Administrative – Black Lung Benefits – Comparable & Gainful Employment – Mine Electrician – Mine Inspector

Where the administrative law judge concluded that claimant’s later employment as a federal mine inspection supervisor was gainful and comparable to his previous employment as a mine electrician, and that the later employment served to rebut the presumption of total disability due to pneumoconiosis, the denial of black lung benefits is affirmed.

Claimant argues that being a federal mine inspection supervisor is in no way comparable to being a mine electrician, and that the ALJ erred in concluding that it was. Claimant primarily attacks the ALJ’s factual finding that comparable physician and mental abilities were needed to perform the two jobs. Claimant also argues that the ALJ applied the wrong legal standard for determining what is “comparable” work under § 727.203(b)(1). We disagree with both of these contentions.

We hold that the proper legal standard for comparing employment under the regulation should include a range of factors, with no single factor assuming paramount importance as a matter of law. As the various cases indicate, the range of factors may include compensation, skills and abilities required, levels of exertion, status, responsibility, working conditions, and work location.

In this case, the ALJ undertook such a broad-based factual inquiry but accorded no undue weight to any one factor. Such an analysis of different factors bearing upon the comparability and gainfulness of employment was a proper application of § 727.203(b)(1). By contrast, making physical exertion the sole determinant distorts results reached under the regulation by focusing on a single aspect of employment to the effective exclusion of the employment experience as a whole.

Substantial evidence supports the ALJ’s finding that the two jobs were comparable. Evidence in the record indicates that the jobs of federal mine inspection supervisor and mine electrician shared significant attributes. Both jobs required a technical knowledge of coal mine machinery, electricity and their use in the mines.

From the evidence, the ALJ could certainly find, as he did, that claimant was skilled in using various machines at both jobs,, and that both jobs required technical knowledge. This carryover of knowledge about coal mines and mining machinery and equipment indicates comparability. Claimant’s work as a federal mine inspection supervisor also required physical effort.

In sum, we uphold the finding that petitioner’s employment as a federal coal mine inspection supervisor rebutted the interim presumption of total disability due to pneumoconiosis.

Decision of the Benefits Review Board denying benefits affirmed.

Dissent

Sprouse, J.: The questions on this appeal are whether the ALJ used the appropriate standard and based his decision on substantial evidence when he denied claimant black lung benefits. Nothing in the majority’s opinion dispels my belief that the ALJ’s decision on both grounds was erroneous. Consequently, I respectfully dissent.

Harris v. Director, OWCP (Wilkinson) No. 91-1215, Aug. 20, 1993; Benefits Review Board; Bobby S. Belcher Jr. for petitioner; Barry H. Joyner, USDOL, for respondent. VLW 093-2-247, 19 pp.