Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor v. Consolidation Coal Co.

• Decision Date: 08 September 1989
• Docket Number: No. 88-3667,88-3667
• Citation: 884 F.2d 926
• Parties: DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. CONSOLIDATION COAL COMPANY and William Petracca, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 926

884 F.2d 926

58 USLW 2182

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. CONSOLIDATION COAL COMPANY and William Petracca, Respondents.

No. 88-3667.

United States Court of Appeals Sixth Circuit.

Argued March 27, 1989.

Decided Sept. 8, 1989.

Sylvia T. Kaser (argued), U.S. Dept. of Labor, Office of the Sol., Washington, D.C., for Director, OWCP, U.S. Dept. of Labor, petitioner.

Douglas A. Smoot (argued), Jackson & Kelly, Charleston, W.Va., for Consolidation Coal Co., respondent.

Geary M. Battistelli, Beneke, Battistelli & Bremer, Wheeling, W.Va., for William Petracca, respondent.

Before ENGEL, Chief Judge, BOGGS, Circuit Judge, and COHN, District Judge. ^*

COHN, District Judge.

This is an appeal under the Black Lung Benefits Act (the Act), 30 U.S.C. Secs. 901-945 (Title IV of the Coal Mine Health and Safety Act of 1969, 30 U.S.C. Secs. 801-960). Appellee, William Petracca, contracted coal miner's pneumoconiosis (black lung) after working for 34 years at mines operated by appellee Consolidation Coal Company (Consolidation). The Act provides that the Black Lung Disability Trust Fund, administered by the Director of Workers' Compensation Programs (Director) of the U.S. Department of Labor, shall be responsible for the payment of benefits to any black lung claimant who ceased working as a statutorily defined "coal miner" before December 31, 1969, the effective date of the Act. The individual coal mine operators are responsible for any black lung claims filed by miners who worked for them after that date. On April 17, 1980, Petracca was found to be disabled by pneumoconiosis and eligible for benefits.

Consolidation claims that it was not a "responsible operator" under the Act because Petracca had worked in the Company's machine repair shop for the last twenty-five years and was thus not a "coal miner" after December 31, 1969. The Benefits Review Board (Board) agreed and dismissed Consolidation as the responsible operator, holding the Trust Fund liable for Petracca's benefits. The Director appeals on the grounds that the machine repair shop in which Petracca worked was "in or around a coal mine" and he should thus be found to have worked as a "miner" after December 31, 1969. The Court agrees with the Director and the decision of the Benefits Review Board will be reversed and Consolidation reinstated as the responsible operator.

I.

Petracca was born in 1910. He began working for Consolidation in 1929 as a loader, continuing on and off there until 1938. Between 1942 and 1948, Petracca worked for the Wheeling Township Coal Co. as a belt operator. He returned to Consolidation in 1948 and began working in the central machine shop. He worked in the shop, first as a painter, then as a laborer and finally as a mechanic until his retirement in 1976.

On February 2, 1979, Petracca filed a claim for black lung benefits. The Office of Workers' Compensation Programs notified Consolidation on April 17, 1980 that it had made an initial finding that Petracca was entitled to benefits and that Consolidation was found to be the responsible operator. Consolidation timely contested the finding on the grounds, inter alia, that Petracca was not a "miner" under the Act and that he was not disabled due to pneumoconiosis. An administrative hearing was held on March 14, 1984, where medical evidence was presented concerning Petracca's physical condition and his employment history. On March 29, 1985, the ALJ issued a formal decision and order holding that Petracca was entitled to benefits and that Consolidation was the responsible operator under the Act. Consolidation appealed the ALJ's ruling to the Board. On February 24, 1988, the Board issued a decision upholding the ALJ's finding that Petracca was totally disabled but dismissing Consolidation as the responsible operator. The Board held that Petracca's work in Consolidation's machine shop was not coal mine employment under the Act and that the Trust Fund was thus liable for Petracca's benefits. On April 19, 1988, the Director filed a timely appeal to this Court on the issue of Consolidation's liability for Petracca's benefits. ¹

II.

A.

Our review of a decision of the Board is limited to assuring that the correct statutory standards have been applied and that no errors of law have been made. Warman v. Pittsburgh & Midway Coal Mining Co., 839 F.2d 257, 258 (6th Cir.1988), quoting Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1116 (6th Cir.1984), cert. denied, 471 U.S. 1116, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985). The Board must accept the ALJ's findings of fact if they are supported by substantial evidence in the record considered as a whole. 33 U.S.C. Sec. 921(c)(3), as incorporated by 30 U.S.C. Sec. 932(a). Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as sufficient to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). The Board may not engage in a de novo review, 20 C.F.R. Sec. 802.301, or substitute its own factual findings because it believes them to be more reasonable than those reached by the ALJ. Moseley v. Peabody Coal Co., 769 F.2d 357, 360 (6th Cir.1985). On questions of law, however, both this Court and the Board have plenary authority to review the conclusions of the ALJ and reverse them if convinced that they are erroneous. Warman, supra.

B.

The issue here is whether the Black Lung Disability Trust Fund or Consolidation is liable for Petracca's benefits. ² Coal mine operators are not required to pay black lung benefits to a miner who was not employed in or around a coal mine for at least one day after December 31, 1969. 30 U.S.C. Sec. 932(c); 20 C.F.R. Sec. 725.492(a)(3). The term "miner" is defined in the Act as "... any individual who works or has worked in or around a coal mine or coal preparation facility in the extraction or preparation of coal." 30 U.S.C. Sec. 902(d); 20 C.F.R. Secs. 725.101(a)(26) and 725.202(a). A "coal mine" is an

area of land and all structures, facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon, under, or above the surface of such land by any person, used in, to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, anthracite, from its natural deposits in the earth by any means or method, and the work of preparing the coal so extracted, and includes custom coal preparation facilities.

30 U.S.C. Sec. 802(h)(2); 20 C.F.R. Sec. 725.101(23). Coal preparation is defined as "the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of a coal mine." 30 U.S.C. Sec. 802(i); 20 C.F.R. Sec. 725.101(a)(25).

Several courts of appeal, including this court, have interpreted the statutory definition of "coal miner" in section 902(d) as involving two separate components. First, the individual must have worked "in or around a coal mine" (situs requirement) and, second, that work must have been in the "extraction or preparation of coal" (function requirement). See e.g. Mitchell v. Director, Office of Workers' Compensation Programs, 855 F.2d 485, 489 (7th Cir.1988); Foreman v. Director, Office of Workers' Compensation Programs, 794 F.2d 569, 570 (11th Cir.1986); Wisor v. Director, Office of Workers' Compensation Programs, 748 F.2d 176, 178 (3d Cir.1984); Southard v. Director, Office of Workers' Compensation Programs, 732 F.2d 66, 69 (6th Cir.1984); Amigo Smokeless Coal Co. v. Director, Office of Workers' Compensation Programs, 642 F.2d 68, 70 (4th Cir.1981). What we must do is determine whether the ALJ was correct in holding that Petracca's work in the central machine shop satisfied both components of this two part test.

III.

A.

The ALJ held that Petracca's work in the central machine shop between 1970 and 1976 satisfied both the situs and function prongs of the coal mine employment test. As to function, the ALJ found that because "coal cannot be extracted without properly functioning equipment[,]" Petracca's duties were an "integral part of the coal extraction and preparation process." Decision and Order at 6, quoting Skipper v. Mathews, 448 F.Supp. 300, 302 (M.D.Pa.1977). As to situs, he found that the repair shop itself was a "structure or facility used in the process of extracting coal," and thus within the statutory definition of "coal mine." Decision and Order at 4. Since it was conceded that Petracca worked in the shop after December 31, 1969, questions of distance were rendered irrelevant. Id. The ALJ noted the apparent conflict between his ruling and the Board's decision in Siebert v. Consolidation Coal Co., 7 Black Lung Rep. 1-42 (1984), which held that a coal mine's central repair shop located a mile from the nearest extraction site did not constitute coal mine employment because it falled to meet the situs requirement. The ALJ distinguished Siebert on the grounds that "while somewhat ambiguous, [the testimony] generally indicated that after Claimant began working in the machine shop, he was required to work occasionally in the strip mine pits 'on and off' until the time he retired[.]" Decision and Order at 5. He held that the evidence, while "inconsistent and unclear," was insufficient to rebut the regulatory presumption that an individual employed by a coal mine operator was a statutorily defined "miner." See 20 C.F.R. Sec. 725.202(a).

The Board rejected the ALJ's findings as to situs, on the grounds that he improperly shifted the burden of proof on the question of coal mine employment. The Board held that, in fact, it is the claimant's burden to establish years of coal mine employment. Board Decision and Order at 2. The Board also held that work in a mine's central machine shop was not coal mine employment...