Earl Patton Coal Co. v. Patton, 86-4089

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation848 F.2d 668
Docket NumberNo. 86-4089,86-4089
PartiesThe EARL PATTON COAL COMPANY c/o Tennessee Consolidated Coal Company, Petitioner, v. Edna PATTON, Widow of Earl Patton; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
Decision Date29 March 1988

Ronald E. Gilbertson, argued, Kilcullen, Wilson & Kilcullen, Washington, D.C., for petitioner.

Thomas Holzman, Jeffrey J. Bernstein, DOWCP, Office of the Solicitor, U.S. Dept. of Labor, Benefits Review Bd., U.S. Dept. of Labor, Barbara J. Johnson, Carol De Deo, Office of the Solicitor, SASCL Div., Nathaniel I. Spiller, argued, for respondents.

Before ENGEL, * MERRITT and NORRIS, Circuit Judges.

ALAN E. NORRIS, Circuit Judge.

Petitioner, The Earl Patton Coal Company ("Patton Coal"), seeks review of an order of the Benefits Review Board ("the Board"), which affirmed separate decisions of two Administrative Law Judges. The first decision found that Edna Patton, widow of Earl Patton, was entitled to benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901-945 ("the Act"). The second decision found that Patton Coal was the operator and the party responsible for payment of the benefits but that, under 20 C.F.R. Sec. 725.496(f), the liability for benefits was not transferable under 30 U.S.C. Sec. 932(j) from Patton Coal to the Black Lung Disability Trust Fund ("Trust Fund") established under 26 U.S.C. Sec. 9501.

This court must affirm the Board's decision if it is supported by substantial evidence and if it is in accordance with applicable law. Kolesar v. Youghiogheny & Ohio Coal Co., 760 F.2d 728, 729 (6th Cir.1985). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

I. BACKGROUND

Earl Patton was born on June 4, 1913, married Edna Patton on January 19, 1937, and remained married to her until his death on July 9, 1977. Edna Patton filed a claim for benefits with the Department of Labor on August 16, 1977. Her claim is subject to those provisions of Part C of the Act that apply to claims filed on or after July 1, 1973, but prior to April 1, 1980. 1

The Board affirmed the A.L.J.'s finding that Edna Patton was entitled to benefits (beginning in July 1977, the month of Earl Patton's death) under the presumption established by 30 U.S.C. Sec. 921(c)(5), which applies to eligible survivors of a miner who died on or before March 1, 1978, and who was employed for twenty-five years or more in coal mines prior to June 30, 1971. Eligible survivors, if they filed claims prior to April 1, 1980, 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 or her death. 2 The evidence is clear that Earl Patton was not totally disabled; however, the Board affirmed the A.L.J.'s finding that Patton Coal had failed to rebut the presumption with respect to partial disability.

On October 13, 1970, Earl Patton filed with the Social Security Administration ("S.S.A.") his own claim for benefits under Part B of the Act. 30 U.S.C. Secs. 921-925. Part B claims are those claims filed prior to July 1, 1973. 3 That claim, which is not before this court, alleged total disability due to pneumoconiosis. The S.S.A. denied the claim on February 8, 1971 and July 19, 1971. The claim was later reviewed by the S.S.A. under the Black Lung Benefits Act of 1972, Pub.L. 92-303, 86 Stat. 150 (1972) (codified as amended at 30 U.S.C. Secs. 901, 902, 921-924, 931-934, 936-940, 951 (1982)), and again denied on March 4, 1974. Earl Patton died on July 9, 1977.

After the passage of the Black Lung Benefits Reform Act of 1977, Pub.L. 95-239, 92 Stat. 95 (1978) (codified as amended in scattered sections of 26, 29, and 30 U.S.C.) ("1977 Amendments"), which enacted more lenient standards of eligibility, the S.S.A. sent Edna Patton an election card asking whether she wished her late husband's claim to be reviewed again. See 30 U.S.C. Sec. 945(a)(1)(A)-(B). As the surviving spouse of Earl Patton, she was entitled under the regulations to pursue his unpaid Part B claim on behalf of his estate by seeking review either by the S.S.A. or the Department of Labor. 20 C.F.R. Secs. 725.545(c)-(d), 410.704(b), 410.570(c). On March 30, 1978, she requested further review by the S.S.A. On April 13, 1979, the S.S.A. again denied Earl Patton's claim and, as required by the regulations, advised Edna Patton that the claim was being forwarded to the Department of Labor where it would be considered as a new claim for benefits and that she would be entitled to present additional evidence.

The Department of Labor referred the claim to the Office of Workers' Compensation Programs ("O.W.C.P.") for review. According to the Director's brief, the O.W.C.P., on February 26, 1987 (after the decision of the Board and the filing of this appeal), issued an initial finding and again denied this successorship claim on the basis that the evidence failed to show total disability due to pneumoconiosis at the time of Earl Patton's death.

At this time, then, Earl Patton's Part B claim for benefits, to which he might have been entitled prior to his death, has been denied because substantial evidence did not show either that he was totally disabled due to pneumoconiosis prior to his death, or that his death was due to pneumoconiosis. Had it been approved, liability would have been transferred to the Trust Fund. However, Edna Patton's Part C survivor's claim for benefits payable after her husband's death has been allowed because Patton Coal has failed to rebut the section 921(c)(5) presumption that he was partially disabled at the time of his death due to pneumoconiosis. The Board has refused to order that Patton Coal's liability for survivor's benefits be transferred to the Trust Fund.

II. ISSUES

Patton Coal raises three issues in this appeal.

First, it argues that, if Edna Patton is entitled to benefits, liability for payment is required to be transferred to the Black Lung Trust Fund under Section 205 (30 U.S.C. Sec. 932(c)) of the Black Lung Benefits Amendments of 1981, Pub.L. 97-119, Title II, 95 Stat. 1643 (1981) (codified as amended at 30 U.S.C. Secs. 801, 901, 902, 921, 922, 923, 932, 940) ("1981 Amendments"). It contends that 20 C.F.R. Sec. 725.309(c) requires merger of the two claims, and that 20 C.F.R. Sec. 725.496(f), which the Board relied upon in denying transfer of liability, is invalid.

Second, Patton Coal argues that Edna Patton is not entitled to invoke the section 921(c)(5) presumption because she has not established by a preponderance of the evidence that her husband had been employed in the coal mines for twenty-five years.

Finally, it contends that the evidence in the record establishes rebuttal of the presumption.

III. TRANSFER OF LIABILITY FOR BENEFITS

Under 30 U.S.C. Sec. 932(c), as amended by the 1981 Amendments, 4 an operator cannot be held responsible for payment of black lung benefits on account of death or total disability due to pneumoconiosis where the claim was denied before March 1, 1978, but then, after that date, was reviewed pursuant to 30 U.S.C. Sec. 945, and approved. 5 Liability for such claims is transferred under 30 U.S.C. Sec. 932(j) 6 to the Trust Fund. 7

The Director and Patton Coal are in agreement that Earl Patton's Part B claim is a "claim denied before March 1, 1978" under the definition in 30 U.S.C. Sec. 902(i), thus meeting the threshold requirement for transfer of liability, but disagree with respect to the second requirement, that the claim be approved thereafter.

Application of 20 C.F.R. Sec. 725.309(c)

Patton Coal contends that the approval of Edna Patton's Part C claim fulfills the second requirement because, in practical reality, there is only one claim being made--that Earl Patton was disabled due to pneumoconiosis. It argues that the first sentence of 20 C.F.R. Sec. 725.309(c) requires the two claims be merged:

A claimant who filed a claim for benefits under Part B of title IV of the Act or Part C of title IV of the Act before March 1, 1978, and whose previous claim(s) are pending or have been finally denied, who files an additional claim under this part, shall have the later claim merged with any earlier claim subject to review under Part 727 of this subchapter.

That regulation must be read with substantially similar provisions included in 20 C.F.R. Secs. 410.705(c) and 727.103(c). These three companion regulations require the merger and processing of certain multiple claims filed with the Secretary of Labor by the same claimant. A careful reading of the regulations indicate that they do not cover separate claims filed on behalf of the miner's estate and by an eligible survivor in her own right and on her own behalf. The regulations cannot be read as requiring the merging of such claims because the standards of proof and the procedures for processing the claims are different.

The reasoning of Patton Coal would have the ultimate effect of making the allowance or denial of the two claims dependent upon which claim is first decided--a result that would render meaningless the partial disability standard of 30 U.S.C. Sec. 921(c)(5). Further, it would have the effect of automatically transferring liability for paying survivors' claims to the Trust Fund in a number of cases not mentioned in the applicable legislative history, thus resulting in an increase in Trust Fund liabilities not intended by Congress.

The three regulations have the same title: "Duplicate Claims." The purpose for promulgating them is stated in the legislative history: "The conferees also expect the Secretaries of HEW and Labor to establish a satisfactory mechanism to coordinate their responsibilities and to avoid both agencies simultaneously reviewing the claim of any claima...

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