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Marx v. Director

filed: March 13, 1989.

RUTH MARX (WIDOW OF ROBERT MARX), PETITIONER
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, BENEFITS REVIEW BOARD, RESPONDENTS



On Appeal from the Benefits Review Board, BRB Docket No. 86-3180 BLA.

Gibbons, Hutchinson, Circuit Judges, and Brotman, District Judge.*fn*

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge

Ruth Marx, the widow of Robert Marx (Marx), petitions for review of a decision and order of the Benefits Review Board (Board). The Board's order affirmed a decision of an Administrative Law Judge (ALJ) denying Marx's claim for benefits and Mrs. Marx's claim for survivor's benefits under the Black Lung Benefits Act, 30 U.S.C.A. §§ 901-945 (West 1986) (the Act). The ALJ determined Mrs. Marx was not entitled to the statutory presumption that her husband died from pneumoconiosis and had not otherwise established her right to survivor's benefits. He also denied Marx's claim, concluding that Mrs. Marx had not shown her husband was totally disabled from pneumoconiosis prior to his death.

We have jurisdiction pursuant to 30 U.S.C.A. § 932(a), which incorporates the review procedures of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.A. § 921(c) (West 1986). We conclude that the ALJ did not adequately explain his reasons for denying Mrs. Marx the benefits of the presumption and that this error was not harmless. We also hold that the ALJ incorrectly evaluated Marx's claim. Accordingly, we will vacate the Board's order and remand for further proceedings.

I.

Marx filed for benefits under the Act on July 7, 1980. He died on January 11, 1981 and his widow informed the Director of this fact on February 23, 1981 by submitting a "Survivor's Notification of Beneficiary's Death." The Director then administratively denied both the original claim and Mrs. Marx's request for survivor's benefits.

Mrs. Marx sought a hearing. She attempted to show that she was entitled to survivor's benefits because her husband died of pneumoconiosis. See 20 C.F.R. § 718.1(a) (1988). She relied on the rebuttable presumption, available on claims filed before January 1, 1982, that one who had worked at least ten years in the mines and died of a respirable disease died of pneumoconiosis. 30 U.S.C.A. §§ 921(c)(2), 940; 20 C.F.R. 718.303 (1988).*fn1 As evidence that Marx met the durational requirement, his brother Alvin testified that Marx worked in independent mines from 1943 until entering military service in 1951. Alvin's testimony that this included work for James Frank was supported by Frank's written statement that he worked with Marx in the mines from 1945 until 1951. Mrs. Marx then testified that her husband worked in the mines from his discharge in May, 1953 until 1957. She indicated that while Marx had other employment during this period, he continued to work regularly in the mines:

Well, he was working at Alcoa, like part time, he'd be working like maybe two weeks, then he'd be layed [sic] off then he'd go in the mines. Then he'd be called back to Alcoa, then he'd go back to Alcoa for maybe a couple of weeks, then back into the mines.

Transcript of June 24, 1986 hearing (Transcript) at 12-13.*fn2

The Director relied solely on documentary evidence to refute this testimony. In his initial application, Marx stated he had worked in independent mines from 1944 until 1953 and for Chornack Brothers, a mining company, from 1953 to 1954. He listed no work as a miner after 1954. The Director also introduced Marx's Social Security records from 1945 through 1955. These show earnings from Alvin Young, a mining concern, in the third quarter of 1945 and from Chornack Brothers from the third quarter of 1953 through the fourth quarter of 1954. The records further reveal earnings from General Battery Corporation in the second quarter of 1955, and from Alcoa in the second, third, and fourth quarters of 1955. Director's Exhibit 6.

There was also evidence that Marx died of a respirable disease. His treating physician, Dr. William Walters, reported that in 1972 Marx had "all the clinical signs and symptoms of pulmonary emphysema, bilaterally. He had a barrel-shaped chest . . . and [his] breath sounds were very distant, bilaterally, and he had fine, wheezing rales on inspiration and expiration." Appendix (App.) at 21. A pulmonary function test administered when Marx was hospitalized in March, 1980 showed moderate airflow obstruction and Dr. Walters concluded that Marx "had chronic obstructive pulmonary disease of long duration, evidently, due to anthracosilicosis." Id.*fn3 Hospital records from June, 1980 state that Marx had pulmonary emphysema, id. at 22, a diagnosis consistent with Dr. Walters's finding, and a blood gas study administered during Marx's final hospitalization in January, 1981 produced values establishing total disability under the regulations. Id. at 27; 20 C.F.R. § 718.204(c)(2) & Appendix C (1988). The January, 1981 hospital records indicate a history of tuberculosis, pulmonary infiltrate, probable pneumonia, post-obstructive, and hypernephroma of the kidney and state that "the cause of death was thought to be respiratory arrest or acute respiratory failure secondary to pulmonary metastases, from hypernephroma of the kidney in addition to bacterial pneumonia." App. at 28.*fn4

The ALJ found that the evidence showed at most eight years of coal mine employment, rendering the presumption of death due to pneumoconiosis inapplicable. He then considered the medical evidence. The ALJ denied Marx's claim, finding that although Marx was totally disabled prior to his death he did not suffer from pneumoconiosis. The ALJ also denied the claim for survivor's benefits since Mrs. Marx had "failed to ...


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