DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PETITIONER V. CHARLIE BROYLES, ET AL. No. 87-1095 In the Supreme Court of the United States October Term, 1987 The Solicitor General, on behalf of the Director, Office of Workers' Compensation Programs, United States Department of Labor, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit PARTIES TO THE PROCEEDING In addition to the Director, Office of Workers' Compensation Programs, the Benefits Review Board, United States Department of Labor, was a named respondent in the court of appeals. In addition to Charlie Broyles, Lisa Kay Colley was a petitioner in the court of appeals. TABLE OF CONTENTS Questions Presented Parties to the Proceeding Opinions below Jurisdiction Statutory provision involved Statement: 1. Statutory and regulatory framework 2. Proceedings below Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-6a) is reported at 824 F.2d 327. The decisions of the Benefits Review Board (App., infra, 7a-9a (Broyles) and App., infra, 18a-21a (Colley)) are unreported, as are the decisions of the administrative law judges (App., infra, 10a-17a (Broyles) and App., infra, 22a-28a (Colley)). JURISDICTION The judgment of the court of appeals was entered on July 31, 1987. A rehearing petition was denied on September 30, 1987 (App., infra, 29a-30a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(l). STATUTORY PROVISION INVOLVED Section 402(f) of the Black Lung Benefits Act, 30 U.S.C. 902(f), provides: (1) The term "total disability" has the meaning given it by regulations of the Secretary of Health and Human Services for claims under part B of this subchapter, and by regulations of the Secretary of Labor for claims under part C of this subchapter, subject to the relevant provisions of subsections (b) and (d) of section 923 of this title, except that -- (A) in the case of a living miner, such regulations shall provide that a miner shall be considered totally disabled when pneumoconiosis prevents him or her from engaging in gainful employment requiring the skills and abilities comparable to those of any employment in a mine or mines in which he or she previously engaged with some regularity and over a substantial period of time; (B) such regulations shall provide that (i) a deceased miner's employment in a mine at the time of death shall not be used as conclusive evidence that the miner was not totally disabled; and (ii) in the case of a living miner, if there are changed circumstances of employment indicative of reduced ability to perform his or her usual coal mine work such miner's employment in a mine shall not be used as conclusive evidence that the miner is not totally disabled; (C) such regulations shall not provide more restrictive criteria than those applicable under section 423(d) of Title 42; and (D) the Secretary of Labor, in consultation with the Director of the National Institute for Occupational Safety and Health, shall establish criteria for all appropriate medical tests under this subsection which accurately reflect total disability in coal miners as defined in subparagraph (A). (2) Criteria applied by the Secretary of Labor in the case of -- (A) any claim which is subject to review by the Secretary of Health and Human Services, or subject to a determination by the Secretary of Labor, under section 945(a) of this title; (B) any claim which is subject to review by the Secretary of Labor under section 945(b) of this title; and (C) any claim filed on or before the effective date of regulations promulgated under this subsection by the Secretary of Labor; shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973, whether or not the final disposition of any such claim occurs after the date of such promulgation of regulations by the Secretary of Labor. QUESTION PRESENTED Whether the court of appeals erred in construing the requirement of Section 402(f)(2) of the Black Lung Benefits Act, 30 U.S.C. 902(f)(2), that "criteria" applied to certain claims adjudicated by the Secretary of Labor "not be more restrictive" than criteria set forth in rules applied by the Secretary of Health, Education, and Welfare (HEW) to claims filed during an earlier period, and in thereby ruling that the Department of Labor must not only apply medical criteria no more restrictive than those applied by HEW, but must also apply the evidentiary rules and adjudicatory standards applied by HEW. STATEMENT 1. Statutory and regulatory framework. The Black Lung Benefits Act, 30 U.S.C. (& Supp. III) 901 et seq., provides benefits to coal miners (and eligible survivors) who suffer from pneumoconiosis /1/ that arose out of coal mine employment, causing total disability or death. 30 U.S.C. 901(a), 922(a), 932(c); Mullins Coal Co. v. Director, Office of Workers' Compensation Programs, No. 86-327 (Dec. 14, 1987), slip op. 5. Claims for benefits are adjudicated under two programs, depending on the date the claim was filed. Claims filed before July 1, 1973, under "Part B" of the Act, were considered by the Department of Health, Education, and Welfare (HEW), and benefits were paid by the federal government. 30 U.S.C. 922(a), 924. Claims filed after that date, and adjudicated under "Part C" of the Act, are considered by the Department of Labor. 30 U.S.C. (& Supp. III) 925, 932. Individual coal mine operators bear primary responsibility for paying Part C benefits (30 U.S.C. 932(b)), although in certain cases Part C benefits are paid from the Black Lung Disability Trust Fund, which is financed by the coal mining industry and administered by the Director of the Office of Workers' Compensation Programs. See 30 U.S.C. 932(j), 934; 26 U.S.C. 4121(a), 9501. a. A miner is totally disabled under the Act when he is unable to perform work comparable to that he did as a coal miner. 30 U.S.C. 902(f)(l)(A). Prior to the 1977 amendments, the Black Lung Benefits Act authorized HEW to establish the regulatory standards for determining when a coal miner's pneumoconiosis would be deemed to be totally disabling. See 30 U.S.C. (1976 ed.) 902(f). In 1972, HEW promulgated "permanent" regulations -- intended to be applicable to all claims filed into the indefinite future -- that set certain medical standards for determining when a miner's respiratory impairment is considered totally disabling. Under HEW's permanent regulations, to establish total disability a miner had to show through ventilatory studies (also known as pulmonary function tests) that the volume of air his lungs could expel was less than certain values (20 C.F.R. 410.426(b)), or show an impairment of the blood's ability to carry oxygen or certain heart abnormalities (20 C.F.R. 410.424 & Subpt. D, App.). /2/ In 1972, HEW also promulgated a special interim regulation applicable only to claims filed by miners on or before June 30, 1973, or by survivors of miners who died before January 1, 1974 (Part B claims). The interim regulation was HEW's response to congressional concern about an existing backlog of claims and the unavailability of medical testing facilities to evaluate disability due to pneumoconiosis. 20 C.F.R. 410.490(a). It provided an "interim presumption" of total disability for Part B claimants who showed a respiratory impairment, measured by ventilatory studies, that is substantially less severe than is required under HEW's permanent regulations. Compare 20 C.F.R. 410.490(b)(l)(ii) with 410.426(b). This rebuttable presumption was only available to miners who had worked at least ten years in coal mines. 20 C.F.R. 410.490(b)(l)(ii) and (3). /3/ HEW's interim regulation also provided a rebuttable presumption that a claimant was totally disabled if X-ray, biopsy, or autopsy evidence established the existence of pneumoconiosis and the impairment was caused by coal mine employment. 20 C.F.R. 410.490(b)(l)(i) and (2). First, if a miner worked for ten years in a coal mine his pneumoconiosis was presumed to arise from his coal mine employment. Second, in any other case the claimant "must submit the evidence necessary to establish that the pneumoconiosis arose out of employment in the Nation's coal mines." 20 C.F.R. 410.416, 410.456. /4/ As a result, a miner who worked for less than ten years in a coal mine could establish a presumption of total disability under HEW's interim regulation by showing the existence of pneumoconiosis by means of an X-ray and presenting evidence supporting the claim that coal mine work caused the pneumoconiosis. b. Congress amended the Act in 1977, shifting to the Secretary of Labor -- for claims filed after December 31, 1973 (Part C claims) -- the authority to issue regulations defining "total disability" and to "establish criteria for all appropriate medical tests * * * which accurately reflect total disability in coal miners * * * ." Black Lung Benefits Reform Act of 1977, Pub. L. No. 95-239, Section 2(c), 92 Stat. 95; 30 U.S.C. 902(f)(l)(D). Congress also directed the Secretary to reopen claims that had been denied prior to the effective date of the 1977 amendments (30 U.S.C. 945) and provided that, in adjudicating those claims, along with others filed before the Secretary's final regulations were promulgated, /5/ the "(c)riteria applied by the Secretary of Labor * * * shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973," i.e., to a claim adjudicated under HEW's interim Part B regulation. 30 U.S.C. 902(f)(2). The Secretary promulgated interim regulations in 1978 to govern the cases Congress ordered reopened and those filed before the effective promulgation of the permanent regulations. They include a presumption of total disability (20 C.F.R. 727.203) that is similar but not identical to HEW's interim regulation. Labor's interim presumption regulation is more generous to claimants in certain ways. Specifically, unlike HEW's interim regulation, it provides that, in addition to X-rays and ventilatory studies satisfying medical criteria identical to those found in HEW's interim regulation, the presumption of total disability could be established by blood-gas studies, other medical evidence including a physician's opinion, and, in the case of a deceased miner and in the absence of relevant medical evidence, by the affidavit of a survivor. 20 C.F.R. 727.203(a)(3)-(5). At the same time, however, Labor's interim presumption regulation allowed the presumption of total disability based on X-ray, biopsy, or autopsy evidence of pneumoconiosis to be established only if a claimant worked in coal mines for at least ten years. 20 C.F.R. 727.203(a)(l). Thus, a claimant presenting an X-ray showing pneumoconiosis could not, as under HEW's interim regulation, gain the benefit of the presumption of total disability if he worked in coal mines for less than ten years by relying on other evidence to show causation. In that event, he could not trigger the presumption at all. /6/ 2. Proceedings below. Charlie Broyles and Bill Colley filed claims for black lung benefits before Labor's final regulation took effect in 1980. Both submitted X-rays showing the presence of pneumoconiosis. Because neither had worked in coal mines for ten years, neither could invoke the presumption of total disability under Labor's interim regulation. With respect to Broyles, an administrative law judge determined that he had worked for five years as a coal miner from 1946 to 1952, after which he worked over 20 years at other occupations involving exposure to dust (App., infra, 11a-12a). Although which occupation had caused Broyles' pneumoconiosis was not clear, the administrative law judge gave Broyles "the benefit of the doubt" and concluded that coal mining had caused it (id. at 16a). The administrative law judge assumed that Broyles, who retired in 1976 following coronary bypass surgery (id. at 14a-15a), was totally disabled. However, relying on physicians' reports, the administrative law judge denied Broyles' claim because his disability was not due to pneumoconiosis, but instead was caused by his heart condition (id. at 16a). The Benefits Review Board affirmed (id. at 7a-9a). Another administrative law judge determined that Bill Colley, who had arthritis, chronic bronchitis, and had suffered a stroke in 1978 (App., infra, 26a, 27a), had worked in coal mines for no more than nine and a half years between 1945 and 1962 (id. at 24a-25a). The administrative law judge found it "questionable" whether the X-ray Colley had submitted showed that he had pneumoconiosis (id. at 25a). But the administrative law judge apparently assumed that Colley had pneumoconiosis and concluded, based on physicians' reports, that Colley "has not shown that his respiratory or pulmonary condition is causally related to his prior coal mine employment" (id. at 28a). The Benefits Review Board affirmed (id. at 18a-21a). The court of appeals consolidated the two cases. /7/ It reversed on the ground that in each case the administrative law judge "erred in failing to evaluate the claims under (HEW's interim regulation), 20 C.F.R. Section 410.490" (App., infra, 2a). Relying on Halon v. Director, Office of Workers' Compensation Programs, 713 F.2d 21 (3d Cir. 1983), and Coughlan v. Director, Office of Workers' Compensation Programs, 757 F.2d 966 (8th Cir. 1985), the court concluded that Labor's interim presumption regulation is contrary to Section 402(f)(2)'s directive that the Secretary apply "criteria" that are not more restrictive than the criteria applied by HEW in its interim regulation. The court found Labor's regulations inconsistent with the statute because, under HEW's interim presumption regulation, a claimant who submitted an X-ray showing pneumoconiosis could invoke the presumption of total disability even if he had worked in coal mines for fewer than ten years, whereas, under Labor's interim regulation, the presumption could not be invoked by claimants, such as Broyles and Colley, who worked in coal mines for fewer than ten years. The court rejected the Secretary's argument that Congress intended in Section 402(f)(2) that the Department of Labor should apply medical criteria no more restrictive than those applied by HEW until Labor's permanent regulations were in place, but that Congress did not intend to require Labor to apply the same evidentiary standards and adjudicatory rules as applied by HEW. App., infra, 5a. The court remanded for reevaluation of the claims (id. at 6a). REASONS FOR GRANTING THE PETITION The courts of appeals are divided on the question whether the Secretary of Labor's interim presumption regulation is contrary to Congress's directive in Section 402(f)(2) that the "criteria" applied to Part C claims filed before the final regulations took effect be "not * * * more restrictive than the criteria applicable to a claim" considered under HEW's interim regulation (30 U.S.C. 902(f)(2)). This conflict has serious practical implications, since the issue may be presented in as many as 3,600 pending cases and may require the reopening of as many as 94,000 cases. Moreover, the conclusion that the regulations are inconsistent with the statute is wrong. In these circumstances, plenary review by the Court is warranted. 1. Five circuits have considered whether the Secretary of Labor's interim regulation conflicts with Congress's directive in Section 402(f)(2). The first court to do so was the Third Circuit. It concluded in Halon that the Secretary's interim regulation contained more restrictive "criteria" than HEW's interim regulation, contrary to Section 402(f)(2), because Labor's interim presumption could not be established by a miner presenting an X-ray showing pneumoconiosis who had worked in coal mines for fewer than ten years. Judge Weis dissented in Halon. He agreed with the Department that the "criteria" referred to in Section 402(f)(2) were medical criteria and that Congress did not intend to require the Secretary to apply the same evidentiary rules and adjudicatory standards applicable under HEW's interim regulation. Since the medical criteria in Labor's interim regulation were identical to those in HEW's interim regulation in some respects and more generous to claimants in other respects, he found the regulation consistent with the statute (713 F.2d at 30). The Eighth Circuit followed Halon in Coughlan. Subsequently, in Sebben v. Brock, 815 F.2d 475 (1987), petitions for a writ of cert. pending, Nos. 87-821 & 87-827, that court held that the Secretary must reopen claims denied under Labor's interim regulation and reconsider them under HEW's interim regulation. The Seventh Circuit, in Strike v. Director, Office of Workers' Compensation Programs, 817 F.2d 395, 400 (1987), expressly rejected the holdings in Halon and Coughlan. The court found the meaning of "criteria" as used in Section 402(f)(2) ambiguous, noting that the final sentence of the preceding subsection refers to "'criteria for all appropriate medical tests . . . which accurately reflect total disability in coal miners'" (817 F.2d at 401 (citation omitted)). Given the ambiguity, the court examined the legislative history to the provision, and concluded, as Judge Weis had concluded in dissent in Halon, that the Department's interpretation is consistent with the intent of Congress (817 F.2d at 402-404). Subsequently, the Sixth Circuit in Kyle v. Director, Office of Workers' Compensation Programs, 819 F.2d 139, 144 (1987), petition for a writ of cert. pending, held in a divided opinion that Labor's regulations are inconsistent with the statute, as did the court below. The direct conflict between the Seventh Circuit's decision in Strike and the decisions of the other courts of appeals has serious practical implications, even though Labor's permanent regulations became effective in 1980. Claims filed before the permanent regulations took effect are to be adjudicated under the interim regulation, and nearly 9,600 of those claims are pending. The Department of Labor reviewed its summary data on black lung benefits claims and it estimates that approximately 3,600 pending claims filed before the final regulations took effect involve claimants with fewer than ten years of coal mine employment. The conflict in the circuits affects those claimants with fewer than ten years of coal mine employment who submitted X-ray, biopsy, or autopsy evidence of pneumoconiosis. Further, the need to reopen many more decisions pursuant to the Eighth Circuit's decision in Sebben will be eliminated if it is decided that Labor's interim regulations are consistent with Section 402(f)(2). As noted in our petition in Sebben (at 10-12), /8/ approximately 94,000 claims that were denied under Labor's interim regulation involved claimants who worked in coal mines for fewer than ten years, and each of those claims (most of which were finally decided more than five years ago) may have to be reopened. That massive effort is unnecessary if this Court concludes that the Eighth Circuit, along with the court below and the Third and Sixth Circuits, erred in its conclusion that Labor's interim presumption regulation is inconsistent with Section 402(f)(2). 2. The court below erred in concluding that Labor's interim presumption regulation conflicts with Section 402(f)(2). As an initial matter, the only thing plain about the language of Section 402(f)(2) is that its meaning is unclear. The Sixth Circuit in Kyle, which held that Labor's interim regulation is contrary to the statute, nevertheless conceded that "(m)anifestly, the term 'criteria' is subject to numerous possible interpretations" (819 F.2d at 142); see also Strike, 817 F.2d at 401 ("the plain meaning of the statute is ambiguous"). That is correct. "Criteria" means "a standard on which a judgment or decision may be based" (Webster's New Collegiate Dictionary 267 (1979)). Its meaning varies according to what is to be judged or decided, and that may in turn be illuminated from the context in which the term is used. The purpose of Section 402(f) is to define the nature of the "total disability" that is necessary to qualify for benefits under the Act. See 30 U.S.C. 901(a). Section 402(f) states that a miner "shall be considered totally disabled when pneumoconiosis prevents him or her from engaging in" coal mining or similar employment. 30 U.S.C. 902(f)(l)(A). While this ultimate standard was not in dispute when the statute was amended in 1977, there was substantial controversy at that time about the appropriate medical criteria for determining whether total disability should be found. See pages 13-16, infra. The controversy was resolved by providing, in Section 402(f)(l)(D), that the Secretary of Labor "shall establish criteria for all appropriate medical tests * * * which accurately reflect total disability" as defined in Section 402(f)(l)(A). Section 402(f)(2) follows immediately after Section 402(f)(l)(D), and provides that the "(c)riteria applied by the Secretary" of Labor to reopened cases and those filed prior to the effective date of permanent regulations "shall not be more restrictive than the criteria" applied by the Secretary of HEW to cases filed on or before June 30, 1973. In view of the context, the Secretary of Labor reasonably concluded that "criteria" in Section 402(f)(2) is shorthand for the phrase used in the preceding sentence, "criteria for all medical tests." Review of the legislative history of the 1977 amendments confirms that the Secretary's reading is correct. Section 402(f)(2) originated in the House bill. That bill would have provided that the regulations governing the "total disability" determination for all Part C claims (not just claims filed before Labor's final regulations took effect) "shall not provide more restrictive criteria than those applicable" to a Part B claim decided under HEW's interim regulation. H.R. Rep. 95-151, 95th Cong., 1st Sess. 52 (1977). The House Report explained that "(t)he so-called 'permanent' medical standards now in effect under Part C are much more demanding than the so-called 'interim' standards applied by HEW under Part B of the program. * * * This provision of the bill would require that standards no more restrictive than the 'interim' medical standards shall be equally applicable to Part C claims." Id. at 15 (emphasis added). The Report was apparently referring to the ventilatory study scores applied to Part C claims under HEW's permanent regulations, which were much stricter than the scores applied to Part B claims under HEW's interim regulation (compare 20 C.F.R. 410.426(b) with 410.490(b)(l)(ii)); the House intended to mandate the continued use of the ventilatory study scores applied under HEW's interim regulations. In contrast, the House Report did not suggest that it intended to mandate the continued use of any evidentiary rules or adjudicatory standards. /9/ Like the House, the Senate focused on the fact that HEW's interim ventilatory study scores "are far less stringent" than the scores in its permanent regulation. S. Rep. 95-209, 95th Cong., 1st Sess. 13 (1977). However, it ultimately determined not to require continued application of HEW's interim medical criteria. The Senate Report noted HEW's assertions "that the interim standards do not accurately determine actual disability, that they were used under Part B only to clear away the backlog of claims arising from the 1972 amendments, and that the permanent standards more accurately identify disabling respiratory and pulmonary functions in coal miners" (ibid.). The Report also noted that the United Mine Workers considered even HEW's interim ventilatory study scores too stringent (ibid.). The Senate concluded that it was "not qualified to assess the appropriateness of medical test standards to be used to determine disability in coal miners" (ibid.). The bill it passed gave the Secretary of Labor authority to define the term "total disability" without reference to previously applied criteria (id. at 34-35). The Conference Committee adopted the Senate's version of Section 402(f) "with the proviso that the so-called 'interim' part B medical standards are to be applied to all reviewed and pending claims filed before the date the Secretary of Labor promulgates new medical standards for part C cases." H.R. Conf. Rep. 95-864, 95th Cong., 2d Sess. 16 (1978) (emphasis added). The version of Section 402(f) passed by the Senate became Section 402(f)(1) and the House version was modified and became Section 402(f)(2). Thus, Section 402(f)(1) directed the Secretary of Labor, in consultation with the Director of the National Institute for Occupational Safety and Health, to "establish criteria for all appropriate medical tests * * * which accurately reflect total disability in coal miners" (30 U.S.C. 902(f)(1)(D)). It authorized the Department of Labor to devise new ventilatory study scores (which it has done, see 20 C.F.R. Pt. 718, App. B ("Standards for Administration and Interpretation of Pulmonary Function Tests")) and other medical standards as well, which it has also done (see 20 C.F.R. Pt. 718, App. A ("Standards for Administration and Interpretation of Chest Roentgenographs") and App. C ("Blood-Gas Tables")). Section 402(f)(2) directed the Secretary of Labor to use the "criteria" in HEW's interim regulation until the new permanent regulations took effect. Because the discussions in the committee reports of both versions of Section 402(f) focused on the difference between the ventilatory study scores in HEW's permanent and interim regulations, and the Conference Report spoke of medical standards, it is clear that the "criteria" referred to are medical standards. There is no evidence in the language of the statute or its legislative history indicating concern with evidentiary rules or adjudicatory standards. As the Seventh Circuit noted in Strike (817 F.2d at 403-404 (emphasis added)): "The only reference to the use of presumptions in the conference report stated that '(t)he conferees also intend that all standards are to incorporate the presumptions contained in section 411(c) of the Act (30 U.S.C. Section 921(c)).' H.R. Conf. Rep. No. 864, 95th Cong., 2d Sess. 16 * * * . That section creates a rebuttable presumption that pneumoconiosis arose out of coal mine employment '(i)f a miner who is suffering from pneumoconiosis was employed for ten years or more in one or more coal mines.' 30 U.S.C. Section 921(c)(1)." It is precisely that requirement of ten years coal mining experience that was "expressly incorporate(d)" (817 F.2d at 404) into the Secretary of Labor's interim regulation at issue in this case. Accordingly, the regulation is consistent with the statute. Furthermore, as the court in Strike stated (817 F.2d at 404), "the members of the House Committee on Education and Labor, who were responsible for originally drafting the 'not more restrictive' language, reviewed and commented on the Secretary of Labor's proposed Part C interim regulations * * * (and) none were critical of the fact that the regulation required proof of at least ten years of coal mine employment" to establish the presumption of total disability. Accordingly, it seems clear that the Secretary of Labor correctly construed Section 402(f)(2) in promulgating the interim regulation at 20 C.F.R. 727.203. /10/ At the least, the Secretary's interpretation of the ambiguous term "criteria" to refer to the medical standards in HEW's interim regulation, but not its evidentiary rules and adjudicatory standards, is a reasonable interpretation that warrants deference. See, e.g., NLRB v. United Food Workers Local 23, No. 86-594 (Dec. 14, 1987), slip op. 10; Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984). CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General DONALD B. AYER Deputy Solicitor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General GEORGE R. SALEM Solicitor of Labor ALLEN H. FELDMAN Associate Solicitor CAROL A. DE DEO Deputy Associate Solicitor EDWARD D. SIEGER Attorney Department of Labor DECEMBER 1987 /1/ Pneumoconiosis is a lung disease caused by exposure to various types of dust, such as coal dust and asbestos. Lopatto, The Federal Black Lung Program: A 1983 Primer, 85 W. Va. L. Rev. 677, 679 & n.13 (1983). When caused by coal dust, it is known as black lung disease. The statute (30 U.S.C. 902(b)) and the regulations (20 C.F.R. 727.202) include in the definition of "pneumoconiosis" not only the description of the disease but also a requirement that it be caused by coal mine employment. For clarity, we will use "pneumoconiosis" to refer solely to the disease, treating the question of causation as distinct. /2/ HEW's permanent regulations also incorporated the Act's requirement that a claimant would be considered totally disabled if other types of medical evidence showed that he could no longer perform the type of work he did as a coal miner (20 C.F.R. 410.412, 410.426(a), (c) and (d)), as well as a statutory irrebuttable presumption of total disability (30 U.S.C. 921(c)(3)) where X-ray evidence showed severe damage to the lung (20 C.F.R. 410.418). /3/ HEW's interim regulation is unclear, in one part requiring 15 years of coal mine employment (20 C.F.R. 410.490(b)(1)(ii)), but later apparently requiring only ten years of coal mine employment (20 C.F.R. 410.490(b)(3)), to establish the interim presumption of total disability based on ventilatory studies. Courts have not resolved the ambiguity. /4/ While the regulation did not specifically address how a miner with less then ten years of work in coal mines could prove that his pneumoconiosis arose from coal mine employment, a claimant may establish causation by showing that his pneumoconiosis was unlikely to have been caused by exposure to lung irritants other than coal mine dust. /5/ Final regulations, 20 C.F.R. Pt. 718, were proposed in 1978 and became effective on April 1, 1980. /6/ HEW's interim regulation states that the presumption of total disability -- whether invoked through X-ray, autopsy, or biopsy evidence, or through ventilatory studies -- can be rebutted by "evidence that the individual is, in fact, doing his usual coal mine work or comparable and gainful work" or by other evidence, "including physical performance tests * * * establish(ing) that the individual is able to do his usual mine work or comparable and gainful work." 20 C.F.R. 410.490(c). Labor's interim presumption regulation provided that the presumption could be rebutted in those ways (20 C.F.R. 727.203(b)(1) and (2)) or by evidence establishing that the miner's total disability did not arise from coal mine employment or that the miner did not have pneumoconiosis (20 C.F.R. 727.203(b)(3) and (4)). /7/ Lisa Kay Colley was substituted as claimant for her father, who died prior to the court of appeals' decision. /8/ We are serving a copy of our petition in Sebben and a copy of our petition in Kyle on the parties to this case. /9/ Of particular relevance to the requirement of ten years coal mining experience as a prerequisite to triggering the presumption, the summary of medical knowledge on coal workers' pneumoconiosis appended to the House Report concluded that there was broad agreement that "(t)he probability that coal miners will develop black lung increases regularly after about ten years of working underground." H.R. Rep. 95-151, supra, at 30. In view of that recognition by Congress, it would be surprising if Congress simultaneously acted to mandate the use of a presumption of total disability for miners with fewer than ten years' experience. /10/ The court of appeals' decision appears to be wrong for another reason not directly presented in this case. The court stated that "the only way to rebut this presumption is to show that the claimant is either doing or is capable of doing his usual coal mine work" (App., infra, 3a). Thus, the court appears to have concluded that the Secretary of Labor's interim regulation is invalid for the added reason that it authorizes two rebuttal methods not enumerated in HEW's interim regulation (see note 6, supra). Whether the regulation is invalid on that ground is pending in the Eighth Circuit in Consolidation Coal Co. v. Smith, No. 86-2397 (argued Oct. 16, 1987). The Sixth Circuit, while holding in Kyle that Labor's interim regulation is contrary to Section 402(f)(2) because it does not allow claimants with fewer than ten years of coal mine work to invoke the presumption of total disability, also suggested that Labor's interim regulation is not inconsistent with the statute insofar as it authorizes additional rebuttal methods. 819 F.2d at 144; see also Prater v. Hite Preparation Co., 829 F.2d 1363, 1366 n.2 (6th Cir. 1987); Ramey v. Kentland Elkhorn Coal Corp., 755 F.3d 485, 490 (6th Cir. 1985). It is less than clear that HEW's interim regulation is properly understood as barring rebuttal of the presumption by disproving pneumoconiosis or coal mining causation. Assuming that is the correct reading, however, the provisions of Labor's interim presumption regulation establishing that a claimant's total disability "did not arise in whole or in part out of coal mine employment" or that a claimant "does not, or did not, have pneumoconiosis" (20 C.F.R. 727.203(b)(3) and (4)), are plainly valid. It is clear that Congress intended to permit such rebuttal evidence, since the purpose of the Act is to provide benefits to a coal miner only "if (a) he or she is totally disabled, (b) the disability was caused, at least in part, by pneumoconiosis, and (c) the disability arose out of coal mine employment" (Mullins Coal Co., slip op. 5). In light of the statutory purpose, a rule that coal mine operators could not present evidence that a claimant did not have pneumoconiosis or that a claimant's disability was not caused by coal mine employment would violate the statutory requirement that "all relevant evidence" be considered. 30 U.S.C. 923(b). It would also appear to be irrational and therefore suspect on due process grounds. Cf. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 34-37 (1975) (construing Section 411(c)(4), 30 U.S.C. 921(c)(4)) not to limit the evidence a coal mine operator may present on rebuttal, thus avoiding a constitutional challenge). It is, for this additional reason, sensible to construe the reference to "criteria" in Section 402(f)(2) as encompassing medical standards, but not proof burdens or evidentiary rules. APPENDIX