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Director v. Rochester and Pittsburgh Coal Co.

decided: May 18, 1982.

DIRECTOR, OFFICE OF WORKERS" COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER
v.
ROCHESTER AND PITTSBURGH COAL COMPANY, RESPONDENT AND OLD REPUBLIC COMPANIES, RESPONDENT AND PETE L. KISLAK, RESPONDENT



ON PETITION FOR REVIEW OF DECISION OF THE BENEFITS REVIEW BOARD, U.S. DEPARTMENT OF LABOR

Before Aldisert, Van Dusen and Garth, Circuit Judges.

Author: Van Dusen

Opinion OF THE COURT

This petition for review of a decision and order of the Benefits Review Board ("the Board") involves the interpretation of Title IV of the Federal Coal Mine Health and Safety Act of 1969, 83 Stat. 742 (1969), as amended by the Black Lung Benefits Act of 1972, 86 Stat. 150 (1972), 30 U.S.C. § 901 et seq. (1976) ("the Act"), but before the Act was amended by the Black Lung Benefits Reform Act of 1977, 92 Stat. 95 (1978). The Board disallowed payment of black lung benefits to the claimant, Pete L. Kislak, for the period between January 1 and March 1, 1974, because Kislak's claim was not filed until March 20 of that year. The Director of the Office of Workers' Compensation, United States Department of Labor ("the Director"), has petitioned for review of this part of the Board's decision disallowing compensation for January and February 1974. We grant the petition.

I.

Claimant Kislak worked in the coal mining industry for about 45 years before his retirement in 1976. For 36 of these years, Kislak was employed by the respondent, Rochester and Pittsburgh Coal Company. Beginning in approximately 1971, Kislak experienced difficulties in breathing, and an x-ray taken in October 1973 indicated that he was suffering from complicated pneumoconiosis, commonly known as "black lung" disease. On March 20, 1974, Kislak applied to the Office of Workers' Compensation, United States Department of Labor, for black lung benefits under the Act. His claim was contested by Rochester and Pittsburgh Coal Company who, as his employer, was allegedly liable for payment of benefits under 30 U.S.C. § 932 (1976).

After several administrative proceedings,*fn1 the administrative law judge concluded that Kislak suffered from complicated pneumoconiosis, basing his decision on the October 1973 x-ray and other medical evidence submitted by the Director. Under 30 U.S.C. § 921(c)(3) (1976), this finding of complicated pneumoconiosis raised an irrebuttable presumption of total disability, entitling Kislak to black lung benefits. The ALJ then awarded benefits to Kislak for the period beginning with January 1974, the earliest date for which benefits are authorized under 30 U.S.C. § 932(e) (1976).

Rochester and Pittsburgh Coal Company appealed this decision to the Benefits Review Board. The Board affirmed the finding of disability but disallowed benefits for the two months prior to March 1974, the month in which Kislak filed his application. The Director petitions for review*fn2 of this latter portion of the Board's decision.*fn3

II.

The sole issue in this case is what is the earliest date authorized by the Act and its implementing regulations for the payment of benefits to a claimant whose disability arose prior to January 1, 1974, but who did not file his claim until after that date. Our reading of the Act's language and the Department of Labor regulations leads us to the conclusion that such a claimant is entitled to benefits for the period beginning with January 1, 1974.

The Act classifies black lung benefits claims into three categories according to the date when the application for benefits was filed. Part B of the Act covers the first two categories-those claims filed between December 31, 1969, and June 30, 1973, and those filed between July 1 and December 31, 1973. Under Part B, payments to the claimants are made directly by the United States.*fn4 The Federal Government is shielded from retroactive liability under Part B, as payment of benefits is expressly prohibited for any period prior to the date that the claim was filed. 30 U.S.C. § 924(c) (1976).

Part C of the Act covers claims filed after December 31, 1973, such as the claim involved here. This part makes the responsible coal mine operator liable for the payment of benefits, unless the state workers' compensation law provides adequate coverage as defined in 30 U.S.C. § 931(b) (1976).*fn5

Part C provides for payment of benefits from the date of disability by incorporating the disability period provisions of the Longshoremen's and Harbor Workers' Compensation Act, as follows:

"(a) No compensation shall be allowed for the first three days of the disability...: Provided, however, That in case the injury results in disability of more than fourteen days the compensation ...


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