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Pothering v. Parkson Coal Co.

argued: June 15, 1988.

IRMA POTHERING (WIDOW OF VINCENT POTHERING), RESPONDENT
v.
PARKSON COAL COMPANY AND CONSTITUTION STATE SERVICE CO., EMPLOYER/CARRIER, PETITIONERS AND DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, PARTY-IN-INTEREST



On Petition for Review of Order of the Benefits Review Board, Board No. 85-108 BLA.

Mansmann, Scirica and Cowen, Circuit Judges.

Author: Scirica

Opinion OF THE COURT

SCIRICA, Circuit Judge.

Petitioners Parkson Coal Company and Constitution State Service Company*fn1 ("Parkson") appeal from a decision of the Benefits Review Board ("the Board") denying Parkson's motion for reconsideration of an order dismissing Parkson's appeal from an Administrative Law Judge's award of survivor's benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-45 (1982). We must determine whether the Board erred in ordering payment of a benefits award based upon Mr. Pothering's death due to pneumoconiosis, or "black lung disease."

The principal issue raised by this appeal is whether an eligible survivor of a deceased miner who had filed a claim during his lifetime prior to 1982, the year the Act was amended, is required to file a new claim after the miner's death.

Under the Act, the dependent survivor of a deceased miner may be eligible for either of two types of survivor's benefits. The first type arises where a miner is totally disabled during his lifetime by pneumoconiosis. A dependent survivor of a totally disabled miner is derivatively entitled to the same disability benefits during her lifetime to which the miner would have been entitled during his lifetime. 30 U.S.C. § 922. The second type is awarded where the miner in fact dies from pneumoconiosis. Id.

In 1981, the Act was substantially amended. The Act still provided, however, that:

In no case shall the eligible survivors of a miner who was determined to be eligible to receive benefits under [the Black Lung Benefits Act] at the time of his or her death be required to file a new claim for benefits, or refile or otherwise revalidate the claim of such miner, except with respect to a claim filed under this part on or after the effective date of the Black Lung Benefits Amendments of 1981.

Black Lung Benefits Revenue Act of 1981, Pub. L. No. 97-119, § 422(1), 95 Stat. 1635, 1644 (1981) (codified as amended at 30 U.S.C. § 932(1) (1982)).

We hold that § 422(1) applies to both types of survivor's benefits and that an eligible survivor of a miner who filed a claim during his lifetime before January 1, 1982, the effective date of the 1981 amendments, need not file a new claim after the miner's death. We will affirm the decision of the Benefits Review Board.

I.

Vincent Pothering worked in the coal mines of Pennsylvania for 17 years. On May 23, 1978, suffering from the black lung disease which would eventually cause his death, Mr. Pothering filed a claim for disability benefits under the Act. The Deputy Commissioner of OWCP issued a Notice of Initial Finding on May 16, 1980, informing Parkson that Mr. Pothering had been found totally disabled due to pneumoconiosis as of May 1978, that Mrs. Pothering was his eligible dependent, and that Parkson was the responsible operator. Parkson filed a timely controversion to the finding, the Deputy Commissioner affirmed her determination, and the matter was assigned to an Administrative Law Judge ("ALJ"). On January 24, 1984, at a hearing, the ALJ received exhibits but heard no testimony.

On April 20, 1984, while the matter was still pending before the ALJ, Mr. Pothering died. Mrs. Pothering notified the Department of his death and, on April 25, 1984, completed Form CM-1089 ("Survivor's Notification of Beneficiary's Death"). As a result, on August 21, 1984, the Deputy Commissioner notified Parkson of Mr. Pothering's death. The notice*fn2 recited the text of § 422(1) and stated the following:

Based upon the available evidence, I find that the miner's survivor(s) satisfy the conditions set forth in 20 CFR 725.212 et seq.*fn3 It has been initially determined . . . that the survivor(s) are eligible for benefits under the Act beginning with the month in which the miner's death occurred. Accordingly, you should begin payment of benefits within thirty (30) days of the date of this letter and, upon making the first payment, immediately complete and return the enclosed [forms] to this office. If both forms are not returned to this office, the survivor(s) claim will be joined with the deceased miner's claim for resolution of outstanding issues. If you wish to contest the initial determination, you must file a controversion . . . with this office within thirty (30) days of the date of this notice.

App. at 20. Copies of this notice were sent to Mrs. Pothering, to Mr. Pothering's attorney, to Parkson, to Travelers Insurance Company, to the Office of ALJs, and to the Labor Department's Office of the Solicitor in Philadelphia--but not to counsel for Parkson. ...


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