Review Board (the Board) denying her compensation under the Black Lung Benefits provisions of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §§ 901 et seq. (the Act).

In its January 31, 1979, decision, the Board (one member dissenting) vacated the Hearing Officer's previous finding that petitioner was entitled to an award; the Board rejected her claim on the ground that her deceased husband's disability and death were caused by lung cancer and not by pneumoconiosis ("black lung"). ¹ On review of the record, we find that substantial evidence does not support the Board's ruling. Accordingly, we reverse, vacating the decision of the Board and ordering payment of benefits to the claimant.

Petitioner's husband, Charlie Rose, was employed by respondent Clinchfield Coal Company (the Company) without interruption for 27 years, during 18 of which he worked underground. In the final period he worked in various capacities in the Company's coal processing plant. Both types of work subjected him to continuous and substantial exposure to coal dust.

The parties agree, and the Board found, that Rose suffered from simple pneumoconiosis, having first been advised of his condition in 1972. He also suffered from lung cancer. Because of his lung problems, Rose was required to stop work for the Company on September 25, 1974. In December, 1974, he lodged a claim with the Department of Labor for Black Lung benefits. ² He died February 6, 1975, and the cause of death was listed as cancer of the lung with metastasis.

On February 8, 1975, petitioner filed her claim for benefits as Rose's widow. After conducting a hearing December 17, 1975, on the consolidated claims, the Hearing Officer issued an order, dated November 3, 1976, which held that petitioner had proved her claims and that Clinchfield, as the responsible coal operator, was answerable for their satisfaction. On Clinchfield's appeal, the Board reversed the Hearing Officer and rejected petitioner's claims in an opinion dated January 31, 1979.

The primary basis of the Board's decision, as well as the position of both of the respondents in this appeal, Clinchfield and the Director of the Office of Workers' Compensation Programs of the Department of Labor, is that, since the Act affords benefits "in respect of the death of any miner whose death was due to pneumoconiosis or who at the time of his death was totally disabled by pneumoconiosis," 30 U.S.C. § 921(a), the claimant here cannot succeed, because neither the disability nor the death of miner Rose was "due to pneumoconiosis," but rather to cancer of the lung.

The causative distinction on which this resolve rests, however, cannot obtain so literally when read against the other dictates of the Act and the corresponding regulations issued by the Secretary of Labor. Together they imperatively govern the determination of whether disability or death is "due to pneumoconiosis." These provisions spell out modifying presumptions which serve to endow the term "pneumoconiosis" with a broad definition, one that effectively allows for the compensation of miners suffering from a variety of respiratory problems that may bear a relationship to their employment in the coal mines.

Among the key provisions of this relief legislation is section 411(c)(4) of the Act:

If a miner was employed for fifteen years or more in one or more underground coal mines, (and if chest roentgenogram is negative as to complicated pneumoconiosis), and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis, that his death was due to pneumoconiosis, or that at the time of his death he was totally disabled by pneumoconiosis. . . . The Secretary may rebut such presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.

30 U.S.C. § 921(c)(4). (Accent added.)

Under this section petitioner will prevail because she meets its prerequisites, as the following apposition of her claim and the statute makes manifest. First, that Charlie Rose was employed for more than 15 years in underground coal mines is not questioned. Second, as the Board noted, the Hearing Officer found Rose ceased work because of his "simple pneumoconiosis coupled with his severe breathing impairment which was caused by lung cancer . . . ." Rose v. Clinchfield Coal Company, BRB No. 76-490 BLA, at 2 (Jan. 31, 1979). The Board, in overturning the Hearing Officer's award, did not question the implicit finding that Rose's lung cancer constituted a "totally disabling respiratory or pulmonary impairment." 30 U.S.C. § 921(c)(4). ³

The showing that Rose (1) had served more than the requisite number of years in the mines and (2) had suffered from a disabling respiratory impairment triggers the presumption set forth in section 411(c)(4). The statute quite clearly gives the claimant, at this point, the benefit of a presumption that entitles her to compensation unless the Secretary rebuts that presumption in the precise manner specified. 30 U.S.C. § 921(c)(4)(A), (B). Rebuttal under clause (A) is precluded, given the uncontested fact that Rose did suffer from simple pneumoconiosis. ⁴ Accordingly, the Rose claim under section 411(c) (4) may be defeated only upon the respondents' production of substantial evidence that the decedent's "impairment did not arise out of, or in connection with, employment in a coal mine." 30 U.S.C. § 921(c)(4)(B); 20 C.F.R. § 410.454(b)(2). See Clinchfield Coal Company v. Fleming, 606 F.2d 441, 442 (4th Cir. 1979).

The Board erred in failing to impose on the respondents the burden of rebutting this presumption. The Board concluded that the claimant "did not establish entitlement to black lung benefits" under section 411(c)(4) of the Act because she failed to demonstrate "any causal relationship. . . . between the miner's cancer and pneumoconiosis or between his cancer and his coal mine employment." Rose v. Clinchfield Coal Company, BRB No. 76-490 BLA,...