BRB No. 94-2238 BLA
DANNIE CROUCHER (DECEASED) )
)
Claimant-Petitioner )
)
v. ) DATE ISSUED: 08/29/1996
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Respondent ) DECISION and ORDER EN BANC
Appeal of the Decision and Order on Remand of Donald W. Mosser,
Administrative Law Judge, United States Department of Labor.
Marian M. Burns (Burns, Burns, Walsh & Walsh, P.A.), Lyndon, Kansas, for
claimant.
Karen N. Blank (J. Davitt McAteer, Acting Solicitor of Labor; Donald S.
Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate
Solicitor; Richard A. Seid and Michael J. Rutledge, Counsel for
Administrative Litigation and Legal Advice), Washington, D.C., for the
Director, Office of Workers' Compensation Programs, United States
Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, SMITH, BROWN, DOLDER
and McGRANERY, Administrative Appeals Judges.
HALL, Chief Administrative Appeals Judge:
Claimant[1] appeals the Decision and Order
on Remand (86-BLA-0367) of Administrative Law Judge Donald W. Mosser denying
benefits on a claim filed pursuant to the provisions of Title IV of the Federal
Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et
seq. (the Act). This case is before the Board for the second time. In a Decision and
Order dated September 22, 1989,[2] Administrative Law Judge V.M. McElroy, after
noting that the interim regulations set forth at 20 C.F.R. Part 727 had been
rendered invalid, found that the evidence was insufficient to establish invocation
of the presumption pursuant to 20 C.F.R. §410.490(b)(1). Judge McElroy
further found the evidence insufficient to establish the existence of
pneumoconiosis pursuant to 20 C.F.R. §410.414. Accordingly, Judge McElroy
denied benefits. By Decision and Order dated January 29, 1993, the Board held,
inter alia, that Judge McElroy erred in finding that the regulations
contained at 20 C.F.R. §727.203 were invalid. Croucher v. Director,
OWCP, BRB No. 89-3421 BLA (Jan. 29, 1993) (unpublished) (McGranery and
Lawrence, J. J., concurring). The Board also instructed Judge McElroy, on remand,
to make a specific length of coal mine employment determination. Id.
On remand, Administrative Law Judge Donald W. Mosser[3] (the administrative law judge) credited claimant with six and one-half
years of coal mine employment, and consequently, found the interim presumption at
20 C.F.R. §727.203(a) inapplicable. The administrative law judge also found
that the evidence was insufficient to establish invocation of the presumption
pursuant to 20 C.F.R. §410.490(b)(1). The administrative law judge then
reviewed the claim under 20 C.F.R. Part 410, Subpart D and found the evidence
insufficient to establish the existence of pneumoconiosis pursuant to 20 C.F.R.
§410.414. Accordingly, the administrative law judge denied benefits.
Claimant presently argues that the administrative law judge should have computed
the length of his coal mine employment by applying the 125 day rule set forth at
20 C.F.R. §718.301(b). The Director, Office of Workers' Compensation Programs
(the Director), responds that the administrative law judge's error, if any, in
failing to utilize the 125 day rule in calculating the length of claimant's coal
mine employment, is harmless.
The Board must affirm the findings of the administrative law judge if they are
supported by substantial evidence, are rational, and are in accordance with
applicable law. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C.
§932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380
U.S. 359 (1965).
Claimant, citing 20 C.F.R. §718.301(b), argues that the administrative
law judge erred in not crediting him with one year of coal mine employment for each
calendar year in which he worked for 125 days or more in a coal mine. We disagree.
Section 718.301,[4] which provides guidelines for
establishing the length of a miner's coal mine employment for the purpose of
determining the miner's entitlement to certain presumptions, contains almost
identical language to that found at 20 C.F.R. §725.493,[5] a provision which provides criteria for identifying a responsible
operator. Inasmuch as the language of these two provisions is significantly the
same, the Board has held that they must be consistently construed.[6] See Tackett v. Cargo Coal Mining
Co., 12 BLR 1-11 (1988).
In determining the length of a miner's coal mine employment under both Section
718.301 and Section 725.493, the Board has consistently held that an administrative
law judge may apply any reasonable method of calculation. Tackett,
supra; Dawson v. Old Ben Coal Co., 11 BLR 1-58 (1988)(en
banc). The Board has further explained that:
The administrative law judge should first determine the beginning and
ending dates of the miner's coal mine employment. If the administrative
law judge determines that the employment was "regular," then the entire
period between the beginning and ending dates may be counted. If the
administrative law judge determines that the employment was not
"regular," then he must total the periods of coal mine employment, and
determine the aggregate amount of coal mine employment. In making this
determination, the administrative law judge must discuss all relevant
evidence.
Tackett, 12 BLR at 1-12 n.2 (citing Dawson, supra).
The Board has held that the 125 day provision set out at Section 725.493(b)
may be applicable once the threshold requirement that the miner be employed for at
least one year, or partial periods totalling one year, is satisfied. See
Brumley v. Clay Coal Corp., 6 BLR 1-956 (1984). Once that requirement is
satisfied, employer is provided an opportunity to establish that the miner's
employment was not regular by proving that the miner had not worked for employer
for a period of at least 125 working days. Thus, the Board has held that a mere
showing of 125 days of coal mine employment does not, in and of itself, establish
one year of coal mine employment under 20 C.F.R. §725.493. Tackett,
supra.
We similarly hold that the 125 day rule set out at 20 C.F.R. §718.301 has
no applicability unless an administrative law judge initially determines that the
miner has established a calendar year of coal mine employment. Once a miner
establishes a calendar year of coal mine employment, the party opposing entitlement
is provided an opportunity to establish that the miner's employment was not regular
by proving that the miner was not employed in or around a coal mine for a period
of at least 125 working days during the year. However, even where the party
opposing entitlement is able to prove that the miner was not employed in or around
a coal mine for 125 working days during the calendar year, Section 718.301 insures
that a miner will be credited with a fractional year based on the ratio of the
actual number of days worked to 125. See 20 C.F.R. §718.301(b).
We note our disagreement with the decisions of the United States Court of
Appeals for the Seventh and Eighth Circuits in Landes v. Director, OWCP, 997
F.2d 1192, 17 BLR 2-172 (7th Cir. 1993) and Yauk v. Director, OWCP, 912 F.2d
192, 12 BLR 2-339 (8th Cir. 1989). In Landes and Yauk, these courts
held that the 125 day rule requires that a miner who establishes at least 125
working days of coal mine employment in a calendar year be credited with one year
of coal mine employment. Neither of these courts, however, considered whether the
125 day rule of 20 C.F.R. §718.301(b) should be applied only after the miner
has established a calendar year of coal mine employment. As a result, the miners
in Landes and Yauk received credit for coal mine employment during
periods of time where there was no evidence to support any coal mine employment
whatsoever.[7] Consequently, except in those
cases arising within the jurisdiction of the United States Court of Appeals for the
Seventh and Eighth Circuits, we decline to hold that the 125 day rule set out at
20 C.F.R. §718.301(b) mandates that a miner who establishes at least 125
working days of coal mine employment in a calendar year be credited with one year
of coal mine employment.[8]
In determining the length of claimant's coal mine employment in the instant
case, the administrative law judge found that for the years 1937 until 1946,
claimant's Social Security records were the most reliable evidence regarding his
coal mine employment. Decision and Order on Remand at 5; Director's Exhibit 3.
The administrative law judge credited claimant with the ten quarters in which his
Social Security Administration earnings statement indicated that he earned at least
$50.00. Id. The Board has held that this is a reasonable method of
calculation. See Tackett v. Director, OWCP, 6 BLR 1-839 (1984).
The administrative law judge also noted that claimant's Social Security
records indicated minimal earnings (less than $50.00) in five additional quarters
from 1937 until 1946.[9] Decision and Order on
Remand at 5; Director's Exhibit 3. The administrative law judge, therefore,
credited claimant with a total of six months of coal mine employment for these
quarters. Id. We hold that this calculation is also reasonable.
In regard to claimant's employment prior to 1937, the administrative law judge
credited claimant's wife's testimony that claimant was employed during the winter
months, mainly from September of one year to April of the next. Decision and Order
on Remand at 5. The administrative law judge, assuming that claimant worked from
September of 1932 to April of 1933 and did so in every year thereafter up to
January 1, 1937, calculated that claimant would have worked approximately forty
months in coal mine employment.[10] Id.
Adding this three years and four months of coal mine employment to the three years
he found documented by claimant's Social Security records, the administrative law
judge credited claimant with approximately six and one-half years of coal mine
employment. Id. Inasmuch as it is based upon a reasonable method of
calculation and is supported by substantial evidence, we affirm the administrative
law judge's finding that claimant established approximately six and one-half years
of coal mine employment. Consequently, claimant is not entitled to have his claim
considered under 20 C.F.R. Part 727.
The administrative law judge also found that the evidence was insufficient to
establish entitlement pursuant to 20 C.F.R. §410.490 and 20 C.F.R. Part 410,
Subpart D. Decision and Order on Remand at 9-12. Claimant's statements regarding
these findings merely point to evidence favorable to his position and amount to no
more than a request to reweigh the evidence of record. Such a request is beyond
the Board's scope of review. See Cox v. Benefits Review Board, 791
F.2d 445, 9 BLR 2-46 (6th Cir. 1986); Sarf v. Director, OWCP, 10 BLR 1-119
(1987). We, therefore, affirm the administrative law judge's findings that the
evidence was insufficient to establish entitlement pursuant to 20 C.F.R.
§410.490 and 20 C.F.R. Part 410, Subpart D.[11]
Accordingly, the administrative law judge's Decision and Order on Remand
denying benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
We concur:
ROY P. SMITH
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
NANCY S. DOLDER
Administrative Appeals Judge
McGRANERY, Administrative Appeals Judge, concurring in part and dissenting in part:
I respectfully dissent from the majority's opinion interpreting 20 C.F.R.
§718.301. I think that the fundamental flaw in the majority's analysis is the
assumption that 20 C.F.R. §718.301 and 20 C.F.R. §725.493 must be
construed in the same way despite differences in purpose and in language. Section
725.493 sets forth the analysis to be used in determining the responsible operator
and Section 718.301 sets forth the analysis to be used in calculating a miner's
years of coal mine employment to determine eligibility for various presumptions.
Because the purposes of the regulations are different, their language is
different in crucial respects. Thus, Section 725.493(a)(1) provides that the
responsible operator or employer is the one "with which the miner had the most
recent periods of cumulative employment of not less than 1 year...." 20 C.F.R.
§725.493(a)(1). And subsection (b) explains that "a year of employment means
a period of 1 year, or partial periods totalling 1 year, during which the miner was
regularly employed in or around a coal mine by the operator or other employer."
20 C.F.R. §725.493(b). That subsection further provides, however, that the
designated most recent employer to have employed claimant for a year or more shall
not be held the responsible operator if it can prove that it did not employ
claimant "for a period of at least 125 working days [because] such operator or
other employer shall be determined to have established that the miner was not
regularly employed for a cumulative year by such operator or employer...."
Id.
The Board has construed Section 725.493 to mean that the most recent employer
to have employed the miner for a cumulative period of a year or more is the
responsible operator unless it is able to show that the miner was employed for
fewer than 125 days. Brumley v. Clay Coal Corp., 6 BLR 1-956 (1984). The
Board's construction of the regulation reflects a reasonable interpretation of the
statutory language. From the standpoint of policy it also makes sense that the
responsible operator be the one to have employed the miner over a full year or more
and to have exposed the miner to coal dust for at least 125 working days.
Because the Board held in Tackett v. Cargo Coal Mining Co., 12 BLR 1-11
(1988) that Sections 725.493 and 718.301 should be interpreted consistently, since
they both contain 125 day rules, the majority now reads into Section 718.301 the
requirement that a miner be employed for at least a full year (twelve months or
four quarters) before he can be credited with a year's employment, or a fractional
part of a year's employment. This construction, however, has no support in the
language of the regulation.
The Board's interpretation of Section 718.301 ignores the precise words of the
regulation which were clearly intended to provide miners with flexibility in
combining periods of coal mine employment to accumulate the number of years
necessary to take advantage of statutory presumptions. Thus, Section 718.301(b)
provides that "a year of employment means a period of one year, or partial periods
totalling one year, during which the miner was regularly employed...." 20 C.F.R.
§718.301(b). The regulation reflects a reasonable limitation on the miner's
ability to establish a year's coal mine employment, i.e., if employer can
prove that the miner worked "fewer than 125 days in a calendar year [the miner will
not be credited with a full year of coal mine employment, but] he or she shall be
credited with a fractional year based on the ratio of the actual number of days
worked to 125." Id. The obvious inference from this provision is that a
year of coal mine employment, for purposes of the statutory presumptions, is a
twelve-month or four-quarter period during which the miner worked 125 or more days.
That is the construction given to Section 718.301 by the only courts which have
considered the issue, the United States Court of Appeals for the Seventh Circuit
in Landes v. Director, OWCP, 997 F.2d 1192, 17 BLR 2-172 (7th Cir. 1993),
and the United States Court of Appeals for the Eighth Circuit in Yauk v.
Director, OWCP, 912 F.2d 192, 12 BLR 2-339 (8th Cir. 1989). By contrast, the
majority's interpretation of Section 718.301 would thwart its beneficent purpose.
In the majority's view, if the miner had not been on an employer's payroll for
a full year, the 125 day rule would not become operative, and depending upon the
administrative law judge's method of calculation, the miner might not get credit
for a full year, regardless of the number of days worked. Thus, the thousands of
miners to whom only seasonal coal mine employment was available would not be able
to take advantage of the 125 day rule because they are not carried on the payroll
year round. Yet it was clearly these people who were intended to benefit from
Section 718.301's provision authorizing the combination of fractions of a year
without regard to the number of calendar years spanned.
Furthermore, both courts held that application of the 125 day rule is
mandatory in calculating claimant's years of coal mine employment. As the Seventh
Circuit explained:
While [the administrative law judge's] method of computation may have
been reasonable prior to the promulgation of the 125-day rule in 20
C.F.R. §718.301, once that rule became effective and gave guidance
concerning how the length of coal mine employment should be computed, it
was no longer acceptable for [the administrative law judge] to calculate
the length of [claimant's] employment without consideration and
application of such guidance.
Landes, 997 F.2d at 1198, 17 BLR at 2-181.
The Secretary of Labor, pursuant to Section 411(b) of the Act, 30 U.S.C.
§921(b), has the authority to promulgate regulations implementing the purposes
of the Act. Both the Seventh and Eighth Circuits upheld application of the 125 day
rule because it was more consistent with the remedial purposes of the Act than
application of the quarter-method. Landes, 997 F.2d at 1199, 17 BLR at 2-182;
Yauk, 912 F.2d at 195, 12 BLR at 2-343. The majority's interpretation
of Section 718.301 eviscerates the regulation and undermines its remedial purpose.
In accordance with the decisions from the United States Courts of Appeals for
the Seventh and Eighth Circuits, I would hold that the 125 day rule requires that
a miner who establishes at least 125 working days of coal mine employment in a
calendar year be credited with one year of coal mine employment and that "[i]f a
miner worked in or around one or more coal mines for fewer than 125 days in a
calendar year, he or she shall be credited with a fractional year based on the
ratio of the actual number of days worked to 125." 20 C.F.R. §718.301(b).
I would remand the case to the administrative law judge to reconsider claimant's
length of coal mine employment in light of the 125 day rule. Even though the
Director assures us that application of the rule would not give claimant the
requisite ten years to invoke the interim presumption, Director's Brief at 2-3, it
is not clear that the Director would apply the rule in the same way as the
administrative law judge, see Yauk, supra, and it is
appropriate for the administrative law judge to make this factual determination.
I concur in all other respects in the majority opinion.
REGINA C. McGRANERY
Administrative Appeals Judge
Desk Book Sections: Parts II.F and VII.G.
Noting that Sections 718.301 and 725.493 should be consistently construed based
upon their almost identical language, the majority held that the 125 day rule set
out at 20 C.F.R. §718.301 has no applicability unless an administrative law
judge initially determines that the miner has established a calendar year of coal
mine employment. The majority noted its disagreement with the decisions of the
Seventh and Eighth Circuits in Landes v. Director, OWCP, 997 F.2d
1192, 17 BLR 2-172 (7th Cir. 1993) and Yauk v. Director, OWCP, 912
F.2d 192, 12 BLR 2-339 (8th Cir. 1989). In Landes and
Yauk, these Courts held that the 125 day rule requires that a miner
who establishes at least 125 working days of coal mine employment in a calendar
year be credited with one year of coal mine employment. Consequently, except in
those cases arising within the jurisdiction of the Seventh and Eighth Circuits, the
majority declined to hold that the 125 day rule set out at 20 C.F.R.
§718.301(b) mandates that a miner who establishes at least 125 working days
of coal mine employment in a calendar year be credited with one year of coal mine
employment. Judge McGranery dissented, stating that the fundamental flaw in the
majority's analysis is the assumption that 20 C.F.R. §718.301 and 20 C.F.R.
§725.493 must be construed in the same way despite differences in purpose and
in language. In accordance with the decisions from the Seventh and Eighth
Circuits, Judge McGranery would hold that the 125 day rule requires that a miner
who establishes at least 125 working days of coal mine employment in a calendar
year be credited with one year of coal mine employment. Croucher v. Director,
OWCP, BLR , BRB No. 94-2238 BLA (Aug. 29, 1996)(en banc)
(McGranery, J., dissenting).
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Footnotes.
1)Claimant died on October 27, 1993. By Order dated February 28,
1994, Administrative Law Judge Donald W. Mosser reformed the caption in the instant
case to reflect Dannie Croucher (Deceased) as the claimant.
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2)The relevant procedural history is as follows: Claimant
initially filed a claim for benefits with the Social Security Administration (SSA)
on January 13, 1971. Director's Exhibit 38. The SSA denied this claim on March
31, 1971 and May 30, 1973. Id. Claimant subsequently filed a claim with the
Department of Labor (DOL) on February 25, 1976. Director's Exhibit 1. The
district director denied claimant's 1976 claim on October 16, 1980. Director's
Exhibit 29. In a letter dated September 14, 1981, claimant indicated his intention
to submit additional medical evidence in support of his claim. Director's Exhibit
30. In a letter dated October 7, 1981, claimant requested an extension of time in
which to submit additional medical evidence. Director's Exhibit 32. On October
21, 1981, the district director informed claimant that because he had failed to
submit additional evidence within one year of the October 16, 1980 denial, no
further action could be taken on his claim. Director's Exhibit 33. In a letter
dated January 28, 1982, claimant requested that the DOL inform him of the status
of his claim. Director's Exhibit 34. On February 3, 1982, the district director
informed claimant that his claim was "closed." Director's Exhibit 35. Pursuant
to claimant's request, the case was forwarded to the Office of Administrative Law
Judges for a formal hearing. Director's Exhibits 36, 37. Administrative Law Judge
V.M. McElroy conducted a hearing on March 30, 1983.
In a Decision and Order dated March 2, 1984, Judge McElroy credited claimant
with eight years and seven months of coal mine employment. Director's Exhibit 45.
In his consideration of whether the evidence was sufficient to establish
entitlement under 20 C.F.R. Part 410, Subpart D, Judge McElroy found the evidence
insufficient to establish total disability due to pneumoconiosis. Id.
Accordingly, Judge McElroy denied benefits. Id. In a Decision and Order
dated May 22, 1984, Judge McElroy denied claimant's motion for reconsideration.
Director's Exhibit 48.
After claimant filed a motion for modification, Judge McElroy, by Order dated
November 30, 1984, remanded the case to the district director for his
consideration. Director's Exhibits 49, 51. After the district director denied the
claim on April 17, 1985 and July 31, 1985, Director's Exhibits 55, 58A, claimant
requested a formal hearing. Director's Exhibit 59. After a hearing was held on
May 23, 1986, claimant filed a third claim on July 1, 1986. In a Decision and
Order of Remand dated March 18, 1987, Judge McElroy remanded the case to the
district director to address the merits of claimant's 1986 claim. However, in a
Decision and Order dated September 22, 1989, Judge McElroy granted the Director's
motion for reconsideration and held that claimant's 1986 claim had merged with his
earlier 1976 claim. Judge McElroy, therefore, considered claimant's 1976 claim on
the merits.
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3)Due to Judge McElroy's unavailability, the case was reassigned
to Judge Mosser on remand.
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4)Section 718.301, entitled "Establishing Length of Employment
as a Miner," provides:
(a) The presumptions set forth in §§718.302, 718.303, 718.305
and 718.306 apply only if a miner has been employed in one or more coal
mines for specified periods. Regular employment may be established on
the basis of any evidence presented, including the testimony of a
claimant or other witnesses, and shall not be contingent upon a finding
of a specific number of days of employment within a given period.
(b) For the purposes of the presumptions described in this subpart, a
year of employment means a period of one year, or partial periods
totalling one year, during which the miner was regularly employed in or
around a coal mine by the operator or other employer. A "working day"
means any day or part of a day for which a miner received pay for work
as a miner. If an operator or other employer proves that the miner was
not employed in or around a coal mine for a period of at least 125
working days during a year, such operator or other employer shall be
determined to have established that the miner was not regularly employed
for a year for purposes of this section. If a miner worked in or around
one or more coal mines for fewer than 125 days in a calendar year, he or
she shall be credited with a fractional year based on the ratio of the
actual number of days worked to 125. No periods of coal mine employment
occurring outside the United States shall be credited toward the use of
any presumption contained in this part.
20 C.F.R. §718.301.
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5)Section 725.493(a)(1) provides that:
Subject to the provisions of paragraphs (a)(2) and (3) of this section, and provided that
the conditions of §725.492(a)(2) through
(a)(4) are met, the operator or other employer with which the miner had
the most recent periods of cumulative employment of not less than 1
year, as determined in accordance with paragraph (b) of this section,
shall be the responsible operator.
20 C.F.R. §725.493(a)(1).
Section 725.493(b) provides that:
From the evidence presented, the identity of the operator or other
employer with which the miner had the most
recent periods of cumulative employment of not less than 1 year and, to the extent
the evidence permits, the beginning and ending dates of such periods, shall be
ascertained. For purposes of this section, a year of employment means a period of
1 year, or partial periods totalling 1 year, during which the miner was regularly
employed in or around a coal mine by the operator or other employer. Regular
employment may be established on the basis of any evidence presented, including the
testimony of a claimant or other witnesses, and shall not be contingent upon a
finding of a specific number of days of employment within a given period. However,
if an operator or other employer proves that the miner was not employed by it for
a period of at least 125 working days, such operator or other employer shall be
determined to have established that the miner was not regularly employed for a
cumulative year by such operator or employer for the purposes of paragraph (a) of
this section. A "working day" means any day or part of a day for which a miner
received pay for work as a miner (see §725.202(a)).
20 C.F.R. §725.493(b).
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6)Both Section 725.493(b) and Section 718.301: (1) define a year
of coal mine employment as one year, or partial periods totalling one year, during
which a miner was employed in or around a coal mine; (2) define a "working day" as
any day or part of a day for which a miner received pay for work as a miner; and
(3) contain a provision that if an employer can establish that a miner was not
employed in or around a coal mine for a period of at least 125 working days during
a year, that employer will be determined to have established that the miner was not
regularly employed for a year. 20 C.F.R. §§718.301; 725.493.
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7)For example, both the Seventh and Eighth Circuits, utilizing
the 125 day rule, calculated that the respective miners, having established by
virtue of Social Security records coal mine employment in one quarter (66 working
days, allowing 22 working days per month) during a calendar year, were entitled to
credit for one-half of a year of coal mine employment. Landes v. Director,
OWCP, 997 F.2d 1192, 1198 n.6, 17 BLR 2-172, 2-181 n.6 (7th Cir. 1993); Yauk
v. Director, OWCP, 912 F.2d 192, 195, 12 BLR 2-339, 2-344 (8th Cir. 1989). The
Eighth Circuit similarly calculated, under the 125 day rule, that the miner in
Yauk, having established two quarters of coal mine employment (132 working
days) during a calendar year, was entitled to credit for one full year of coal mine
employment. Yauk, 912 F.2d at 195, 12 BLR at 2-344. Both courts relied upon
Social Security records to determine the number of quarters of coal mine employment
and then gave credit for 66 working days for each quarter. The courts then used
this number of days in making use of the 125 day rule whether or not the miners
actually worked the full 66 days or a lesser number during the quarter. No comment
was made that under 20 C.F.R. §718.301, a "`working day' means any day or part
of a day for which a miner received pay for work as a miner." 20 C.F.R.
§718.301. Only days in which the miner physically worked are counted as
"working days." The courts apparently credited the miners with every quarter in
which their Social Security records indicated that they earned at least $50.00 in
coal mine employment and construed this as 66 days. Many of the days, therefore,
were "paper" working days and not the actual working days required by the 125 day
rule. The courts, in effect, parlayed two separate and incompatible rules to
arrive at their computation of years of coal mine employment.
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8)The instant case arises within the appellate jurisdiction of
the United States Court of Appeals for the Tenth Circuit. See Director's
Exhibit 2.
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9)Claimant earned $6.05 during the fourth quarter of 1937; $10.50
during the third quarter of 1938; $23.66 during the third quarter of 1939; $37.74
during the third quarter of 1940; and $9.14 during the fourth quarter of 1940.
Director's Exhibit 3.
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10)Assuming that claimant was employed from September of 1932
to April of 1933 and was employed for a similar length of time in every year
thereafter up to January 1, 1937, we note that claimant would have been employed
for a total of only thirty-six months in coal mine employment from 1932 until the
end of 1936, not the forty months found by the administrative law judge. The
administrative law judge appears to have miscalculated the number of months of coal
mine employment during this period. However, under the facts of the instant case,
the administrative law judge's error is harmless. See Larioni v.
Director, OWCP, 6 BLR 1-1276 (1984).
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11)In light of our affirmance of the administrative law judge's
findings that claimant was not entitled to benefits pursuant to 20 C.F.R.
§410.490 and 20 C.F.R. Part 410, Subpart D on the merits, we need not address
the Director's arguments regarding the administrative law judge's failure to
address whether the evidence was sufficient to establish modification pursuant to
20 C.F.R. §725.310. See Larioni, supra; Director's Brief
at 5 n.6.
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NOTE: This is a PUBLISHED BLA Document.
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