Director, Office of Workers' Compensation Programs v. Eastern Associated Coal Corp.

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
4-24-1995
OWCP v Eastern Assoc Coal Corp
Precedential or Non-Precedential:
Docket 94-3254
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________________
No. 94-3254
_____________________
DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Petitioner
v.
EASTERN ASSOCIATED COAL CORPORATION;
VIOLET M. O'BROCKTA; UNDERKOFFLER COAL;
BENJAMIN STINNER
_____________________
On Appeal for Review of Orders of the Benefits
Review Board, United States Department of Labor
(BRB No. 88-2643 BLA)
_____________________
Argued February 16, 1995
Before: STAPELTON and COWEN, Circuit Judges,
and HUYETT, District Judge*
(Filed April 24, 1995)
Thomas S. Williamson, Jr., Solicitor of Labor
Donald S. Shire, Associate Solicitor
Christian P. Barber, Counsel for Appellate Litigation
Dorothy L. Page, Attorney
Edward Waldman (argued)
U.S. Department of Labor
Office of the Solicitor
Suite N-2605
Frances Perkins Building
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Counsel for Petitioner
Director, Office of Workers' Compensation Programs
*
Honorable Daniel H. Huyett, 3rd, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
Mark E. Solomons (argued)
Laura Metcoff Klaus
Arter & Hadden
Suite 400K
1801 K Street, N.W.
Washington, D.C. 20006
Counsel for Respondent
Eastern Associated Coal Corporation
Paul K. Paterson
Mascelli, Walsh & Paterson
148 Adams Avenue
Scranton, Pennsylvania 18503
Counsel for Respondent
Underkoffler Coal Service
Andrew C. Onwudinjo
Krasno, Krasno & Quinn
400 North Second Street
Pottsville Law Building
Pottsville, PA 17901
Counsel for Respondent
Benjamin Stinner
_____________________
OPINION OF THE COURT
_____________________
Huyett, District Judge:
The Black Lung Benefits Act ("BLBA" or "Act"), 30
U.S.C. §§ 901-945, establishes a comprehensive scheme to
compensate coal miners and their surviving dependents for medical
problems and disabilities caused by pneumoconiosis, also known as
black lung disease. 30 U.S.C. § 901(a); BethEnergy Mines, Inc.
v. Director, OWCP, 32 F.3d 843, 845 (3d Cir. 1994). Pursuant to
section 422(g) of the Act, 30 U.S.C. § 932(g), the amount of
benefits payable must be reduced by the amount of compensation
received under a federal or state workers' compensation law
because of death or disability caused by pneumoconiosis.
In the matter before us, we are presented with a
conflict between the Director, Office of Workers' Compensation
Programs ("Director") of the Department of Labor ("DOL"), and the
Benefits Review Board ("Board") of DOL over this offset
provision. Rejecting the Director's position, the Board
determined that employers paying federal black lung benefits
should offset their payments by the amount of state benefits the
miners received from the Commonwealth pursuant to section 301(i)
of the Pennsylvania Occupational Disease Act. We must decide
whether to defer to the Director's policy that compensation from
Pennsylvania general revenues pursuant to section 301(i) of the
Pennsylvania Occupational Disease Act does not reduce the miner's
entitlement to federal benefits. Although we disagree with the
Board's conclusion that Congress's intent is clear from the
statute, we conclude that the Director's interpretation of the
pertinent federal regulations is plainly erroneous and
inconsistent with the regulations. We deny the Director's
petition for review.
I. Regulatory Structure
A. Federal Black Lung Benefits Program
Prior cases have reviewed the legislative history of
the Black Lung Benefits Act. See, e.g., Elliot Coal Mining Co.
v. Director, OWCP, 17 F.3d 616, 627-28 (3d Cir. 1994); Helen
Mining Co. v. Director, OWCP, 924 F.2d 1269, 1271-73 (3d Cir.
1991). We set forth only those portions that are essential to an
understanding of this case. Originally promulgated in 1969 as
part of the Federal Coal Mine Health and Safety Act of 1969, Pub.
L. No. 91-173, 83 Stat. 792 (1969) (codified at 30 U.S.C. §§ 901-
945), Congress has amended the Black Lung Benefits Act several
times. See, e.g., Black Lung Benefits Act of 1972, Pub. L. No.
92-303, 86 Stat. 150 (1972); Black Lung Benefits Reform Act of
1977, Pub. L. No. 95-239, 92 Stat. 95 (1978); Black Lung Benefits
Amendments of 1981, Pub. L. No. 97-119, 95 Stat. 1635 (1981) (all
codified at 30 U.S.C. §§ 901-945).
Claims for benefits under the Black Lung Benefits Act
are either "Part B," "transition period," or "Part C" claims.
Part B governs all claims filed before June 30, 1973. See 30
U.S.C. §§ 921-925. Part B claims were filed with and adjudicated
by the Secretary of Health and Human Services, Social Security
Administration ("SSA"). Claims that were filed from July 1, 1973
through December 31, 1973 are "transition period" claims. 30
U.S.C. § 925.1 Congress created the transition period to
facilitate the transfer of the primary responsibility for
processing and adjudicating claims from the SSA to the DOL. The
federal treasury was responsible to pay benefits until January 1,
1974. 30 U.S.C. § 925(a). At that time, coal mine operators who
had been notified of pending black lung claims were to assume
liability for the payment of benefits. 30 U.S.C. § 925.
Part C, 30 U.S.C. §§ 932-945, which governs all claims
filed after January 1, 1974, applies to the matter before us.
1
. Technically, these claims are considered Part B claims.
Although DOL administers these claims, Part C establishes an
employer-funded federal workers' compensation program in
cooperation with the states to provide benefits to coal mine
workers for total disability or death due to pneumoconiosis. A
coal tax funded Black Lung Disability Trust Fund ("Fund") pays
interim benefits when a designated responsible coal mine operator
fails to commence payment within thirty days after the initial
determination of eligibility by the deputy commissioner. 26
U.S.C. § 9501(d)(1); 20 C.F.R. § 725.522(b). If an
administrative law judge, the Board, or a court later determines
that the recipient was entitled to the amount paid from the Fund
and that the operator was liable, the responsible operator must
repay the Fund. 30 U.S.C. § 934(b)(1); 20 C.F.R. § 725.602.
Congress designed section 422(g) of the BLBA to prevent
Part C claimants from receiving duplicative black lung benefits.
Director, OWCP v. Barnes & Tucker Co., 969 F.2d 1524, 1526 (3d
Cir. 1992). Section 422(g) provides in pertinent part:
The amount of benefits payable under
this section shall be reduced, on a monthly
or other appropriate basis, by the amount of
any compensation received under or pursuant
to any Federal or State workmen's
compensation law because of death or
disability due to pneumoconiosis.
30 U.S.C. § 932(g). A provision is also designed to prevent
double recovery in Part B claims. Although not directly
applicable to the matter before us, it is useful to compare it
with section 422(g). Section 412(b) reads in pertinent part:
[B]enefit payments under this section to a
miner, or his widow, child, parent, brother,
or sister shall be reduced, on a monthly or
other appropriate basis, by an amount equal
to any payment received by such miner or his
widow, child, parent, brother, or sister
under the workmen's compensation,
unemployment compensation, or disability
insurance laws of his State on account of the
disability of such miner due to
pneumoconiosis, and the amount by which such
payments would be reduced on account of
excess earnings of such miner under section
203(b) through (l) of the Social Security
Act, if the amount paid were a benefit
payable under section 202 of such Act.
30 U.S.C. § 922(a).
B. Pennsylvania Occupational Disease Act
In the two cases consolidated before the Board, miners
George O'Brockta and Benjamin Stinner both received benefits
pursuant to the Pennsylvania Occupational Disease Act, 77 Pa.
Cons. Stat. Ann. §§ 1201-1603, because of pneumoconiosis.
Section 301(i) of the Pennsylvania Occupational Disease Act,
states in pertinent part as follows:
Notwithstanding any other provisions of this
act, compensation for silicosis, anthraco-
silicosis, coal worker's pneumoconiosis, and
asbestosis shall be paid for each month
beginning with the month this amending act
becomes effective, or beginning with the
first month of disability, whichever occurs
later, at the rate of seventy-five dollars
($75) per month, to every employe totally
disabled thereby as a result of exposure
thereto, who has not theretofore been
compensated because his claim was barred by
any of the time limitations prescribed by
this act, and shall continue during the
period of such total disability.
77 Pa. Cons. Stat. Ann. § 1401(i).
The source of the compensation depends on the miner's situation.
Generally, Pennsylvania pays forty percent of the liability
imposed under the Occupational Disease Act and a responsible
employer pays sixty percent. 77 Pa. Cons. Stat. Ann. § 1408(a).
The Commonwealth, however, pays all compensation if it is not
conclusively proven that the miner's disability arose out of
employment with his last employer, 77 Pa. Cons. Stat. Ann. §
1401(g), or if a miner's last exposure preceded December 1, 1965,
77 Pa. Cons. Stat. Ann. § 1401(i). When a claimant receives
benefits pursuant to the federal statute, Pennsylvania law
requires the state to suspend compensation from the general
revenues of the Commonwealth.2 77 Pa. Cons. Stat. Ann. §
1401(k).
2
. The pertinent part of the Pennsylvania Occupational Disease
Act reads as follows:
Upon the award of any benefits under the Federal
Coal Mine Health and Safety Act of 1969 to a person who
is also receiving or claiming monthly compensation
totally funded by general revenues of the Commonwealth
of Pennsylvania under subsections (a), (i), (j) or (l)
of section 301, such person shall have his monthly
compensation from general revenues of the Commonwealth
suspended effective with the month following the month
of award of Federal benefits . . . . Upon any future
action by the United States Congress, Federal executive
departments, or Federal courts which would make present
recipients under the Pennsylvania Occupational Disease
Act eligible for both Federal and State payments, the
sum of which would exceed the maximum authorized
Federal payment, the eligible recipients would then
receive retroactively all State payments that were
suspended under the authority of this act. All such
recipients who have their State payments suspended
shall continue their eligibility and entitlement under
the Pennsylvania Occupational Disease Act and at any
time in the future for whatever reason that such
recipients' payments under the Federal law are
terminated, suspended or reduced their State payments
shall be reinstituted effective with the month
following the month that Federal benefits are
terminated, suspended or reduced.
II. Facts and Procedural History
We review two cases consolidated before the Benefits
Review Board on appeal. George O'Brockta ("O'Brockta") filed an
application for federal black lung benefits on December 2, 1976.
See J.A. at 64 (ALJ Decision and Order - Award of Benefits, Dec.
9, 1983). Respondent Eastern Associated Coal Corporation
("Eastern") controverted its designation as responsible operator,
and the DOL initiated the payment of interim benefits from the
Fund. While this application was pending, a Pennsylvania Bureau
of Workers' Compensation Referee directed the Pennsylvania
Department of Labor and Industry to compensate O'Brockta at the
rate of $125.00 per month beginning July 9, 1979, pursuant to
section 301(i) of the Pennsylvania Occupational Disease Act.
J.A. at 73-74 (Referee's Decision, Jan. 11, 1980). O'Brockta
eventually collected $1,750.00 from Pennsylvania for the period
July 9, 1979 to September 23, 1980. Pursuant to a West Virginia
occupational disease act, he collected $10,756.73 for the period
November 21, 1976 to June 4, 1978.
O'Brockta's widow later filed a survivor's claim on
September 24, 1980. An administrative law judge ordered Eastern
to pay Mrs. O'Brockta for benefits to which she was entitled
commencing in December 1976. J.A. at 54 (Decision and Order --
Awarding Benefits, Feb. 25, 1986). On a motion for
reconsideration, the administrative law judge ordered Eastern to
(..continued)
77 Pa. Cons. Stat. Ann. § 1401(k).
"reimburse the Secretary of Labor for any payments made to the
claimant less the appropriate offsets for state workmen's
compensation benefits" and to deduct such amounts, as
appropriate, from the amounts it was required to pay Mrs.
O'Brockta. J.A. at 51-53 (Order Granting Employer's Motion for
Reconsideration and Amending the Decision and Order Awarding
Benefits, April 3, 1986). The administrative law judge
considering the Director's Motion for Reconsideration rejected
the Director's argument that although the award properly offset
payments made pursuant to the West Virginia statute, payments
derived from Pennsylvania general revenues were not pursuant to a
workers' compensation law. J.A. at 46-49 (Order Denying Motion
for Clarification, May 19, 1988).
Benjamin Stinner ("Stinner") filed his claim for
benefits pursuant to section 301(i) of the Pennsylvania
Occupational Disease Act on September 27, 1978. On October 4,
1979, a state referee directed the Pennsylvania Department of
Labor and Industry to pay him $125 per month commencing August 3,
1979. J.A. at 76-78 (Referee's Decision, Oct. 4, 1979). He
eventually received $2000 pursuant to this program. He
subsequently filed for benefits pursuant to the BLBA on January
9, 1980. After designated responsible operator Underkoffler Coal
Service ("Underkoffler") refused to pay benefits to Stinner, DOL
initiated interim payments from the Fund on April 8, 1981. On
December 9, 1983, pursuant to the BLBA, an administrative law
judge ordered benefits to commence as of January 1980. J.A. at
64-72 (Decision and Order - Award of Benefits, Dec. 9, 1983).
Underkoffler repaid the Department of Labor for the interim
benefits except $2000, the amount of benefits Stinner received
pursuant to the Pennsylvania program. The administrative law
judge considering this issue refused to order Underkoffler to
repay this money. J.A. at 39-42 (Decision and Order - Denying
Additional Reimbursement of Medical Benefits, June 27, 1988).
These two cases were consolidated for appeal to the Board.
On appeal, the Board rejected the Director's contention
that payments made to O'Brockta and Stinner pursuant to the
Pennsylvania Occupational Disease Act did not reduce the amount
of federal benefits that responsible operators must reimburse the
Fund. The Board found the statutory language of section 422(g)
clear and unambiguous, and it refused to consider the legislative
history as an aid to its construction of the statute. J.A. at
17-25 (Decision and Order of the Benefits Review Board, March 22,
1994).
The Director now petitions for review. We have
jurisdiction over this appeal from the final order of the
Benefits Review Board pursuant to section 422(a) of the Black
Lung Benefits Act, 30 U.S.C. § 932(a), which incorporates section
21(c) of the Longshore and Harbor Workers' Compensation Act, 33
U.S.C. § 921(c).3
3
. The Supreme Court recently considered the Director's standing
to pursue appeals in Director, OWCP v. Newport News Shipbuilding
& Dry Dock Co., ___ U.S. ___, ___ S. Ct. ____, ___ L. Ed.2d ___,
No. 93-1783, 1995 WL 115726 (March 21, 1995). The Supreme Court
held that the Director does not have standing to sue pursuant to
§ 921(c) of the Longshore and Harbor Workers' Compensation Act,
33 U.S.C. § 921(c), to seek judicial review of decisions by the
Benefits Review Board that in the Director's view, deny claimants
III. Discussion
A. Standard of Review
When we review the decisions of the Board for error of
law, our review is plenary. Director, OWCP v. Barnes & Tucker
Co., 969 F.2d 1524, 1527 (3d Cir. 1992); Hillibush v. United
States Dep't of Labor, Benefits Review Bd., 853 F.2d 197, 202 (3d
Cir. 1988). The principals of deference articulated in Chevron,
U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
104 S. Ct. 2278, 81 L. Ed.2d 694 (1984), however, guide our
construction of the BLBA. See also Elliot Coal Mining Co. v.
Director, OWCP, 17 F.3d 616 (3d Cir. 1994).
When we review an agency's construction of a statute,
if the intent of Congress is clear, we must give effect to that
intent. Chevron, 467 U.S. at 842-43, 104 S. Ct. at 2781-82. If
the statute is silent or ambiguous with respect to a particular
issue, then we must defer to the agency's regulation if it is
based on a reasonable construction of the statute. Id. When
(..continued)
compensation to which they are entitled. This decision does not
affect this appeal, however, because Congress explicitly
designated the Secretary of Labor as a party in any proceeding
relative to a claim for black lung benefits. 30 U.S.C. § 932(k).
See id. (Ginsburg, J., concurring). Furthermore, the Board
decision adversely affected DOL's ability to recover payments
from the Fund and thus implicates the Director's pecuniary
interest, making him an aggrieved party under the teachings of
Krolick Contracting Corp. v. Benefits Review Board, 558 F.2d 685,
689 (3d Cir. 1977), and its progeny. See Director, OWCP v.
Rochester & Pittsburgh Coal Co., 678 F.2d 17 (3d Cir. 1982);
accord Director, OWCP v. Alabama By-Products Corp., 560 F.2d 710,
716-17 (5th Cir. 1977); cf. Newport News Shipbuilding, 1995 WL
115726 at *2 n.1 (noting that the issue of the Director's
standing as administrator of a LHWCA Fund was not before the
court).
considering whether the regulation complies with Congress's
mandate:
[W]e look to see whether the regulation
harmonizes with the plain language of the
statute, its origin, and its purpose. . . .
So long as the regulation bears a fair
relationship to the language of the statute,
reflects the views of those who sought its
enactment, and matches the purpose they
articulated, it will merit deference.
Sekula v. FDIC, 39 F.3d 448, 452 (3d Cir. 1994).
We must also "defer to an agency's consistent
interpretation of its own regulation unless it is 'plainly
erroneous or inconsistent with the regulation.'" Director, OWCP
v. Mangifest, 826 F.2d 1318, 1323 (3d Cir. 1987) (quoting Bowles
v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S. Ct. 1215,
1217, 89 L. Ed. 1700 (1945)); Sekula v. FDIC, 39 F.3d at 453. We
accord greater deference to an administrative agency's
interpretation of its own regulations than to its interpretation
of a statute. Facciano Constr. Co. v. United States Dep't of
Labor, 987 F.2d 206, 213 (3d Cir.), cert. denied, ___ U.S. ___,
114 S. Ct. 80, 126 L. Ed.2d 48 (1993). See also Martin v.
Occupational Safety & Health Review Comm'n, 499 U.S. 144, 150,
111 S. Ct. 1171, 1175, 113 L. Ed.2d 117 (1991); Lyng v. Payne,
476 U.S. 926, 939, 106 S. Ct. 2333, 2341, 90 L. Ed.2d 921 (1986)
("an agency's construction of its own regulations is entitled to
substantial deference"). This deference, however, does not
permit us to defer to an "interpretation in an adversary
proceeding that strains the plain and natural meaning of the
words." Bethlehem Steel Corp. v. Occupational Safety & Health
Review Comm'n, 573 F.2d 157, 161 (3d Cir. 1978); Mangifest, 826
F.2d at 1324. As we have said before:
The responsibility to promulgate clear and
unambiguous standards is upon the Secretary.
The test is not what he might possibly have
intended, but what he said. If the language
is faulty, the Secretary has the means and
the obligation to amend.
Bethlehem Steel v. OSHRC, 573 F.2d at 161. Thus, any deference
also is "tempered by our duty to independently insure that the
agency's interpretation comports with the language it has
adopted." Director, OWCP v. Gardner, 882 F.2d 67, 70 (3d Cir.
1989). See also Sekula v. FDIC, 39 F.3d at 453; Barnes & Tucker
Co., 969 F.2d at 1527.
In addition, we give judicial deference to the
Director, as policymaker, rather than to the Board, which is
purely an adjudicator. Elliot Coal Mining Co., 17 F.3d at 626-
27; Barnes & Tucker Co., 969 F.2d at 1527; Gardner, 883 F.2d at
70. When the Director and the Secretary advance conflicting
interpretations of the statute, the Secretary's interpretation
prevails over the Director's because the Director is a mere
delegatee of the Secretary. Elliot Coal Mining Co., 17 F.3d at
627. As a result, when a regulation is clear on its face, the
regulation may not be subject to an alternative construction by
the Director. Gardner, 882 F.2d at 68.
B. Interpretation of the Regulations
We agree with the Director that the statute is
ambiguous. The statute requires an offset "by the amount of any
compensation received under or pursuant to any Federal or State
workmen's compensation law because of death or disability due to
pneumoconiosis." 30 U.S.C. § 932(g). Congress's intent as to
the meaning of "workers' compensation law" is not clear from the
text of the statute alone. The statute fails to define the
meaning of worker's compensation, nor is its meaning apparent
from the text. As did the Board, we consider the definition of
"workmen's compensation" as provided in Larson's Workmen's
Compensation. It defines workmen's compensation as follows:
Workmen's compensation is a mechanism
providing cash-wage benefits and medical care
to victims of work-connected injuries, and
for placing the cost of these injuries
ultimately on the consumer, through the
medium of insurance, whose premiums are
passed on in the cost of the product.
1 Arthur Larson, The Law of Workmen's Compensation, § 1.00
(1994). The Director points out that in certain situations,
section 301(i) of the Pennsylvania Occupational Disease Act
places the cost on the public fisc, rather than by using
insurance, and that the amount of the Pennsylvania payments bear
no relation to the miner's wages. We agree that the text of the
statute is ambiguous with respect to whether section 301(i) of
the Pennsylvania Occupational Disease Act was excluded from the
term "workman's compensation laws." Therefore, the Board erred
in concluding that the text was clear, and we must consider
whether the Secretary's regulation and the Director's
interpretation comport with the statute.
We consider two regulations. The regulation
implementing section 422(g) states as follows:
With respect to any benefits payable for all
periods of eligibility after January 1, 1974,
a reduction of the amount of benefits payable
shall be required on account of:
(1) Any compensation or benefits
received under any State workers'
compensation law because of death or partial
or total disability due to pneumoconiosis . .
. .
20 C.F.R. § 725.533(a)(1). The regulations define a "workers'
compensation law" for the purposes of Part C as follows:
For the purposes of this subchapter, except
where the content clearly indicates
otherwise, the following definitions apply: .
. . (4) A "workers' compensation law" means a
law providing for payment of benefits to
employees, and their dependents and
survivors, for disability on account of
injury, including occupational disease, or
death, suffered in connection with their
employment.
20 C.F.R. § 725.101(a)(4) (emphasis added). These regulations
comport with the language of the statute and with Congress's
apparent intent. The regulations fail to suggest that when a law
authorizes benefits to employees solely from general revenues, it
is not a workers' compensation statute. In fact, the text of the
regulation does not suggest that the source of funding of the law
plays any role in its determination as a workers' compensation
law.
The Director, however, argues that we should defer to
her interpretation that the phrase "payment of benefits to
employees" actually means "payment of benefits by employers to
employees." She offers several reasons for her interpretation of
the regulation. First, a now repealed regulation defined
"workers' compensation law" exactly as the Director seeks to
interpret the current regulation. The Director argues that prior
to 1978, Part C regulations defined "workmen's compensation law"
as follows:
A "workmen's compensation law" means a law
providing for payment of compensation by
employers to employees (and their dependents)
for injury (including occupational disease),
or death suffered in connection with their
employment.
20 C.F.R. § 715.101(a)(18) (1977) (repealed) (emphasis added).
The Director argues that Congress never amended the statute to
change the definition of "workers' compensation law" and that
there is no record that the Director intended to change her
policy of not reducing federal black lung benefits by the amount
of compensation received solely from Pennsylvania general
revenues under section 301(i). The issue however, is what the
Secretary said through regulation, not what the Secretary might
have intended. Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157, 161
(3d Cir. 1978). Thus, if anything, this older regulation
provides further proof that the current regulations do not
exclude laws that provide for payments from a state's general
revenues from the definition of "workers' compensation laws."
Regulations in Part B provide further support that the Director's
interpretation of the regulations is inconsistent with the text
of the regulation. Part B regulations explicitly define
"workmen's compensation law" to exclude statutes funded by
general revenues. Section 410.110(p) provides as follows:
A "workmen's compensation law" means a
law providing for payment of compensation to
an employee (and his dependents) for injury
(including occupational disease) or death
suffered in connection with his employment.
A payment funded wholly out of general
revenues and paid (without regard to
insurance principles) solely on account of
the financial need of the miner and his
family, shall not be considered a payment
under a "workmen's compensation law."
20 C.F.R. § 410.110(p) (emphasis added). Although the Director
argues that DOL looked to the SSA's interpretation of the BLBA in
writing the regulations, the SSA regulations are much different
than the DOL regulations. This regulation reinforces the
impression that the Director must comply with the text of the
regulation rather than with what the Secretary may have intended
section 725.101(a)(4) to mean.
Second, the Director argues that if the words "to
employees" are read without inferring the words "by employers"
the word "to employees" loses its specific meaning and the more
general word "individuals" could be substituted instead.
Director's Br. at 29. This interpretation in not evident from
the text of the regulation. The BLBA only provides benefits to
injured employees and their dependents. Some other "individual"
who receives compensation pursuant to some state statute, would
never be seeking benefits pursuant to the BLBA. The Director's
interpretation adds words that are not in the text and are not
evident from a plain and natural reading of the statute.
Third, the Director argues that the Board's decision
confers a windfall on the employers. We agree with the Director
that pursuant to the Board's decision, the Respondents' total
liability is less than it would have been had there been no state
award. This policy concern, however, is one the Secretary must
address through rewriting the regulations rather than through
interpretation.
Finally, the Director argues that the "the Black Lung
Benefits Act is remedial legislation that ought to be liberally
construed, so long as such a construction would not be plainly
erroneous or inconsistent with the language of the Act."
Director's Br. at 31. While the Director's interpretation is not
inconsistent with the statute, it is inconsistent with the
statute's implementing regulations, even according substantial
deference to the Director. Therefore, we cannot defer to this
interpretation.
Although the Director claims that she consistently has
applied the same policy for twenty years, she is not permitted to
imply language that simply does not exist. Director, OWCP v.
Mangifest, 826 F.2d 1318, 1324 (3d Cir. 1987). Absent from the
text of the regulation is any suggestion that the funding source
of a state statute determines its status as a workers'
compensation statute. Her interpretation strains the "plain and
natural meaning" of the text. To reach such a result would
require consideration of factors far beyond the actual
regulation.
On the other hand, we also reject the Board's argument
that we must accord deference to Pennsylvania's interpretation of
section 422(g) of the BLBA. We defer only to the interpretations
offered by the agency charged with administering the law. Thus,
the fact that section 301 of the Pennsylvania Occupational
Disease Act is in Title 77, entitled "Workmen's Compensation,"
does not influence our decision, nor does the fact that the
referee who awarded O'Brockta and Stinner benefits was a
Workmen's Compensation Referee for the Commonwealth's Bureau of
Workers' Compensation. To hold otherwise would permit the state,
rather than the federal government to administer the laws. Thus,
we must reject the Board's reasoning that the plain meaning of
section 422(g) is that when a state has denominated a law as a
workers' compensation law, benefits paid pursuant to it are
subject to offset. We reiterate that we cannot accord more
deference to the Director's interpretation of the regulation than
to the actual regulation.
The Director points to a single segment of the
legislative history that support her interpretation, but we find
her reference unhelpful.4 Congress delegated the Secretary the
4
. During floor debate in 1969, Representative Dent, congressman
from Pennsylvania who was the floor manager of the Bill, stated
that the offset provisions of §§ 412(b) and 422(g) did not apply
to state programs funded through general revenues. He cited the
Pennsylvania program that paid benefits out of general revenues
as an example of a program that was not a "workmen's
compensation" program within the meaning of the Act. 115 Cong.
Rec. 39713 (1969). This isolated floor comment would have
provided some support for the Director's position had the
Secretary interpreted the provisions of the Act relating to Part
C in the same manner as the Social Security Administration
interpreted the provisions relating to Part B when it promulgated
§ 410.110(p) of its regulations. However, the Secretary, whom we
believe from the context must have been acting advertently,
adopted a regulation regarding Part C claims with a text markedly
different from the text of § 410.110(p). Congressman Dent's
comment would not justify our reading the Secretary's regulation
concerning Part C claims in a manner inconsistent with its text.
responsibility to fill in the gaps left in the BLBA. If DOL
intends to make an exception for state statutes that are funded
solely through a state's general revenues, it has the means and
obligation to amend its regulations to provide for this
exception. The Director's interpretation does not comport with
the language of the regulations.
IV. Conclusion
In conclusion, we hold that the agency's regulations
defining workmen's or workers' compensation laws are a reasonable
construction of the statute, the regulations are not ambiguous,
and the Director's interpretation of the regulations are
inconsistent with the regulation, therefore, we do not defer to
the Director's interpretation. Although we disagree with the
Board that Congress's intent is plain from the statutory
language, we hold that because the Director's interpretation of
the regulations are inconsistent with the Secretary's
regulations, the Board's order should be affirmed.
For the foregoing reasons, we deny the petition for
review and affirm the order of the Benefits Review Board.