Gibas v. Saginaw Min. Co.

• Decision Date: 26 November 1984
• Docket Number: No. 83-3408,83-3408
• Parties: Lewis GIBAS, Petitioner, v. SAGINAW MINING COMPANY; Director, Office of Workers' Compensation Programs; and Benefits Review Board, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1112

748 F.2d 1112

53 USLW 2297

Lewis GIBAS, Petitioner, v. SAGINAW MINING COMPANY; Director, Office of Workers'

Compensation Programs; and Benefits Review Board,

Respondents.

No. 83-3408.

United States Court of Appeals, Sixth Circuit.

Argued June 7, 1984.

Decided Nov. 26, 1984.

Daniel L. Manring (argued), Barkan & Neff Co., L.P.A., Columbus, Ohio, for petitioner.

Gerald P. Duff (argued), Kinder, Kinder & Hanlon, St. Clairsville, Ohio, Roscoe C. Bryant (LC), J. Michael O'Neill, Mary-Helen Mautner (argued), U.S. Dept. of Labor, Washington, D.C., for respondents.

Before MARTIN and KRUPANSKY, Circuit Judges, and McRAE, Chief Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

The question presented is whether the Benefits Review Board, an administrative tribunal within the Department of Labor, is vested with the adjudicatory authority to declare invalid a regulation of the Secretary of Labor. Additionally, we are asked to determine whether, if the Board has such power, that power was properly exercised in this case.

Lewis Gibas, a fifty-nine-year-old coal miner, petitions for review of a final decision by the Benefits Review Board, United States Department of Labor, denying him benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901 et seq. The Board's decision reversed a determination by an administrative law judge who had awarded Gibas benefits for disability resulting from pneumoconiosis. ¹ The Director, Office of Workers' Compensation Programs, of the Department of Labor supports Gibas' petition; ² his employer, Saginaw Mining Company, opposes it. This court has jurisdiction under 33 U.S.C. Sec. 921(c) (1976).

Gibas was born on November 8, 1924. He has an eighth-grade education. He worked as a coal miner with Saginaw for twenty-four years. He left Saginaw on June 24, 1978 due to a heart ailment. He has not worked since then.

On May 1, 1977, Gibas applied for benefits under the Black Lung Benefits Act, 30 U.S.C. Sec. 901 et seq. The Department of Labor found him eligible for benefits and named Saginaw as the employer responsible for payment of the benefits. Saginaw challenged this decision, and an administrative hearing was held. After the hearing, the administrative law judge found Gibas disabled and entitled to benefits. The judge concluded that Gibas had successfully invoked the interim presumption of 20 C.F.R. Sec. 727.203(a)(1984). Under that provision, an individual with ten years of coal mine employment "will be presumed to be totally disabled due to pneumoconiosis ... arising out of that employment" if: (1) x-rays establish the existence of pneumoconiosis, (2) ventilatory tests indicate the existence of a chronic respiratory or pulmonary disease, or (3) blood gas studies demonstrate the presence of a transfer of oxygen impairment. 20 C.F.R. Sec. 727.203(a)(1)-(3) (1984). In particular, the judge found that Gibas had introduced sufficient x-ray evidence to satisfy the requirement of section 727.203(a)(1). The judge relied on the x-ray report of Dr. J.S. Gordonson, a B-Reader, ³ which revealed a positive test for pneumoconiosis. The judge concluded that Gibas' complaints of shortness of breath, first reported in 1965, and length of employment as a coal miner, when considered with Dr. Gordonson's x-ray reading, established a rebuttable presumption of disability due to pneumoconiosis.

The administrative law judge rejected Saginaw's contention that it had introduced sufficient medical evidence to rebut the presumption of disability pursuant to 20 C.F.R. Sec. 727.203(b)(3)(1984). Under this provision, Saginaw was required to submit "evidence establish[ing] that the disability ... of the miner did not arise in whole or in part out of coal mine employment." 20 C.F.R. Sec. 727.203(b)(3) (1984) (emphasis added). In support of its assertion Saginaw argued that the report of Dr. George Kress, which opined that Gibas' disability was due to cardiovascular disease, and not pneumoconiosis, satisfied the rebuttal test of section 727.203(b)(3). The administrative law judge, however, disagreed. He noted:

It is recognized that the claimant has serious cardiovascular problems, that these problems led to his retirement in June 1978 and contribute to his present shortness of breath and that apparently his pneumoconiosis by itself, did not prevent him from working in June 1978 or earlier. However it is also true that the claimant has penumoconiosis, [sic] that penumoconiosis [sic] is a progressive and irreversible disease, that it could have continued to progress in severity, in the claimant's case, after June 1978 and that Dr. Del Vecchio found evidence of small airway disease in January 1980.

In view of the facts that the claimant worked in coal mines about 24 to 29 years under dusty conditions, that his May 1979 x-ray shows simple pneumoconiosis and that he is clearly disabled by conditions including shortness of breath, I believe that it would be unduly speculative to attribute all of his disability to his cardiovascular impairment and none of it to his pneumoconiosis, and I decline to do so. I conclude that the evidence fails to show that the claimant's present disability, during the period since May 1979, does not arise at least in part from his pneumoconiosis, or that he would now be able to do his previous coal mine work as far as any pulmonary or respiratory impairment is concerned. (No showing has been made as to the availability of comparable and gainful work.)

In view of the foregoing, it is concluded that the employer has not rebutted the interim presumption of totally disabling pneumoconiosis and that the claimant is entitled to benefits.

Saginaw then appealed to the benefits Review Board, which reversed. The Board, although upholding the administrative law judge's finding that Gibas had successfully invoked the interim presumption of section 727.203(a)(1), nonetheless reversed because the judge had applied section 727.203(b)(3) as written, rather than as rewritten by the Board in its decision in Jones v. The New River Company, 3 Black Lung Rep. 1-199 (1981). ⁴ In Jones, the Board found that the "in whole or in part" language of section 727.203(b)(3) was inconsistent with 30 U.S.C. Sec. 901(a) and 902(f)(1) (Supp. V 1981). The Board held section 727.203(b)(3) invalid "insofar as it permits awards for disability caused only in part by diseases arising out of coal mine employment." Jones, 3 Black Lung Rep. at 1-208. In the Board's view, section 727.203(b)(3), as written by the Secretary, permits awarding benefits "to claimants who are only partially disabled due to pneumoconiosis" when it requires that the employer "show that no part of the total disability arose out of coal mine employment." Id. at 1-208-209. Because the Black Lung Benefits Act provides benefits only to those who are "totally disabled due to pneumoconiosis," 30 U.S.C. Sec. 901, the Board felt that any regulation that allowed for disability resulting in part from pneumoconiosis was not in accordance with the law. Consequently, the Board ruled that the words "in whole or in part" should be stricken from the regulation. Under the Board's revised provision, a presumption of disability would be rebutted under section 727.203(b)(3) "if it is shown that total disability ... did not arise out of coal mine employment." Jones, at 1-209.

Applying the Jones ruling to Gibas' claim, the Board concluded that the administrative law judge had erred when he measured Saginaw's rebuttal evidence under the regulation as written by the Secretary. The Board then noted that the judge had erred in rejecting Dr. Kress' opinion that Gibas' disability was totally due to heart disease. The Board found that Dr. Kress' report was based upon sufficient documentation and uncontradicted by other medical evidence. Thus the Board held that "the interim presumption [was] rebutted pursuant to 20 C.F.R. Sec. 727.203(b)(3) as a matter of law." (emphasis added). ⁵

Both the Director and Gibas contend that the Board lacked the statutory or constitutional authority to invalidate the Secretary's regulation. Alternatively, they contend the Board has misinterpreted section 727.203(b)(3). Gibas also asserts that Saginaw has not satisfied its burden of refuting the interim presumption claimed under 727.203(a)(1). Saginaw, on the other hand, argues that the Board did not act beyond its authority when it declared section 727.203(b)(3) invalid; it further argues that there is not substantial evidence in the record to support the administrative law judge's determination that Gibas is disabled due to pneumoconiosis.

Congress adopted the Black Lung Benefits Act in response to the significant number of coal miners who were disabled due to pneumoconiosis as a result of extended employment in the nation's underground coal mines. The purpose behind the enactment of the Act was to "provide benefits, in cooperation with the States, to coal miners who are totally disabled due to pneumoconiosis and to the surviving dependents of miners whose death was due to such disease." 30 U.S.C. Sec. 901. Under the Act, the Secretary of Labor was given the authority to establish regulations and guidelines for determining whether a coal miner's pneumoconiosis "arose out of employment in a particular underground coal mine or mines." 30 U.S.C. Sec. 932(h).

In 1972 Congress amended the Longshoremen's and Harbor Workers' Compensation Act of 1927, as amended, 33 U.S.C. Sec. 901 et seq., to provide a new administrative process for benefits requests under several federal workers' compensation programs. See S.Rep.No. 1125, 92d Cong., 2d Sess. 13-15. The Black Lung Benefits Act was one of the compensation programs affected by the amendments. See Director, OWCP v. National Mines Corp., 554 F.2d 1267, 1272-73 (4th Cir.1977). Before the 1972 amendments, deputy commissioners adjudicated requests for benefits. The decision of the deputy commissioners were then reviewable by the district courts, with further...