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Echo v. Director

September 14, 1984


On Petition for Review from the Order of the Benefits Review Board BRB No. 81-1088-BLA.

Adams and Becker, Circuit Judges and O'Neill, District Judge*fn*

Author: Adams


ADAMS, Circuit Judge

Petitioner, Joseph F. Echo, was a coal miner in eastern Pennsylvania for twelve-and-one-half years, leaving the mines permanently in 1954. On October 17, 1973, Echo applied for black lung disability benefits with the Department of Labor, under the Black Lung Benefits Act (Act), 30 U.S.C. § 901 et seq. (1982).His claim was denied at every administrative level. Following the final decision of the Benefits Review Board (Board), Echo petitioned this Court for review.

The issue in this appeal is whether Echo's post-mine employment, as a receiving clerk in a shirt factory, constitutes comparable and gainful employment sufficient to rebut the interim presumption of black lung disability. The Administrative Law Judge (ALJ) and the Board held that Echo's employment was comparable and gainful, and denied his request for benefits. For reasons discussed herein, the decision of the Board will be vacated and the case remanded for further consideration.


Joseph Echo is a sixty-one year old former miner who has lived in the anthracite coal region of eastern Pennsylvania his entire life. During his youth and early adulthood, Echo spent twelve-and-one-half years working as a general laborer in various underground mines. His duties included shoveling coal, pushing loaded coal buggies out of the mines, and carrying and erecting wooden supports in the mine tunnels.

In 1954, Echo left the mines permanently, taking a job with the Wide Awake Shirt Company in Mahanoy City, Pennsylvania. The ALJ found that Wide Awake has continuously employed Echo as a piece-goods inspector since 1954. In his job, Echo keeps a record of the incoming and outgoing shipments and "occasionally" is required "to lift and carry small bundles." App. at 135a; see also App. at 104a-05a.

Early in 1970, Echo began to develop symptoms of pneumoconiosis, such as a cough, shortness of breath, and loss of energy. App. at 71a-72a. After Echo was diagnosed as suffering from pneumoconiosis, he applied to the Department of Labor for disability benefits pursuant to the Act, 30 U.S.C. § 901 et seq. His claim was denied, first by the Department's Office of Workers' Compensation Programs, and later by an ALJ. The ALJ determined that although Echo had successfully established an interim presumption of disability pursuant to 20 C.F.R. § 727.203(a) (1984), the government had rebutted the presumption of disability by demonstrating that Echo's job in the shirt factory was both "gainful" and "comparable to the work he performed in the mines . . ." App. at 136a-37a, citing 20 C.F.R. § 727.203(b)(1) (1984).*fn1

Echo appealed the denial of benefits to the Board, which affirmed the decision of the ALJ. Having exhausted his administrative remedies, Echo now appeals to this Court pursuant to 33 U.S.C. § 921(c) (1982).


The Act has its origins in the Federal Coal Mine Health and Safety Act of 1969, Pub. L. No. 91-173, 83 Stat. 742 (1969). The original legislation was intended to remedy a number of safety problems endemic to coal mining, then considered "the most hazardous occupation in the United States," H.R. Rep. No. 563, 91st Cong., 1st Sess. 1, reprinted in 1969 U.S. Code Cong. & Ad. News 2503, 2503. It established health and safety standards, and mandated regular inspections and investigations of the mines. By these precautionary measures, Congress sought to minimize the risk of all-too-frequent mining accidents. There was a further work hazard, however, for which inspections could offer little protection: pneumoconiosis, commonly known as black lung disease. Accordingly, Congress sought to provide what relief it could in the form of disability payments to those miners who were "totally disabled" as a result of black lung disease. 30 U.S.C. § 901.

"Total disability," as used in the 1969 legislation, is a term of art. In the original legislation, its precise definition was left to the Secretary of Health, Education and Welfare. Federal Coal Mine Health and Safety Act, P.L. 91-173, § 401(f), 83 Stat. 742, 880 (1969).*fn2 In 1972, however, the statute was amended, and Congress gave "total disability" a more exact ...

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