1995 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"OWCP v Eastern Assoc Coal Corp" (1995). 1995 Decisions. Paper 107.

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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, anthracosilicosis, 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.