Dayton v. Consolidation Coal Co.

• Citation: 895 F.2d 173
• Decision Date: 20 April 1990
• Docket Number: No. 89-3203,89-3203
• Parties: Albert C. DAYTON, Petitioner, v. CONSOLIDATION COAL COMPANY; Office of Workers' Compensation Program, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 173

895 F.2d 173

Albert C. DAYTON, Petitioner, v. CONSOLIDATION COAL COMPANY; Office of Workers' Compensation

Program, Respondents.

No. 89-3203.

United States Court of Appeals, Fourth Circuit.

Argued June 5, 1989.

Decided Feb. 5, 1990.

Rehearing and Rehearing In Banc Denied April 20, 1990.

Thomas Roy Michael, for Petitioner.

David Allen Barnette (Jackson & Kelly, Charleston, W. Va., on brief), Robert Edward Kirschman, Jr. (Jerry G. Thorn, Acting Sol. of Labor, Donald S. Shire, Associate Sol., for Black Lung Benefits; Sylvia T. Kaser, Washington, D.C., for Appellate Litigation, on brief), for Respondents.

Before WIDENER and HALL, Circuit Judges, and JOE F. ANDERSON, Jr., District Judge for the District of South Carolina, sitting by designation.

WIDENER, Circuit Judge:

Albert C. Dayton seeks review of the decision of the Benefits Review Board affirming the denial of his claim for benefits pursuant to the Black Lung Benefits Act, 30 U.S.C. Secs. 901 et seq. Dayton contends that application of the interim Labor Department regulations' rebuttal provisions, 20 C.F.R. Sec. 727.203(b), used by the Administrative Law Judge to find rebuttal of his claim, violates 30 U.S.C. Sec. 902(f). Based largely on our decision in Taylor v. Clinchfield Coal Company, 895 F.2d 178 (4th Cir.1989), we agree and remand the decision for further consideration under the interim Health, Education and Welfare regulations' rebuttal provisions found in 20 C.F.R. Sec. 410.490(c).

Dayton filed a claim for black lung benefits on November 26, 1979. The Department of Labor's Office of Workers' Compensation Programs made an initial finding of entitlement on the claim on June 12, 1980, and notified Consolidation Coal Company of its potential liability as the responsible operator in the case. Consolidation filed a controversion and requested a formal hearing. The case was heard before an administrative law judge on March 28, 1985.

The parties stipulated that Dayton had demonstrated 17 years of coal mine employment and that Consolidation was the responsible operator. The ALJ evaluated Dayton's claim under the interim labor regulations found at 20 C.F.R. Sec. 727.203. He held that Dayton was entitled to invoke the presumption that he was totally disabled due to pneumoconiosis arising out of coal mine employment under Sec. 727.203(a)(2) on the basis of three qualifying ventilatory studies. The ALJ also found, however, that Consolidation had rebutted this presumption by showing a lack of total disability under Sec. 727.203(b)(2) and that claimant did not have coal workers' pneumoconiosis under Sec. 727.203(b)(4).

Dayton appealed the ALJ's decision to the Benefits Review Board. The Board noted that no challenge was made to the ALJ's determination that Dayton was entitled to invoke the interim presumption under Sec. 727.203(a)(2), but it upheld the ALJ's decision that Consolidation had rebutted Dayton's claim under Sec. 727.203(b)(4). The Board stated that it was not necessary to address the ALJ's finding of rebuttal under Sec. 727.203(b)(2) and did not reach that issue.

Dayton filed a timely petition for review from the Board's decision with this court. Dayton contends that under Sec. 410.490 a coal operator may only rebut the interim presumption by showing that a claimant is in fact doing or is capable of doing his previous coal mine work or comparable work. Broyles v. Director, OWCP, 824 F.2d 327, 329 (4th Cir.1987); Couch v. Secretary of HEW, 774 F.2d 163, 166 (6th Cir.1985); Vintson v. Califano, 592 F.2d 1353, 1356, n. 3 (5th Cir.1979). See Pittston Coal Group v. Sebben, 488 U.S. 105, ----, 109 S.Ct. 414, 416, 102 L.Ed.2d 408 (1988). In Sebben, the court stated that a coal operator may also rebut a presumption of causation arising under Sec. 410.416. In any event, Dayton argues that under Sec. 410.490, an operator may not rebut by challenging, as Consolidation did in this case, the existence of coal workers' pneumoconiosis. Thus, Sec. 410.490 is less restrictive than Sec. 727.203, and under 30 U.S.C. Sec. 902(f) and our interpretation of that statute in Broyles, he is entitled to have his claim evaluated under the more lenient rebuttal provisions of Sec. 410.490(c).

Our decision in Taylor agrees with Dayton's reasoning and is controlling on this issue. In Taylor we hold today that the literal language of 30 U.S.C. Sec. 902(f) requires that a claimant who filed after July 1, 1973, but before April 1, 1980, may not be treated less favorably, so far as the criteria under which his claim is analyzed go, than a claimant who filed under the interim HEW regulations on June 30, 1973. Thus, regardless of whether the interim presumption is invoked under Sec. 727.203 or Sec. 410.490, he must have his claim adjudicated under the less restrictive rebuttal standards of Sec. 410.490.

Consolidation argues that the ALJ also found that the presumption was rebutted under Sec. 727.203(b)(2) in that Dayton "is able to do his usual coal mine work or comparable and gainful work...." Since this is similar to rebuttal pursuant to Sec. 410.490(c)(2), Consolidation urges that this finding satisfies the requirements this court set down in Broyles and justifies affirmance of the Benefits Review Board's decision. We cannot agree. In its decision in this case, the Board clearly stated that since it was upholding the ALJ's decision on the basis of rebuttal under Sec. 727.203(b)(4) it was unnecessary to address whether or not the ALJ's decision on rebuttal under Sec. 727.203(b)(2) was correct. In reviewing a ruling of an administrative agency we must confine ourselves to the grounds upon which the agency based its action. Securities and Exchange Commission v. Chenery Corporation, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). The Board based its affirmance of the ALJ's ruling on rebuttal under Sec. 727.203(b)(4), which, under 30 U.S.C. Sec. 902(f) and...