Lovilia Coal Co. v. Harvey, 95-4122

Citation109 F.3d 445
Decision Date01 August 1997
Docket NumberNo. 95-4122,95-4122
PartiesLOVILIA COAL COMPANY; Old Republic Insurance Company, Petitioners, v. Wesley HARVEY; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Mark E. Solomons, Washington, DC, argued (Laura Metcoff Klaus, on the brief), for Petitioners.

I. John Rossi, Des Moines, IA, argued, for Wesley Harvey.

Barry H. Joyner, Washington, DC, argued (J. Davitt McAteer, Donald S. Shire, Christian P. Barber, Cathryn Celeste Helm, on the brief), for Director, Office of Workers' Compensation Programs.

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

HENLEY, Senior Circuit Judge.

Lovilia Coal Company and its insurance carrier, Old Republic Insurance Company, (collectively Lovilia), petition for review of an order of the Benefits Review Board (Board) of the Department of Labor (DOL) awarding benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945 (the Act), to Wesley Harvey, a former coal miner employed by Lovilia. We affirm the award of benefits.


Harvey, who was born in 1914, worked in coal mines from 1930 until 1975, when he retired after working more than ten years for Lovilia. Harvey first filed a claim for black lung benefits in 1973, which was denied. In 1977, Congress liberalized eligibility requirements for benefits, and Harvey's claim was reopened and reviewed under the more lenient standards, 30 U.S.C. § 945, but was denied. Harvey again filed claims for benefits in 1983, 1984 and 1987, which were all denied. In March 1990, Harvey again applied for benefits. The deputy director denied the claim, finding that Harvey had not established a material change in conditions. See 20 C.F.R. § 725.309(d) ("If [an] earlier miner's claim has been finally denied, the later claim shall also be denied, on the grounds of the prior denial, unless the deputy director determines that there has been a material change in conditions."). However, after Harvey submitted additional medical evidence and appeared before an administrative law judge (ALJ), the ALJ awarded benefits. The ALJ found that the additional evidence not only showed a material change in conditions, but also showed that Harvey was "totally disabled due to pneumoconiosis." See 30 U.S.C. § 901. In addition, the ALJ rejected Lovilia's argument that 30 U.S.C § 932 transferred liability for payment of benefits from the company to the Black Lung Disability Trust Fund. Lovilia appealed to the Board. The Board rejected Lovilia's arguments

relating to transfer of liability and material change, but held that the ALJ had erred in concluding that Harvey was totally disabled due to pneumoconiosis by relying solely on the opinion of Harvey's treating physician, Dr. Gordon Arnott. Accordingly, the Board remanded the case for a reconsideration based on all the evidence of record. On remand, the ALJ again awarded benefits. The Board affirmed, and this petition for review follows.


On appeal Lovilia first renews its argument that if Harvey is entitled to benefits, section 205 of the Black Lung Benefits Amendments of 1981, Pub.L. 97-119, Title II, 95 Stat 1635 (1981), codified at 30 U.S.C. §§ 932(c)(2), (j)(3), transferred liability for payment of the benefits from the company to the Black Lung Disability Trust Fund (Fund). Lovilia next raises several challenges to 20 C.F.R. § 725.309(d), the "material change" regulation. In the event this court rejects its arguments relating to transfer of liability and material change, Lovilia goes on to argue that Harvey is not entitled to benefits.

Initially, we note that Lovilia's presentation of "the issues reverses the usual order of inquiry; that is, we determine who should pay before establishing whether the claimant is eligible for benefits." Rochester & Pittsburgh Coal Co. v. Krecota, 868 F.2d 600, 601 n. 1 (3d Cir.1989). "In this case, however, the government conceded that [Harvey] was eligible for benefits." Id. "Thus, if we determine that liability should be transferred to the government's Trust Fund we need not address the issue of whether [Harvey] is eligible for benefits." Id. In addition, we note that the regulations, 20 C.F.R. § 725.497(c), contemplate that transfer issues should be decided "as early as possible in the process--even before final disposition of the miner's claim." Big Horn Coal Co. v. Office of Workers' Comp. Prog., 55 F.3d 545, 551 n. 7 (10th Cir.1995). "Consequently, we will consider the transfer issue before approaching the eligibility issue." Krecota, 868 F.2d at 601 n. 1.

Transfer of Liability

As previously indicated, in 1977 Congress "substantially liberalized the criteria for establishing an entitlement to benefits." Tonelli v. Director, 878 F.2d 1083, 1084 n. 2 (8th Cir.1989). In addition, Congress provided that "[c]laims denied before March 1, 1978 (the effective date of the 1977 amendments) were to be reexamined under these less demanding standards." Old Ben Coal Co. v. Luker, 826 F.2d 688, 693 (7th Cir.1987). In order to relieve coal companies of unexpected retroactive liability, in 1981 "Congress provided that liability for claims denied before March 1, 1978 which were thereafter approved under the liberalized eligibility criteria should be transferred from coal operators to the Black Lung Disability Trust Fund." Director v. Drummond Coal Co., 831 F.2d 240, 242 (11th Cir.1987) (citing 30 U.S.C. §§ 932(c),(j)). 1 As relevant here, 30 U.S.C § 932(c) provides:

no benefit shall be payable by any operator on account of death or total disability due to pneumoconiosis ... which was the subject of a claim denied before March 1, 1978, and which is or has been approved in accordance with the provisions of section 945 of this title.

Section 932(j) provides that the Trust Fund is liable for "payment of benefits in cases ... in which there was a claim denied before March 1, 1978, and such claim is or has been approved in accordance with the provisions of section 945 of this title." At the time of the enactment of the 1981 amendments and at all relevant times, DOL regulations defined a claim as "an assertion in writing of an individual's entitlement to benefits." 20 C.F.R. § 725.101(a)(22) (1977) (recodified at 20 C.F.R. § 725.101(a)(16) (1994)).

In this case, the Board upheld the ALJ's rejection of Lovilia's transfer of liability argument. The Board reasoned that the only claim pending before the ALJ was Harvey's claim of March 1990 and that the claim could not support a transfer of liability since it was not, and could not have been, denied before March 1, 1978. The Board noted that although Harvey's 1973 claim had been denied before March 1, 1978, it had been denied, not approved, after review under section 945.

Lovilia argues that the Board has misinterpreted the term "claim," as used in section 932. Lovilia asserts that under the plain meaning of the statute "claim" does not mean an application for benefits, but means liability. Lovilia reasons "to insurers 'claims' do not mean 'claim forms' or applications. It means liability." Lovilia's Br. at 27. The Director responds that "claim" plainly means an application for benefits. We agree with the Director. "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., --- U.S. ----, ----, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997). As relevant here, the dictionary defines "claim" as "a demand for compensation or benefits (as one in accordance with the provisions of the Social Security Act or workmen's compensation law"), Webster's Third New Int'l Dictionary 414 (1965), and the Black Lung Act provides that a claim for benefits must be filed timely and in a prescribed manner. See, e.g., 30 U.S.C. §§ 923, 924, 932. Moreover, as the Director points out, at the time of the 1981 amendments, "Congress was aware of the regulation['s] definition, but did not enact any provisions to alter the definition." Pagel, Inc. v. CIR, 905 F.2d 1190, 1192 (8th Cir.1990).

In addition, we agree with the Director that even if the term "claim" was ambiguous, the legislative history makes clear that it means an application for benefits. Because Congress was concerned that a "transfer of liability could prove too burdensome for the debt-laden Trust Fund, legislators specifically requested information on how many claims would transfer, which claims they were and what the cost would be" and relied on estimates that the amendment would transfer about 10,200 claims, valued at approximately $1.4 to $1.5 billion. Old Ben Coal Co., 826 F.2d at 694 (citing Hearings before the Subcomm. on Labor of the Senate Comm. on Labor and Human Resources, 97th Cong., 1st Sess. 31, 77 (1981)); see also Earl Patton Coal Co. v. Patton, 848 F.2d 668, 672 (6th Cir.1988) ("Legislative history shows that the transfer of liability provisions of the 1981 Amendments reflect a congressional intent to accommodate only a limited number of claims within estimated cost limitations."). In any event, if any ambiguity existed, we would defer to DOL's reasonable interpretation of the statute it is charged with administering. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). DOL's transfer of liability regulation makes clear that unless a claim is subject to merger, 20 C.F.R. § 725.309(c), "the procedural history of each ... claim must be considered separately to determine whether the claim is subject to the transfer of liability provisions." Id. § 725.496(c). 2

Res Judicata

Lovilia also argues that consideration of Harvey's 1990 claim is barred by the doctrine of res...

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