Amigo Smokeless Coal Company, Petitioner, v. Director, Office of Workers' Compensation Programs, U. S.dept. of Labor, and Clarence Bower, Respondents, 642 F.2d 68 (4th Cir. 1981)

On December 26, 1973, Clarence Bower filed a claim for black lung benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972, 30 U.S.C. § 901 et seq. A deputy commissioner of the Office of Workers' Compensation Programs, United States Department of Labor, at an informal conference, determined that Bower was entitled to benefits and that appellant Amigo Smokeless Coal Company was the coal mine operator responsible for paying those benefits. Amigo contested Bower's status as a miner during his employment with Amigo and, therefore, its responsibility for paying the benefits and requested a hearing.

Following the hearing, at which all parties had the opportunity to introduce evidence, examine witnesses, and argue the facts and law, the hearing officer issued a Decision and Order holding that Bower was a miner during his employment with Amigo and that Amigo was the coal mine operator responsible for the payment of his black lung benefits. The Benefits Review Board affirmed the decision of the hearing officer and Amigo has appealed. We affirm.

The sole issue raised on appeal is whether the Benefits Review Board correctly affirmed the hearing officer's determination that Bower, during the time he was employed by Amigo, was a "miner" so as to create in Amigo the responsibility of paying the black lung benefits to which Bower is entitled.¹  On appeal from a decision of the Board, the Court reviews only for errors of law including whether the Board has used the proper standard of review in considering the hearing officer's decision. E. g., Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234, 237-38 (3d Cir. 1979); General Dynamics Corp., Quincy Shipbuilding Division v. Director, Office of Workers' Compensation Programs, 585 F.2d 1168, 1170 (1st Cir. 1978).²  Moreover, the Board's resolution of issues of statutory construction, or the application of a general statutory term to a specific set of facts, should be upheld if the Board's decision is supported by a reasonable factual and legal basis. E. g., Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 478-79, 67 S. Ct. 801, 806-07, 91 L. Ed. 1028 (1947); General Dynamics Corp., supra, 585 F.2d at 1170; Alabama Dry Dock & Shipbuilding Co. v. Kininess, 554 F.2d 176, 177 (5th Cir. 1977), cert. denied, 434 U.S. 903, 98 S. Ct. 299, 54 L. Ed. 2d 190 (1977).

The Board correctly determined that substantial evidence supports the hearing officer's findings that, while employed by Amigo, Bower worked as a laboratory technician collecting samples of coal for processing and analysis. Bower spent approximately 85 percent of his time collecting samples from Amigo's various mining sites and the cleaning plant, where coal is separated from impurities and sized. He visited the mining site locations at least two to four or more days per week to pick up raw coal samples, but was not required to go underground. Bower visited the tipple, a coal cleaning and processing plant, everyday, at least two times a day for 15 minutes per visit, to gather coal directly from conveyor belts.

Bower then took the coal samples to the preparation room of the laboratory where the coal was first crushed into small particles and then pulverized until it was the consistency of flour. From the preparation room, where there was coal dust, Bower brought the pulverized coal in approximately one-gram quantities into the testing portion of the laboratory, which was relatively free of coal dust. The coal was there tested for ash, sulfur, BTU, fusion, and coke buttons to determine its composition and hence its market price.

Section 902(d) of Title 30 U.S.C.³  states:

The term "miner" means any individual who is or was employed in a coal mine.

The regulations further explain that:

"Miner" or "coal miner" means any individual who is or was employed in a coal mine, performing functions in extracting the coal or preparing the coal so extracted.

20 C.F.R. § 715.101(a) (5) (1974). 30 U.S.C. § 802 provides:

(h) "coal mine" means an area of land and all structures, facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon, under, or above the surface of such land by any person, used in, or to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, or anthracite from its natural deposits in the earth by any means or method, and the work of preparing the coal so extracted, and includes custom coal preparation facilities;

(i) "work of preparing the coal" means the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of the coal mine.

The sparse case law construing the term "miner" supports the Board's determination that the definition of miner contains two elements work in a coal mine, and performing functions in extracting or preparing coal, i. e., a situs test and a function test. Freeman v. Califano, 600 F.2d 1057 (5th Cir. 1979); Adelsberger v. Mathews, 543 F.2d 82 (7th Cir. 1976); Sexton v. Mathews, 538 F.2d 88 (4th Cir. 1976); Roberts v. Weinberger, 527 F.2d 600 (4th Cir. 1975). There was, therefore, an established legal basis for the Board's decision to apply the two-prong test to the facts in determining whether Bower was a miner.

In determining whether Bower was engaged in the work of preparing coal, all three members of the Board agreed that Bower's testing samples of coal and preparing samples for testing came within the statutory definition.⁴  30 U.S.C. § 802(i). There was a factual basis in the record and a legal basis for such a determination; some evidence tended to show that knowledge of the chemical composition and energy content of the coal was a necessary step in Amigo's preparation of the coal for sale. See Roberts v. Weinberger, 527 F.2d at 602 ("The coal was not extracted and prepared until it was taken from the mine to the place where it was processed and graded so as to be in condition for delivery to distributors and consumers"); Adelsberger v. Mathews, 543 F.2d at 84 (clerical employee who spent part of her time directing switching of grates and railroad cars, to determine what kind of coal was prepared and to whom it was shipped, and supervising weighing of coal was engaged in work of preparing coal). Additionally, the majority determined that claimant's work in collecting the samples at the mine sites and tipple and transporting them to the laboratory was also work in preparing coal. Roberts v. Weinberger, 527 F.2d at 602, provides a valid legal basis for such a determination. There we held that transporting coal from the excavation site to the processing plant so that it could be prepared for sale was "part of the process of 'extracting the coal and preparing the coal so extracted.' " If testing the coal in the laboratory is also part of the preparation of the coal, then transporting the coal from the excavation site to the laboratory is, under Roberts, evidently work of preparing coal.

In applying the situs test, the majority and concurring opinions agreed that, by going to and into excavation sites and the tipple as required by his job, Bower worked in a mine. 30 U.S.C. § 902(d). There was a justifiable legal and factual basis for the conclusion. See Adelsberger v. Mathews, 543 F.2d at 84 (clerical employee who went from office into "an area defined as part of the mine, underneath the tipple," to carry out her duties was employed in a mine.)⁵ 

Because the Board had a substantial basis for finding that Bower was engaged in the work of preparing the coal and that he worked in or at a mine, it correctly decided that he was a miner under the Black Lung Benefits Act and the case law.

AFFIRMED.