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Dowd v. Director

filed as amended june 3 1988.: May 10, 1988.

EDWARD R. DOWD, PETITIONER
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR



Petition for Review Benefits Review Board.

Sloviter, Stapleton, and Mansmann, Circuit Judges.

Author: Stapleton

Opinion OF THE COURT

STAPLETON, Circuit Judge:

The sole issue in this appeal from an order denying black lung benefits is whether the petitioner is a "miner" within the meaning of the Black Lung Benefits Act (the Act). 30 U.S.C. § 901 et seq. (1982). We conclude that he is. Accordingly, we will grant the petition for review.

Benefits under the Act may be awarded only to "miners" and their surviving dependents. 30 U.S.C. § 901 (1982). The following statutory definitions are relevant to identifying the intended beneficiaries:

(d) The term "miner" means any individual who works or has worked in or around a coal mine or coal preparation facility in the extraction or preparation of coal. Such term also includes an individual who works or has worked in coal mine construction or transportation in or around a coal mine, to the extent such individual was exposed to coal dust as a result of such employment.

30 U.S.C. § 902(d) (1982).

(2) For purposes of subchapters II, III, and IV of this chapter, "coal mine" means an area of land and all structures, facilities, machinery, tools equipment, shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon, under, or above the surface of such land by any person, used in, or to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, or anthracite from its natural deposits in the earth by any means or method, and the work of preparing the coal so extracted, and includes custom coal preparation facilities;

(i) "work of preparing the coal" means the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of the coal mine.

30 U.S.C. §§ 802(h)(2), 802(i) (1982).

Petitioner Edward R. Dowd was employed by the M.E. Wallace Company of Sunbury, Pennsylvania, from 1949 to 1982. Dowd asserts that he was a "miner" because he "worked in . . . a coal preparation facility in . . . the preparation of coal." The record contains uncontradicted testimony that M. E. Wallace purchased unprocessed anthracite coal, dried it ground it, and bagged it. The unadulterated, processed coal was then sold to manufacturers of such products as battery casings, rubber tires, chemicals, and steel. The record further establishes that Dowd was employed as a "bagger" for over 20 years in the facility in which this processing took place. His job was "to bag coal dirt, load it on a bag truck, push it into a railroad car and stack it, stack it 13 bags high." 127a (testimony of Edward Dowd).

In support of his position that he is a "miner" under the Act, Dowd points to those portions of the statute providing that (1) a "'miner means any individual who . . . has worked in or around a . . . coal preparation facility in the preparation of coal" and (2) "'work of preparing the coal' means the . . . crushing, . . . drying, . . . and loading of . . . anthracite, and such other work of preparing such coal as is usually done by the operator of the coal mine." In connection with the statutory definition of "coal preparation," Dowd correctly points out that, under Section 802(h)(2), the reference in Section 802 (i) to "work . . . usually done by the operator of the coal mine," includes not only work done by operators of facilities used in extracting coal, but also work done by operators of "facilities . . . used in . . . the work of preparing the coal so extracted, [including] custom coal preparation facilities.

Despite the fact that Dowd precisely fits the statutory definition of a miner, the ALJ concluded that he did not qualify because he "worked at an industrial plant whose activities constituted producing an industrial product (i.e., very fine coal powder) for the sole purpose of being sold for use by others in their actual manufacture of various kinds of commercial products." 112a. The Appeals Board affirmed, finding that since the "employer's processing activities involve the personalized use of the coal for a particular industrial purpose, . . . that employer falls outside the functional boundary encompassing the coal producing industry." 158a. Before us, the respondent Director urges that review be denied (1) because M. E. Wallace processed ...


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