PETITION FOR REVIEW OF AN ORDER OF THE BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR (BRB Nos. 77-644 BLA and 77-644 BLA-A)
Before Rosenn and Higginbotham, Circuit Judges, and Layton,*fn* District Judge.
In this case we are asked to construe provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 901 et seq. (1976) (amended 1978) (the Act).*fn1 These provisions make mine operators liable for the total disability of their employees due to Black Lung disease which arose during their employment. Because we conclude that the only argument raised by the petitioners in this appeal was not presented to or considered below by the Benefits Review Board (the Board), we will dismiss the appeal.
The Director, Office of Workers' Compensation Programs, United States Department of Labor (the Director) sued North American Coal Corporation (North American) for payment of disability benefits to North American's former employee, Kenneth Truitt. The Board held that North American was not liable under the Act, thereby making the Black Lung Disability Trust Fund (the Fund) responsible for Truitt's benefits. The Board reasoned that Truitt's disability could not have arisen while he worked for North American because he was irrebuttably presumed under a provision of the Act to be totally disabled before he began working for it. In this court, the Director, who lost below, has responded to this argument by offering an interpretation of the relevant provisions not raised before the Board or the Hearing Officer. We will review in some detail the procedural history of this case in order to illuminate the Director's change in strategic position and then consider his specific contention that he raised these arguments below.
Truitt originally applied to the Director for disability benefits on October 29, 1974.*fn2 The Director preliminarily determined that Truitt was eligible for benefits for total disability resulting from "complicated pneumoconiosis," the most severe stage of Black Lung disease under the classification system established under the program. See 30 U.S.C. § 921(c)(3) (1976). He also identified North American as the employer liable for payment of Truitt's claim pursuant to the Act and its administrative regulations.
These provisions provide for disability benefits for miners "totally disabled" by pneumoconiosis. A miner is totally disabled "when pneumoconiosis prevents him from engaging in gainful employment requiring the skills and abilities comparable to those of any employment in a mine or mines in which he previously engaged with some regularity and over a substantial period of time." 30 U.S.C. § 902(f) (1976) (amended 1978).*fn3 Normally, the determination of whether a miner is totally disabled from the disease requires a factual inquiry into the effects of the disease. In cases where the miner is suffering from "complicated pneumoconiosis," however, the Act establishes an "irrebuttable presumption" under Section 921(c)(3) (1976) that he is totally disabled and deserving of benefits, regardless of whether he continues to work.*fn4 See Usery v. Turner Elkhorn, 428 U.S. 1, 23-24, 96 S. Ct. 2882, 2896, 49 L. Ed. 2d 752 (1976) (upholding constitutionality of presumption).
The Act and its regulations also identify the employer liable for payment of these benefits, defined as the "responsible operator." The operator "with whom the miner had the most recent periods of cumulative employment of not less than one year . . . shall, if financially responsible, be deemed to be the responsible operator." 20 C.F.R. § 725.311(c)(1) (1974).*fn5 The disability must have arisen during the miner's employment for the operator, however, because the Act provides that in a case such as this
no benefit will be payable by any operator on account of death or total disability due to pneumoconiosis which did not arise, at least in part, out of employment in a mine during the period when it was operated by such operator.
30 U.S.C. § 932(c) (1976) (amended 1978) (emphasis added).*fn6 North American challenged its responsibility to Truitt under these provisions and requested a hearing.
On July 7, 1977, the Director, the claimant, and North American appeared before a Hearing Officer of the Department of Labor. At the beginning of the hearing the parties identified the main issues as whether Truitt was currently afflicted with "complicated pneumoconiosis" rather than a less severe form of the disease; and whether, as a factual matter, North American had contributed to his disability. The Director introduced evidence of medical reports of x-rays taken during 1975 indicating that Truitt suffered from complicated pneumoconiosis. The Director also submitted a letter of September 15, 1972 reporting that a prior x-ray of Truitt had revealed complicated pneumoconiosis.
Although the Director only introduced this letter to support his contention regarding the severity of Truitt's current illness, North American's counsel recognized the possibility that the early date of the x-ray might also absolve North American from liability for the disease. He suggested when the letter was introduced that the x-ray was taken on February 13, 1970, ten days before Truitt began working for North American. Under his view, Truitt was thus irrebuttably presumed to be totally disabled before he began working for it, and his disability could not have "arise(n), at least in part" while he worked for them. North American moved for a dismissal on this ground at the completion of the Director's case. Counsel for the Director did not challenge this legal interpretation at the hearing, although he did question whether the x-ray had in fact been taken on ...