On Petition for Review of an Order of the Benefits Review Board, BRB Docket No. 87-451 BLA.
Sloviter and Cowen, Circuit Judges, and Roth, District Judge.*fn*
This appeal presents the discrete legal issue of whether a Department of Labor regulation which assesses employer liability for Black Lung Benefits on a "responsible operator" which employed the miner for "not less than 1 year" can be construed to encompass employment of a Black Lung claimant for a period covering less than 365 days. The dispute in this case is between the employer which contends that it is not a responsible operator, and therefore not liable, because the employee was employed by it for only 357 days, and the Director of Office of Workers' Compensation Programs (Director) who contends that the employer is liable because the employee was employed for 12 months.
The case is before us on appeal by the Director from a grant of summary judgment in favor of the employer by the Benefits Review Board, United States Department of Labor (BRB). We have jurisdiction pursuant to section 21(c) of the Longshore and Harbor Workers' Compensation Act as amended, 33 U.S.C. § 921(c) (1982), as incorporated by section 422(a) of the Black Lung Benefits Act, 30 U.S.C. § 932(a) (Supp. V 1987). Our review of the BRB's interpretation of the applicable regulations is plenary.
This case is factually and procedurally simple. Claimant Frank I. Gardner, Jr., worked at various coal mining jobs during the 1950's and 1960's. Between October 9, 1969 and September 30, 1970 Gardner was employed by Toner Construction Company, a division of Elgin National Industries, Inc. (Elgin), a business engaged in coal mine construction.*fn1 During that period Gardner worked for 234 days.
Subsequent to being laid off by Elgin, Gardner applied for Black Lung Benefits and the Department of Labor found that he was eligible for such benefits. Gardner has since died and his widow has been deemed entitled to derivative benefits. This appeal, therefore, does not concern whether there will be payment of Black Lung benefits but only who will be responsible for payment of those benefits.
The Department of Labor concluded that Elgin was the responsible operator liable for payment of such benefits. Although Gardner had other coal mine employment before he worked for Elgin, that employment occurred before 1970 and under the applicable regulations pre-1970 employers cannot be "responsible operators." See 20 C.F.R. § 725.492(a)(3).
Elgin requested a formal hearing by an ALJ, who, in reliance on BRB precedent,*fn2 granted summary judgment for Elgin on the ground that Gardner had not been employed by Elgin for a full calendar year, and remanded the case for payment of benefits by the Black Lung Disability Trust Fund. On appeal by the Director to the BRB, the BRB affirmed the ALJ's order. The Director has appealed to this court. As far as we or the parties have been able to ascertain, this is an issue of first impression in the federal courts.
The Black Lung Benefits Reform Act of 1977 provided that the employer responsible for the operation of the facility where the miner was employed will normally be responsible for paying benefits. See 30 U.S.C. § 932(a)-(b) (1982 & Supp. V 1987). Benefits not paid by such a "responsible operator" are paid from the Black Lung Disability Trust Fund, a Fund established by ...