*2 making of ing clay for the brick. Milligan, Atty., W. U. Thomas William S. pneumoconiosis definition of accord- basic Columbus, Ohio, Thompson, D. for defend- ing provides, to 20 C.F.R. in ant-appellee. pneumoconiosis a general, WEICK, and Before EDWARDS lungs arising disease chronic dust of Judges. out nation’s coal Applicant’s lung disease un- mines. PER CURIAM. doubtedly arose out of in a Montel, Appellant, is a 72- Dominic not, clay in terms of the appeals retired miner who from year-old a mine. Act coal Judge’s District affirmance the Sec- It is clear that the statute under retary’s lung benefits. denial black is, seeks its Appellant benefits retired from with the pellant terms, mining per to and to applicable coal currently Claycraft Company in “employed in a coal mine.” 30 sons Security age old benefits. drawing Social 1972). We believe that life, Appellant Early his clay in a mine to persons employed seven years as coal miner for worked lung benefits, mining qualify for black Blaire and Sharshall Coal part must constitute at least a substantial (during He also worked two differ- mines. Here, activity exposure. of the as periods) approximately a total of Judge Dis Administrative Law and the mine. found, proofs. no such Judge trict have his He also worked with brothers’'for 10 Con- Compa- no reason operating the Montel Coal years in below, gress pneumoconiosis not have made prin- As be noted could ny mine. will in other indus- pertain this case benefits available workers cipal questions tries, lung clearly, do so. The he is entitled claim black but declined to whether periods. Congressional result of last two Record shows that on No- benefits ' 10, 1971, testimony certainly consideration of vember substantial ev- idence to findings to the Federal the 1972 Amendments Ad- ministrative Law Representa- and the District Mine Health Appellant, during Court that Thompson Georgia offered the fol- tive was not an within lowing the normal amendment: *3 meaning of the term. (A) “Pneumoconiosis” as used in this act any respiratory deficiency means Webster’s Third New International Dic- repeated by the inhalation of caused tionary defines as follows: dust, dust, dust, . n . 1: one marble rock employee employe or . quarry dust or man other made or another usu. in a textile fibers. natural below the executive level and usu. for (B) “Miner” as used in this act includes wages any 2 in labor relations: worker who as a result of
any wages salary individual who is under or to an em- working related ployer by agree- conditions to his and who not excluded any industry con- ment from consideration as such employment a work- er. pneumoconiosis as is defined tracts (A) above. Congress, 1972 Amendments Cong. (1971). Rec. 40456 defined miner: “miner” any The term individual language greatly would have broad- who is or was in a coal mine. category by of industries
ened covered arguably the Act so as to include min- ing along many other industries haz- further defined the term lungs employees. ardous to the regulations: was, however, rejected.
Amendment “Miner” or “coal any miner” means indi- vidual who is working or has worked as Appellant contends also that he is an in a coal performing entitled to have counted towards the 15- extracting functions in pre- coal or mining required year paring the coal so extracted. presumption, period of 10 410.110(j). 20 C.F.R. § Montel he worked Coal Secretary’s We believe the definition is con- mine. As to his claims based on these language sistent with the of the Act. he testified: reason Q. clarifying A few items here. How compensation industrial hazard act like the have, many you brothers did Mr. Mon- present one could not make benefits availa- many you tel? How brothers did self-employed persons ble to have? partner-owners. many examples There are boys. A. There was seven Seven. Seven provisions of such in State Workmen’s Com- boys girls. and two pensation Indeed, Acts. if Mr. Thompson’s Q. right. All Which boys of the four just quoted above had been owned the coal mine? adopted, argued could be that its lan- Louis, John, We in together. A. were all guage redefining the term “miner” shifted Harry, myself. emphasis from the rela- Q. you buy Did lease the mine or it? tionship to a relationship to the industrial A. We leased it. We leased Unfortunately, Appellant’s hazard. government. case, the Amendment was defeated. lease, Q. you pay And how did so Appellant’s argument depends upon much a month or— of total estab- much a ton. A. So by lished 20 C.F.R. Q. much a ton. So requires as a coal Yeh, paid by already A. five cents a ton. defeated what has been years’ absent the since Opinion this stated in pertaining discussed just al., et Hubert MORELOCK the, Montel Clay Mine Plaintiffs-Appellants, does Appellant’s evidence Company, “miner” of work disclose “coal mines.” nation’s CORPORATION, The NCR the District agree with
We substantial evidence contains the record 75-2220, 75-2282. Nos. Secretary’s conclusion totally pneumo- disabled pellant was not Court United States mining. due to coal coniosis Circuit. Sixth of the District Court *4 Argued June affirmed. Decided Dec. (dissenting). It is clear from
I dissent. respectfully 410.- provided
the definitions “miner” for the to be a
110 that order the Federal Coal Mine Health
purposes of be an individual must mine,” employee in a coal
working “as an “employee” is an “individual
and that an (between relationship legal himself) performs services
whom he under the usual
employer rules.”
common-law therefore, a employee,
In order be legal entity employed by a
person must be if he possessed Even
other than himself. he entity for which
an interest
worked, legal necessary he would be I
relationship entity. Accordingly, agree Secretary’s adoption
do judge’s law conclusion
of the administrative legal status of the Montel joint partnership, be
Company —whether
venture, corporation irrelevant —is If the Montel Coal this case. separate legal entity, then appellant years during have been counted as
should as a miner for the origin about the
purpose pneumoconiosis. due to law, improper view of of his
Because judge law made no find-
the administrative
ings exact of the Mon- regarding the status or the appellant’s precise
tel Coal
relationship it. I would remand for permitting a
purpose of resolution of
questions.