ON PETITION FOR REVIEW OF A DECISION OF THE BENEFITS REVIEW BOARD REHEARING BEFORE THE ORIGINAL PANEL MAY 16, 1983.
Gibbons, Weis and Sloviter, Circuit Judges. Weis, Circuit Judge, concurring and dissenting.
On April 9, 1983 we granted the petition of the Director, Office of Workers' Compensation Programs, Department of Labor, for panel rehearing of our decision of October 22, 1982 granting the petition of Charles J. Halon, Jr., Executor of the Estate of Bertha Kubilus, for review of the denial of Mrs. Kubilus' claim for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-45 (1976 & Supp. V 1981). The case was set down for argument on May 16, 1983. We reinstate our October 22, 1982 judgment.
Mrs. Kubilus, who died while her claim was pending, was the widow of a coal miner. She filed a claim for survivors benefits on August 28, 1974. The claim was originally denied. The Black Lung Benefits Reform Act of 1977, Pub. L. 95-239, 92 Stat. 95, greatly liberalized the criteria for black lung benefits. Section 15 of that Act added a provision, now found at 30 U.S.C. § 945 (Supp. V 1981), for review of pending and previously denied claims. The 1977 Act also transferred most adjudicatory functions from the Department of Health, Education and Welfare to the Department of Labor. The section requiring review of pending or previously denied claims provides that the Secretary of Health, Education and Welfare (now the Secretary of Health and Human Services) shall on request review previously denied claims on the original record under the liberalized standard of the 1977 Act. If approved, such claims are certified to the Secretary of Labor for payment. 30 U.S.C. § 945(a)(2)(A). Any claim not so approved is referred to the Secretary of Labor for determination. 30 U.S.C. § 945(a)(2)(B). The Labor Department must take into account the evidence in the file. If that is insufficient for approval of the claim under the Black Lung Benefits Reform Act of 1977 the Secretary must provide an opportunity for the claimant to present additional evidence.
At the time of the passage of the Black Lung Benefits Reform Act of 1977 the Secretary of Health, Education and Welfare was adjudicating claims under regulations found at Part 410 of Title 20, Code of Federal Regulations. Mindful of the fact that under 30 U.S.C. § 945 some pending and previously denied claims would be processed by HEW while others would be processed by Labor, Congress in section 2(c) of the 1977 Act provided that "total disability" has the meaning given to it by regulations of either Secretary. 30 U.S.C. § 902(f)(1). Section 2(c), however, dealt specifically with cases reviewed pursuant to 30 U.S.C. § 945 as follows:
Criteria applied by the Secretary of Labor in cases of --
(A) any claim which is subject to review by the Secretary of Health and Human Services or subject to a determination by the Secretary of Labor, under section 945(a) of this title;
(B) any claim which is subject to review by the Secretary of Labor under section 945(b) of this title; and
(C) any claim filed on or before the effective date of regulations promulgated under this subsection by the Secretary of Labor;
shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973, whether or not the final disposition of any such claim occurs after the date of such promulgation of regulations by the Secretary of Labor.
Under the statute, if the late Mr. Kubilus was permanently disabled by pneumoconiosis prior to his death, and the pneumoconiosis arose out of coal mine employment his widow was entitled to survivors benefits under the Act. 30 U.S.C. §§ 921(a), 902(b). The Secretary of Health, Education and Welfare adopted interim adjudicatory rules for the determination of the cause of such permanent disability. The regulation relevant to this case provides:
(b) Interim Presumption. With respect to . . . a survivor of a miner who dies before January 1, 1974, when such survivor timely files a claim for benefits, such miner will be presumed . . . to have been totally disabled due to pneumoconiosis at the time of his death, or his death will be presumed to be due to pneumoconiosis, as the case may be, if:
(1) One of the following medical requirements is met:
(i) A chest roentgenogram (X-ray), biopsy, or autopsy establishes the existence of pneumoconiosis (see § 410.428); . . .
(2) The impairment established in accordance with paragraph (b)(1) of this section arose out of coal mine ...