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December 22, 1983

MOSE SMITH, Plaintiff,

The opinion of the court was delivered by: GREENE

 Plaintiff is a retired coal miner who contests as arbitrary and capricious the decision of the United Mine Workers of America 1950 Pension Trust and 1950 Benefit Plan and Trust (collectively referred to as the "Fund") to refuse his application for retirement benefits. Cross-motions for summary judgment are before the Court. For the reasons set forth below, plaintiff's motion for summary judgment is granted and defendants' motion is denied.


 Plaintiff retired from the coal industry on August 28, 1962, after 18-1/2 years of industry service, when he received a work-related injury to his hand which disabled him. Although the injury was not permanent, he did not return to the mines, claiming disability resulting from occupational disease. Plaintiff ultimately was found to be totally and permanently disabled as a result of occupational disease as of the date of his retirement and was awarded disability benefits under title II of the Social Security Act (42 U.S.C. § 416). He was also granted "black lung benefits" under title IV of the Federal Coal Mine Health and Safety Act of 1969 as amended (30 U.S.C. § 901 et seq.).

  Since the inception of the Fund, *fn1" eligibility for benefits has been predicated upon a minimum of 20 years of service in classified jobs in the coal industry. See, e.g., Lavella v. Boyle, 144 U.S. App. D.C. 35, 444 F.2d 910 (D.C. Cir. 1971). Commencing with a trustees' resolution which became effective July 1, 1960, a "year of service" is defined to include not only periods of actual employment in classified jobs but also periods during which an applicant "received workmen's compensation payments pursuant to an award as a result of an occupational disease or injury sustained in the mine while employed in a classified job . . . ." Resolution No. 56 I (B)(2).

 The judicial settlement in a case known as Maggard v. Huge removed the requirement of a formal state award, and provided that a miner could receive pension benefits

in the case of an occupational disease, if the applicant proves that he had contracted such occupational disease and that such disease was the direct and proximate cause of applicant's inability to work in the coal industry for a period of time of ascertainable duration. Each element of eligibility . . . shall be proved by a preponderance of the evidence through competent medical evidence and other relevant evidence.

 Maggard v. Huge, No. 76-2219 (D.D.C. March 14, 1979). In the case of occupational diseases, a possible four-year service credit begins to run from the date of last employment.

 It is clear, and none of the parties disputes, that plaintiff has demonstrated 18-1/2 years of industry service. The question before the Court is whether plaintiff is also entitled to credit for the remaining 1-1/2 years of service. On that issue, defendants argue, first, that there is a presumption in favor of the trustees' decision, and second, that the decision of the trustees is supported by substantial evidence and should be upheld for that reason.


 There is some dispute between the parties regarding the applicable standard of review. Defendants seek to equate the decision of the trustees with that of an administrative agency, and they accordingly claim that the decision here ought to be upheld if it is supported by substantial evidence in the record as a whole. Memorandum at 18. Even assuming that the proposition is true in the abstract, *fn2" it does not apply here with the same force as in the usual situation involving a fiduciary, if at all. In Maggard v. O'Connell, 217 U.S. App. D.C. 62, 671 F.2d 568 (D.C. Cir. 1982), the Court of Appeals for this Circuit considered an action by the widow of a miner against the trustees of the same Fund which is the defendant here. After commenting upon the need, in general, to allow less deference to an expert tribunal where the body may have exhibited bias, inconsistent judgments, or the like, the court went on to state (671 F.2d at 571):

In the case before us today, we think it would be quite dangerous "to slip into a judicial inertia" given the "combination of danger signals" rebutting "the presumption of agency regularity." There have been a number of cases already holding the Funds' regulations and findings to be arbitrary and capricious. It should also be noted that what is being reviewed here is not the findings of an agency but rather the decision of private trustees based on evidence collected by a hearing officer employed by a private trust. A reviewing court should keep in mind that those close to the trust indeed have a duty to preserve the corpus of that trust and, accordingly, are naturally disinclined to make awards from it. It is also to be surmised that these individuals have no tenure, less job security, and are generally less well-insulated from outside pressures than those government employees whose decisions are more commonly reviewed under the "arbitrary and capricious" or "substantial evidence" standards. (footnote omitted) (emphasis in original).

 The Court will consider this admonition of the Court of Appeals in reviewing the decision of the trustees in this case. ...

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