Taylor v. Peabody Coal Co.
| Decision Date | 28 August 1989 |
| Docket Number | No. 86-2590,86-2590 |
| Citation | 892 F.2d 503 |
| Parties | Hubert C. TAYLOR, Petitioner, v. PEABODY COAL CO. and Director, Office of Workers' Compensation Programs, Respondents. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before EASTERBROOK, RIPPLE, and KANNE, Circuit Judges.
This appeal has come before us for the second time. In our earlier opinion in this case, Taylor v. Peabody Coal Co., 838 F.2d 227 (7th Cir.), vacated, --- U.S. ----, 109 S.Ct. 548, 102 L.Ed.2d 576 (1988) ( "Taylor I"), we denied petitioner Hubert C. Taylor's petition for review of the Benefits Review Board's order reversing the decision of the Administrative Law Judge ("ALJ") that Taylor was entitled to black lung benefits. On January 11, 1989, the United States Supreme Court reversed and remanded our decision for reconsideration in light of its recent decision in Pittston Coal Group v. Sebben, --- U.S. ----, 109 S.Ct. 414, 102 L.Ed.2d 408 (1988). On reconsideration, we reverse the decision of the Benefits Review Board and reinstate the ALJ's award of benefits to Taylor.
The black lung benefits program, as enacted by Congress, consists of two parts. Part B is a temporary program of federally financed benefits to be administered by the Secretary of Health, Education, and Welfare ("HEW"), and Part C provides for a more permanent program to be administered by the Secretary of Labor, relying on state workers' compensation programs where possible. Pittston Coal Group, 109 S.Ct. at 417. The Part B program, which applies to claims filed by living miners before June 30, 1973 and before December 31, 1973 for survivors' claims, is administered under regulations promulgated by HEW. Although HEW promulgated both permanent and interim regulations, only the interim regulations, 20 C.F.R. § 410.490 (1973), are at issue here. These regulations set out criteria under which the presumption of entitlement to black lung benefits under Part B can be invoked by the claimant and rebutted by the employer. 1
In enacting the Black Lung Benefits Reform Act of 1977, Pub.L. No. 95-239, 92 Stat. 95 (), which gave the Secretary of Labor authority to establish total disability regulations for Part C cases, Congress provided that "[c]riteria applied by the Secretary of Labor ... shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973...." 30 U.S.C. § 902(f)(2). In response to the Black Lung Benefits Reform Act, the Secretary promulgated the interim regulations for Part C cases at issue here. 2 See 20 C.F.R. § 727.203.
The petitioner in this case, Hubert C. Taylor, filed his claim for black lung benefits on June 6, 1977. The Office of Workers' Compensation Programs approved his claim on March 31, 1980. Respondent Peabody Coal Company, however, filed a notice of controversion and the matter was referred to the Office of Administrative Law Judges. On August 29, 1985, the ALJ issued his decision and order awarding benefits to Taylor.
In this decision and order, the ALJ examined Taylor's claim under both the Part C regulations and the Part B regulations. Examining Taylor's claim under the Part C regulations, the ALJ found that Taylor successfully had invoked the presumption under 20 C.F.R. § 727.203(a), but that Peabody Coal successfully had rebutted the presumption under 20 C.F.R. § 727.203(b)(2). Peabody Coal was able to rebut the presumption by presenting medical evidence that Taylor had only a mild pulmonary impairment which did not prohibit him from performing his work. Under the Part B regulations, however, the ALJ found that Taylor successfully had invoked the presumption, and that Peabody Coal had failed to rebut the presumption.
Peabody Coal appealed the ALJ's decision to the Benefits Review Board. The Benefits Review Board reversed the ALJ's decision, determining that Taylor's claim should be resolved exclusively under the Part C (Labor) rules. The Benefits Review Board determined that Halon v. Director, OWCP, 713 F.2d 21 (3d Cir.1983), a case in which the Third Circuit interpreted the "not ... more restrictive" language of 30 U.S.C. § 902(f)(2) as entitling a claimant to application of the Part B (HEW) rules in a claim disposed of by the Department of Labor, only applied to claims in the Third Circuit and in other circuits having adopted this standard.
Taylor appealed to this court. We affirmed the decision of the Benefits Review Board in our opinion in Taylor I. There, we determined that this case was controlled by our then-recent decision in Strike v. Director, OWCP, 817 F.2d 395 (7th Cir.1987). In Strike, we held that in enacting 30 U.S.C. § 902(f)(2), Congress only intended to prohibit the Secretary of Labor from applying more restrictive medical criteria in reviewing claims pursuant to 30 U.S.C. § 945. Thus, in Taylor I, we interpreted Strike as "reject[ing] the argument that Congress intended 20 C.F.R. § 410.490 [the Part B rules] to be applied to Part C claims when it 'liberalized' the Black Lung Benefits Act." Taylor I, 838 F.2d at 229.
Taylor filed a petition for certiorari to the Supreme Court. This petition was held in abeyance because of the Supreme Court's pending decision in Pittston Coal Group. On December 6, 1988, the Supreme Court decided Pittston Coal Group. In that case, the Supreme Court held that the interim Labor rules violated the prohibition in 30 U.S.C. § 902(f)(2) against the Secretary of Labor's employing "[c]riteria ... not ... more restrictive than the criteria applicable to a claim filed on June 30, 1973." The Supreme Court determined that the word "criteria" did not refer solely to medical criteria. 109 S.Ct. at 419-23. It also considered, but left open, the question whether § 902(f)(2) applied solely to total disability criteria. Id. at 420.
The decision in Pittston Coal Group, however, only discussed, and refuted, the validity of the Labor invocation rules. In oral argument before the Supreme Court, the respondents in that case conceded the validity of the Labor rebuttal rules, "even though [these rules] permit rebuttal of more elements of statutory entitlement than did the interim HEW regulation." Id at 423. Thus, the Supreme Court did not have to decide the question of the validity of the Labor rebuttal rules under § 902(f)(2), nor did it have to consider the due process arguments raised by the petitioners. Id.
On January 11, 1989, the Supreme Court vacated our decision in Taylor I, and remanded this case to us for further consideration in light of its decision in Pittston Coal Group. Because the ALJ's decision and order determined that Peabody successfully rebutted the presumption under the interim Labor rebuttal rules, we are presented squarely with the issue whether these rules violate 30 U.S.C. § 902(f)(2).
The criteria under the interim Labor rules for determining whether the presumption has been rebutted differ from the rebuttal criteria in the HEW rules in one important respect. The HEW rules provide that the presumption can be rebutted by a showing that the miner was working or could work at his former coal mine employment or the equivalent. 20 C.F.R. §§ 410.490(c)(1), (2). In Cook v. Director, OWCP, 816 F.2d 1182, 1185 (7th Cir.1987), we observed in another context that "the [HEW] presumption cannot be rebutted by medical evidence." On the other hand, the interim Labor rebuttal rules provide that "all relevant medical evidence shall be considered." 20 C.F.R. § 727.203(b). Once invoked, moreover, the presumption can be rebutted not only on the grounds listed in the HEW regulation, but also on the basis that "the total disability or death of the miner did not arise in whole or in part out of coal mine employment" or that "the miner does not, or did not, have pneumoconiosis." 20 C.F.R. §§ 727.203(b)(1)-(4); Pittston Coal Group, 109 S.Ct. at 419.
Although Pittston Coal Group did not address, and indeed declined to consider, the validity of the Labor rebuttal rules, we believe that the Supreme Court's decision leaves no room for distinguishing the Labor rebuttal rules from the Labor invocation rules. Because the Labor rebuttal rules allow the consideration of medical evidence on rebuttal, while the HEW rebuttal rules do not, the former clearly are more restrictive than the latter. We note that this is so even if we were to read the term "criteria" as being limited solely to medical criteria, the interpretation of the statute specifically rejected by the Supreme Court in Pittston Coal Group. 3
We respectfully disagree, therefore, with our colleagues in the Sixth Circuit that a valid distinction can be made between the Labor invocation and rebuttal rules regarding the application of § 902(f)(2). See, e.g., Youghiogheny & Ohio Coal Co. v. Milliken, 866 F.2d 195, 202 (6th Cir.1989); Kyle v. Director, OWCP, 819 F.2d 139, 144 (6th Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 566, 102 L.Ed.2d 591 (1988); Ramey v. Kentland Elkhorn Coal Corp., 755 F.2d 485, 489 (6th Cir.1985). In Youghiogheny, which was decided after Pittston Coal Group, the Sixth Circuit distinguished the Labor rebuttal rules from the Labor invocation rules based upon its prior precedent, which made such a distinction.
We believe that the Supreme Court's decision in Pittston Coal Group forecloses the distinction the Sixth Circuit makes for the reasons it gives. Compare Youghiogheny, 866 F.2d at 199 n. 1. ("[T]he Pittston opinion sheds no light on the issue before us today"). The Sixth Circuit distinguishes the invocation rules from the rebuttal rules based upon the following legislative history:
The conferees intend that the Secretary of Labor shall promulgate regulations for the determination of total disability or death due to...
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