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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. *fn3"


 Six physicians' reports dated within two years of plaintiff's retirement confirm that plaintiff had a debilitating lung disease. Two of the reports specifically state that plaintiff was totally and permanently disabled at the time of examination, *fn4" and two reports also explicitly link plaintiff's illness to work in the mines and exposure to coal dust. *fn5" There is, to be sure, lack of unity among the reports as to the precise diagnosis of plaintiff's pulmonary disorder. However, one report does diagnose black lung disease in the form of silicosis, *fn6" another observed pneumoconiosis *fn7" but concluded that it contributed little to plaintiff's pulmonary dysfunction, *fn8" and a third, while stating that no evidence of silicosis was found, also expressed the opinion that the plaintiff's disability could have resulted in part from "the heavy exposure to the dusty atmosphere" of the coal mines. *fn9" There is little or no dispute among any of the medical reports as to the general nature and extent of plaintiff's disability, nor is there any finding or suggestion that it was not related to his coal industry employment. Additionally, several physicians who subsequently examined plaintiff also found chronic lung disease or pneumoconiosis. *fn10"

 Defendants' efforts to overcome this evidence are meager at best. One of their principal contentions is that some of the medical experts did not specifically find pneumoconiosis and that some others who did make such a finding did not find the disease to be disabling. These findings can hardly be characterized, as do the defendants, as medical evidence that was "conflicting" with plaintiff's proof. *fn11" Moreover, it is not surprising that some of the medical experts did not pinpoint pneumoconiosis as directly as defendants would wish. The underlying diagnoses were made at a time when there was much confusion concerning this illness, when it had not even been recognized as a distinct disease by the Public Health Service, *fn12" and when it was often misdiagnosed for other lung diseases. *fn13" Only one expert submitted a report supporting the conclusion that plaintiff did not have pneumoconiosis, and he was of the opinion that plaintiff's disability could nonetheless have been caused by the heavy exposure to the dirty atmosphere of the mines. *fn14" Thus, the decision of the trustees must be regarded as clearly erroneous on the medical evidence alone.

 There is more. As indicated, plaintiff was awarded black lung benefits under the Federal Coal Mine Health and Safety Act of 1969 -- benefits that are available only to "coal miners who are totally disabled due to pneumoconiosis . . . ." 30 U.S.C. § 901. *fn15" Not only would such a determination by a federal agency operating in this field normally be entitled to substantial weight, but the eligibility regulations of the Fund itself provide that a black lung award under the Coal Mine Health and Safety Act is the equivalent of a workmen's compensation award, and that it entitles the recipient to an allowance of four years of additional service credit. *fn16" It is of no import that under these regulations an applicant must have been engaged in industry employment after December 30, 1969, the effective date of the Act, for it obviously makes no difference substantively whether an individual contracted black lung disease before or after that date if he was suffering from the disease at the time of his retirement.

 Equally unimpressive is defendants' argument that, although plaintiff may well have been suffering from pneumoconiosis later on, they are not satisfied that he had that disease during the critical eighteen months in 1962. The voluminous medical evidence, supported by the findings of two federal administrative agencies, belie any such strained view of the situation. *fn17"

 It is unfortunate that the Fund has failed to heed the admonition of the Court of Appeals in Maggard. There seems to be little else to do than to advise the trustees, again and again, in judgment upon judgment, *fn18" that they must administer the Fund entrusted to them with a modicum of common sense.


 For the reasons stated in the Memorandum filed this date, it is this 22nd day of December, 1983,

 ORDERED That plaintiff's motion for summary judgment be and it is hereby granted, and it is further

 ORDERED That defendants' motion for summary judgment be and it is hereby denied, and it is further

 ORDERED That judgment be and it is hereby entered in favor of plaintiff, and that defendants be and they are hereby directed to enroll plaintiff as a pensioner with all related benefits effective September 25, 1976.

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