Moore v. Harris
| Decision Date | 12 June 1980 |
| Docket Number | No. 78-1610,78-1610 |
| Citation | 623 F.2d 908 |
| Court | U.S. Court of Appeals — Fourth Circuit |
| Parties | Charles H. MOORE, Appellant, v. Patricia R. HARRIS, Secretary of Health & Human Services, Appellee. |
Daniel M. Hall, Abingdon, Va., for appellant.
Fred Marinucci, Dept. of Health & Human Services, Philadelphia, Pa. (Paul R. Thomson, Jr., U. S. Atty., Robert S. Stubbs, Asst. U. S. Atty., Roanoke, Va., Stephanie W. Naidoff, Regional Atty., Joan Kaehne Garner, Region III, Dept. of Health & Human Services, Philadelphia, Pa., on brief), for appellee.
Before HALL and MURNAGHAN, Circuit Judges, and PERRY *, District Judge.
In 1971 Charles H. Moore, appellant, sought black lung benefits under the Black Lung Benefits Title of the Federal Coal Mine Health and Safety Act of 1969 1 ("Black Lung Benefits Act" 2). The claim was denied by the Secretary of Health, Education and Welfare, now the Secretary of Health and Human Services ("the Secretary"), whose action was sustained by the district court as supported by substantial evidence.
The problem which confronts us is whether nearly a decade of activity as a miner while Moore was self-employed in a family mine or employed by a close corporation of which he was a principal shareholder 3 should be considered for purposes of certain favorable presumptions established by statute to determine eligibility. We hold that it should be so considered and reverse. Considering those years of self-employment gives Moore over fifteen years of coal mine employment, as against the less than ten years allowed by the Secretary for periods when Moore's mining activities took place while he was the employee of mine operators other than himself and his close corporation.
The Statute.
The case is governed by the provisions of the act as they existed prior to amendment in 1978. 4 Under those provisions, benefits shall be paid with respect to the disability of a person if four requirements are satisfied: 5
1. The person must be a miner, which the statute defines as "any individual who is or was employed in a coal mine." 6
2. The person must be totally disabled as determined by regulations prescribed by the Secretary. 7
3. The total disability must be due to pneumoconiosis, "a chronic dust disease of the lung." 8
4. It must be shown that the disease is one "arising out of employment in a coal mine." 9
To facilitate the administration of the act and to ease the inherent difficulties of proving the existence and the causation of the disease, the statute makes available several presumptions to help establish requirements 2, 3, and 4 above. Thus, "if a miner is suffering . . . from a chronic dust disease of the lung which (yields specified medical symptoms when diagnosed by X-ray, biopsy, or other means), then there shall be an irrebuttable presumption that he is totally disabled due to pneumoconiosis . . ." 10 ("the irrebuttable presumption"). That is, requirements 2, 3, and 4 are deemed satisfied.
Also, "if a miner was employed for fifteen years or more in one or more underground coal mines, and if (a chest X-ray fails to meet the standards of the irrebuttable presumption), and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis . . ." 11 ("the fifteen-year presumption" 12). That is, requirements, 2, 3, and 4 may be deemed satisfied.
Finally, "if a miner who is suffering or suffered from pneumoconiosis was employed for ten years or more in one or more coal mines there shall be a rebuttable presumption that his pneumoconiosis arose out of such employment" 13 ("the ten-year presumption" 14). That is, requirement 4 may be deemed satisfied. 15
The Regulation.
By regulation the Secretary has attempted to modify and restrict the statutory definition of "miner." Where the statute speaks of an "individual who is or was employed in a coal mine," the Secretary has substantially altered the phraseology to an "individual who is working or has worked as an employee." 20 C.F.R. § 410.110(j) (1979) (emphasis added). Having introduced the word "employee," which nowhere appears in the relevant portion of the statute, the Secretary has also prescribed that it refers to a "legal relationship . . . under the usual common-law rules." Id. § 410.110(m). 16
The Facts.
The findings of the administrative law judge ("ALJ") were adopted by the Secretary. The ALJ determined that claimant had 7 1/4 years of work as a coal-mine employee, at least 7 1/4 years of work in an unincorporated family coal mine of which he was part owner, and approximately 2 years of work in that mine after its incorporation. 17 Thus, even if the work for the close corporation is treated as that of an employee under usual common law rules, 18 of Moore's conceded sixteen or more years of work in coal mines, less than ten years were as an employee as defined by the Secretary's regulation. The ALJ, applying the definition contained in the regulation, refused Moore the benefit of any of the statutory presumptions.
The ALJ, considering a contention of Moore that, even without the benefit of the presumptions he had established entitlement, found that, as of the relevant date for benefits, Moore had "a chronic respiratory or pulmonary impairment," but that the preponderance of the medical information failed to meet Moore's burden of proof regarding the existence of pneumoconiosis. 19 The ALJ further found that, even if Moore had shown the existence of pneumoconiosis, he had not shown that that illness arose out of his activities as an employee. Because of the dusty conditions under which he worked in the family mine, "any pneumoconiosis which the claimant may establish could reasonably have arisen from his self-employed coal mining work . . . ."
The district court, accepting without question the Secretary's regulatory definition of a miner as an employee under usual common law rules, held that there was substantial evidence that claimant had less than ten years as an employee, and it ruled that the presumptions were unavailable to him. It further held that, because of his substantial exposure to coal dust in the family mine, he was unable to establish by other evidence that his respiratory condition, however severe it might be, arose out of activity as a coal mine employee. Accordingly, the court affirmed without reviewing the severity of Moore's respiratory impairment.
Moore claims that for purposes of the ten- and fifteen-year presumptions, Congress did not authorize a distinction between self-employment in one's own coal mine and wage labor in someone else's coal mine, that "employment in a coal mine" or being "employed in a coal mine" were intended by Congress to refer simply to miners' occupations and customary activities, not to who was the entrepreneur.
The regulation on its face accomplishes a change in the statutory language. As a simple matter of customary usage, one who is "employed" is not automatically or predominantly an employee. 20 Since the regulation immediately generates a doubt as to whether it truly interprets the statute, our first task is to determine what Congress intended when it enacted the statute before us. 21
Although the isolated language of the presumptions and of the definition of "miner" may be susceptible both to the Secretary's interpretation and to the interpretation which Moore urges, the legislative history and statutory purpose of the provisions make abundantly clear that Congress intended to benefit all persons those employed by third parties and self-employed persons alike who had contracted a chronic dust disease of the lung as a result of their work in the nation's coal mines. 22
The Statutory Language.
The ease with which the statutory language supports the meaning which Moore urges is shown by the construction of the current version of the statute. In 1978, Congress amended the definition of "miner" 23 and made unmistakable its intent that self-employed miners be eligible for black lung benefits. 24 The Secretary fully accepts that, under the current language of the Black Lung Benefits Act, self-employment in a coal mine counts toward the definitions of "miner" and "pneumoconiosis" and toward the presumptions. 25 That is, Moore's suggested reading of the statute is accepted today notwithstanding that a miner's work is referred to as "such employment," 30 U.S.C.A. § 902(d) (West Supp. 1979), that pneumoconiosis still must arise out of "coal mine employment," id. § 902(b), and that the rebuttable presumptions are still based on the miner's having been "employed for (at least some period of time) in one or more" coal mines. Id. § 921(c)(1), (2), (4).
The expected reply of the Secretary, of course, is that self-employment now falls within those sections only because other evidence shows that the 1978 amendments were intended to make benefits available to qualifying self-employed miners. But implicit in that approach is the assumption that, before 1978, other evidence equally clearly established the opposite, namely that self-employment was not to count for purposes of qualifying for black lung benefits. Yet there is overwhelming evidence that in 1969 and 1972 Congress intended to benefit all persons who were totally disabled by pneumoconiosis as a result of coal mine work. Those constructions of "employed in" and "employment" which are correct to effect Congress' 1978 wishes are also correct in light of, and are required by, earlier congressional intent as well.
The Secretary's only evidence that "employed in" and "employment" as used in the statute referred to an employer-employee relation is very indirect and the argument is forced. For the other titles of the Federal Coal Mine Health and Safety Act of 1969 26 the definition of "miner" was "any individual working in a coal...
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