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Director v. Republic Steel Corp.

decided: October 23, 1981.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER
v.
REPUBLIC STEEL CORPORATION AND EDWARD YAKUBCO, RESPONDENTS (BRB NO. 79-674 BLA); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. ALLEGHENY RIVER MINING COMPANY, OLD REPUBLIC COMPANIES, AND BERTHA RUSTON (WIDOW OF SAMUEL RUSTON), RESPONDENTS (BRB NO. 79-684 BLA); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. CONSOLIDATION COAL COMPANY AND JOSEPHINE PAULIAN (WIDOW OF DAWTON PAULIAN), RESPONDENTS (BRB NO. 79-687 BLA); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. REPUBLIC STEEL CORPORATION AND ANDREW BORDAS, RESPONDENTS (BRB NO. 79-753 BLA); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. UNITED STATES STEEL CORPORATION AND MIKE MROSKO, RESPONDENTS (BRB NO. 79-776 BLA); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. UNITED STATES STEEL CORPORATION AND JENNIE M. SABATINI (WIDOW OF MICHAEL SABATINI), RESPONDENTS (BRB NO. 79-777 BLA); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. UNITED STATES STEEL CORPORATION AND JULIA C. WARD (WIDOW OF DONALD V. CHARLTON) RESPONDENTS (BRB NO. 79-778 LA); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. BELTRAMI ENTERPRISES, INC. AND LACKAWANNA CASUALTY COMPANY AND ALICE HOUSTON (WIDOW OF DANIEL HOUSTON), RESPONDENTS (BRB NO. 80-204 BLA); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. BETHLEHEM MINES CORPORATION AND EDNA M. FYE (WIDOW OF MERLE FYE), RESPONDENTS (BRB NO. 80-365 BLA); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. DEQUESNE LIGHT COMPANY AND GEORGE JENKINS, RESPONDENTS (BRB NO. 80-399 BLA); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. NATIONAL MINES CORPORATION AND OLD REPUBLIC COMPANIES AND JAMES GEHRON, RESPONDENTS (BRB NO. 80-416 BLA); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. UNITED STATES STEEL CORPORATION AND LOUISE SOLOMON (WIDOW OF GEORGE SOLOMON), RESPONDENTS (BRB NO. 80-507 BLA); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. REPUBLIC STEEL CORPORATION AND HAZEL OBERLITNER (WIDOW OF FRANK J. OBERLITNER) RESPONDENTS (BRB NOS. 80-737 BLA & 80-737 BLA-A); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. REPUBLIC STEEL CORPORATION AND WILLIAM J. KOZAKIEWICZ, RESPONDENTS (BRB NO. 80-745 BLA); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. BENJAMIN COAL COMPANY AND OLD REPUBLIC INSURANCE COMPANY AND EDITH BISS (WIDOW OF HARRY BISS), RESPONDENTS (BRB NO. 80-233 BLA); DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. REPUBLIC STEEL CORPORATION AND JOSEPH VENICK, RESPONDENTS (BRB NO. 80-845)



PETITION FOR REVIEW BENEFITS REVIEW BOARD

Before Aldisert, Higginbotham and Sloviter, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

This petition for review of Benefit Review Board decisions in sixteen related black lung benefits cases requires us to determine whether the Board correctly held that § 435 of the Federal Coal Mine Health and Safety Act, as amended, 30 U.S.C. § 945, does not require certain black lung benefit claims to be paid by individual coal operators. The claims in question were filed by miners or their survivors prior to July 1, 1973, and denied. Congress amended the Act in 1977 to permit reconsideration of the claims. The Department of Health, Education, and Welfare reviewed and approved the renewed claims and certified them for payment to the Department of Labor. In all but one of the sixteen cases, the presiding Department of Labor administrative law judges determined that the respective employers were liable for the payments.

On appeal, the Benefits Review Board held that the 1977 amendments do not modify an earlier statutory scheme that required individual employers to pay benefits only for claims filed after December 31, 1973. The Board concluded that the instant claims should be paid from the Black Lung Disability Trust Fund. Yakubco v. Republic Steel Corp., (1980) 2 Black Lung Rep. 1-1116 (Matthew Bender). Petitioner, in the role of administrator of the Fund, invokes our jurisdiction under 33 U.S.C. § 921(c) (as incorporated by 30 U.S.C. § 932(a)) and challenges the Board's interpretation of § 435. We have examined the decisions of the Board and find no error in the Board's interpretation of the statute. Therefore, for the reasons set forth by the Benefits Review Board in Yakubco, the petition for review will be denied.

SLOVITER, Circuit Judge, dissenting.

I respectfully dissent from the decision of the majority. Because the issue has not previously been treated by any court, I set forth my reasons in somewhat more detail than has the majority.

I.

The Black Lung Program was established by Title IV of the Federal Coal Mine Health and Safety Act of 1969, Pub.L.No. 91-173, 83 Stat. 742 (1969) (current version at 30 U.S.C. § 901 et seq. (1976 & Supp. III 1979)) to provide benefits to coal miners totally disabled by pneumoconiosis (Black Lung). It was originally contemplated that the burden of payment of benefits initially shouldered by the United States from its general revenues (Part B of the Act) would ultimately shift to the coal mine operators through state workmen's compensation programs (Part C of the Act).

In amendments passed in 1972, Congress broadened coverage, reduced the eligibility requirements, and extended the dates for the applicability of Parts B and C. Under Part B of the Act, claims filed between December 30, 1969 and June 30, 1973 were to be adjudicated by the Secretary of Health, Education, and Welfare and paid by the United States. Under Part C, claims filed after December 31, 1973 were to be administered by a state workmen's compensation agency which met minimum regulatory standards. In the absence of such an approved state plan, claims were to be filed with and adjudicated by the Secretary of Labor, and paid by the responsible coal mine operator. The mine operator was to be held liable for claims filed after June 30, 1973, for benefits accruing on or after January 1, 1974. The Department of Labor would pay benefits when a responsible operator could not be determined or failed to pay. Finally, section 415 dealt with treatment of transition claims, those filed during the period between the effective dates of Part B and Part C, which is not at issue here. Black Lung Benefits Act of 1972, Pub.L.No. 92-303, 86 Stat. 150 (1972).

In practice, federal liability for the vast majority of Black Lung claims continued, in part because no State workmen's compensation law had been deemed "adequate" under Part C, and in part because the Department of Labor was only able to identify responsible operators with respect to about 25 to 30 percent of Part C claims. H.R.Rep.No. 95-151, 95th Cong., 1st Sess. 21 (1977), U.S.Code Cong. & Admin.News 1978, p. 237; see S.Rep.No. 95-209, 95th Cong., 1st Sess. 7 (1977).

In an effort to remedy this situation, Congress passed the Black Lung Benefits Revenue Act of 1977, Pub.L.No. 95-227, 92 Stat. 11 (1978), which, inter alia, created the Black Lung Disability Trust Fund, a fund supported through an excise tax on coal sales. The Fund is to be used to pay benefits when the operator liable for the payment of such benefits has not commenced payment of such benefits within 30 days after the date of initial determination of eligibility by the Secretary, or has not made a payment within 30 days after that payment is due, or when there is no operator who is required to secure the payment of such benefits. 30 U.S.C. § 934(a)(1). The companion legislation, the Black Lung Benefits Reform Act of 1977, Pub.L.No. 95-239, 92 Stat. 95 (1978), broadened the entitlement provisions. For example, the Act now expressly provides that when a miner is deceased, affidavit evidence shall be sufficient to establish a claim in the absence of medical evidence, 30 U.S.C. § 923(b), and strengthens the statutory presumption that miners who worked in mines for a certain number of years are entitled to benefits. Id. § 921(c) (5). In line with this liberalization of entitlement, the 1977 Amendments also provided that those persons whose claims had been denied under the more restrictive standards previously followed would have an opportunity to have their claims reviewed under the new standards. This was the purpose of newly enacted section 435 which is at the center of this appeal.

Section 435 provides in part:

(a)(1) The Secretary of Health, Education and Welfare shall promptly notify each claimant who has filed a claim for benefits under Part B of this subchapter and whose claim is either pending on March 1, 1978, or has been denied on or before that date, ...


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