SSR 73-36: SECTION 402(f) (30 USC 901) -- FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969 AS AMENDED -- MINER'S DEATH RESULTING FROM COAL MINE ACCIDENT WHILE REGULARLY AND GAINFULLY EMPLOYED -- ESTABLISHMENT OF WIDOW'S ENTITLEMENT TO BLACK LUNG BENEFITS

20 CFR, Part 410, § 410.422ff

SSR 73-36

H, widow of J, filed an application January 5, 1973, for Federal black

lung benefits under the Federal Coal Mine Health and Safety Act, as

amended, based on the coal mine employment of her deceased husband.

Evidence submitted in support of H's claim established that J was

employed in the nation's coal mines for at least 10 years prior to his

death. While so employed by the XYZ Company, he died instantly in a coal

mine slate fall on December 14, 1972. At the time of his death, he was

regularly employed as a coal miner with earnings at a rate in excess of

$7,800 per annum.

J's death certificated showed that death was due to a massive lung

hemorrhage caused by a crushing injury to his chest. It also showed that

he had pneumoconiosis; however, no autopsy was performed. An X-ray

examination of J's chest made 3 months before his death showed that he had

pneumoconiosis classified as category 1 (an early state of the disease

commonly known as "simple" pneumoconiosis). The miner had not filed for,

nor was he entitled to, black lung benefits at the time of his death.

Social Security Administration Regulations No. 10, Subpart B, section

410.210 provides that a widow may become entitled to black lung benefits

under the provisions of Title IV of the Federal Coal Mine Health and

Safety Act, as amended in 1972, if the deceased miner (1) was entitled to

black lung benefits at the time of his death; or (2) died before January

1, 1974, and it is determined that he was totally disabled due to

pneumoconiosis at the time of his death, or that his death was due to

pneumoconiosis.

black lung benefits

under the provisions of Title IV of the Federal Coal Mine Health and

Safety Act, as amended in 1972, if the deceased miner (1) was entitled to

black lung benefits at the time of his death; or (2) died before January

1, 1974, and it is determined that he was totally disabled due to

pneumoconiosis at the time of his death, or that his death was due to

pneumoconiosis.

Because the miner was not entitled to black lung benefits at the time of

his death, but did die before January 1, 1974, the survivor claimant, upon

filing application, can establish entitlement to Part B benefits only if

it can be determined that the miner was totally disabled at the time of

his death or that his death was due to pneumoconiosis. In this connection,

it is pertinent to consider the provision in section 411(c)(3 of the

Federal Coal Mine Health and Safety Act which provides that where a miner

has an advanced stage of pneumoconiosis (classified as category A, B, or C

in the International Classification of Radiographs of the Pneumoconioses

by the Internationale Labor Organization), and commonly known as

"complicated" pneumoconiosis, there shall be an irrebuttable presumption

that he was totally disabled due to pneumoconiosis or that his death was

due to pneumoconiosis. In this case, the evidence shows that the miner did

not have "complicated" pneumoconiosis. Therefore, total disability or

death due to pneumoconiosis cannot be established on this basis. Moreover,

since the evidence shows that the miner died instantly in the slate fall,

there is no reasonable basis otherwise for determining that death was due

to pneumoconiosis.

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due to pneumoconiosis. In this case, the evidence shows that the miner did

not have "complicated" pneumoconiosis. Therefore, total disability or

death due to pneumoconiosis cannot be established on this basis. Moreover,

since the evidence shows that the miner died instantly in the slate fall,

there is no reasonable basis otherwise for determining that death was due

to pneumoconiosis.

In a case where total disability at the time of death or death due to

pneumoconiosis cannot be irrebuttably presumed because the miner did not

have "complicated" pneumoconiosis, a survivor may still establish

eligibility if it can be determined that the miner was totally disabled at

the time of his death. In this connection, section 402(f) of the Federal

Coal Mine Health and Safety Act, as amended, provides in pertinent part

that a miner shall be considered "totally disabled" when ". . .

pneumoconiosis prevents him from engaging in gainful employment requiring

the skills and abilities comparable to those of any employment in a mine

or mines in which he previously engaged with some regularity and over a

substantial period of time. . . ."

In implementing this provision, the regulations do not permit a finding

that total disability exists in a case like this one, where the miner was

and had been satisfactorily and regularly working as a miner in a coal

mine. Such employment precludes a finding of total disability under the

law. Any possible doubt about the meaning of section 402(f) was removed by

an explanatory statement in the report of the Conference Committee of both

Houses of Congress, H.R. Report Io. 1048, 92nd Congress, 2d Sess., Page 7

, where the miner was

and had been satisfactorily and regularly working as a miner in a coal

mine. Such employment precludes a finding of total disability under the

law. Any possible doubt about the meaning of section 402(f) was removed by

an explanatory statement in the report of the Conference Committee of both

Houses of Congress, H.R. Report Io. 1048, 92nd Congress, 2d Sess., Page 7

(1972) which states ". . . it is not intended that a miner be found to be

totally disabled if he is in fact engaging in substantial work involving

skills and abilities closely comparable to those of any mine employment in

which he previously engaged with some regularity and over a substantial

period of time. . . ."

Because J was so employed at the time of his death and did not have

"complicated" pneumoconiosis, there is no basis for finding that the was

totally disabled at the time of his death. However, it should be

recognized that there are very limited circumstances under which a finding

that a miner was totally disabled could be made even if he was working as

a miner at the time of his death and did not have "complicated"

pneumoconiosis. For example, if his pulmonary or respiratory disease

resulted in sporadic work, poor performance and marginal earnings, there

could be a basis for determining that such work was so insubstantial as

not to preclude a finding of total disability. None of these conditions

were present in this case. Accordingly, H's claim must be denied.