On Petition for Review of an Order of the Benefits Review Board, United States Department of Labor, BRB No. 86-2320 BLA, OWCP No. 190-03-0483
Gibbons, Chief Judge, and Seitz and Greenberg, Circuit Judges.
GREENBERG, Circuit Judge.
Rochester and Pittsburgh Coal Company petitions this court for review of a decision of the Benefits Review Board (BRB) dated June 22, 1988, determining that Mike Krecota was eligible for benefits payable by the Coal Company under the Black Lung Benefits Act, 30 U.S.C. §§ 901-45. We have jurisdiction under 30 U.S.C. § 932(a) and 33 U.S.C. § 921(c). See Sulyma v. Director, OWCP, 827 F.2d 922, 922 (3d Cir. 1987).
Krecota had been employed for 37 years with the Coal Company and the Creighton Fuel Company before retiring on June 24, 1977, 30 to 32 of which were spent working in the mines. Prior to retirement Krecota filed a claim with the Social Security Administration for benefits under Part B of the Act. This claim was denied and on June 30, 1977, Krecota filed a claim with the Department of Labor for benefits under Part C of the Act. The Part C claim was administratively approved, and both Administrative Law Judge Daniel L. Leland and the BRB affirmed. This appeal concerns only the Part C claim.
On appeal the Coal Company argues that any liability for benefits should have been transferred to the government's Black Lung Disability Trust Fund, and that if the liability was not transferred Krecota was not eligible for benefits.*fn1 With regard to its contention that Krecota was not eligible for benefits the Coal Company argues that medical evidence did not establish Krecota's total disability for all, or at least a substantial portion of, the period covered by the BRB's award.
ALJ Leland held a formal hearing on January 10, 1986, during which the Coal Company presented evidence to support its contention that liability for payment should have been transferred from the Coal Company to the Black Lung Disability Trust Fund. Section 205 of the Black Lung Benefits Amendments Act of 1981, Pub. L. No. 97-119, 95 Stat. 1635 (codified at 30 U.S.C. §§ 932(c) & 932(j)(3)), establishes the criteria for the transfer of claims to the Trust Fund.
A claim may be transferred when the "claim [was] denied before March 1, 1978, and such claim [was then] or [was subsequently] approved in accordance with the provisions of section 945 of [title 30 U.S.C.]." 30 U.S.C. § 932(j)(3); see id. § 932(c). It is uncontested that Krecota filed a Part B claim which was denied before March 1, 1978, and that this claim was not subsequently approved.*fn2 Thus, on the face of the statute it appears that there is no basis for transferring liability from the Coal Company to the Trust Fund.
Nonetheless, the Coal Company argues that transfer of both the Part B and Part C claims is proper because it asserts that Krecota was never sent a card allowing him to elect review of his Part B claim. That portion of the Act which specifies the mechanism by which claimants were to be notified of their opportunity to request administrative review of their denied Part B claims, 30 U.S.C. § 945, is expressly referenced by section 205 of the 1981 Amendments. Section 945 requires the Secretary of Health and Human Services to notify claimants whose Part B were denied before March 1, 1978,*fn3 that upon request the denial would be reviewed by the claimant's choice of either the Secretary of Health and Human Services or the Secretary of Labor. Moreover, the two different review routes involved different procedures.
The Coal Company asks this court to conclude that Krecota was never sent an election card and that if he had received a card he would have requested review by one of the two department heads and that if he had elected review his claim would have subsequently been approved. We, however, reject this argument as there is nothing in the statute or regulations which provides that operators may raise claims for miners not afforded their rights to seek review of denied Part B claims.*fn4 Further, it could not be held that Krecota would necessarily have elected to seek a review even if we assume that he was not given the opportunity for one. In this regard we note, though our result is not dependent on the point, that we understand Krecota was receiving benefits under Part C of the Act at the time he would have had to decide whether to elect review and thus might not have been motivated to elect the review of the denial of his Part B claim.*fn5 Consequently, we will affirm the BRB's decision not to transfer liability for this claim from the Coal Company to the Trust Fund.*fn6
Having established that any liability for the payment of benefits remains with the Coal Company we must address the Coal Company's contention that Krecota was not eligible for benefits for all, or at least a substantial portion of, the period covered by the BRB's award.
The medical evidence considered by the ALJ included reports from Krecota's medical expert and the Coal Company's medical expert that as of December 1985, Krecota had coal worker's pneumoconiosis. These experts disagreed, however, as to whether the pneumoconiosis rendered Krecota "totally disabled".
Inasmuch as Krecota worked in coal mines for at least 30 years, ALJ Leland invoked the interim presumption established by the pertinent regulations, 20 C.F.R. § 727.203(a), that an individual who has been employed as a coal miner for at least ten years and who establishes by specified means that he has pneumoconiosis is "totally disabled" due to pneumoconiosis arising out of coal mine employment. Kiecota's evidence established three independent bases for invoking the interim presumption. First, all of the chest x-rays presented at the hearing established the existence of pneumoconiosis. See 20 C.F.R. § 727.203(a)(1). Second, contradictory pulmonary function studies were presented at the hearing: the positive studies established a basis in the record for a finding of pneumoconiosis, see 20 C.F.R. § 727.203(a)(2), while the negative studies were conducted earlier in time thus providing ALJ Leland with an adequate reason for choosing to rely on the studies indicating the presence of pneumoconiosis. Third, the aforementioned contradictory testimony ...