Introduction to Survivors' Claims
I. Generally
The Act provides benefits to eligible survivors of
deceased miners. Eligible survivors may include the miner's widowed spouse,
divorced widowed spouse, children, parents, and siblings. 20 C.F.R. § 725.201.
To be considered eligible for benefits, each survivor must meet the conditions
of entitlement, including relationship and dependency. 20 C.F.R. §§ 725.212‑725.233
(2000) and (2008).
For a discussion of the effect of stipulations in
the miner's claim on a survivor's claim, see Chapter 11. For
application of collateral estoppel in a survivor's claim, see Chapter
25.
A.
Distinction between
survivor and augmentee
Survivors' benefits arise from a miner's death and
must be distinguished from augmented benefits for a spouse or child
arising from a miner's lifetime claim or a survivor's lifetime claim. See
20 C.F.R. §§ 725.204‑725.211 (2000) and (2008). Notably, the fact that a
spouse or divorced spouse "was, or was not, a dependent for purposes of augmenting
the miner's benefits for a certain period . . . is not determinative of the
issue of whether the individual is a dependent survivor of such miner."
20 C.F.R. § 725.227 (2000) and (2008) (emphasis added).
B.
Survivor and miner
claims—consolidated for
hearing, adjudicated independently
A survivor's claim is distinct from a living miner's
claim and must considered independently. Often, a survivor's claim is
consolidated with the living miner's claim for the sake of judicial economy.
However, a specific finding regarding entitlement must be made for the survivor
in claims filed after January 1, 1982, where the miner is not entitled to
benefits as a result of a claim filed prior to January 1, 1982. Neely v.
Director, OWCP, 11 B.L.R. 1‑85 (1988).
Moreover, evidence is limited in claims filed after
January 19, 2001. For further discussion of evidentiary limitations under the
amended regulations, see Chapter 4. For discussion of the possible
application of collateral estoppel to finding coal workers' pneumoconiosis in a
survivor's claim, see Chapter 25.
C.
Entitlement precluded, special
circumstances
Despite a finding of relationship and dependency,
there are rare instances where a survivor will not be entitled to benefits.
Section 725.228 of the regulations provides the following:
An individual who has been convicted of the
felonious and intentional homicide of a miner (or) other beneficiary shall not
be entitled to receive any benefits payable because of the death of such miner
or other beneficiary and such person shall be considered nonexistent in
determining the entitlement to benefits of other individuals.
20
C.F.R. § 725.228 (2000) and (2008).
II. Qualifying for benefits
A. Surviving
spouse and surviving divorced spouse
To qualify for benefits, a surviving spouse or
surviving divorced spouse must demonstrate a relationship to, and dependency
on, the miner.
1. Spouse --
relationship to the miner
a.
Surviving spouse
An individual will be considered the surviving
spouse of a miner if one of the following is established: (1) the courts of
the state in which the miner was domiciled (§ 725.231) at the time of his or
her death would find that the individual and the miner were validly married or
that the individual was the miner's surviving spouse; (2) under state law such
individual would have the right of a spouse to share in the miner's intestate
personal property; or (3) such individual went through a marriage ceremony with
the miner resulting in a purported marriage which, but for a legal impediment
(§ 725.230), would have been a valid marriage. See also 20
C.F.R. § 725.214 (2000) and (2008). For a discussion of common law marriage,
see Margaret Bopp v. Canterbury Coal Co., 1992-BLA-511 (ALJ July 14,
1993), a decision by Administrative Law Judge Edith Barnett wherein she
concluded that the evidence of record supported a finding that the "Claimant
(widow) and the miner entered into a common law marriage valid under the laws
of Pennsylvania" and recognized by the Social Security Administration such
that the widow was entitled to file a claim for benefits under the Act upon the
miner's death.
b.
Surviving divorced spouse
An individual is the "surviving divorced
spouse" of a deceased miner if such individual's marriage to the miner was
terminated by a final divorce on or after the tenth anniversary of the
marriage. If the individual was married to, and divorced from, the miner more
than once, then the regulations require that the individual have been married
to the miner in each calendar year of the period beginning ten years
immediately before the date on which any divorce became final and ending with
the year in which the divorce became final. 20 C.F.R. § 725.216 (2000) and (2008).
2. Spouse and
divorced spouse,
dependency on the miner
a.
The regulation
A surviving spouse or surviving divorced spouse
must also establish that s/he was dependent on the miner. Section 725.218
provides that a surviving spouse was dependent on the miner if, at the time of
the miner's death:
(a) the individual was living with the miner (§ 725.232);
or
(b) the individual was dependent upon the miner for
support or the miner has been ordered by a court to contribute to such
individual's support (§ 725.230); or
(c) the individual was living apart from the miner
because of the miner's desertion or other reasonable cause; or
(d) the individual is the natural parent of the
miner's son or daughter; or
(e) the individual had legally adopted the miner's
son or daughter while the individual was married to the miner and while such
son or daughter was under the age of 18; or
(f) the individual was married to the miner at the
time both of them legally adopted a child under the age of 18; or
(g) the individual was married to the miner for a
period of not less than 9 months immediately before the day on which the miner
died.
An individual who is the miner's surviving divorced
spouse shall be determined to have been dependent on the miner if, for the
month before the month in which the miner died:
(a) the individual was receiving at least one‑half
of his or her support from the miner (§ 725.233(g)); or
(b) the individual was receiving substantial
contributions from the miner pursuant to a written agreement (§ 725.233(e) and
(f)); or
(c) a court order required the miner to furnish
substantial contributions to the individual's support (§ 725.233(c) and (e)).
20
C.F.R. § 725.218 (2000) and (2008). See also Gala v.
Director, OWCP, 3 B.L.R. 1‑809 (1981); Dercole v. Director, OWCP,
3 B.L.R. 1‑76 (1981).
b.
"Support,"
defined
Based on expenses
Under 20 C.F.R. § 725.233(g) (2000) and (2008), the
term "support" is based on expenses, not income. Putman v.
Director, OWCP, 12 B.L.R. 1‑127 (1988).
Actual, regular contributions from miner required
Sections 725.217 and 725.233 require actual,
regular contributions from the miner. Walker v. Director, OWCP, 9
B.L.R. 1‑233 (1987); Ensinger v. Director, OWCP, 833 F.2d 678 (7th
Cir. 1987).
Receipt of social security benefits from miner not count
In Lombardy v. Director, OWCP,
355 F.3d 211 (3rd Cir. 2004), the judge properly found that a
surviving divorced spouse's reliance on social security benefits, deriving from
the miner's employment, did not qualify her as a "dependent" of the
miner for purposes of receiving black lung benefits. The court cited to Taylor
v. Director, OWCP, 15 B.L.R. 1-4, 1-7 (1991) as well as Director, OWCP
v. Ball, 826 F.2d 603 (7th Cir. 1987), Director, OWCP v. Hill,
831 F.2d 635 (6th Cir. 1987), and Director, OWCP v. Logan,
868 F.2d 285, 286 (8th Cir. 1989) to hold that Social Security
benefits are not part of the miner's property and do not constitute a
"contribution" to the survivor for purposes of establishing
dependency under the Black Lung Benefits Act.
See also Director, OWCP v. Hill, 831 F.2d 635 (6th Cir. 1987)
(surviving wife who received social security benefits based on earnings of
former spouse was not a "dependent" for purposes of receiving black
lung benefits; those payments were not considered contributions under the regulations).
Child support not count
Payments for child support should not be used in
calculating "support" for purposes of determining dependency of a
survivor. Trevena v. Director, OWCP, 7 B.L.R. 1‑799, 1‑802
(1985).
Divorce decree not require contributions, no dependency
Director, OWCP v. Ball, 826 F.2d 603 (7th Cir. 1987); Taylor
v. Director, OWCP, 967 F.2d 961 (4th Cir. 1992) (order of
divorce, through which the court retained the right to impose support
obligations, did not require the miner to make any contribution to his ex-wife's
support, so as to entitle her to benefits as a dependent divorced spouse).
Dependency status as "augmentee" not determinative
The fact that a spouse or divorced spouse "was,
or was not, a dependent for purposes of augmenting the miner's benefits for a
certain period . . . is not determinative of the issue of whether the
individual is a dependent survivor of such miner." 20 C.F.R. § 725.227
(2000) and (2008).
3.
Spouse and divorced
spouse,
each entitled to full share of
benefits
Prior to promulgation of the December 2000 amendments
to the regulations, the courts held that a surviving spouse and surviving
divorced spouse were each entitled to a full share of benefits. In Peabody
Coal Co. v. Director, OWCP [Ricker], 182 F.3d 637 (8th Cir.
1999), the court addressed the amount of benefits to which each of two
surviving spouses are entitled. One surviving spouse had been married to the
miner until the time of his death and had not remarried. The surviving
divorced spouse had been married to the miner for at least ten years and "received
substantial monetary support from him." The court noted that the district
director had awarded both survivors 100 percent of the basic benefit award
pursuant to a change in the Department of Labor's policy. The court upheld
these payment amounts by reasoning that the plain language of the Act provides
that "both a surviving wife and a qualifying surviving divorced wife are
entitled to full benefits . . .." See 30 U.S.C. §§ 902(e) and 922(a)(3)
and (5).
In Mays v. Piney Mountain Coal Co., 21
B.L.R. 1-59 (1997), the Board held that, where "the miner is survived by
two 'widows,' it is reasonable to conclude that each surviving 'widow' is
entitled to compensation under the Act as a primary beneficiary, thereby
receiving 100% (each) of the basic benefit." The Fourth Circuit upheld
the Board's decision in Piney Mountain Coal Co. v. Mays, 176 F.3d 753 (4th
Cir. 1999), on grounds that "a surviving widow is a beneficiary in her own
right" such that it would be unjust to conclude that the widow was a
primary beneficiary and the divorced survivor as merely a dependent augmentee.
The amended regulations have codified these
decisions and provide the following at § 725.212:
(b) If more than one spouse meets the conditions of
entitlement prescribed in paragraph (a), then each spouse will be considered a
beneficiary for purposes of section 412(a)(2) of the Act without regard to the
existence of any other entitled spouse or spouses.
20
C.F.R. § 725.212(b) (2008); 20 C.F.R. § 725.537 (2008).
B. Child
A child is not entitled to benefits as a
survivor for any month for which a miner or the surviving spouse or surviving
divorced spouse establishes entitlement to benefits. 20 C.F.R. § 725.218(b)
(2000) and (2008). Rather, an award of benefits to the miner, the surviving
spouse, or the surviving divorced spouse may be augmented for a dependent
child. 20 C.F.R. §§ 725.208 and 725.209. If there is no surviving spouse or
surviving divorced spouse entitled to benefits, then the child may receive
survivor's benefits if s/he meets the criteria for entitlement, including
relationship and dependency.
1. Relationship
to the miner
Section 725.220 provides that an individual is
considered a child of a beneficiary (a miner or a surviving spouse entitled to
benefits at the time of his or her death) if:
(a) the courts of the state in which such
beneficiary is domiciled would find, under the law that would apply in
determining the devolution of the beneficiary's intestate personal property,
that the individual is the beneficiary's child; or
(b) such individual is the legally adopted child of
such beneficiary; or
(c) such individual is the stepchild of such
beneficiary by reason of a valid marriage of such individual's parent or
adopted parent to such beneficiary; or
(d) such individual would, under state law, have
the same right as a child to share in the beneficiary's intestate personal
property; or
(e) such individual is the natural son or daughter
of a beneficiary but fails to meet the qualifications in (a) through (d) above
and the beneficiary and the mother or father of such individual went through a
marriage ceremony resulting in a purported marriage which but for a legal
impediment would have been a valid marriage; or
(f) such individual is the natural son or daughter
of a beneficiary but fails to meet the qualifications in (a) through (e) above
and;
(1) such beneficiary prior to his or her
entitlement to benefits has acknowledged in writing that the individual is his
or her son or daughter, or has been decreed by a court to be the father or
mother of the individual, or has been ordered by a court to contribute to the
support of the individual because the individual is a son or daughter; or
(2) such beneficiary is shown by satisfactory
evidence to be the father or mother of the individual and was living with or
contributing to the support of the individual at the time such beneficiary
became entitled to benefits.
20
C.F.R. § 725.220 (2000) and (2008).
a.
Paternity issues, state
law controls
In Varney v. Steven Lee Enterprises, Inc.,
23 B.L.R. 1-213 (2006),
the Board held that, in determining issues of paternity, the law of the state
where the miner is domiciled at the time of adjudication controls the issue of
determining whether paternity is established. Here, DNA testing demonstrated
that the miner's son was the father of the child and, although the miner was
listed as the child's father on the birth certificate as well as in a
subsequent divorce decree, the Board held that the child was not entitled to
benefits under the Act as:
Applicable Kentucky statutory law and precedent . .
. establish that genetic testing with statistical probability equal to or
exceeding 99% for paternity, which is present here, . . . is dispositive of the
paternity issue where, as in the instant case, claimant has proffered no
evidence tending to rebut the presumption of paternity in favor of the miner's
son, . . .. (state citations omitted). Consequently, the administrative law
judge erred in finding that claimant is a 'child' of the deceased miner . . .
notwithstanding the uncontroverted genetic testing evidence of record showing (the
miner's son) to be claimant's father, because 'the courts have no discretion in
these instances.'
Id.
b.
Adoption
In Blair v. R&E Coal Co., 20 B.L.R. 1-15
(1996)(on recon.), the Board held that benefits may be augmented for the
survivor of a miner who adopted a child after the miner's death. In so
holding, the Board concluded that the "relationship test" was
satisfied upon legal adoption of the child and that, because the child is
unmarried and under 18 years of age, she also satisfies the "dependency
test."
2. Dependency on
the miner
a.
Generally
Once it is determined that an individual is the
child of the miner, a finding must be made regarding the child's dependency.
Section 725.221 provides that, for purposes of determining the dependency of a
child, the provisions at 20 C.F.R. § 725.209 setting forth conditions for establishing
dependency for purposes of augmentation, shall apply.
a.
Dependency status as
"augmentee"
not determinative
The mere fact that a child "was, or was not, a
dependent for purposes of augmenting the miner's benefits . . . is not
determinative of the issue of whether the individual is a dependent survivor of
such miner." 20 C.F.R. § 725.227 (2000) and (2008).
3. Disabled child, special issues
a. "Disabled" child, defined
A "disability" is defined as "the
inability to engage in substantial gainful activity by reason of any medically
demonstrable physical or mental impairment." Therefore, medical evidence
must be produced to establish disability and the claimant's statements,
standing alone, are insufficient to meet the burden of proof. Tackett v.
Director, OWCP, 10 B.L.R. 1‑117 (1987). In determining eligibility
for survivor's benefits for a disabled child, as defined at Section 223(d)
of the Social Security Act, such disability must have begun before the child
attained the age of 18,
or in the case of a student, before the child ceases to be a student. Lupasky
v. Director, OWCP, 7 B.L.R. 1‑532 (1984).
b.
Distinction between
"augmentee"
and "survivor"
In the case of an augmentee to a survivor's claim
as defined at 20 C.F.R. § 725.209, there is no age requirement for the disabled
child. Wallen v. Director, OWCP, 13 B.L.R. 1‑64 (1989).
The Board reviewed the distinction between the
claim of a disabled child as a "survivor" and as an "augmentee."
In Hite v. Eastern Associated Coal Co., 21 B.L.R. 1-46 (1997), the
Board noted that "there are differing standards for the adult disabled
child as an augmentee [Section 725.209] and the adult disabled child who seeks
benefits in his/her own right [Section 725.221]." The provisions at § 725.221
provide the following:
For the purposes of determining whether a child was
dependent upon a deceased miner, the provisions of § 725.209 shall be
applicable, except that for purposes of determining the eligibility of a child
who is under a disability as defined in section 223(d) of the Social Security
Act, such disability must have begun before the child attained age 18, or in
the case of a student, before the child ceased to be a student.
In
this vein, the Board held that, "[a]fter considering the legislative
history of the pertinent provisions of the Social Security Act . . . the child
as a dependent and augmentee under 20 C.F.R. § 725.209 remains unfettered by
the age cut-off requirement mandated in 20 C.F.R. § 725.221 for the disabled
adult child who seeks benefits in his/her own right."
c.
Retroactive benefit award
In Adler v. Peabody Coal Co., 22 B.L.R. 1-43
(2000), Employer argued that due process barred the award of retroactive
benefits. Specifically, from 1981 to 1996, Employer maintained that it
reasonably relied on a prior administrative law judge's finding in 1988 that
Claimant did not qualify as a dependent. Employer asserted that it did not
develop evidence between 1988 and 1996 "and thus could not present a
meaningful defense thereafter regarding claimant's condition."
Citing to Lane Hollow Coal Co. v. Director, OWCP
[Lockhart], 137 F.3d 799 (4th Cir. 1998) and Venicassa v.
Consolidation Coal Co., 137 F.3d 197 (3rd Cir. 1998), Employer
argued that it was irreparably prejudiced and should be dismissed as the
responsible operator with liability transferred to the Black Lung Disability
Trust Fund (Trust Fund). The Board found Employer's arguments to be without
merit as Employer had been "timely notified of its potential liability for
benefits in the miner's and widow's claims, which listed claimant as a
dependent, disabled adult child . . . and was again timely notified when
claimant filed her application for survivor's benefits . . .." The Board
further noted that Employer was afforded notice and an opportunity to be heard
before the administrative law judge, at which time Employer "fully
presented its case . . .." As a result, the Board denied Employer's
request that liability be transferred to the Trust Fund.
d. Remarriage of disabled child,
effect of
In Sullenberger v. Director, OWCP, 22 B.L.R.
1-54 (2000), an adult disabled child of a deceased miner was awarded benefits
by the district director. The survivor subsequently informed the district
director of his marriage to another disabled individual and the payment of
black lung benefits was suspended by the district director. Six years after
the suspension of his benefits, Claimant requested, in writing, a reinstatement
of benefits. The district director denied the request as an untimely petition
for modification under 20 C.F.R. § 725.310 because Claimant's letter was
received more than one year after the suspension of the benefits. A hearing
was requested and the administrative law judge concluded that, by unilaterally
suspending Claimant's benefits, the district director violated the hearing
procedure requirements at 20 C.F.R. § 725.532(a). As a result, the
administrative law judge considered the request for reinstatement de novo,
and not as a petition for modification. The Board agreed with the
administrative law judge's ruling in this regard.
After a hearing, the administrative law judge
determined that benefits were properly suspended pursuant to 30 U.S.C. § 922(a)(3)
because Claimant was married. Claimant argued on appeal, however, that because
his wife was also disabled and he continues to rely on his parents for
financial support, his benefits should be reinstated. The Board disagreed. It
reasoned that the Act's language "contains no exceptions and provides for
no such inquiry; the test is simply whether or not a claimant is married."
The Board further rejected Claimant's argument that Section 922(a)(3) of the
Act "creates a suspect classification and violates claimant's right to
freely exercise his religion" as the statutory provision is rationally
based and generally applicable.
In Adler v. Peabody Coal Co., 22 B.L.R. 1-43
(2000), a disabled child requested benefits as an augmentee of her mother who
was receiving survivor's benefits. The child also filed a claim in her own
right as the disabled adult child survivor of the miner pursuant to 20 C.F.R. §
725.227. The Board held that a prior administrative law judge's finding of no
dependency was dicta because he ultimately denied benefits on the merits
and, as a result, collateral estoppel was inapplicable.
In determining whether Claimant was disabled, the
Board noted that her eligibility for, and receipt of, Social Security
disability benefits was of record and that the Social Security definition of "disability"
at 20 C.F.R. Part 404, Subpart P, Appendix 1 is incorporated by the black lung
regulations at 20 C.F.R. §§ 725.209(a)(2)(ii) and 725.221 to determine
eligibility for benefits under the Act. Upon review of the record, the Board
determined that the administrative law judge properly credited Claimant's
treating physician, who "observed claimant during examinations performed
over a more than twenty-five year period" and found Claimant to be
disabled, over Employer's examining physician.
Citing to Kidda v. Director, OWCP, 7 B.L.R.
1-202 (1984), aff'd., 769 F.2d 165 (3rd Cir. 1985), cert.
denied, 475 U.S. 1096 (1986), Employer argued that Claimant's marriage "forever
terminated her dependency status" for purposes of augmented and survivor's
benefits. The Board disagreed and held that the Act does not preclude
entitlement of a disabled child "who is 'unmarried' by reason of divorce."
It found that, because Claimant was divorced prior to filing of the miner's
claim, the administrative law judge properly found that she was "unmarried"
from the dates of the miner's and widow's entitlement to benefits and Claimant's
entitlement to benefits as a survivor.
C. Parent,
brother, or sister
Twenty C.F.R. §§ 725.222‑725.225 (2000) and (2008)
set forth the requirements of eligibility of parents and siblings as
survivors. Surviving dependent parents are only entitled to benefits where
there is no surviving spouse or child. Surviving dependent siblings are only
entitled to benefits where there is no surviving spouse, child, or parent. 20
C.F.R. § 725.201(a)(4) (2000) and (2008).
D. Multiple
survivors
More than one child may qualify as a dependent of a
miner and may file a claim for benefits. In such cases, Section 412(a)(3) of
the Act, at 30 U.S.C. § 912(a)(3), provides that benefits shall be divided
equally among such eligible children.
Section 725.537 provides that multiple
survivors are not each entitled to the maximum amount of benefits and it states
the following:
Beginning with the month in which a person other than
a miner files a claim and becomes entitled to benefits, the benefits of the
persons entitled to benefits with respect to the same miner, are adjusted
downward, if necessary, so that no more than the permissible amount of benefits
(the maximum amount for the number of beneficiaries involved) will be paid.
20
C.F.R. § 725.537 (2000) and (2008).
This section was originally interpreted to mean
that a surviving spouse and a surviving divorced spouse are not both entitled
to the same full award of benefits on behalf of the same miner. Kitchen v.
Director, OWCP, 11 BLR 3-270 (1988). However, the Office of Workers
Compensation Programs issued a bulletin in 1992 to state that it would treat
both individuals "widows" entitled to full independent benefits. See
BLBA Bulletin No. 92-4 (June 17, 1992). Eventually, the regulatory
provisions at 20 C.F.R. § 725.537 were amended to provide that a surviving
spouse and surviving divorced spouse are each entitled to full benefits. 20
C.F.R. § 725.537 (2008). The remaining provisions, which apply to other types
of multiple survivors, remain unchanged.
III. Entitlement to survivors' benefits—considerations
beyond
relationship and dependency
A. Surviving
spouse or surviving divorced spouse
Section 725.212 provides entitlement to benefits
where an individual is the surviving spouse or the surviving divorced spouse of
a miner, if such individual:
(a) is not married;
(b) was dependent on the miner at the pertinent
time; and
(c) the deceased miner either:
(i) was receiving benefits under Section 415 or
Part C of Title IV of the Act at the time of death as a result of a claim filed
prior to January 1, 1982; or
(ii) is determined as a result of a claim filed
prior to January 1, 1982, to have been totally disabled due to pneumoconiosis
at the time of death or to have died due to pneumoconiosis. A surviving spouse
or surviving divorced spouse of a miner whose claim is filed on or after
January 1, 1982, must establish that the deceased miner's death was due to
pneumoconiosis in order to establish entitlement to benefits, except under
§718.306 on a claim filed prior to June 30, 1982.
20
C.F.R. § 725.212 (2000) and (2008) (emphasis added).
1. Period of
entitlement
A surviving spouse or surviving divorced spouse is
entitled to benefits for each month beginning with the first month in which all
the conditions listed above are satisfied. 20 C.F.R. § 725.213(a) (2000) and (2008).
The last month for which an individual is entitled to benefits is the month in
which the surviving spouse or surviving divorced spouse either: (1) marries;
(2) dies; or (3) qualified as the surviving spouse of a miner under § 725.204(d),
and subsequently ceased to qualify under that paragraph. 20 C.F.R. § 725.213(b)
(2000) and (2008).
2. Subsequent
remarriage, effect of
The subsequent remarriage of a miner's widow does
not break the nexus to her entitlement. However, the widow cannot be married
and receive survivor's benefits at the same time. Consequently, the Board has
held that where the widow of a miner remarries and her second husband dies, she
is eligible for benefits for the period after the second husband's death. Perles
v. Director, OWCP, 7 B.L.R. 1‑620 (1984); Pendelton v. Director,
OWCP, 8 B.L.R. 1‑242 (1984); Kuhn v. Director, OWCP, 7 B.L.R.
1‑268 (1984). Eligibility revives in such a case because the term "widow"
is defined at Section 402(e) of the Act, 30 U.S.C. §902(e), as "the wife
living with or dependent for support on the decedent at the time of his death .
. . (and) who is not married."
The same reasoning applies where the widow of a
miner remarries and then divorces her second husband. Luchino v. Director,
OWCP, 8 B.L.R. 1‑453 (1986); Chadwell v. Director, OWCP, 8
B.L.R. 1‑495 (1986); Mullins v. Director, OWCP, 7 B.L.R. 1‑156
(1984).
It is noted that the provisions at § 725.213 were
amended to add subsection (c) which provides the following:
A surviving spouse or surviving divorced spouse
whose entitlement to benefits has been terminated pursuant to § 725.213(b)(1)
may thereafter again become entitled to such benefits upon filing application
for such reentitlement, beginning with the first month after the marriage ends
and such individual meets the requirements of § 725.212. The individual shall
not be required to reestablish the miner's entitlement to benefits (§ 725.212(a)(3)(i))
or the miner's death due to pneumoconiosis (§ 725.212(a)(3)(iii).
20
C.F.R. § 725.213(c) (2008).
3. Predeceasing
the miner
Because a survivor's entitlement under the Act
depends upon "surviving" the miner, neither a predeceased survivor,
nor his or her estate, has any cognizable right to benefits under the Act. Kowalchick
v. Director, OWCP, 879 F.2d 1173 (3rd Cir. 1989).
B. Child
Once an individual proves that s/he is a child
dependent upon a deceased miner, such individual will be entitled to benefits
if the miner:
(a) was receiving benefits under Section 415 or
Part C of Title IV of the Act as a result of a claim filed prior to January 1,
1982; or
(b) is determined as a result of a claim filed
prior to January 1, 1982, to have been totally disabled due to pneumoconiosis
at the time of death, or to have died due to pneumoconiosis. A surviving
dependent child of a miner whose claim is filed on or after January 1, 1982,
must establish that the miner's death was due to pneumoconiosis in order to
establish entitlement to benefits, except where entitlement is established
under § 718.306 on a claim filed prior to June 30, 1982.
20
C.F.R. § 725.218(a) (2000) and (2008) (emphasis added).
1. Period
of entitlement
An individual is entitled to benefits as a child
for each month beginning with the first month in which all of the conditions of
entitlement specified above are satisfied. 20 C.F.R. § 725.219(a) (2008). The
last month for which such individual is entitled to such benefits is the month
before the month in which any one of the following events first occurs:
(a) the child dies;
(b) the child marries;
(c) the child attains the age of 18 and;
(1) is not under a disability at that time; and
(2) is not a student (§ 725.209(b)) during any part
of the month in which the child attains age 18;
(d) if the child's entitlement is based on his or
her status as a student, the earlier of:
(1) the first month during no part of which the individual
is a student; or
(2) the month in which the individual attains the
age of 23 and is not under a disability at the time;
(e) if a child's entitlement is based on
disability, the first month in no part of which such individual is under a
disability.
20
C.F.R. § 725.219(b) (2000) and (2008).
2. Status as student
Under the amended regulations, the following
provisions were added to 20 C.F.R. § 725.219 regarding the duration of
entitlement of a child:
(b) The last month for which such individual is
entitled to such benefits is the month before the month in which any one of the
following events first occurs:
. . .
(3) The child attains age 18; and
(i) Is not a student (as defined in
§ 725.209(b)) during any part of the month in which
the child attains age 18; and
(ii) Is not under a disability as defined in
§ 725.209(a)(2)(ii) at that time;
(4) If the child's entitlement beyond age 18 is
based on his or her status as a student, the earlier of:
(i) The first month during no part of which the
child is a student; or
(ii) The month in which the child attains age 23
and is not under a disability (as defined in § 725.209(a)(2)(ii)) at that time;
(5) If the child's entitlement beyond age 18 is
based on disability, the first month in no part of which such individual is
under a disability.
(c) A child whose entitlement to benefits
terminated with the month before the month in which the child attained age 18,
or later, may thereafter (provided such individual is not married) again become
entitled to such benefits upon filing application for such reentitlement,
beginning with the first month after termination of benefits in which such
individual is a student and has not attained the age of 23.
(d) A child whose entitlement to benefits has been
terminated pursuant to § 725.219(b)(2) may thereafter again become entitled to
such benefits upon filing application for such reentitlement, beginning with
the first month after the marriage ends and such individual meets the
requirements of § 725.218. The individual shall not be required to reestablish
the miner's entitlement to benefits (§ 725.218(a)(1)) or the miner's death due
to pneumoconiosis (§ 725.212(a)(2)).
20
C.F.R. § 725.219 (2008).
3. Disabled child, gainful employment
precludes entitlement
The Board has held that there is no re-entitlement
to benefits where an individual ceases to be eligible as a disabled child for a
15 year period because of substantial, gainful employment, but then once again
qualifies as a disabled individual. Kidda v. Director, OWCP, 7 B.L.R. 1‑202
(1984), aff'd., 769 F.2d 1651 (3rd Cir.), cert. denied,
106 S. Ct. 1494 (1985). See also Turkovich v. Director, OWCP,
7 B.L.R. 1‑182 (1984) (work as school teacher is not substantial, gainful
work); Piccin v. Director, OWCP, 6 B.L.R. 1‑616 (1983) (work as an
office cleaning woman and telephone receptionist is substantial, gainful work).
IV. Automatic entitlement to survivors' benefits
Under 20 C.F.R. § 725.212, a survivor is
automatically entitled to benefits if the deceased miner, as a result of the miner's
claim filed prior to January 1, 1982, was eligible for or receiving
benefits under Section 415 of the Act (§ 410.490) or Part C of title IV (Parts
718 and 727) at the time of death. The survivor is also automatically entitled
to benefits if, as a result of a claim filed prior to January 1, 1982, the
deceased miner is determined to have been totally disabled due to
pneumoconiosis at the time of death or to have died due to pneumoconiosis. 20
C.F.R. § 725.212 (2000) and (2008). See also 20 C.F.R. § 410.200.
Pursuant to the 1981 Amendments to the Black Lung
Benefits Act, there is no longer any provision for automatic entitlement for a
survivor where no miner's claim was filed prior to January 1, 1982, or such a
claim filed prior to January 1, 1982, did not result in entitlement. Rather,
the survivor must establish independently that the miner's death was due to
pneumoconiosis under Part 718.
In sum, the regulations under Parts 410 and 727 and
§ 410.490 provide automatic entitlement to survivors where a miner's claim
resulted in entitlement based upon a finding of total disability due to
pneumoconiosis at the time of death. Part 718 likewise affords automatic
entitlement to survivors who filed claims on or after April 1, 1980, where the
miner was awarded benefits based on a claim filed prior to January 1, 1982.
However, the regulations at Part 718 dispense with
this avenue of entitlement for survivors' claims filed after April 1, 1980,
where the miner was not entitled to benefits as the result of a claim
filed prior to January 1, 1982. In particular, Part 718 requires that the
survivor establish that the miner's death was due to pneumoconiosis. This
change in the tenor of the regulations was designed to eliminate entitlement to
a survivor where the miner was totally disabled due to pneumoconiosis during
his or her lifetime, but died due to other causes.
