Petition for Review Benefits Review Board; U.S. Department of Labor (BRB No. 76-341 BLA).
Aldisert, Van Dusen and Weis, Circuit Judges.
Bethlehem Mines Corporation petitions for review of a decision by the Benefits Review Board affirming an award of benefits to claimant John A. Warmus pursuant to Title IV of 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. Pursuant to 33 U.S.C. § 928(a), Bethlehem was also ordered to pay attorneys fees and costs. After this case was submitted, we received additional briefing from the parties regarding the effect of recently enacted amendments to the statutes which govern this case. We conclude that there existed substantial evidence for the Board's decision to award benefits, and that Bethlehem is responsible to Warmus for attorneys fees incurred in the prior proceedings.
Warmus, who is now 70 years old, began working in Pennsylvania coal mines in 1927 and continued this work until 1949. Between 1950 and 1960, he worked in an automobile assembly plant; for thirteen years thereafter he worked as a janitor, until his retirement in July 1973.
On July 30, 1973, Warmus filed a claim with the Department of Labor for benefits, alleging total disability due to pneumoconiosis contracted during his years in the mines. Based upon testimonial and documentary evidence presented at a hearing on this claim, the hearing officer concluded that Warmus was totally disabled from pneumoconiosis "as that term is defined in Section 402(f) of the Act (30 U.S.C. § 902) and 20 C.F.R. 410.412".*fn1
In the subsequent appeal, the Benefits Review Board based its finding of total disability on 20 C.F.R. § 410.426(d), which permits such a finding when pneumoconiosis is medically demonstrated and when other relevant evidence*fn2 establishes that the miner has a chronic pulmonary or respiratory impairment which prevents him from engaging in comparable employment, regardless of whether that impairment is related to or caused by the pneumoconiosis. 20 C.F.R. § 410.426(d) provides:
Where a ventilatory study and/or a physical performance test is medically contraindicated, or cannot be obtained or where evidence obtained as a result of such tests does not establish that the miner is totally disabled, pneumoconiosis may nevertheless be found totally disabling if other relevant evidence (see § 410.414(c)) establishes that the miner has or had a chronic respiratory or pulmonary impairment, the severity of which prevents (or prevented) him not only from doing his previous coal mine work, but also, considering his age, his education, and work experience, prevents (or prevented) him from engaging in comparable and gainful work.
Bethlehem alleges that there was not substantial evidence supporting the findings; that the Board's interpretation of the applicable regulations was incorrect; and that, if that interpretation was correct, it is inconsistent with the rest of the Act.
Bethlehem does not challenge the propriety of the findings that Warmus suffers from pneumoconiosis and that his pneumoconiosis results from his mine employment. Its only challenge goes to the finding of total disability due to pneumoconiosis. " Bethlehem's primary argument on appeal is that there is not substantial evidence in the record to support a finding that claimant's pneumoconiosis has caused and is causing the chest pain, breathlessness, and coughing and choking of which claimant complains." Bethlehem's Reply Brief at 1. We disagree. The following summary of the medical evidence supports the conclusion that substantial evidence on the record as a whole is in accordance with the agency's findings:
1. The miner's subjective symptoms, including shortness of breath, coughing, "catching" of phlegm in his throat, and limited physical actions were described by claimant. Appendix at 19a et seq.
2. The claimant described the continuing effects of his illness and his inability to fully perform ...