SSR 76-37c: SECTION 411 (30 U.S.C. 921) -- FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969 -- BLACK LUNG BENEFITS -- EMPLOYMENT IN A COKE YARD NOT APPURTENANT TO A COAL MINE

20 CFR 410.110, 410.416 and 410.490

SSR 76-37c

Small v. Weinberger, U.S.D.C., W.D. Pa., Civ. No. 75-101 (8/25/75)

: Where claimant's entitlement to Black Lung Benefits depended on whether his employment in coke yards some distance from the actual coal mine constituted employment "in the Nation's Coal Mines", held, Regulations No. 10, section 410.110, 20 C.F.R. з 410.110 defines "coal mine" as the land, structures and machinery used in extraction and preparation of coal, and since the coke yards in which claimant was employed did not involve extraction of coal and did not include coal preparation facilities appurtenant to the actual coal mine, claimant was not employed in the Nation's Coal Mines.

SNYDER, District Judge:

Plaintiffs' complaint was filed on January 21, 1975, and constitutes an appeal from the decision of the Secretary of the United States Department of Health, Education and Welfare, holding that plaintiff was not entitled to black lung benefits under the Federal Coal Mine Health and Safety Act, 30 U.S.C. Section 921. Oral argument was set for May 9, 1975, but was canceled upon motion of counsel for the defendant, consented to by counsel for plaintiff.

The review of the record in the present action is somewhat difficult because the administrative law judge failed to make any findings on whether plaintiff has pneumoconiosis and, if so, whether he is totally disabled by pneumoconiosis. The findings were:

: 1. The evidence of record does not establish ten years of coal mine employment.
: 2. The claimant has failed to show that pneumoconiosis, if any arose out of coal mine employment.

Since the defendant's brief admits that the results of two pulmonary function studies, on July 19, 1972 and January 29, 1973 meet the criteria established under the interim adjudicatory rules for a presumption of total disability due to pneumoconiosis,^[1] and since the administrative law judge did not find that plaintiff was not totally disabled due to pneumoconiosis, it must be assumed that plaintiff is totally disabled due to pneumoconiosis, and the only question is whether there is substantial evidence to support the Secretary's findings that plaintiff did not establish the ten years of coal mine employment which would entitle him to the presumption, and that plaintiff's pneumoconiosis did not arise out of his coal mine employment.

The first relevant regulation is contained in the interim adjudicatory rules, 20 C.F.R. Section 410.490(b)(3):

: (3) With respect to a miner who meets the medical requirements in subparagraph (i)(ii) of this paragraph [which plaintiff does], he will be presumed to be totally disabled due to pneumoconiosis arising out of coal mine employment . . . if he has at least 10 years of the requisite coal mine employment. [emphasis added]

The regulations further provide, 20 C.F.R.:

: Section 410.416 Determining origin of pneumoconiosis, including statutory presumption.
: (a) If a miner was employed for 10 or more years in the Nation's coal mines, and is suffering or suffered from pneumoconiosis, it will be presumed, in the absence of persuasive evidence to the contrary, that the pneumoconiosis arose out of such employment.^[2]
: (b) In any other case, a miner who is suffering or suffered from pneumoconiosis, must submit the evidence necessary to establish that the pneumoconiosis arose out of employment in the Nation's coal mines. (See зз 410.110(h), (i), (j), (k), (l), and (m).

The other relevant regulations are the following:

: 20 C.F.R. Section 410.110
* * *
: (h) '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) 'Underground coal mine' means a coal mine in which the earth and other materials which lie above the natural deposit of coal (overburden) is not removed in mining. In addition to the natural deposits of coal in the earth, the underground mine includes all land, buildings and equipment appurtenant thereto.
: (j) 'Miner' or 'coal miner' means any individual who is working or has worked as an employee in a coal mine, performing functions in extracting the coal or preparing the coal so extracted. (emphasis added)

While plaintiff's testimony during the hearing was somewhat vague, he testified that he had worked at various different mines as an underground coal mine operator for about 3л to 4, or 5 to 5л years; that he had worked at various different non mining jobs, such as casting iron, from 1937 until 1948; and that he had worked in various coke yards from 1925 to 1928 and from 1948 until 1951. He then worked at odd jobs unrelated to mining, such as construction labor, from 1951 to 1971, when he retired.

Plaintiff asserts that his employment in the coke yards should be considered employment "in the Nation's coal mines" to qualify him for the presumptions contained in 30 U.S.C. Section 921(c)(1); 20 C.F.R. 410.456(a); and 20 C.F.R. 410.490(b)(1)(ii). Defendant asserts that plaintiff's work in the coke operation is not coal mine employment within the meaning of the Act since it does not involve the "extraction or processing of coal." Neither party cites any cases and plaintiff cites only subdivisions (h), (i), and (j) of 20 C.F.R. Section 410.110. While it appears clear that plaintiff's work in the coke yard did not involve the "extraction" of coal, it is not clear whether it would be included under "custom coal preparation facilities," as mention in subdivision (h). While this phrase does not appear to have been explained, subdivisions (h) and (i) appear intended to include only the land, buildings, and equipment appurtenant to the actual coal mine. During the hearing plaintiff testified that the coal was hauled some distance from the mines to the coke yards. When he worked at one coke yard the coal was hauled from 10 or 12 miles away. When he was working at another coke yard the coal was hauled from different places. Therefor, plaintiff's employment in the coke yards was a step removed from the actual mining operations. Since Congress has not clearly included employment in coke yards as satisfying the requirement for coal mine employment, it does not appear that plaintiff is entitled to the presumptions available to miners with 10 years of coal mine employment. Further, since plaintiff asserts only that he is entitled to the presumptions and does not assert that he has established by other evidence that his pneumoconiosis arose out of employment in the Nation's coal mines, defendant's Motion for Summary Judgment is granted and the decision of the Secretary, denying plaintiff black lung benefits, is affirmed.

^[1] 20 C.F.R. Section 410.490(b)(1)(ii).

^[2] This regulation follows the requirements of the Act, 30 U.S.C. Section 921(c)(1).

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