Bosco v. Twin Pines Coal Co.

• Citation: 892 F.2d 1473
• Decision Date: 29 December 1989
• Docket Number: No. 87-1367,87-1367
• Parties: In the Matter of Frank BOSCO, Petitioner, v. TWIN PINES COAL COMPANY and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1473

892 F.2d 1473

In the Matter of Frank BOSCO, Petitioner, v. TWIN PINES COAL COMPANY and Director, Office of Workers' Compensation Programs, United

States Department of Labor, Respondents.

No. 87-1367.

United States Court of Appeals,

Tenth Circuit.

Dec. 29, 1989.

William E. Kenworthy, Denver, Colo., for petitioner Frank Bosco.

Michael J. Rutledge, Asst. Counsel for Administrative Litigation and Legal Advice, U.S. Dept. of Labor, Washington, D.C. (George R. Salem, Sol. of Labor, Donald S. Shire, Associate Sol., and Barbara J. Johnson, Counsel for Appellate Litigation, U.S Dept. of Labor, Washington, D.C., with him on the briefs), for respondent Director, Office of Workers' Compensation Programs.

Ronald E. Gilbertson, Kilcullen, Wilson and Kilcullen, Washington, D.C., for respondent Twin Pines Coal Co.

Before McKAY, SEYMOUR, and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.

Frank Bosco applied for benefits under the Black Lung Benefits Act (the Act), 30 U.S.C. §§ 901 et seq. (1982). His claim was denied by an administrative law judge (ALJ) and the denial was affirmed on appeal to the Department of Labor Benefits Review Board (BRB). We have jurisdiction to review the BRB order under section 932(a) of the Act, which incorporates by reference the judicial review provision of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 921(c) (1982). See 20 C.F.R. § 802.410 (1988). We reverse.

I.

The Black Lung Benefits Act provides benefits to a coal miner or to his survivors if the miner has incurred a total disability, caused at least in part by pneumoconiosis, ¹ arising out of coal mine employment. See Mullins Coal Co. v. Director, 484 U.S. 135, 108 S.Ct. 427, 431, 98 L.Ed.2d 450 (1987). Congress passed the Act, in large part, in response to problems that disabled coal miners encountered when filing claims under state workers' compensation programs due to " 'an inflexible, often impenetrable, proof of causation requirement.' " Mangus v. Director, 882 F.2d 1527, 1530 (10th Cir.1989) (quoting Southard v. Director, 732 F.2d 66, 71 (6th Cir.1984)). The Act and its implementing regulations contain presumptions intended to ease a claimant's burden by allowing an element of the required proof to be presumed from the existence of other rationally-related facts. See Mullins, 108 S.Ct. at 439; see, e.g., 30 U.S.C. § 921(c).

When proof of causation continued to be an impediment to the award of benefits under the Act, Congress liberalized the Act's standards. See Mullins, 108 S.Ct. at 436-37 (1987). Subsequently, Congress again acted, "curtailing possible abuses created by some of the presumptions ... in the earlier versions of the Act." Mangus, 882 F.2d at 1531 n. 10. The Act has thus been subject to several modifications, see Mullins, 108 S.Ct. at 429 & n. 1, each amendment engendering regulations which cross-reference one another, occasionally overlap, and contain subtle but significant differences, see Pittston Coal Group v. Sebben, --- U.S. ----, 109 S.Ct. 414, 417-19, 102 L.Ed.2d 408 (1988) (summarizing legislative history of the Act); see also Bonessa v. United States Steel Corp., 884 F.2d 726, 727-28 (3d Cir.1989). As a result, claimants, the courts, and the agency apparatus charged with administering the Act are confronted with a regulatory quagmire which renders the appropriate disposition of a claim for benefits fraught with peril.

II.

Bosco filed his application on Nov. 5, 1981. His claim is therefore governed by the permanent regulations promulgated by the Department of Labor, 20 C.F.R. §§ 718.1-.404 (1988), effective on April 1, 1980. See id. at § 718.2. Of particular relevance to Bosco's claim is the rebuttable presumption provided by section 718.305, which is limited by its terms to claims filed between April 1, 1980, and December 31 1981. ² See § 718.305(e); see also 30 U.S.C. § 921(c)(4). The significance of this presumption becomes apparent upon viewing its function in the statutory and regulatory framework. To be entitled to benefits under the Act, Bosco must prove: (1) that he is totally disabled, (2) due to pneumoconiosis, (3) resulting from his coal mine employment. See Mitchelson v. Director, 880 F.2d 265, 267 (10th Cir.1989). Under section 718.305, a miner who was employed in underground coal mines for fifteen years or more, and who is the victim of a totally disabling respiratory or pulmonary impairment, is entitled to a rebuttable presumption that he is totally disabled due to pneumoconiosis. Thus, by showing such an impairment plus fifteen years' work in underground mines, a claimant can establish the requisite causal connection between the disability and pneumoconiosis.

A claimant who is entitled to the above presumption also receives the benefit of an additional presumption provided by section 718.302, which states that a miner who has pneumoconiosis and has worked in the mines ten years is entitled to the rebuttable presumption that his pneumoconiosis arose out of such employment. This presumption establishes the necessary link between pneumoconiosis and employment in the mines. A miner with the requisite number of years in the mines may thus satisfy the causal connections among all the elements necessary to support a claim for benefits upon a showing that he is totally disabled by a respiratory or pulmonary impairment.

In this case, the ALJ found that Bosco had worked in underground mines for approximately thirty-five years. The ALJ further stated that Bosco was totally disabled. Even though these two findings are sufficient to invoke the presumption of section 718.305, the ALJ apparently did not give Bosco the benefit of that presumption, finding instead that Bosco was not entitled to benefits because he had failed to establish that he had pneumoconiosis or that it arose out of his coal mine employment. In affirming the ALJ's decision, the BRB stated that any error by the ALJ in not considering the section 718.305 presumption was harmless because the ALJ's finding that Bosco failed to establish the existence of pneumoconiosis rebutted the presumption, even if invoked.

Administrative review of an ALJ decision is governed by 33 U.S.C. § 921(b)(3). ³ Upon administrative appeal, the BRB is not authorized to make independent findings of fact; the ALJ's "findings of fact and conclusions of law may be set aside only if they are not, in the judgment of the Board, supported by substantial evidence in the record considered as a whole or in accordance with law." 20 C.F.R. § 802.301(a) (1988). The first task of a reviewing court "is to ensure that the Board has not committed any legal errors in its decision." Zimmerman v. Director, 871 F.2d 564, 565 (6th Cir.1989). Our review of alleged errors of law, and the effect they may have had on the benefits decision, must be made in light of the premise that " '[t]he Act is intended to be remedial in nature, and doubts should be resolved in favor of the disabled miner or his [or her] survivors.' " Mangus, 882 F.2d at 1530 (quoting Stomps v. Director, 816 F.2d 1533, 1534-35 (11th Cir.1987)).

As discussed below, the ALJ's opinion in this case contains an internal inconsistency which leaves us unable to be certain that his decision was made in accordance with the applicable law. Moreover, we cannot accept the BRB's conclusion that any legal error by the ALJ was harmless in view of his fact findings because the ALJ's opinion raises a substantial possibility that these fact findings were made under an erroneous legal standard.

III.

Bosco argues that the ALJ, after making the fact findings necessary to invoke the section 718.305 presumption, erroneously failed to apply the presumption to his case. Defendant Twin Pines Coal Company ⁴ in essence adopts the harmless error position of the BRB. The parties also disagree on the evidentiary standard under which the presumption is invoked. We first address the statutory scheme to determine the applicable legal standards.

The regulation granting the presumption provides in pertinent part:

"(a) If a miner was employed for fifteen years or more in one or more underground coal mines ... 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 .... The presumption may be rebutted only by establishing that the miner does not, or did not have pneumoconiosis, or that his or her respiratory or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine.

....

(c) the determination of the existence of a totally disabling respiratory or pulmonary impairment, for purposes of applying the presumption described in this section, shall be made in accordance with § 718.204."

20 C.F.R. § 718.305(a), (c) (1988) (emphasis added). Section 718.204 governs the determination whether a miner is totally disabled, and provides:

"(a) General. Benefits are provided under the Act for ... miners who are totally disabled due to pneumoconiosis.... The standards of this section shall be applied to determine whether a miner is or was 'totally disabled' for the purpose of the Act.

(b) Total disability defined. A miner shall be considered totally disabled ... if pneumoconiosis as defined in § 718.201 prevents or prevented the miner:

(1) From performing his or her usual coal mine work; and

(2) From engaging in gainful employment in the immediate area of his or her residence requiring the skills or abilities comparable to those of any employment in a mine or mines in which he or she previously engaged with some regularity over a substantial period of time.

(c) Criteria. In the absence of contrary probative evidence, evidence which meets the standards of either paragraphs (c)(1), (2), (3), (4) or (5) of this section shall establish a miner's total disability:

(1) Pulmonary function tests showing values equal to or less than those...