Petition for Review Benefits Review Board, 87-1637-BLA
Mansmann, Scirica, and Seitz, Circuit Judges.
We are asked to determine the meaning of "total disability due to pneumoconiosis" as that phrase is understood in the context of the 1981 amendments to the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 901 et. seq. (amended 1982), and the regulations promulgated pursuant thereto.
A 67-year-old retired coal miner, Arthur Bonessa, appeals from the decision of the Benefits Review Board (the "Board") which affirmed an administrative law judge's (the "ALJ") denial of benefits under the Act. The ALJ concluded that although Bonessa was able to establish the existence of pneumoconiosis through x-ray evidence and that Bonessa met the rebuttable presumption that the pneumoconiosis arose out of his 34 years of coal mine employment, Bonessa was not entitled to benefits because he failed to show that his total disability was due to pneumoconiosis. In affirming the decision of the ALJ, the Board cited Wilburn v. Director, OWCP, 11 BLR 1-135 (1988), and declared that this case mandates that it was Bonessa's burden to establish that his pneumoconiosis was in and of itself totally disabling (emphasis added). The ALJ had found the record medical evidence insufficient to meet this burden; the Board concluded that the ALJ did not err in his findings and conclusions and agreed that Bonessa failed to establish total disability due to the disease.
We are not persuaded that imposing an obligation upon Bonessa to demonstrate that his disability was due solely to pneumoconiosis is required under the Act and its regulations. We will therefore vacate the decision of the Board, which affirmed the erroneous legal conclusion of the ALJ, and remand for proceedings consistent with this opinion.
The federal black lung program, a comprehensive attempt to manage occupational disease compensation, has been a continuing source of controversy. First enacted in 1969, the Federal Coal Mine Health and Safety Act has undergone alternatively liberalizing and restricting amendments. Congress enacted the first set of amendments in 1972 to counteract the constrictive interpretation given to the Act by the Social Security Administration, charged with responsibility for a portion of the program, which denied approximately 50% of the claims filed. In response, Social Security adopted the so-called "interim presumptions" which set forth certain criteria for eligibility for benefits based upon medical evidence and years of coal mine employment. 20 C.F.R. §§ 410, 490 (1980). Post-adoption, the Social Security's approval rate rose, but a low percentage of benefits awarded to claims filed still existed for the portion of the program administered by the Department of Labor. Because of this, Congress, in 1977, once again amended the statute to require the Department of Labor to adopt criteria "no more restrictive" than the interim presumptions of the Social Security Administration. 30 U.S.C. § 902(f)(2). With the incorporation of these presumptions into its regulations, found at 20 C.F.R. Part 727, the Department of Labor approval rate increased. So, however, did the deficit in the 1978-established Black Lung Trust Fund, to approximately $1.2 billion. Schroeder, Legislative and Judicial Responses to the Inadequacies of Compensation for Occupational Disease, 49 Law and Contemporary Problems 151, 168-69 (Autumn 1986).
In response to the swelling deficit of the fund, on January 1, 1982, the Black Lung Revenue Benefits Act of 1981, 26 U.S.C. § 4121 (1981), and the Black Lung Benefits Amendments of 1981, 30 U.S.C. §§ 922, 923 (1982), became effective. These amendments tightened the formulation for determining entitlement to benefits and altered the procedures applicable to the payment of such benefits. See generally Lopatto, The Federal Black Lung Program: A 1983 Primer, 85 W.Va.L.Rev. 677 (1983), for an overview of the 1981 legislation.
The amendments were viewed as a limiting measure; three of the presumptions of entitlement based on duration of coal mine employment were deleted, the provision allowing survivors to collect compensation if the coal miner, although he suffered from pneumoconiosis prior to death, died from an unrelated cause was repealed, and the requirement that the Department of Labor accept a minimally qualified radiologist's positive diagnosis of pneumoconiosis was removed.
Since the 1981 legislation affected the criteria for establishing eligibility for benefits, new permanent regulations were promulgated. The interim regulations of Part 727 were, for the most part, deleted by the permanent regulations found at 20 C.F.R. Part 718, which govern claims, like Bonessa's, filed after March 30, 1980.
As mentioned above, the Department of Labor eliminated the presumption, significant to Bonessa's claim, that was previously found at 20 C.F.R. § 727.203(b)(3). This section provided that proof of certain years of working as a miner gave rise to a presumption that a claimant's pneumoconiosis was due to his coal mine employment. The presumption was rebutted by evidence that the miner's total disability "did not arise in whole or in part out of coal mine employment." 20 C.F.R. § 727.203(b)(3).
Bonessa acknowledges that his claim is not governed by the Part 727 regulations, nevertheless, he asserts that our interpretation of § 727.203(b)(2), as announced in Carozza v. United States Steel Corporation, 727 F.2d 74 (3d Cir. 1984), is still applicable in determining the issue of whether his disability must be shown to be the exclusive result of his pneumoconiosis. In Carozza, we held that, properly read, 20 C.F.R. § 727.203(b)(3) does not permit the award of benefits for partial disability, but only for total disability of which pneumoconiosis is a contributing cause. Id. at 78. The holding of Carozza was reaffirmed in Bernardo v. Director, Office of Workmen's Compensation Programs, 790 F.2d 351 (3d Cir. 1986), and embraced by the Court of Appeals for the Eleventh Circuit in Alabama By-Products Corporation v. Killingsworth, 733 F.2d 1511, 1516 n. 10 (11th Cir. 1984), (agreeing with Carozza that § 727.203(b)(3) permits award of benefits for disability when pneumoconiosis is a contributing cause). Bonessa urges us to apply this conclusion that pneumoconiosis need only be a contributing, and not a sole, cause of the disability to recognize his eligibility for benefits.
Because Carozza's reasoning was based upon construction of statutory and regulatory language not applicable here, we do not find its holding persuasive. We nonetheless find it imperative to analyze whether the rationale of Carozza, that a miner must only show that pneumoconiosis is a contributing cause to his disability, is still viable when attempting to establish total disability under the Part 718 permanent regulations. We begin by examining the history of the enactment of the 1981 amendments and the promulgation of the Part 718 regulations.
There is no direct statement in the black lung amendments, the regulations or the legislative history focusing precisely on the term "total disability due to pneumoconiosis" in the context of the claim of a living miner. Debate was generated, however, by the 1981 provision which would disallow survivor benefits when a miner, although suffering from pneumoconiosis during his lifetime, did not die from the disease. Under the 1972 amendment, survivors could receive benefits, not only if the miner died due to pneumoconiosis, but also if during his lifetime he was disabled due to pneumoconiosis and then died from an unrelated cause. The 1981 legislation eliminated this "unrelated death" path to entitlement for survivors. The language now directs that survivors are eligible for benefits if the miner's death "was due to pneumoconiosis." 30 U.S.C. § 901(a).
The legislative history contemplates the extent to which a survivor should be compensated. It was suggested by the bill's sponsors that benefits should be awarded if:
Complications of pneumoconiosis have caused a miner's death or where pneumoconiosis was a substantially contributing factor to that death. For example, pneumoconiosis may have been a substantially contributing cause of death in a case where the principal cause of death was pneumonia. Of course, survivors would not be eligible for benefits in those situations where death was caused by traumatic injury or an unrelated medical condition.
127 Cong.Rec. 31,978 (Dec. 16, 1981) (statement of Senator Hatch). This interpretation was echoed almost verbatim by Representative Perkins in the House debate. See id. at 31,747.
The exact parameters of the import of the phrase, "substantially contributing cause of death," (referred to as the "Hatch-Perkins" statement) caused much comment in the rulemaking process. Noting its ambiguous nature, the Department of Labor agreed that there was a need for a new regulatory definition. The Department stated:
The causal nexus of "due to" has been given a broad variety of meanings in the law ranging from sole and proximate cause at one end of the spectrum to contributing cause at the other. Therefore, some guidance is required as to the intended meaning of the words in this specific context. Without such a new interpretive statement, the prior definition, which was based in part on presumptions which are no longer applicable, may tend to continue to influence future claims adjudications. Clearly, that would not be consistent with the legislative intent. Nor would it be consistent with that intent to await the gradual emergence of a new definition as the result of a case-by-case adjudication process. The Department believes the crucial portions of the legislative history speak clearly as to the intended meaning to be ...