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Hillibush v. U.S. Department of Labor

filed: August 1, 1988.


On Petition for Review from the United States Department of Labor, Benefits Review Board, Board Docket No. 85-1029 BLA.

Gibbons, Chief Judge, and Higginbotham, Circuit Judge, and Roth, District Judge.*fn*

Author: Higginbotham


A. LEON HlGGlNBOTHAM, JR., Circuit Judge.

The petitioner, Helen Hillibush, appeals from a decision of the Department of Labor's Benefits Review Board ("the Board") affirming an administrative law judge's denial of her benefits under § 21(c) of the Longshoremen's and Harbor Workers' Compensation Act of 1927, 33 U.S.C. § 921(c) (1982), as incorporated by § 422(a) of the Black Lung Benefits Act, 30 U.S.C. § 932(a) (1982). The respondent, the Director of the Department of Labor's Office of Workers' Compensation Programs ("OWCP") seeks a remand of this case to the Board. This Court has jurisdiction to review the Board's decision, as the claimant in this case is the widow of a miner whose injury occurred in the Commonwealth of Pennsylvania. 33 U.S.C. § 921(c) (1982). We will vacate the decision of the Benefits Review Board and remand this case for further proceedings.


On March 27, 1981, Helen Hillibush filed for survivor's benefits under the Black Lung Benefits Act of 1977, 30 U.S.C. §§ 901-945 (1982). The Department of Labor administratively denied the claim on August 10, 1981. Mrs. Hillibush then requested a formal hearing, which was held on March 7, 1985 in Pottsville, Pennsylvania before an administrative law judge (ALJ).

Mrs. Hillibush presented evidence to the administrative law judge consisting of her own testimony and five affidavits. Her testimony recounted her husband, Edward Hillibush's deteriorating condition in the years before his death. She stated that in his last years he could not perform jobs around the house. App. at 21. He would handle emergency jobs, but the longer he worked at them the more difficult his breathing became. App. at 21. He took his time climbing stairs and breathed heavily when he reached the top. App. at 22. He went from a man "very versed in woodworking . . . remodeling, plumbing" (App. at 21), who was able to handle "enormous jobs" (App. at 22) to someone for whom major effort was required to take a walk around a shopping mall or climb up one flight of stairs. App. at 22-23. He coughed up "horrible black stuff."App. at 22. The miner coughed often. He did not renew his hunting and fishing licenses a year before his death because he did not feel he could do the walking. App. at 23. Mrs. Hillibush also testified that her husband avoided walking when possible, but he never complained to her of shortness of breath because he kept his health problems to himself. App. at 26.

Mrs. Hillibush testified that the miner worked as a weIder and mechanic in coal mine employment until 1969 and that he last worked for F & E Erection Company as a weIder. App. at 18, 26-28. She believed that the physical requirements of his coal mine employment were great, and she observed dusty conditions in his workplace. App. at 18-19. She did not know that her husband was ever given lighter duties while working in the coal mines, but she stated that 18 months before he died he told her that a co-worker complained that he did not do as much as the other men. App. at 20-21, 28.

Donald Bernosky's affidavit consisted of a letter to Hillibush's attorney in which he stated that he had worked with Edward Hillibush in several jobs from 1971 through 1979. App. at 14. He described the miner as coming to need help even on routine tasks, and stated that Mr. Hillibush's condition grew progressively worse to the point that he would ask for assistance rather than move heavy equipment on his own. He preferred to work in the open air "where the smoke dissipated more quickly," and he openly wondered whether he would make it to retirement. App. at 14.

David Hillibush, the miner's son, also wrote a letter concerning his father's health. App. at 11-12. Although his father never complained to him of weakness or shortness of breath, David wrote that it was obvious that he could no longer perform daily tasks. David had to do most of the odd jobs around the house because physical exertion left his father exhausted and short of breath. David noted that if the miner did attempt any work around the house, he would have to take breaks periodically. David also worked with his father in construction jobs for F & E Construction and Kimbob, Inc., and he noticed that his father needed help moving and setting up equipment and was too exhausted to drive home at the end of the day. Id.

Samuel Jones signed an affidavit in which he stated that he was a foreman for the F & E Erection Company and he supervised the miner in 1980. App. at 16. During his brief period of supervision of the miner, Jones observed that Mr. Hillibush "coughed quite a bit and seemed awfully short of breath," tired quickly and was unable to perform many tasks without difficulty. Id.

John Verbash, a Kimbob, Inc. foreman, stated in an affidavit that he supervised Edward Hillibush from December 1978 until early 1980. App. at 15. He listed the miner's duties as including the fueling of equipment, light mechanical work, welding, and maintenance lighting facilities. He remembered Mr. Hillibush as being short of breath and finding difficulty "in walking up even a slight hill or even attempting to do any kind of heavy work." Id. Sometimes the miner seemed so tired that Verbash would let him ride in his truck while he went about his own duties, or he would perform the miner's heavier tasks for him. He noted that the miner was usually exhausted at the end of a shift and offered his belief that the miner should not have been working at all. The miner once told Verbash that if he (Verbash) had not covered for him, he "never would have been able to hold the job." Id.

John Huth, a co-worker of Mr. Hillibush, wrote that the miner needed progressively more help in his job. App. at 13. He stated that the miner had to ask for help in lifting or moving equipment and that he could no longer work independently.

On April 10, 1985, the ALJ issued a decision and order denying Mrs. Hillibush benefits on the grounds that she had failed to establish that her miner husband had pneumoconiosis or was totally disabled due to it. Since claimant filed for benefits before January 1, 1982, see 30 U.S.C. § 921 (1982), the ALJ applied the federal regulations at 20 C.F.R. § 718.201-307 (1987) (Determining Entitlement to Benefits; Presumptions Applicable to Eligibility Determinations).*fn1 The ALJ found that the miner had worked in coal mines for at least 18 years ending in 1969 ...

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