On Petition for Review of a Final Order of the Benefits Review Board, United States Department of Labor; BRB Docket No. 87-2136. Reargued October 9, 1990. Before Higginbotham, Chief Judge, and Sloviter, Becker, Stapleton, Mansmann, Greenberg, Hutchinson, Scirica, Cowen, Nygaard, and Alito, Circuit Judges.
Becker and Stapleton, Circuit Judges, and Kelly, District Judge.*fn*
Helen Mining Company and its insurer, Old Republic Insurance Company, petition this court for review of a decision and order of the Benefits Review Board which affirmed an administrative law judge's finding that Helen is liable for black lung benefits granted its former employee John Burnsworth. Helen and the Director, Office of Workers' Compensation Programs, agree that Burnsworth was entitled to the black lung benefits so that the question now presented is whether the cost of the benefits is to be borne by Helen or by the Black Lung Disability Trust Fund (the "Fund"). The answer to the question depends on whether Helen can effect a transfer of liability for Burnsworth's benefits from it to the Fund by asserting "good cause" for Burnsworth's failure to request review of an earlier denied claim for benefits. Accordingly, we revisit the problem we considered in Rochester & Pittsburgh Coal Co. v. Krecota, 868 F.2d 600 (3d Cir. 1989), in which we held that under the Black Lung Benefits Act a request for review of denied benefits must come from the miner, not the mine operator.
I. THE STATUTORY AND FACTUAL BACKGROUND
The statutory background we confront could hardly be more complicated. In 1969, Congress promulgated the Federal Coal Mine Health and Safety Act, Pub. L. No. 91-173, 83 Stat. 792 (1969) (the "1969 Act"). In Title IV of the 1969 Act (in 1978, entitled the "Black Lung Benefits Act," Pub. L. No. 95-239, § 16, 92 Stat. 105 (1978)), finding that there were a significant number of coal miners seriously affected by pneumoconiosis -- i.e., "black lung" disease --, Congress provided for temporary benefits for the survivors of miners who had died from, and for those miners totally disabled by, this disease. Pub. L. No. 91-173, §§ 401-426, 83 Stat. 792-798 (codified, as amended, at 30 U.S.C. §§ 901-945). The 1969 Act anticipated a shifting responsibility for the administration of claims for these black lung benefits: Part B of the 1969 Act provided that claims filed on or before December 31, 1972, were to be processed by the Social Security Administration under the Department of Health, Education, and Welfare;*fn1 Part C of the 1969 Act provided that thereafter, i.e., "on and after January 1, 1973," all claims for black lung benefits were to be relegated to the Department of Labor. Id.
This temporal division of claims, between "Part B" and "Part C," also governed liability for the benefits: Part B claim benefits were to be paid from the federal fisc; Part C benefits were to be paid pursuant to state workers' compensation statutes found by Labor to provide adequate black lung disability coverage, or, if the state programs were not approved, by the responsible mine operators or their successors (or by the federal government if such operators could not be found). Pub. L. No. 91-173, §§ 411(a), 422(a)-(d), 83 Stat. 793, 796 (codified at 30 U.S.C. § 921(a), 932(a)-(d) (1970)). As a practical matter, however, identifiable responsible mine operators were charged with all the Part C claim benefits granted to their employees as Labor did not approve any state workers' compensation statute for black lung disability benefit purposes. See 20 C.F.R. § 722.152(b) (1990). The black lung benefit program under Part C was slated to end completely on December 30, 1976. Pub. L. No. 91-173, § 422(e)(3), 83 Stat. 796, 30 U.S.C. § 932(e)(3) (1970).*fn2
The Black Lung Benefits Act of 1972, Pub. L. No. 92-303, 86 Stat. 150 (1972) (codified at 30 U.S.C. §§ 901 et seq. (Supp. II 1973)) (the "1972 Act"), amended and substantially liberalized the 1969 Act. In particular, the 1972 Act, inter alia, made it easier to prove entitlement to benefits, expanded coverage under Part B to June 30, 1973,*fn3 and continued Part C in existence to December 30, 1981.
Burnsworth, a mine face foreman with Helen, first filed a claim for black lung benefits on January 15, 1973. This claim, a Part B claim by temporal definition, was reviewed by Social Security and was denied on September 12, 1973. On August 21, 1975, Burnsworth filed another claim with Social Security but, as it was a Part C claim, it was sent to Labor where it languished without decision.*fn4 On April 5, 1976, Burnsworth filed a third claim, and, shortly thereafter at the age of 70, retired from work in the mines. Labor administratively denied this last claim on March 24, 1977.
On March 1, 1978, Congress passed the Black Lung Benefits Reform Act of 1977, Pub. L. No. 95-239, 92 Stat. 95 (1978) (codified at 30 U.S.C. §§ 901 et seq.) (the "Reform Act"). Under the Reform Act, the standards for proving disability due to black lung were further substantially relaxed, and provision was made for indefinite continuation of Part C. The Reform Act also instructed Social Security and Labor to review all pending and previously denied claims on the basis of the new, liberalized standards. Labor was automatically to review Part C claims that had been filed with it and denied. The Secretary of Health and Human Services was directed to notify the claimants who had filed denied Part B claims with Social Security of their right to review by either Social Security or Labor. If a claimant elected Social Security review, the claim would be evaluated on the extant record; but if the claimant elected Labor review, the claimant could supplement the record. If granted on review, Part B claims were converted to Part C claims for the purposes of benefit liability. Regardless of whether Social Security or Labor made the review, Part B claims were to be reopened only "upon the request of the claimant. . . ." Pub. L. No. 95-239, § 15 (adding new § 435(a)(1) to the 1969 Act) (codified at 30 U.S.C. § 945(a)(1) (Supp. II 1979)) (emphasis added).
A companion to the Reform Act, the Black Lung Revenue Act of 1977, Pub. L. No. 95-227, 92 Stat. 11 (1978) (codified at 26 U.S.C. § 4121 et seq.) (the "Revenue Act"), created the Black Lung Disability Trust Fund (the "Fund"). The Revenue Act provided that the Fund, financed by an excise tax on each ton of coal mined, would bear the administrative costs of the black lung benefits program, cover the federal government's existing Part C liability (for benefits attributable to mine operators who could not be found), and assume responsibility for paying black lung benefits where a miner's last employment in the industry ceased before January 1, 1970, thus shifting to the Fund responsibility for Part C claims made by miners who had stopped working in the coal industry before the promulgation of the 1969 Act. However, since mine operators remained liable for Part C claims made by miners whose employment in the industry continued after 1969, and because of the automatic conversion of granted Part B claims into Part C claims for benefits purposes, mine operators became liable for all benefits granted to post-1969 miners under the Reform Act's liberalized standards.
After passage of the Reform Act, Burnsworth received a letter from Social Security, and, almost immediately thereafter, another from Labor. The four-page letter from Social Security explained the changes in the law and attached a card for electing Social Security or Labor review. The Social Security letter informed Burnsworth,
If you wish your claim to be reviewed under the new law, you must request it . . . . You have up to six months from the date shown on the election card to request review unless you have a good reason for not doing so. [Emphasis in original.]
The Labor letter informed Burnsworth,
All claims filed with the Department of Labor that have not been approved for black lung benefits will automatically be reviewed under the new law.
Since you previously filed a claim with the Department, you do not have to file a new claim. We will automatically review your claim and contact you if additional information is needed in order to decide your case. Until we contact you, there is nothing that you need to do about your claim. We will appreciate your continued patience during this review process.
In light of these seemingly contradictory communications, Burnsworth did nothing. "I just thought," he testified, "well, it's just like everything else and I just laid [the card] aside." "I took for granted that everything was under control [and] in order and there was no need of me bothering anyone at the time."
On October 26, 1979, Labor informed Burnsworth that his benefits had been approved to be retroactive to the August 21, 1975, filing of his second Part C claim. Labor began paying Burnsworth's benefits, and notified Helen of its potential liability, which Helen timely controverted. Pursuant to Helen's contest, an administrative hearing was scheduled, but before it was held Helen withdrew its contest of Burnsworth's eligibility for benefits. Labor, however, continued to pay Burnsworth's benefits, apparently believing that Helen would eventually be liable for them.
Meanwhile, the liberalized standards of entitlement under the Reform Act began to wreak havoc in the coal industry. As the percentage of claims granted soared, the mine operators found themselves saddled with a massive, retroactive, unanticipated liability for Part C claims which their insurers refused to cover. See Lopatto, The Federal Black Lung Program: A 1983 Primer, 85 W. Va. L. Rev. 677, 693-94 (1983). Congress addressed this problem in the Black Lung Benefits Amendments of 1981, Pub. L. No. 97-119, 95 Stat. 1643 (1981) (codified at 30 U.S.C. § 901 et seq.) (the "1981 Act"). The 1981 Act provided that mine operators were not liable for benefits on account of total disability due to pneumoconiosis
(2) which was the subject of a claim denied before March 1, 1978, and which is or has been approved in accordance with the provisions of section 945 of this title.
Pub. L. No. 97-119, § 205(a)(1), 95 Stat. 1645, 30 U.S.C. § 932(c) (1982) (emphasis added).
Thus, mine operators were relieved of liability for benefits granted under the new, liberalized standards of the Reform Act where those benefits had already been the subject of a "claim denied" on or earlier than February 28, 1978; the liability for these benefits, instead, was to be transferred to the Fund, the assets of which were supplemented by a further hike in the excise tax on coal.
The 1981 Act further provided
that the term "claim denied" means a claim --
(1) denied by [Social Security]; or
(2) in which (A) the claimant was notified by [Labor] of an administrative or informal denial more than one year prior to [March 1, 1978] and did not, within 1 year from the date of notification of such denial, request a hearing, present additional evidence or indicate an intention to present additional evidence, or (B) the claim was denied under the law in effect prior ...