B&G Constr. Co. v. Dir., Office of Workers' Comp. Programs

• Decision Date: 26 October 2011
• Docket Number: No. 10–4179.,10–4179.
• Parties: B & G CONSTRUCTION COMPANY, INC.; State Workers' Insurance Fund, Petitioners v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor; Norma G. Campbell, Widow of Ernest J. Campbell, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

662 F.3d 233

B & G CONSTRUCTION COMPANY, INC.; State Workers' Insurance Fund, Petitioners

v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor; Norma G. Campbell, Widow of Ernest J. Campbell, Respondents.

No. 10–4179.

United States Court of Appeals, Third Circuit.

Argued June 23, 2011.Filed: Oct. 26, 2011.

Recognized as Repealed by Implication

Black Lung Benefits Act, § 412(a), 30 U.S.C.A. § 922(a) Edward K. Dixon, Ryan M. Krescanko, Meghan F. Wise, (argued), Zimmer Kunz, Pittsburgh, PA, for Petitioners.

Sean Bajkowski, Emily Goldberg–Kraft, Sarah M. Hurley (argued), Rae Ellen James, United States Department of Labor, Washington, DC, for Respondent Director, Office of Workers' Compensation Programs.BEFORE: HARDIMAN, VANASKIE, and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on B & G Construction Company's petition for review of a decision and final order of the Benefits Review Board (“the Board”) of the United States Department of Labor (“DOL”) dated August 30, 2010, that reversed an administrative law judge's (“ALJ”) decision and order denying respondent Norma G. Campbell's (“Campbell”) claim for survivor's benefits pursuant to provisions of the Black Lung Benefits Act, as amended, 30 U.S.C. § 901 et seq. (the “Act”). The Board determined that Campbell was entitled derivatively to survivor's benefits under 30 U.S.C. § 932( l ), as last amended by the Patient Protection and Affordable Care Act of 2010 (“PPACA”), Pub. L. No. 111–148, § 1556, 124 Stat. 119, 260, based on her late husband Ernest J. Campbell's (“Ernest”) totally disabling pneumoconiosis. ¹

There is disagreement among the parties regarding the effect of the PPACA on the Act focusing on the meaning of section 932( l ).² Section 932( l ) provides that eligible survivors of a deceased miner, who was determined to be eligible to receive benefits at the time of his death, are not required to file a new claim for benefits after the death of the miner. The section 1556 PPACA amendment to section 932( l ), which Congress made retroactively applicable to any claim for survivors' benefits filed after January 1, 2005, removed a limitation from section 932( l ) which Congress inserted in 1981 restricting the applicability of that section to claims filed before January 1, 1982. Prior to 1982, section 932( l ) allowed eligible survivors of miners to continue receiving benefits without having to file a new claim after a miner's death. For claims filed on or after January 1, 1982, section 932( l ) prior to the enactment of section 1556 required eligible survivors to file claims and prove that pneumoconiosis caused the miner's death in order to receive survivors' benefits. The DOL, at oral argument before us, contended that the PPACA amendment, by removing the limiting language that the 1981 amendments inserted, returned the statute to its original function: automatically continuing benefits for the survivors of miners who had been determined to be eligible to receive benefits during their lifetimes.

Our function in ascertaining the meaning of the Act is complicated by the presence of limiting language in sections 921 and 922 of the Act, 30 U.S.C. §§ 921 and 922, paralleling the language that the PPACA amendment deleted from section 932( l ). B & G has argued that this limiting language requires survivors to prove that pneumoconiosis caused a miner's death in order to receive survivors' benefits. As we discuss below, we hold that amended section 932( l ), being the last amendment of the Act and thus the latest legislation governing survivors' benefits, overrides the conflicting language in sections 921 and 922 and entitles otherwise eligible survivors of a miner to receive benefits upon a miner's death without having to prove that pneumoconiosis caused the miner's death.

Alternatively, B & G argues that if we adopt the DOL's reading of PPACA section 1556, section 932( l ) will violate the Fifth Amendment of the United States Constitution in two respects in that the section as amended will violate B & G's substantive due process rights and it will effectuate a regulatory taking of B & G's property without the payment of just compensation. ³ B & G also argues that Campbell has failed to establish that pneumoconiosis caused, contributed to, or hastened the death of her husband. For the reasons that follow, we will deny the petition for review.

II. THE BLACK LUNG BENEFITS ACT

A. The Federal Coal Mine Health and Safety Act

Inasmuch as our resolution of this case requires us to interpret a section of the Black Lung Benefits Act, we find it helpful to recount the history of the Act while focusing on provisions relating to survivors' benefits. As we indicated 20 years ago, “[t]he statutory background we confront could hardly be more complicated.” Helen Mining Co. v. Dir., OWCP, 924 F.2d 1269, 1271–73 (3d Cir.1991) (en banc).⁴

Congress first provided benefits to the dependents of coal miners affected with pneumoconiosis in the Federal Coal Mine Health and Safety Act of 1969 (“FCMHSA”), 30 U.S.C. § 841 et seq. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 8, 96 S.Ct. 2882, 2889, 49 L.Ed.2d 752 (1976). Originally, the FCMHSA created a bifurcated system for black lung benefit claims: (1) pursuant to Part B of the Act the Social Security Administration, in the Department of Health, Education, and Welfare (HEW), adjudicated all claims filed on or before December 31, 1972, and paid benefits out of the federal fisc; and (2) pursuant to Part C of the Act, the Department of Labor (DOL) administered all claims filed on or after January 1, 1973, but state workers' compensation programs that the DOL found provided adequate coverage for black lung disability would pay eligible miners' claims, or, if the DOL had not approved a germane state program, responsible mine operators or their successors would pay for approved claims. Helen Mining, 924 F.2d at 1271.

The introductory section to Title IV of the FCMHSA reflected Congress' intent to provide for benefits to miners totally disabled due to pneumoconiosis and the surviving dependents of miners whose death was due to pneumoconiosis:

Congress finds and declares that there are a significant number of coal miners living today who are totally disabled due to pneumoconiosis arising out of employment in one or more of the Nation's underground coal mines; that there are a number of survivors of coal miners whose deaths were due to this disease; and that few States provide benefits for death or disability due to this disease to coal miners or their surviving dependents. It is, therefore, the purpose of this title to provide benefits, in cooperation with the States, to coal miners who are totally disabled due to pneumoconiosis and to the surviving dependents of miners whose death was due to such disease; and to ensure that in the future adequate benefits are provided to coal miners and their dependents in the event of their death or total disability due to pneumoconiosis.

Federal Coal Mine Health and Safety Act of 1969, Pub. L. No. 91–173, 83 Stat. 792, 792 (1969) (current version at 30 U.S.C. § 901(a) (West 2007)) (emphasis added).

Section 921(a), which regulated the payment of benefits under Part B, stated that: “[t]he Secretary shall, in accordance with the provisions of this part, and the regulations promulgated by him under this part, make payments of benefits in respect of total disability of any miner due to pneumoconiosis, and in respect of death any miner whose death was due to pneumoconiosis.” Id. at 793 (emphasis added). Section 922(a), also under Part B, regulated payments to widows and stated that: “In the case of death of a miner due to pneumoconiosis or of a miner receiving benefits under this part, benefits shall be paid to his widow (if any) at the rate the deceased miner would receive such benefits if he were totally disabled.” Id. at 794 (emphasis added). Accordingly, the HEW under the FCMHSA required widows of coal miners to prove that the miner died due to pneumoconiosis in order to receive survivors' benefits even if the miner had been receiving pneumoconiosis disability benefits. See John S. Lopatto III, The Federal Black Lung Program: A 1983 Primer, 85 W. Va. L. Rev. 677, 684 (1983) (stating that a significant problem with the FCMHSA was HEW's high denial rate of widows' claims who could not produce evidence that miner had died due to pneumoconiosis).

B. The 1972 Amendments—Liberalizing the FCMHSA

Partially in response to the HEW's high denial rate of claims and also in response to the backlog in the administration of black lung claims, Congress in 1972, before the effective date of Part C, amended the FCMHSA and redesignated Title IV of the Act as the Black Lung Benefits Act of 1972. Black Lung Benefits Act of 1972, Pub. L. No. 92–303, 86 Stat. 150 (1972); Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 685, 111 S.Ct. 2524, 2528, 115 L.Ed.2d 604 (1991). The 1972 amendments made it easier for survivors to prove entitlement to benefits under Part B and continued Part C in existence until December 30, 1981. Helen Mining, 924 F.2d at 1271. Congress, through the 1972 amendments, specifically provided benefits to survivors of a miner totally disabled from pneumoconiosis even if he died from a cause unrelated to pneumoconiosis. Lopatto, 85 W. Va. L. Rev. at 685. It accomplished this goal by amending the Act in three places, two of which are significant on this appeal.⁵

First, Congress after the appearance of the word “disease” at appropriate places inserted into section 901 of the Black Lung Benefits Act the phrase “or who were totally disabled by this disease at the time of their deaths.” Black Lung Benefits Act of 1972, Pub. L. No. 92–303, 86 Stat. 150, 154 (1972). Thus, after the 1972 amendments section 901 stated that:

Congress finds and declares that there are a significant number...