SSR 72-66: FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969, AS AMENDED -- SECTION 412(b) (30 U.S.C. 922(b)) -- REDUCTIONS -- STATE WORKMEN'S COMPENSATION DEATH BENEFITS -- KENTUCKY

20 CFR 410.520

SSR 72-66

A question has been raised as to whether compensation paid to a miner's

widow under § 342.070, Kentucky Revised Statutes, because of the death of

her husband, constitutes payment under the Kentucky workmen's

compensation, unemployment, or disability insurance laws on account of the

disability of the miner; if it does, such compensation would require a

reduction in Black Lung benefits under section 412(b) of the Federal Coal

Mine Health and Safety Act of 1969, as amended.

Section 342.070, Kentucky Revised Statutes, provides in pertinent part

that where death of an employee results within two years from a

compensable accident or occupational disease, certain burial expenses are

payable, as well as compensation to persons wholly dependent on the

deceased employee (among others). If death occurs as a result of the

injury or an occupational disease after a period of total or partial

disability, the period of disability must be deducted from the total

period of compensation and the benefits paid thereunder from the maximum

allowed by the statute for death.

Section 342.075, Kentucky Revised Statutes, further provides in pertinent

part:

Section 412(b) of the Federal Coal Mine Health and Safety Act of 1969, as

amended (30 U.S.C. 922(b)), reads in pertinent part:

This section is contained in part B of Title IV of the above Act. That

part provides benefits not only for miners but also for their surviving

widows

llowed by the statute for death.

Section 342.075, Kentucky Revised Statutes, further provides in pertinent

part:

Section 412(b) of the Federal Coal Mine Health and Safety Act of 1969, as

amended (30 U.S.C. 922(b)), reads in pertinent part:

This section is contained in part B of Title IV of the above Act. That

part provides benefits not only for miners but also for their surviving

widows. It requires the reduction of either type of benefit on account of

any State workmen's compensation payment received "on account of the

disability of such miner." The absence of a specific reduction provision

aimed expressly at State payments a widow entitled to Black Lung benefits

would be most likely to receive, supports the view that death payments

were not intended to be included within the term "disability." This

interpretation also reflects the general principle of statutory

construction that if only one specific item in a class of items is

referred to in a statute, specific items not referred to are intended to

be excluded therefrom.

In view of the liberal construction usually afforded to remedial

legislation generally and to workmen's compensation statutes in

particular, the better view of the reduction provisions of section 412(b)

is that in extending to payments made on account of the disability of the

miner, they do not thereby also extend to payments made on account of his

death.

The Court of Appeals of Kentucky, the highest court of that State, has on

many occasions rendered decisions on claims brought under sections 342.070

and 342.075, Kentucky Revised Statutes. In Proctor and Gamble Mfg. Co.

et al v. Little , 357 S.W.2d 866 (1962), the Court of Appeals in

referring to the Workmen's Compensation Laws, Kentucky Revised Statutes,

Chapt. 342, stated:

is

death.

The Court of Appeals of Kentucky, the highest court of that State, has on

many occasions rendered decisions on claims brought under sections 342.070

and 342.075, Kentucky Revised Statutes. In Proctor and Gamble Mfg. Co.

et al v. Little , 357 S.W.2d 866 (1962), the Court of Appeals in

referring to the Workmen's Compensation Laws, Kentucky Revised Statutes,

Chapt. 342, stated:

In Reynolds Metal Co. v. Glass , 195 S.W.2d 280 (1946), the Court

of Appeals set forth the purposes of the Kentucky Compensation Act,

Kentucky Revised Statues, Chapt. 342, citing with approval an earlier

decision, Blue Diamond Coal Co. v. Frazier , 229 Ky. 450, 17 S.W.2d

406, 407 (1929) which stated:

The decisions of the Kentucky Court of Appeals indicate that compensation

paid to dependents under section 342.070, Kentucky Revised Statutes, is

not workmen's compensation for the disability of a worker but compensation

to his dependents who have lost their legal rights to sue for his death at

common law. Such compensation is for their own loss of maintenance and

support on account of the worker's death.

Thus, in the case of a miner's widow who is presumed to have been wholly

dependent upon her husband, or is determined to have been dependent upon

him under the statute, and accordingly is paid compensation on account of

his death under section 342.070, Kentucky Revised Statutes, held ,

section 412(b) of the Federal Coal Mine Health and Safety Act of 1969, as

amended, does not require the amount of such death compensation to be

offset against the widow's Black Lung benefits.