Begley v. Consolidation Coal Co., 86-3659

• Decision Date: 19 October 1987
• Docket Number: No. 86-3659,86-3659
• Citation: 826 F.2d 1512
• Parties: Laura BEGLEY (Widow of Shaftner Begley, deceased), Petitioner, v. CONSOLIDATION COAL COMPANY; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1512

826 F.2d 1512

Laura BEGLEY (Widow of Shaftner Begley, deceased), Petitioner, v. CONSOLIDATION COAL COMPANY; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 86-3659.

United States Court of Appeals Sixth Circuit.

Submitted May 11, 1987.

Decided Aug. 20, 1987.

Rehearing Denied Oct. 19, 1987.

David Barnett, Charleston, W.Va., Benefits Review Bd., U.S. Dept. of Labor, Office of the Solicitor, U.S. Dept. of Labor, Washington, D.C., Bruce A. McDonald, J. Michael O'Neill, for respondents.

John David Preston, Paintsville, Ky., for petitioner.

Before JONES and NELSON, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Petitioner Laura Begley ("Begley"), widow of deceased coal miner Shaftner Begley ("Shaftner"), appeals an affirmance by the Benefits Review Board, United States Department of Labor ("BRB" or "Board"), of an Administrative Law Judge's ("ALJ") determination denying her benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901 et seq. (1982). Begley contends that the ALJ's conclusion that she was not entitled to benefits under the so-called "widow's presumption," 30 U.S.C. Sec. 921(c)(5) (1982), was not supported by substantial evidence. We hold that this particular presumption to benefits can be rebutted by a showing that the etiology of the disability which the miner suffered at the time of his death was not the deceased's pneumoconiosis. Finding the ALJ's determination that Shaftner's disability was not caused by the pneumoconiosis which he had at the time of his death to be supported by substantial evidence, we affirm the denial of benefits to widow Begley.

I.

Shaftner, a coal miner born in 1924 whose last employer was respondent Consolidation Coal Company ("Consolidation"), last worked for Consolidation on March 10, 1975, and died on April 13, 1975. Begley filed a claim for black lung benefits on May 27, 1975. After the claim was initially approved by the Department of Labor in 1979, Consolidation contested it, and the claim was forwarded to the Office of Administrative Law Judges in 1981 to be set for formal hearing. The administrative hearing was held before an ALJ on October 25, 1983.

At the hearing, Begley contended that she was entitled to benefits by application of section 411(c)(5) of the Black Lung Benefits Reform Act of 1977 ("Act"), 30 U.S.C. Sec. 921(c)(5) (1982). Under this provision, the eligible survivors of a coal miner who died on or before March 1, 1978 and had accumulated twenty-five or more years of coal mine employment before June 30, 1971 are entitled to benefits unless it is established that the miner was not partially or totally disabled due to pneumoconiosis at the time of his death. Id. Consolidation did not contest Begley's assertion that Shaftner had been employed in coal mines for over twenty-five years prior to June 30, 1971, and the ALJ found that Shaftner had met the time requirements of section 921(c)(5) in order to qualify Begley for survivor benefits. The ALJ also found that Shaftner had simple pneumoconiosis at the time of his death. The ALJ concluded, however, that Consolidation had rebutted the presumption by showing that the disability suffered by Shaftner prior to death was not caused by the miner's pneumoconiosis. Accordingly, the ALJ denied benefits to the Petitioner.

Following the BRB's affirmance of the ALJ's determination, this appeal ensued. On appeal, Begley contends that once it had been determined that she was qualified to receive benefits under section 921(c)(5), that Shaftner suffered from pneumoconiosis at the time of his death, and that Shaftner was at least partially disabled for coal mine employment when he died, her entitlement to survivor benefits had been conclusively established. Thus, according to Begley, the ALJ's denial of benefits was not supported by substantial evidence. For the reasons which follow, we disagree.

II.

Both the Act and the regulation implementing it provide:

In the case of a miner who dies on or before March 1, 1978, who was employed for 25 years or more in one or more coal mines before June 30, 1971, the eligible survivors of such miner shall be entitled to the payment of benefits...unless it is established that at the time of his or her death such miner was not partially or totally disabled due to pneumoconiosis.

30 U.S.C. Sec. 921(c)(5) (1982); see also 20 C.F.R. Sec. 727.204(a) (1987). To invoke this "widow's presumption," all that needs to be shown is the requisite period of employment and the requisite date of death; the beneficiary's prima facie case of entitlement to benefits need not even include proof that the miner suffered from pneumoconiosis. Arch Mineral Corp. v. Director, Office of Workers' Compensation Programs, 798 F.2d 215, 220 (7th Cir.1986). Once invoked, the miner is presumed to have died due to pneumoconiosis, and the burden of proof (production and persuasion) shifts to the employer or director to establish that the miner was not partially or totally disabled due to pneumoconiosis at the time of his death. Id. at 220; Amax Coal Co. v. Director, Office of Workers' Compensation Programs, 772 F.2d 304, 305 (7th Cir.1985); see North American Coal Corp. v. Campbell, 748 F.2d 1124, 1128 (6th Cir.1984); Director, Office of Workers' Compensation Programs v. Congleton, 743 F.2d 428, 431 (6th Cir.1984). The regulations define partial disability as a miner's "reduced ability to engage in his or her usual coal mine work or 'comparable and gainful work.' " 20 C.F.R. Sec. 727.204(b); Amax Coal Co., 772 F.2d at 307.

Regarding the type and sufficiency of evidence which may be used by an employer to rebut the widow's presumption, the regulations state:

The following evidence alone shall not be sufficient to rebut the presumption:

(1) Evidence that a deceased miner was employed in a coal mine at the time of death;

(2) Evidence pertaining to a deceased miner's level of earnings prior to death;

(3) A chest x-ray interpreted as negative for the existence of pneumoconiosis;

(4) A death certificate which makes no mention of pneumoconiosis.

20 C.F.R. Sec. 727.204(d). See Bizzarri v. Consolidation Coal Co., 775 F.2d 751, 754 (6th Cir.1985) (the death certificate may only describe the immediate cause of death without mentioning the underlying etiology); Amax Coal Co., 772 F.2d at 306; Congleton, 743 F.2d at 431 (death certificate alone not sufficient to rebut presumption); Consolidation Coal Co. v. Smith, 699 F.2d 446, 449 (8th Cir.1983) (evidence of continued mine employment up to time of death not sufficient); Bishop v. Peabody Coal Co., 690 F.2d 131, 133 (7th Cir.1982); Battaglia v. Peabody Coal Co., 690 F.2d 106, 113 (7th Cir.1982); United States Steel Corp. v. Oravetz, 686 F.2d 197, 200-01 (3d Cir.1982). Although a single category of this type of evidence, by itself, will not be sufficient to rebut the presumption, a conjunction of two or more does tend "to indicate the absence of reduced work ability," Freeman v. Director, Office of Workers' Compensation Programs, 687 F.2d 214, 217 (7th Cir.1982), and can suffice to defeat the presumption. Bishop, 690 F.2d at 134-36; Battaglia, 690 F.2d at 113; see Congleton, 743 F.2d at 431 (a death certificate with no mention of pneumoconiosis and extensive medical records without indications of the disease held sufficient to rebut the presumption); Freeman, 687 F.2d at 217 (presence of three of four section 727.204(d) factors held sufficient for rebuttal). Introduction of more than one category of evidence does not mandate rebuttal, however, Oravetz, 686 F.2d at 201, and the ALJ remains free to weigh conflicting evidence and discount the probative value of the rebuttal evidence. See Arch Mineral Corp., 798 F.2d at 222. Most importantly, a conjunction of section 727.204(d)-type evidence may not be sufficient to rebut the widow's presumption if the claimant presents independent evidence of the miner's disability prior to death. Amax Coal Co., 772 F.2d at 307.

As will become apparent, however, the key to the resolution of this appeal lies not in scrutinizing the quantum and quality of the evidence which Consolidation supplied to rebut the "widow's presumption," but in determining the ways by which an employer can rebut the section 921(c)(5) presumption. The regulation implementing section 921(c)(5) states that "[i]n order to rebut this presumption the evidence must demonstrate that the miner's ability to perform his or her usual and customary work or 'comparable and gainful work' was not reduced at the time of his or her death or that the miner did not have pneumoconiosis." 20 C.F.R. Sec. 727.204(c). This regulation suggests that only two avenues are available for rebutting the "widow's presumption." The Board and the Seventh Circuit, however, have interpreted the Act and corresponding regulations to provide for a three-prong test, whereby a respondent can rebut the section 921(c)(5) presumption by showing that: "(1) the miner did not have pneumoconiosis; or (2) the miner was not totally or partially disabled at the time of his death; or (3) the partial or total disability which the miner may have suffered at the time of his death was not due to pneumoconiosis." Arch Mineral Corp., 798 F.2d at 220; Amax Coal Co., 772 F.2d at 305; Bishop, 690 F.2d at 134; see also Battaglia, 690 F.2d at 108; Trujillo v. Kaiser Steel Corp., 3 Black Lung Rptr. 1-497, 1-516 (Benefits Review Board 1981). Under this test, a qualified survivor can be denied benefits despite the fact that the miner had pneumoconiosis and was partially or totally disabled at death, if the employer can establish that the cause of the deceased miner's total or partial disability was not his pneumoconiosis. See Arch Mineral Corp., 798 F.2d at 221.

With this applicable law as background, Begley's contention on appeal will now be analyzed.

III.

It is uncontroverted that the ALJ correctly determined...