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

• Decision Date: 25 October 1988
• Docket Number: No. 88-3071,88-3071
• Parties: Ernest F. HANNA, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 88

860 F.2d 88

Ernest F. HANNA, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR, Respondent.

No. 88-3071.

United States Court of Appeals, Third Circuit.

Argued July 26, 1988.

Decided Oct. 25, 1988.

Richard Zorn (argued), Barbara Johnson, U.S. Dept. of Labor, Office of the Sol., Washington, D.C., for respondent.

Gerald B. Graham (argued), Ravenna, Ohio, for petitioner.

Before HIGGINBOTHAM, BECKER and COWEN, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

On this appeal, we are asked to determine whether a person who worked for a coal mine operator that was also the consumer of the coal produced, and who assisted in the loading of coal at the mine site onto coal barges, was a miner within the meaning of the Black Lung Benefits Act of 1977, 30 U.S.C. Sec. 901 et. seq. (1982) ("the Black Lung Act" or "the Act"). We are persuaded by the plain language of that statute that someone who "loads" coal is a miner and, therefore, we will set aside the order of the Benefits Review Board that affirmed the decision of the Administrative Law Judge ("ALJ") that the Appellant was not entitled to benefits under the Act. Accordingly, we will remand this case to the ALJ for entry of an order in accordance with this opinion.

I.

Appellant, Ernest Hanna, worked as a deck hand, fireman and engineer on sternwheelers and on diesel tugs that pushed coal barges along the Monongahela River. The tugs pushed coal that had been extracted from mines at one end of that river to be delivered to steel mills of the Jones and Laughlin Steel Company ("J & L") in Pittsburgh, which used the coal to produce coke and steel. J & L consumed all of the coal that was produced from these mines. It owned each of the mine sites as well as the coal mining preparation and boating operations.

Hanna was employed by J & L in the capacities listed above between 1926 and 1930 and again between 1936 and 1969. For most of that time, Hanna worked seven days per week and was aboard the coal tugs twenty-four hours a day (except for eighteen hours per week off-duty shore leave).

Hanna worked with a tug crew that transported empty coal barges to four or more coal mines that were situated forty to fifty miles up the Monongahela. The tugs visited the mine sites daily. They were anchored immediately adjacent to the tipple and preparation facility of each site while the crew assisted in the loading of the coal barges, ¹ or if the barges had been pre-loaded while the crew created a "tow" of six or more loaded barges and annexed it to the tug. The duration that the tugs remained at a site varied between two and six hours. ²

II.

In 1978, Hanna discovered that he had contracted pneumoconiosis ³ and filed a claim for benefits under the Black Lung Act. Pursuant to the provisions of that statute, Hanna made an application for benefits to the Department of Labor, which rejected his claim on the grounds that he was not a miner within the meaning of the statute. Hanna petitioned for and was granted a formal hearing before the ALJ on his claim for benefits and that hearing was held two years later in October, 1980. The petition named J & L, as the owner operator of the mine, and the Director of the Office of Workers' Compensation Programs ("the Director") as respondents. The ALJ subsequently issued a decision concluding that "[Hanna]'s employment at the loading sites constituted coal mine transportation in and around a coal mine to the extent that he was exposed to coal dust as a result of such employment." In Re Hanna, Case No. 80-BLA-5467, Decision and Order at 4 (Feb. 11, 1981), reprinted in Appellant's Appendix ("App.") at 23. Thus, to the extent that Hanna's illness resulted from the time that he was required to be present at the loading site, the ALJ held that he was a miner within the Act and, therefore, entitled to benefits. The ALJ remanded the matter to the Deputy Commissioner of the United States Department of Labor, Division of Coal Mine Workers' Compensation ("the Deputy Commissioner") for additional factual findings regarding the claim, specifically: the length of Hanna's coal mine employment, whether Hanna had pneumoconiosis that was causally related to his coal mine employment, whether Hanna was totally disabled and whether that disability was the result of his pneumoconiosis and whether Hanna had dependents and therefore entitled to augmented benefits. In Re Hanna, Case No. 80-BLA-5467, Order of Remand at 2 (Feb. 26, 1981), reprinted in App. at 27.

In accordance with the order of remand, the Deputy Commissioner developed the evidentiary record of the case and referred it again to the Office of Administrative Law Judges in June, 1982. A second formal hearing was held two years later in October, 1984. In April, 1985, the ALJ issued a decision awarding Hanna benefits. In Re Hanna, Case No. 82-BLA-5925, Decision and Order (Apr. 8, 1985), reprinted in App. at 29. In that decision, the ALJ adopted the findings of the earlier ALJ decision and, upon his review of the additional evidence, concluded that Hanna had thirty-six years of qualifying employment as a miner and that he was totally disabled as the result of pneumoconiosis that he contracted during his employment on the coal barges. The ALJ held, therefore, that Hanna was entitled to benefits beginning with the month of onset and ordered the Director to pay to Hanna "all benefits to which he is entitled under the Act augmented by reason of his one dependent described above, commencing August 1, 1978." Id. at 8, reprinted in App. at 36.

The Director filed a motion for reconsideration of that decision. ⁴ He argued that the earlier ALJ decision holding that Hanna was a miner was erroneous because the functions that Hanna performed on the coal tugs did not fall within the purview of the Act. He asserted that those functions contributed only to the delivery of the coal to the ultimate consumer and not to the production of coal from the mine and, therefore, that Hanna was not a miner as contemplated by the Act. The ALJ agreed and vacated the decision of the ALJ that had been entered on February 11, 1981 and his own decision that had been entered on April 8, 1985. See In Re Hanna, 82-BLA-5925, Decision On Motion For Reconsideration And Order Setting Aside Decision And Order (July 3, 1985), reprinted in App. at 45.

Hanna appealed the ALJ's decision on reconsideration to the Benefits Review Board and the Board affirmed. Hanna v. Director, OWCP, BRB No. 85-1759 BLA, Decision and Order (Dec. 18, 1987). Hanna now appeals from the decision of the Benefits Review Board. ⁵ We conclude that the Board's construction of the Black Lung Act, adopted from the decision of the ALJ, was erroneous and, accordingly, we will set aside the Board's order in its entirety and remand to the ALJ for entry of an order consistent with this opinion. ⁶

III.

"The definition of miner contains two elements--a 'situs' test requiring work in [or around] a coal mine [or a coal preparation facility], and the second, a 'function' component requiring performance of coal extraction or preparation work. Both of these requirements must be met." Wisor v. Director, OWCP, 748 F.2d 176, 178 (3d Cir.1984) (citing Southard v. Director, OWCP, 732 F.2d 66 (6th Cir.1984)). See also Stroh v. Director, OWCP, 810 F.2d 61, 63 (3d Cir.1987); Amigo Smokeless Coal Co. v. Director, OWCP, 642 F.2d 68, 70 (4th Cir.1981). That definition is taken from the language of the Act, which provides that

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)(1982). In the present case, the Director concedes that Hanna spent a significant part of his work days at coal mine sites as contemplated by the Act and that he was exposed to coal dust as the result of that employment. The Director contends, however, that the job that Hanna performed does not meet the "function" element of the "situs and function" test. It argues that a claimant must demonstrate that both aspects of the test are met before he can demonstrate eligibility for benefits under the Black Lung Act.

We agree that both elements of that test must be proven before a claimant can be determined eligible for benefits under the Act. Wisor, 748 F.2d at 178. The question that remains in this case, however, is the proper manner to construe the language of the Act in the evaluation of the tasks that Hanna performed.

Hanna argues that a reading of the defining provisions of the Act in tandem, demonstrates that the Act encompasses the type of work that he did. He notes first that Sec. 902(d) defines "miner" as an individual who works in the "preparation of coal ... [in] transportation in or around a coal mine." 30 U.S.C. Sec. 902(d)(1982). Secondly, he notes that the "preparation" of coal, as defined by Sec. 802(i) of the Act, means "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)(1982) (emphasis added). Hanna asserts that because he was involved in the loading of the coal from the processing tipple onto the barges, he falls within the Act's provisions and is entitled to benefits.

The Director contends that Hanna's work contributed only to the transportation of coal within the stream of commerce. He refers to guidelines that he has previously issued that define the transportation of coal as limited to "transportation from extraction site to preparation plant or tipple, and any transportation of coal...