PART VII SURVIVORS' CLAIMS
PART VII
SURVIVORS' CLAIMS
Unless the miner was found entitled to benefits as a result of a claim filed prior to January 1, 1982, benefits are payable on survivors' claims filed on or after January 1, 1982, ONLY WHEN the miner's death was due to pneumoconiosis EXCEPT if the survivor's entitlement is established by §718.306 on a claim filed PRIOR TO June 30, 1982. Note: the question of entitlement in a claim for survivors' benefits need not be reached if benefits are awarded in a living miner's claim filed prior to June 30, 1982, thus entitling the survivor to an award derivative of that to the miner. Freeman United Coal Mine Co. v. Benefits Review Board, 912 F.2d 164, 14 BLR 2-53 (7th Cir. 1990); see 20 C.F.R. §718.1.
An eligible survivor of a miner who had filed a claim during his lifetime before January 1, 1982, need not file a new claim after the miner's death in order to receive benefits on the basis of death due to pneumoconiosis. Pothering v. Parkson Coal Co., 861 F.2d 1321, 12 BLR 2-60 (3d Cir. 1988).
The Sixth Circuit has held that a prior determination of survivor benefit eligibility pursuant to Part B of Title IV of the Act, 30 U.S.C. §§921-925, eliminates the necessity of independently establishing the miner's total disability due to pneumoconiosis under the criteria in Part C of the Act in order to establish a survivor's entitlement under 20 C.F.R. §725.218(a)(2). Director, OWCP v. Saulsberry, 887 F.2d 667, 13 BLR 2-80 (6th Cir. 1989).
The Supreme Court upheld the statutory presumptions under the 1972 Act, Black Lung Benefits Act of 1972, Public Law No. 92- 303, 86 Stat. 150 (1972)(codified as amended at 30 U.S.C. §921(c)(1)-(4)(1985)), against constitutional attack in Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882 (1976). In that case, the Court held that the presumptions contained in Sections 411(c)(1)-(4) of the Act, 30 U.S.C. §§921(c)(1)-(4), did not violate the due process clause of the fifth amendment because for a legislative presumption involving a matter of economic regulation to be valid under the due process clause, "'it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.'" Turner-Elkhorn Mining Co., 428 U.S. at 28, 96 S.Ct. at 2898 (quoting Mobile, Jackson and Kansas City Railroad Co. v. Turnipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 138 (1910).
Section 411(c)(2) of the Act provides that if a deceased miner was employed for ten years or more in one or more coal mines and died from a respirable disease there shall be a rebuttable presumption that his death was due to pneumoconiosis. 30 U.S.C. §921(c)(2). Section 411(c)(2) was deleted by the Black Lung Benefits Amendments of 1981, and the presumption is not applicable to survivors' claims filed on or after January 1, 1982. 30 U.S.C. §921(c)(2); 20 C.F.R. §718.303(c). Section 411(c)(2) is implemented by Sections 410.462 and 718.303 of the regulations, 20 C.F.R. §§410.462, 718.303.
Section 718.303 provides that death shall be found to be due to a respirable disease in any case where the evidence establishes that death was due to multiple causes, including a respirable disease, and it is not medically feasible to distinguish which disease caused death or the extent to which the respirable disease contributed to the cause of death. 20 C.F.R. §718.303(a)(1). The presumption may be rebutted by a showing that the deceased miner did not have pneumoconiosis, that his or her death was not due to pneumoconiosis or that pneumoconiosis did not contribute to his or her death. 20 C.F.R. §718.303(b). Beard v. Director, OWCP, 10 BLR 1-82 (1987), aff'd, 856 F.2d 192 (6th Cir. 1988)(table); Bury v. Director, OWCP, 9 BLR 1-79 (1986).
The Board has held that the cases of Tackett v. Benefits Review Board, 806 F.2d 640, 10 BLR 2-93 (6th Cir. 1986) and Hunter v. Director, OWCP, 803 F.2d 800, 9 BLR 2-140 (4th Cir. 1986) construe the Section 411(c)(2) presumption as implemented under 20 C.F.R. Part 410, Subpart D by Section 410.462, and do not control a case adjudicated under Section 718.303, the implementing regulation of Section 411(c)(2) of the Act under 20 C.F.R. Part 718. Beard, supra. Claimant must demonstrate under Section 718.303(a) that the deceased miner engaged in ten or more years of coal mine employment and died from a respirable disease but does not have to establish a reasonable possibility that death was due to pneumoconiosis as required by Hunter and Tackett. Construction of Section 410.462 is inapplicable to claims filed under 20 C.F.R. Part 718. Beard, supra.
The Board held that, although lay evidence is to be considered under Section 718.303(a), the administrative law judge's failure to do so in this case is harmless in view of the administrative law judge's affirmable determination that the weight of the medical evidence does not support a finding that the miner's death was due to a respirable disease. Beard v. Director, OWCP, 10 BLR 1-82 (1987), aff'd, 856 F.2d 192 (6th Cir. 1988)(table).
Where death certificate listed "probably myocardial infarction" as cause of death and the autopsy physician found anthracosis, fibrosis, central lobular emphysema, and moderate hypertrophy of the pulmonary arteries and the record also reflected that the miner had been treated for respiratory problems for several months before his death, the Court held that the Section 411(c)(2) presumption was properly invoked under 20 C.F.R. §718.303(a)(1) and that the death certificate was insufficient to rebut the presumption. McClendon v. Drummond Coal Co., 861 F.2d 1512, 12 BLR 2-108 (11th Cir. 1988).
The Third Circuit recognized that the difference in language between Sections 410.462 and 718.303 is a strong indication that in a case governed by Section 718.303, the claimant need not show that the disease reported suggests a reasonable possibility of death due to pneumoconiosis. Marx v. Director, OWCP, 870 F.2d 114, 12 BLR 2-199 (3d Cir. 1989).
The Fourth Circuit has held that the Board's requirement that claimants show the chronic nature of lung cancer on a case-by- case basis under 20 C.F.R. §410.462(b) is not unreasonable. Further, the Fourth Circuit stated that Rose v. Clinchfield Coal Co., 614 F.2d 936 (4th Cir. 1980) does not stand for the proposition that "lung cancer" is "chronic" as a matter of law. Furthermore, to be entitled to the Section 411(c)(2) presumption pursuant to Section 410.462, claimant must establish that the disease that caused the miner's death was a chronic dust disease or a chronic disease of the lung and that the disease suggested a reasonable possibility of death. Hunter v. Director, OWCP, 803 F.2d 800, 9 BLR 2-140 (4th Cir. 1986), aff'g, 8 BLR 1- 120 (1985).
The Fourth Circuit held that rebuttal under Section 410.462(b) requires the party opposing entitlement to establish either that miner did not have pneumoconiosis or that the lung disease did not arise out of coal mine employment. It is insufficient to show that the miner's fatal disease did not suggest a reasonable possibility of death due to pneumoconiosis. Hunter v. Director, OWCP, 803 F.2d 800, 9 BLR 2-140 (4th Cir. 1986), aff'g, 8 BLR 1-120 (1985).
The Sixth Circuit affirmed the administrative law judge's finding that rebuttal of the Section 411(c)(2) presumption was established under 20 C.F.R. §410.462 since the medical evidence established that there was no connection between the miner's disability and death and his coal mine employment. Colvin v. Director, OWCP, 838 F.2d 192 (6th Cir. 1988).
In distinguishing Sections 410.462 and 718.303, the Third Circuit held that while Section 410.462 and Section 718.303 each provide a rebuttable presumption of death due to pneumoconiosis where the miner was employed for at least ten years of coal mine employment and died of a respirable disease, claimant need not show that the respirable disease suggests a reasonable possibility of death due to pneumoconiosis under Section 718.303. Marx v. Director, OWCP, 870 F.2d 114, 12 BLR 2-199 (3d Cir. 1989).
Section 411(c)(3) of the Act, 30 U.S.C. §411(c)(3), provides an irrebuttable presumption that a miner who is suffering or has suffered from complicated pneumoconiosis is totally disabled due to pneumoconiosis, that his death was due to pneumoconiosis, or that he was totally disabled due to pneumoconiosis at the time of his death. 20 C.F.R. §§410.418, 410.458, 718.304. In a survivor's claim where claimant has established the presumption under Section 411(c)(3) of the Act, s/he must still establish, by direct proof or presumption, that the miner's pneumoconiosis arose out of coal mine employment. 20 C.F.R. §§410.416, 718.203.
The Board has strictly construed the medical criteria for establishing complicated pneumoconiosis by requiring that an autopsy report diagnose "massive lesions"; an autopsy that merely diagnoses large opacities (i.e., nodules greater than one centimeter) is insufficient to invoke the Section 411(c)(3) presumption. See Lohr v. Rochester & Pittsburgh Coal Co., 6 BLR 1-1264 (1984). In Clites v. Jones & Laughlin Steel Corp., 2 BLR 1-1019 (1980), the administrative law judge found Section 411(c)(3) invocation established based on a physician's statement that he equated nodules he found during an autopsy to one centimeter opacities revealed by x-rays. The Board held that this equivalency determination was improper because an administrative law judge lacks medical expertise to make such a determination. The Third Circuit reversed the Board, holding that the administrative law judge properly found complicated pneumoconiosis established based on the physician's statement. Clites v. Jones & Laughlin Steel Corp., 663 F.2d 14, 3 BLR 2-86 (3d Cir. 1981).
The Board has not expressly adopted or disapproved the Third Circuit's holding in Clites. It has, however, narrowly construed it by requiring that any equivalency determination be based on medical evidence that equates the autopsy findings to the requisite x-ray diagnoses, e.g., a physician must state that nodules revealed in autopsy would be greater than one centimeter on an x- ray. The administrative law judge may not make such a determination without such supporting medical evidence. See Smith v. Island Creek Coal Co., 7 BLR 1-734 (1985); Lohr, supra.
The Sixth Circuit rejected employer's argument that the adjudicator erred in relying on a doctor's x-ray finding of "Category A large opacity" under Section 410.418 because he also noted "tuberculosis" and "honeycomb lung," holding that the administrative law judge could reasonably conclude that the Category A opacities were caused by complicated pneumoconiosis. Wolf Creek Collieries v. Robinson, 872 F.2d 1264, 12 BLR 2-259 (6th Cir. 1989).
This presumption will not apply to claims filed on or after January 1, 1982.
Under 20 C.F.R. §725.212, the survivor is automatically entitled to benefits if deceased miner:
Surviving spouse who filed on/after January 1, 1982, must show deceased miner's death was due to pneumo-coniosis except if Section 718.306 entitlement is established for claim filed prior to June 30, 1982. See generally, Neeley v. Director, OWCP, 11 BLR 1-85 (1988); Pothering v. Parkson Coal Co., 861 F.2d 1321, 12 BLR 2-60 (3d Cir. 1988); Smith v. Camco Mining, Inc., 13 BLR 1-17 (1989).
In Battaglia v. Peabody Coal Co., 690 F.2d 106, 5 BLR 2-1 (7th Cir. 1982), the court held that Section 411(c)(5) was not arbitrary or irrational and affirmed its validity. See also Trujillo v. Kaiser Steel Corp., 3 BLR 1-497 (1981).
This presumption will not apply to claims filed after June 30, 1982.
Under 20 C.F.R. §718.306:
The court citing to McKinnon v. Amax Coal Co., 4 BLR 1-95, 1-97 (1981), held that the Section 411(c)(5) presumption may be rebutted by a showing that (1) the miner did not have pneumoconiosis; (2) the miner was not partially or totally disabled; or (3) any disability the miner did have was not caused by pneumoconiosis. Amax Coal Co. v. Burns, 855 F.2d 499 (7th Cir. 1988).
Silent evidence may be sufficient to rebut the Section 411(c)(5) presumption where the record suggests that if lung disease were present, it would have been detected and reported. Burns, supra.
The court reversed the Board's affirmance of the ALJ's finding that the Section 411(c)(5) presumption had been rebutted by proof that the miner did not suffer from pneumoconiosis, holding that the x-ray report and death certificate in this case, neither of which indicated the existence of pneumoconiosis, were of "such limited probative value" as to provide inadequate support for the ALJ's rebuttal finding. In so holding, the court also noted that the lay testimony of record indicated that the miner was at least partially disabled at the time of his death. Powell v. Peabody Coal Co., F.2d , No. 90-2245 (8th Cir., May 14, 1991).