Foreman v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

Decision Date08 May 1986
Docket NumberNo. 85-7503,85-7503
Citation794 F.2d 569
PartiesCornelius FOREMAN, Petitioner-Appellant, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Ozell Billingsley, Jr., Robert Shannon Paden, Paden, Green, Paden & Birona, Bessemer, Ala., for petitioner-appellant.

Michael J. Denney, Office of the Solicitor, Washington, D.C., J. Michael O'Neill, Washington, D.C., for respondent-appellee.

Petition for Review of an Order of the Benefits Review Board.

Before HILL and CLARK, Circuit Judges, and HENDERSON, Senior Circuit Judge.

HENDERSON, Senior Circuit Judge:

Cornelius Foreman appeals the determination of the Benefits Review Board (Board) that he is not entitled to disability benefits under the Black Lung Benefits Act (Act), 30 U.S.C. Sec. 901 et seq. We affirm the decision of the Board.

From 1941 to 1954 Foreman was employed as a boiler room fireman by Tennessee Coal & Iron (TCI). TCI, a division of United States Steel Corp., is an integrated steel producer that utilizes coal and other raw materials produced from its own mines. Foreman worked at a power plant that served one of TCI's ore mines. His duties required that he maintain the plant's boilers and prepare and shovel coal into the boilers. Coal dust was delivered to the plant by railway car from a TCI coal mine. Foreman carted the dust to the boiler room, wet it down, and shoveled it into the boiler.

In 1975 Foreman filed a claim with the Department of Labor (Department) seeking pneumoconiosis (black lung) disability benefits. The Department denied this claim on November 20, 1975. In 1979 the Department reconsidered Foreman's claim under recent amendments to the Act, see 30 U.S.C. Sec. 945, and reaffirmed the denial of benefits. Foreman then pursued an administrative appeal. An Administrative Law Judge (ALJ) conducted a full hearing and, on June 8, 1981, found that Foreman was not entitled to benefits because he was not a qualifying miner within the meaning of the Act. The ALJ did not consider the extent or nature of Foreman's disability because Foreman failed to satisfy this threshold requirement for pneumoconiosis benefits. Foreman appealed to the Board, citing additional evidence relating to his job duties. The Board dismissed the appeal and instructed Foreman to present his new evidence to the ALJ on a petition for reconsideration. Foreman requested reconsideration, but the ALJ ratified its prior ruling on July 29, 1982. The Board affirmed the ALJ's decision on May 28, 1985, finding that it was supported by substantial evidence. Foreman now appeals the Board's decision to this court.

The nature of our review in this case is limited in scope. The Board is required to uphold the ALJ's decision if it is in accordance with the law and supported by substantial evidence from the entire record. See 30 U.S.C. Sec. 932(a); 33 U.S.C. Sec. 921(b)(3); 20 C.F.R. Sec. 802.301 (1985). This court, in turn, need only determine whether the Board properly exercised its standard of review. See Alabama By-Products Corp. v. Killingsworth, 733 F.2d 1511, 1515 (11th Cir.1984); Amigo Smokeless Coal Co. v. Director, OWCP, 642 F.2d 68, 69 (4th Cir.1981).

The Act provides pneumoconiosis benefits only to disabled coal miners and their dependents. The Act, as amended, defines a coal miner as follows:

The term 'miner' means any individual who works or has worked in or around a coal mine or coal preparation facility in the extraction or preparation of coal. Such term also includes an individual who works or has worked in coal mine construction or transportation in or around a coal mine, to the extent such individual was exposed to coal dust as a result of such employment.

30 U.S.C. Sec. 902(d). See also 20 C.F.R. Sec. 725.101(a)(26), 725.202(a) (1985). The Act further defines coal preparation 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 the coal mine." 30 U.S.C. Sec. 802(i). See also 20 C.F.R. Sec. 725.101(a)(25) (1985). A coal mine is described as

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, or to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, or 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). See also 20 C.F.R. Sec. 725.101(a)(23) (1985). Foreman contends that he was engaged in coal preparation within the meaning of the Act. The ALJ rejected this argument, finding that Foreman was employed by a consumer of coal rather than a producer of coal. As such, he was not a miner and did not qualify for benefits under the Act.

In making the determination of who is a qualifying miner under the Act, courts have established a two-part test. The applicant must show (1) that he was employed at a statutorily defined coal mine situs and (2) that he performed duties related to the extraction and preparation of coal. See Wisor v. Director, OWCP, 748 F.2d 176, 178 (3d Cir.1984); Amigo Smokeless Coal Co. v. Director, OWCP, 642 F.2d 68, 70 (4th Cir.1981); Freeman v. Califano, 600 F.2d 1057, 1059-60 (5th Cir.1979). 1 The second part of this test is the focus of our inquiry here.

As stated earlier, the ALJ found that Foreman was not engaged in the extraction and preparation of coal within the meaning of the Act since he was employed by a coal consumer. We agree. Although courts regularly award benefits to workers employed at a coal mine and whose duties are incidental to the actual mining of coal, see, e.g., Hon v. Director, OWCP, 699 F.2d 441, 444 (8th Cir.1983) (mine blacksmith); Amigo Smokeless Coal Co. v. Director, OWCP, 642 F.2d 68 (4th Cir.1981) (mine laboratory technician); Freeman v. Califano, 600 F.2d 1057 (5th Cir.1979) (surface coal handler); Adelsberger v. Mathews, 543 F.2d 82 (7th Cir.1976) (per curiam) (mine clerical worker); Roberts v. Weinberger, 527 F.2d 600 (4th Cir.1975) (mine truckdriver); Skipper v. Mathews, 448 F.Supp. 300 (M.D.Pa.1977) (mine mechanic), they have denied benefits to those who work with coal once it has been processed by the mine and shipped to consumers.

In Southard v. Director, OWCP, 732 F.2d 66 (6th Cir.1984), the Sixth Circuit Court of Appeals found...

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