Argued: September 9, 2016
Petition for Review of an Order of the Benefits Review Board
Christopher Pierson, Esq. (Argued) Burns White Attorney for
Petitioner Helen Mining Co.
J. Bilonick, Esq. Heath M. Long, Esq. (Argued) Pawlowski
Bilonick & Long Attorney for Claimant-Respondent James E.
Bajkowski, Esq. (Argued) Rae Ellen James, Esq. Kathleen H.
Kim, Esq. United States Department of Labor Office of the
Solicitor Attorney for Federal Respondent Director, Office of
Workers' Compensation Programs
Before: JORDAN, VANASKIE, and KRAUSE, Circuit Judges.
KRAUSE, Circuit Judge.
Black Lung Benefits Act (BLBA) confers on coal workers
generally the right to claim workers' compensation
benefits for disabilities arising out of coal dust exposure.
30 U.S.C. §§ 901-45. Typically, the burden of proof
rests on the miner to establish each element necessary for
entitlement to benefits. For miners who meet particular
criteria, however, the BLBA provides that certain elements
will be presumed, subject to rebuttal by the party opposing
benefits, i.e., by the coal mine operator-employer, if
identifiable, or, alternatively, by the Secretary of Labor.
30 U.S.C. § 921(c). At issue in this case is whether a
2013 regulation, specifying the standard a coal mine operator
must meet to rebut the presumed element of disability
causation, is ultra vires to the BLBA. See
20 C.F.R. § 718.305(d)(1) (2013). For the reasons set
forth below, we agree with the Benefits Review Board's
conclusion that operators are subject to the regulation's
rebuttal standard because the regulation permissibly fills a
statutory gap in the legislation. We also agree that the
record adequately supports the ALJ's conclusion that the
operator did not meet that rebuttal standard in this case.
Accordingly, we will affirm the award of benefits and deny
the operator's petition for review.
mine operator Helen Mining Company seeks review of an award
of black lung benefits to Claimant-Respondent James E.
Elliott, Sr. Before turning to the facts of this particular
case, we briefly review the historical development of the
relevant benefits scheme to give context to the challenges
raised by Helen Mining in this appeal.
Statutory and Regulatory Context
1969, Congress passed Title IV of the Federal Coal Mine
Health and Safety Act, also known as the BLBA, to provide
benefits to coal miners whose exposure to coal dust has
resulted in the crippling pulmonary condition of
pneumoconiosis, commonly known as "black lung."
Pub. L. No. 91-173, § 401, 83 Stat. 742, 792 (1969)
(codified as amended at 30 U.S.C. § 901); see also
Mullins Coal Co. of Va. v. Dir., OWCP, 484 U.S. 135, 138
(1987). To prove entitlement to benefits, a miner
must establish four elements: (1) disease, i.e., he has
pneumoconiosis; (2) disease causation, i.e., the
pneumoconiosis arose out of dust exposure from his coal mine
employment; (3) disability, i.e., he has a totally disabling
respiratory or pulmonary impairment that prevents him from
performing coal mining or comparable work; and (4) disability
causation, i.e., pneumoconiosis is a "substantially
contributing cause" of his disability. 20 C.F.R.
§§ 718.204(C)(1), 725.202(d)(2) (citing 20 C.F.R.
§§ 718.201-718.204); see also Dir., OWCP v.
Mangifest, 826 F.2d 1318, 1320 (3d Cir. 1987). BLBA
benefits were initially administered by the Social Security
Administration, pursuant to regulations promulgated by the
then-Secretary of Health, Education, and Welfare, and were
paid from federal funds. 30 U.S.C. §§ 921-24;
Pauley v. BethEnergy Mines, Inc., 501 U.S. 680,
683-84 (1991). Today, such claims for BLBA benefits are
administered by the Director of the Office of Workers'
Compensation Programs, pursuant to regulations promulgated by
the Secretary of Labor. 30 U.S.C. §§ 902(c), 932;
Mullins, 484 U.S. at 139.
has amended the BLBA in numerous respects over the years, but
three have particular relevance to this appeal. First, in an
effort to relax the burden on miners to prove entitlement to
benefits, the Black Lung Benefits Act of 1972 added a
provision establishing that any miner who can prove he worked
fifteen years or more in an underground coal mine and can
establish the third element-that he is disabled-is entitled
to "a rebuttable presumption that [he] is totally
disabled due to pneumoconiosis" and is therefore
entitled to black lung benefits. Pub. L. No. 92-303, §
4(c), 86 Stat. 150, 154 (codified at 30 U.S.C. §
921(c)(4)) (hereinafter "the § 921(c)(4)
presumption"); Pauley, 501 U.S. at
In essence, if a miner could prove qualifying employment and
disability, then the other elements, including disability
causation, would be presumed to be met as well, shifting the
burden to the party opposing benefits-at that point in time,
the Secretary-to rebut the presumption by means specified in
§ 921(c)(4). As to the element of disability causation,
for example, § 921(c)(4) specified that the Secretary
may rebut by "establishing that … [the
miner's] respiratory or pulmonary impairment did not
arise out of, or in connection with, employment in a coal
mine." 30 U.S.C. § 921(c)(4)(B); see also
Pauley, 501 U.S. at 685-86.
the BLBA from its inception had anticipated a gradual
transition to the processing of claims by approved state
workers' compensation programs or, in the absence of an
approved program, by the Secretary himself, with mine
operators bearing financial responsibility for the payment of
benefits. See Federal Coal Mine Health and Safety
Act of 1969, § 422, 83 Stat. 741, 796-97 (codified as
amended at 30 U.S.C. § 932). But the 1972 Act set the
date for that transition as January 1, 1974, providing that
all claims filed on or after that date would be paid not from
federal funds, but by the private coal mine operator that
employed the miner, see Black Lung Benefits Act of
1972, § 5(1), (2), 86 Stat. 150, 155 (codified as
amended at 30 U.S.C. § 932), and a subsequent amendment
ensured that if a responsible operator could not be
identified, benefits would be paid by a fund, administered by
the Secretary, into which mine operators would
contribute. Thus, from that point forward, the party
opposing benefits would be not only the Secretary, but either
the Secretary or the mine operator, depending on which was
in another amendment passed in 1977, Congress expanded the
definition of pneumoconiosis beyond the class of clinical
diseases recognized as pneumoconiosis (so-called
"clinical pneumoconiosis") to include "any
chronic dust disease of the lung … arising out of coal
mine employment" (now referred to as "legal
pneumoconiosis"). Black Lung Benefits Reform Act of
1977, Pub. L. No. 95-239, sec. 2(a), § 402(b), 92 Stat.
95, 95 (codified at 30 U.S.C. § 902(b)); see 20
C.F.R. § 718.201(a). The upshot of this amendment, when
considered together with § 921(c)(4), was that the
disease and disease causation elements overlapped, so if the
Secretary could not rebut the presumption by proving that the
miner did not have a disease "arising out of coal mine
employment" (elements one and two), 30 U.S.C. §
902(b); see supra note 3, then he could only rebut
disability causation by showing that the miner's
impairment did not result from that disease (element four).
See 30 U.S.C. § 902(b).
after these amendments took effect, however, "the number
of black lung benefit claims soared, " B & G
Constr. Co. v. Dir., OWCP, 662 F.3d 233, 242 (3d Cir.
2011), leading Congress to reverse course and amend the
§ 921(c)(4) presumption so that it would no longer apply
to claims filed on or after January 1, 1982, see
Black Lung Benefits Revenue Act of 1981, Pub. L. No. 97,
§ 202(b)(1), 95 Stat. 1635, 1643. For the next several
decades, miners applying for benefits under the Act could not
claim the benefit of the § 921(c)(4) presumption.
the Patient Protection and Affordable Care Act, however,
Congress changed its mind once more and revived the §
921(c)(4) presumption for all claims filed after January 1,
2005 that were still pending on or after March 23, 2010. Pub.
L. No. 111-148, § 1556(a), (c), 124 Stat. 119, 260
(2010). For the reasons explained, the party opposing
benefits at this point in time could be either the Secretary
or the mine operator. However, when Congress reinstated
§ 921(c)(4), it did not alter the original language of
that provision. Thus, while the presumption would apply to
any qualifying miner as against any opposing party, the
statute still specified only how "the
Secretary"-originally, the only opposing party-could
rebut the presumed elements, and made no explicit provision
for rebuttal by operators.
following year, the Department of Labor promulgated a
regulation to fill that gap and to expound on the rebuttal
standard. 20 C.F.R. § 718.305 (2013) (hereinafter
"the Regulation"); see also Regulations
Implementing the Byrd Amendments to the Black Lung Benefits
Act: Determining Coal Miners' and Survivors'
Entitlement to Benefits, 78 Fed. Reg. 59, 102, 59, 106-07
(Sept. 25, 2013).The Regulation thus prescribes the means of
rebuttal for any "party opposing entitlement" to
benefits, encompassing both the Secretary and mine operators.
20 C.F.R. § 718.305(d)(1) (2013). And to rebut the
presumed element of disability causation, the Regulation
specifies that, short of disproving the presence of disease,
such opposing party must "[e]stablish that no part of
the miner's respiratory or pulmonary total disability was
caused by pneumoconiosis." 20 C.F.R. §
718.305(d)(1)(ii) (2013). Put another way, the opposing party
must "rule out" any connection between
pneumoconiosis and a miner's disability. See Kline v.
Dir., OWCP, 877 F.2d 1175, 1179 (3d Cir. 1989)
(describing a regulation with similar "no part"
language as imposing a "rule out" standard). The
validity of the Regulation and, in particular, its imposition
of the rule out standard on mine operators, is the central
issue on appeal.
Factual and Procedural History
worked in a coal mine for over twenty-three years, until
1993. During that time, he developed a chronic cough, and
about three or four years after his retirement, he developed
more acute breathing problems characterized by shortness of
breath and chest pain. Elliott timely filed a claim for
benefits under the BLBA in September 2012, alleging that he
suffered from respiratory difficulties due to his coal mine
employment. The Director of the United States Department of
Labor, Office of Workers' Compensation Programs, issued a
proposed Decision and Order awarding benefits on June 4,
2013. Petitioner Helen Mining conceded it was the responsible
employer, but it challenged Elliott's entitlement to
benefits and requested a formal hearing before an
Administrative Law Judge (ALJ).
April 2014 hearing before an ALJ, the parties stipulated that
Elliott suffered from a totally disabling respiratory
impairment. Because Helen Mining thus conceded disability and
because Elliott demonstrated a term of employment greater
than fifteen years,  the ALJ determined that § 921(c)(4)
applied and that the other elements, including disability
causation, would be presumed. Elliott thus was presumed
totally disabled due to pneumoconiosis, and the ALJ shifted
the burden to Helen Mining to rebut the other elements as
permitted by the Regulation.
of its effort to rebut the presumption, Helen Mining offered
the opinions of Doctors Gregory Fino and Samuel Spagnolo,
both of whom attributed Elliott's respiratory impairment
to a diagnosis of adult-onset asthma unrelated to coal dust
exposure. The ALJ did not find their testimony persuasive and
concluded that Helen Mining had failed to rule out coal
dust-induced pneumoconiosis as a cause of Elliott's