On Petition for Review of an Order of the Benefits Review Board (BRB Docket No. 87-1599 BLA).
Sloviter, Scirica and Nygaard, Circuit Judges.
We are faced with a conflict between the Director of the Office of Workers' Compensation Programs (Director) and the Benefits Review Board (Board) over the interpretation of a regulation.*fn1 The regulation at issue, 20 C.F.R. § 718.205(c), sets forth the criteria used to determine whether the death of a miner will be considered to be due to pneumoconiosis, commonly known as black lung disease, in order to entitle the survivor to benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-962 (1982). The particular subsection at issue here applies when pneumoconiosis was a "substantial cause or factor leading to the miner's death." 20 C.F.R. § 718.205(c) (2).
Kathryn Lukosevicz, the widow of a miner, filed a claim on February 11, 1983 for survivor's benefits following the death of her husband. An Administrative Law Judge denied benefits on the ground that pneumoconiosis was not a "substantially contributing cause" of death within the meaning of the regulation. On appeal to the Benefits Review Board, the Director, as well as the claimant, argued that the ALJ erred in applying the regulation. The Board rejected the Director's position and affirmed the ALJ's decision.
Following the filing by Lukosevicz of a petition for review of the Board's decision in this court, Lukosevicz and the Director filed a joint motion to remand this case to the Benefits Review Board with instructions to vacate the Board's opinion and remand this case for payment of benefits. Because such action entails a decision on the merits, we asked the parties to file memoranda setting forth the relevant facts, together with any supporting documentation, and the legal argument in support of their position.*fn2 We have jurisdiction over the appeal pursuant to 30 U.S.C. § 932(a) (Supp. V 1987). See Marx v. Director OWCP, 870 F.2d 114, 116 (3d Cir. 1989).
Lukosevicz and the Director argue, in essence, that the Board is applying an incorrect legal interpretation of the administrative regulation in question. The issue is a matter of first impression in the courts of appeals.
The Black Lung Benefits Act (Act) provides in general terms that benefits are to be provided "to the surviving dependents of miners whose death was due to [pneumoconiosis.]" 30 U.S.C. § 901(a) (1982). The Act left to the Department of Labor, the agency charged with implementing the Act, the task of defining the term "due to." See 30 U.S.C. § 932(a) (Supp. V 1987).*fn3 The current version of § 718.205(c) applicable to Lukosevicz provides:
[for] survivors' claims filed on or after January 1, 1982, death will be considered to be due to pneumoconiosis if any of the following criteria is met:
(1) Where competent medical evidence established that the miner's death was due to pneumoconiosis, or
(2) Where pneumoconiosis was a substantially contributing cause or factor leading to the miner's death or where the death was caused by ...