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Wisor v. Director Office of Worker's Compensation Programs

November 21, 1984

LUCY C. WISOR, WIDOW OF EDWARD L. WISOR, PETITIONER
v.
DIRECTOR OFFICE OF WORKER'S COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, RESPONDENT



ON PETITION FOR REVIEW OF AN ORDER OF THE BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR DATED JANUARY 12, 1984

Author: Weis

Before: ALDISERT, Chief Judge, HUNTER and WEIS, Circuit Judges

Opinion OF THE COURT

WEIS, Circuit Judge.

In this appeal we determine that a miner employed in a clay mine is not covered by the Black Lung Act even though his work entails some exposure to coal dust. Accordingly, we will affirm the denial of benefits by the Benefits Review Board.

Petitioner sought Black Lung benefits for the death of her husband. After a hearing, an ALJ denied her claim because the decedent was not a coal miner. The Benefits Review Board affirmed and petitioner appealed.

The decedent, Edward L. Wisor, was employed as a clay miner for approximately 33 years by Harbison-Walker Refractories in its clay mine in Woodland, Pennsylvania. He retired in 1958 and died in August 1969 at the age of 74. It is undisputed that for some years before his death, Mr. Wisor was totally disabled by pneumoconiosis.*fn1

Evidence at the hearing disclosed that Mr. Wisor worked as a "header." His assignment was to dig, drill, and blast through rock and coal to reach deposits of clay in the company's underground mine. In the process, the decedent removed quantities of coal before reaching the clay. Consequently, he was exposed to and inhaled coal dust which led to pneumoconosis and the decedent's disability.

The ALJ found that the purpose of the Woodland mine was the extraction and sale of clay. The coal taken from the mine was discarded or given to the company's employees for their personal use. The ALJ also noted that "Mr. Wisor was [not] involved in the preparation of coal, as the company did no more than remove whatever coal was in the path of the clay to be extracted." Therefore, the ALJ concluded that Mr. Wisor did not work in a coal mine and was not a coal miner under the terms of the Black Lung Act, 30 U.S.C. §§ 901, et seq. The Benefits Review Board agreed that the decedent had not been a coal miner because "coal mining did not constitute a substantial part of the activity and exposure."

In this court, petitioner avers it is immaterial that the coal was merely a by-product of the company's clay mining business. She argues that decedent's work included substantial activity in the removal of coal and exposure to its dust. The Director, however, contends that Mr. Wisor did not work in a "coal mine," and that the Act applies only to those mines engaged in the commercial production of coal.

Congress enacted the Black Lung program to compensate coal miners disabled by pneumoconiosis. The House Report accompanying the 1977 amendments notes the increased risk of death of coal miners compared to other workers. H.R. 151, 95th Cong., 2d Sess. 2, reprinted in 1978 U.S. Code Cong. & Ad. News 237, 240.

The narrow occupational group to be covered by the Act is revealed in various phases of the report. As one example, the House Committee commented on desirable amendments to the original Act based in part on hearings held in coal mining regions. Id. at 241. At one point, while discussing appropriate requirements for benefits, the report noted that the so-called typical coal miner, because of both the one industry (coal) characteristic of his region and his socioeconomic circumstance, . . . continues to work when his physical condition would indicate otherwise. Id. at 247.

In addressing the industries to be covered, the statutory language itself is restrictive. The Act provides that benefits are payable by "coal mine operators." 30 U.S.C. §§ 932(i)(1), 943(a) (1982). If payments are not made by that source, then the federal government provides funds from the Black Lung Trust Fund established by the 1977 amendments.*fn2 The Fund is financed by a per tonnage excise tax on the sale of coal by coal mine operators. 26 U.S.C. § 4121 (1982).

A coal mine is defined as "an area of land and all structures . . . used in, or to be used in, or resulting from, the work of extracting . . . bituminous coal, lignite or anthracite . . . and in the work of preparing the coal. . . ." 30 U.S.C. § 802(h)(2) (1982). "Preparing" is given a broad description and includes "such other work of preparing ...


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