20 CFR 410.110, 410.416 and 410.490
Small v. Weinberger, U.S.D.C., W.D. Pa., Civ. No. 75-101 (8/25/75)
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:
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, 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):
The regulations further provide, 20 C.F.R.:
The other relevant regulations are the following:
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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 3« to 4, or 5 to 5« 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.
 20 C.F.R. Section 410.490(b)(1)(ii).
 This regulation follows the requirements of the Act, 30 U.S.C. Section 921(c)(1).
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