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In re Stroh

filed: January 28, 1987.

IN THE MATTER OF: STANLEY STROH, PETITIONER
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; AND BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR, RESPONDENTS



On Petition for Review of an Order of the Benefits Review Board, BRB No. 83-540 BLA

Author: Becker

Before: GIBBONS and BECKER, Circuit Judges and VAN ARTSDALEN, District Judge*fn*

BECKER, Circuit Judge.

This petition for review of a final decision of the Department of Labor Benefits Review Board presents the question whether a self-employed trucker, who loaded coal at a mine site and hauled it to a breaker where it was to be processed, is a "miner" eligible for benefits under the Black Lung Benefits Act (BLA), 30 U.S.C. ยง 901 et seq. (1982). The Administrative Law Judge found that the petitioner-claimant, Stanley Stroh, did not come within the definition of a "miner" under the Black Lung Benefits Act, as amended in 1977 to include transportation workers, because he was self employed and transported the coal to the processing plant over public highways. The Benefits Review Board (BRB) affirmed the ALJ's decision and order.

We conclude that Stroh is a "miner" eligible for benefits under the Act. Accordingly, we grant the petition for review, reverse the decision of the BRB, and remand the case to the ALJ for further proceedings consistent with this opinion.*fn1

I.

The relevant facts, developed from Stroh's testimony at a hearing before the ALJ, maybe stated most succinctly.*fn2 Stroh was a self-employed coal hauler who would buy coal from independent miners, shovel it into his truck, and haul it to independently owned coal processing plants where he sold the raw coal to the processor. He shoveled up to 16 tons of coal a day, and frequently went underground to help mine the coal. If he had spare time, Stroh also hauled processed coal to private homes.

Stroh applied for Black Lung benefits on August 13, 1979. On December 1, 1982, the ALJ found him not entitled to benefits because the Act's coverage does not "encompass a self-employed coal hauler whose commercial activity was between the mine and independently activity was between he mine and independently owned processing plants located elsewhere." The ALJ reasoned that Stroh would have been covered if he had established the following:

1) he operated a truck hauling coal from the immediate site of its extraction to a tipple where it was processed, graded and loaded onto railway cars for further shipment; and

2) his regular journey took him not over public highways, but only over roads of the mining company.

Because of Stroh's failure to satisfy these two elements, the ALJ concluded that he was not a "miner" under the Act, and denied his claim.

Stroh appealed this determination to the BRB. On January 31, 1986, the BRB affirmed the denial of benefits in a 2-1 decision. The BRB employed a three-prong "function, status, situs" test, see infra, to analyze the claim. Most notably, the Board held that the claimant had failed to satisfy the "status" element of its test, because it thought that, once Stroh purchased the raw coal from the mines it was injected into the stream of commerce and was no longer "coal which is being processed," as required by the "status" prong of the definition of miner. The Board added that Stroh's loading and mining activities were ancillary to his transportation of coal to consumers and likewise could not be considered coal mine employment.*fn3

II.

In the Black Lung Benefits Reform Act of 1977, Pub.L. 95-239, 1978 U.S. Code Cong. & Ad. News (92 Stat.) 95, Congress amended the Black ...


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