Peabody Coal Co. v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 02 December 1985
• Docket Number: No. 84-1167,84-1167
• Parties: PEABODY COAL COMPANY & Old Republic Insurance Company, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 358

778 F.2d 358

54 USLW 2321

PEABODY COAL COMPANY & Old Republic Insurance Company, Petitioners, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.

No. 84-1167.

United States Court of Appeals Seventh Circuit.

Argued Dec. 7, 1984.

Decided Dec. 2, 1985.

W.C. Blanton, Ice, Miller, Donadio & Ryan, Indianapolis, Ind., for petitioners.

Joseph Bednarik, U.S. Dept. of Labor, Washington, D.C., for respondent.

Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and GRANT, Senior District Judge. ^*

ESCHBACH, Circuit Judge.

Peabody Coal Company ("Peabody") petitions this court for review of a grant of benefits to Harry Huber, a coal haulage truck driver, under the Black Lung Benefits Act ("Act") (Title IV of the Federal Coal Mine Health and Safety Act) codified as amended at 30 U.S.C. Secs. 901-960. In support of its petition, Peabody advances three arguments: (1) the Secretary of Labor ("Secretary") exceeded his statutory authority in promulgating the presumptive disability regulations found at 20 C.F.R. Sec. 727.203(a) (1985); (2) the administrative law judge's ("ALJ") finding that Peabody failed to rebut Huber's presumptive disability due to employment-related pneumoconiosis is not supported by substantial evidence; and (3) 20 C.F.R. Sec. 727.203(a)(2) (1985), ¹ the interim presumption applied by the ALJ to Huber's claim, is unconstitutional. For the reasons stated below, we will deny the petition.

I

The Act provides for the payment of benefits to, inter alia, miners found to be totally disabled due to pneumoconiosis arising out of employment in the nation's coal mines. Harry Huber drove coal haulage trucks in surface mining operations for approximately forty years. He retired on November 30, 1977, at the age of sixty-five. Five years prior to his retirement Huber began experiencing difficulties breathing. He discontinued gardening, and restricted his other activities around his home. Coughing spasms occasionally disrupted his sleep; he wheezed and produced phlegm. These problems have persisted. In the years immediately preceding his retirement Huber declined repair work offered him by Peabody, his employer, during periods of production-related lay-offs. He could not handle the physical strain. He cannot walk up a flight of stairs without pausing. On May 12, 1978, Huber filed a claim for benefits under the Act.

At the Secretary's request, Dr. Glazer conducted ventilatory function studies on Huber on January 31, 1979. These studies disclosed respiratory values sufficiently low to invoke a presumption of total disability due to employment-related pneumoconiosis under 20 C.F.R. Sec. 727.203(a)(2). Dr. Glazer concluded that Huber suffered from a mild restrictive pulmonary dysfunction. Dr. Stewart, also at the Secretary's request, examined Huber on the same day. He concluded that Huber had no cardiopulmonary disease and was "not impaired." Dr. Stewart stated further that Huber's breathing problems did not result from exposure to coal dust. Dr. Stewart ordered x-rays; these he read as negative for pneumoconiosis.

On the basis of these medical reports, the Secretary, on April 5, 1979, made an initial determination awarding Huber benefits under the Act. The Secretary, pursuant to 30 U.S.C. Sec. 932(a), designated Peabody as the coal-mine operator liable for Huber's benefit payments. Peabody contested Huber's eligibility. The Secretary referred Huber's claim to an ALJ for a formal hearing.

On June 19, 1979, at Peabody's request, Dr. Nay examined Huber. Peabody supplied Dr. Nay with the earlier x-rays, appended reports, Dr. Stewart's physical examination report, and a copy of Dr. Glazer's ventilatory studies. Dr. Nay conducted a short, ten to fifteen minute, physical examination of Huber. Dr. Nay subsequently had access to yet another negative x-ray, taken at Peabody's request and read by Dr. Beeler on June 19, 1979. Dr. Nay concluded that Huber did not have pneumoconiosis, that he had no other pulmonary infirmity caused by or aggravated by coal-dust exposure, and that he was not totally disabled.

On April 9, 1980, Dr. Lenyo examined Huber at Huber's request. The examination lasted almost three and one-half hours. Ventilatory studies conducted by Dr. Lenyo corroborated those done earlier by Dr. Glazer. Dr. Lenyo noted Huber's difficulties breathing, his inability to climb stairs, or to walk for any significant distance on level surfaces. Dr. Lenyo ordered an x-ray; his reading established the presence of accentuated pulmonary interstitial fibrosis in some lung fields. Dr. Lenyo concluded that Huber had a restrictive lung disease that could be due to his long coal-mine employment. He further found Huber's chronic lung disease totally disabling.

On November 5, 1980, an ALJ awarded Huber black lung benefits. The Benefits Review Board affirmed the award on December 9, 1983. Peabody petitions this court for review of the Board's order. We have jurisdiction under Sec. 21(c) of the Longshoremen's and Harborworker's Compensation Act, codified as amended at 33 U.S.C. Sec. 921(c), as incorporated by Secs. 415(a)(5) and 422(a) of the Black Lung Benefits Act, codified as amended at 30 U.S.C. Secs. 925(a)(5) and 932(a).

II

A. Statutory Authority

Peabody argues that the Secretary exceeded his statutory authority in promulgating the Sec. 727.203(a) interim presumptions. If so, the presumptions are invalid, and may not serve as a basis for an award of benefits to Huber under the Act. Section 727.203(a) allows an award of benefits to a surface-mine claimant without a showing that the claimant's employment conditions were substantially similar to those of an underground miner. Peabody's primary contention is that the absence of a "comparability" requirement in Sec. 727.203(a) impermissibly extends coverage beyond the Act's intent and purpose. We disagree.

We accord, as we must, considerable deference to an agency's interpretation of its authorizing statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984); Simmons v. Interstate Commerce Commission, 766 F.2d 1177, 1179 (7th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 791, 88 L.Ed.2d ---- (1985). The construction an agency adopts need not be the only permissible one before we will sustain it, Chemical Manufacturers Association v. Natural Resources Defense Council, --- U.S. ----, 105 S.Ct. 1102, 1108, 84 L.Ed.2d 90 (1985); it need be only a permissible construction, Chevron, 467 U.S. ----, 104 S.Ct. at 2782 (1984). In our view, neither the statutory language, the legislative history, nor the goals of the Act preclude Sec. 727.203(a).

Section 931(a) directs the Secretary to award benefits to miners, who file a claim after January 1, 1974, "for total disability due to pneumoconiosis." Section 931(a) is not restricted to underground miners or to surface miners employed under conditions comparable to underground mine operations. Congress also enacted a series of statutory presumptions which aid a claimant in establishing one or more of the elements necessary to entitlement under the Act. 30 U.S.C. Sec. 921(c)(1)-(4). None of the statutory provisions creates a presumption which reaches the ultimate issue of liability. Section 921(c)(1) entitles a claimant to a rebuttable presumption that his pneumoconiosis, established independently of 921(c)(1), arises out of his coal-mine employment, provided that the claimant proves ten or more years of coal-mine employment. Section 921(c)(1) applies to surface as well as underground miners without a comparability requirement. Section 921(c)(4) entitles a claimant to a rebuttable presumption that his totally disabling respiratory disease, established independently of 921(c)(4), is coal-mine related pneumoconiosis, provided the claimant proves fifteen years of underground, or substantially similar mine employment.

Recognizing the considerable difficulty in clinically diagnosing pneumoconiosis, Congress, in the 1977 amendments to the Act, directed the Secretary to promulgate regulations defining medical and evaluatory criteria for determining whether a claimant filing after December 31, 1973, as is Huber, is totally disabled due to pneumoconiosis. Black Lung Benefits Reform Act of 1977, Sec. 2, P.L. No. 95-239, 92 Stat. 95 (1978) (codified as amended at 30 U.S.C. Sec. 902(f)(1) (1985)). The Secretary's regulations became effective on March 31, 1980. 20 C.F.R. Secs. 718.1-.404 (1985). Congress expressly required that any claim filed after December 31, 1973, but before the effective date of the regulations, be processed under criteria "no more restrictive" than those applicable to a claim filed on June 30, 1973. 30 U.S.C. Sec. 902(f)(2)(C). In response to section 902(f)(2), the Secretary adopted the so-called "interim" presumptions set forth at 20 C.F.R. Sec. 727.203(a) (1985).

Section 727.203(a) directly presumes a miner eligible for benefits under the Act, provided the miner has worked for at least ten years in a coal mine, surface or underground, and can prove qualifying medical values. This presumption is subject to rebuttal pursuant to 20 C.F.R. Sec. 727.203(b). A claimant invoking Sec. 727.203(a) need not demonstrate that his pneumoconiosis is employment-related. Section 727.203(a) does not require a claimant to prove the presence of pneumoconiosis or a totally disabling respiratory impairment. Moreover, a claimant under Sec. 727.203(a) need not satisfy a comparability requirement. Section 727.203(a) affords significant evidentiary advantages to the black lung claimant not otherwise available under the statutory presumptions.

The Sec. 727.203(a) presumptions do not contravene the language of the Act. Section 902(f)(1)(D) directs the Secretary to "establish criteria for all appropriate medical tests which accurately reflect total disability in coal miners." Section 902(f)(2) provides that the...