                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             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Precedential or Non-Precedential: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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                    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, anthraco-
          silicosis, 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.
