Farmer v. Weinberger, 74-2319

• Decision Date: 08 July 1975
• Docket Number: No. 74-2319,74-2319
• Citation: 519 F.2d 627
• Parties: Annette Caudill FARMER, Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary, Health, Education and Welfare, Defendant- Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 627

519 F.2d 627

Annette Caudill FARMER, Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary, Health, Education and Welfare Defendant- Appellee.

No. 74-2319.

United States Court of Appeals Sixth Circuit.

Decided July 8, 1975.

Albert A. Burchett, Martin, Ky., Thomas M. Place, Carlisle, Pa., for plaintiff-appellant.

Eugene E. Siler, Jr., U. S. Atty., Robert M. Murphy, Lexington, Ky., for defendant-appellee.

Before MILLER and LIVELY, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

WILLIAM E. MILLER, Circuit Judge.

This action was filed in the district court to review the final decision of the Secretary of Health, Education and Welfare denying plaintiff's claim pursuant to the Secretary of Health, Education and Welfare denying plaintiff's claim pursuant to the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 901 et seq. Plaintiff is a widow seeking "black lung" benefits on behalf of the surviving two children of her marriage to a deceased miner. ¹ The district court affirmed the finding of the Secretary by granting defendant's motion for summary judgment, concluding that the Secretary's decision was supported by substantial evidence.

Plaintiff is the widow of Diamond Caudill who died September 25, 1971, at the age of 32. The deceased worked as an underground coal miner for 10 to 15 years prior to his death, having no other occupational skills and possessing only a third grade education.

The miner's employment as a coal loading machine operator subjected him to heavy concentrations of coal dust. He began experiencing chest pains and shortness of breath approximately two years prior to his death. He continued to work regularly ² despite the fact that he was frequently sick during the day and at times required the assistance of other miners to perform his work. Plaintiff also testified that her husband's breathing problems in the years immediately prior to his death had prevented him from hunting, from performing household chores, or helping much in the family garden. Testimony indicated that he suffered from a cough that produced a black colored sputum.

On January 20, 1971, the deceased was given an examination in connection with his application for a job with a different coal company. This examination was conducted by Dr. Martin who is certified by the National Institute of Occupational Health and Safety as a reader of coal miners' chest x-rays. This examination produced a report that deceased's x-ray revealed silicosis and that he was not qualified for continued employment as an underground miner. Contrary to this advice, the deceased was able to obtain employment with the company with the assistance of certain supervisory personnel with whom he was acquainted. Plaintiff testified that her husband continued to work in the mines against this medical advice because he had no other employment skills and was concerned about providing for his children.

Testimony was submitted to establish that in the days immediately preceding his death the deceased complained of chest pain, shortness of breath, and considered quitting his job because of this condition. On the afternoon before his death he stated that if he "didn't need the money so bad (he) wouldn't go to work that night." Nevertheless, he did work the second shift that night and upon returning home complained of being ill. The next morning he began to choke and was unable to breathe. He died on the way to the hospital. While no autopsy was performed, the death certificate, signed by a mortician who was not a physician, attributed the death to a coronary occlusion. The deceased had no history of heart trouble, and as far as plaintiff knew he had never been treated by a doctor for any condition except a kidney ailment.

Although the administrative law judge found the miner's death to be of unknown origin, it was further found that the death was not caused by pneumoconiosis (black lung) and that the deceased was not totally disabled by pneumoconiosis at the time of his death. The administrative law judge concluded that the medical evidence established that the deceased had simple (as opposed to complicated) pneumoconiosis. It was decided, however, that any presumption that existed that deceased's death was due to pneumoconiosis or that he suffered from a total disabling lung disease at the time of his death was rebutted by the fact that he was actively employed and working as a miner when he died.

Plaintiff first argues that the provisions of 20 C.F.R. § 410.490(c) which provide for the rebuttal of the presumption allowed by 20 C.F.R. § 410.490(b) should not be applied to a case involving widow's benefits as opposed to benefits to the miner himself. The interim adjudicatory rules contained in 20 C.F.R. § 410.490(b) provide for the following presumption:

(b) Interim presumption. With respect to a miner who files a claim for benefits before July 1, 1973, and 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 be totally disabled due to pneumoconiosis, or 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 subparagraph (1) of this paragraph arose out of coal mine employment (see §§ 410.416 and 410.456).

Plaintiff analyzes this regulation as creating three independent presumptions where the stated conditions have been met: (1) that a living miner is totally disabled; (2) that a deceased miner was totally disabled at the time of his death; and (3) that a deceased miner's death was due to pneumoconiosis. It is argued that 20 C.F.R. § 410.490(c), which provides for the rebuttal of the presumption of 20 C.F.R. § 410.490(b) where the miner is doing his usual coal mine work, should be read as applying only to the presumption that arises in behalf of living miners, having no applicability to rebut the presumptions in favor of widows that a miner was totally disabled by pneumoconiosis at the time of his death or that the miner's death was due to the disease. The basis for this argument is that the use only of the present tense of the verb in the rebuttal regulation infers that it is to apply only to living miners presently working and claiming total disability.

We are unable to agree with plaintiff's analysis of the regulations. The rebuttal regulation, 20 C.F.R. § 410.490(c), reads as follows (c) Rebuttal of presumption. The presumption in paragraph (b) of this section may be rebutted if:

(1) There is evidence that the individual is, in fact, doing his usual coal mine work or comparable and gainful work (see § 410.412(a)(1)), or

(2) Other evidence, including physical performance tests (where such tests are available and their administration is not contraindicated), establish that the individual is able to do his usual coal mine work or comparable and gainful work (see § 410.412(a)(1)).

We do not find it to be significant that the present tense is used in providing for a rebuttal of the presumption of 20 C.F.R. § 410.490(b). If the Secretary had intended to provide for a rebuttal of the presumption only in the instance of living miners he doubtless would have so stated in more precise terms. While plaintiff analyzes 20 C.F.R. § 410.490(b) as setting forth three separate presumptions, it is clear from the wording of the rebuttal provisions that the Secretary views the regulations as providing for a single presumption applicable both to presently living miners and miners who had pneumoconiosis at the time of their deaths. The phrase, "is, in fact, doing his usual coal mine work," is equally appropriate to both situations in that it refers to the time frame in which the work is done, whenever that period is. Although it appears that the issue has not been previously decided, district court cases have assumed that 20 C.F.R. § 410.490(c) is applicable to rebut the presumption of 20 C.F.R. § 410.490(b) even in the case of a claim for widow's benefits. See Cox v. Weinberger, 389 F.Supp. 268, 271 (E.D.Tenn. 1975); Rainey v. Weinberger, 388 F.Supp. 1277, 1278 (E.D.Tenn. 1975); England v. Weinberger, 387 F.Supp. 343, 344 (S.D.W.Va. 1974); Statzer v. Weinberger, 383 F.Supp. 1258, 1261 (E.D.Ky. 1974); Roberts v. Weinberger, 383 F.Supp. 230, 234 n. 14 (E.D.Tenn. 1974).

Plaintiff next argues that even if 20 C.F.R. § 410.490(c) was correctly applied in this case, the regulation conflicts with the intent of the 1972 amendments to the Coal Mine Health and Safety Act and consequently is invalid as being in excess of the Secretary's rulemaking authority. Plaintiff quotes from the Senate Report on the bill making the amendments in an effort to demonstrate that Congress did not intend to have the presumption work against widows of miners who die while still employed in the mines:

Under the operation of the law as it now exists, a widow is at the mercy of circumstances. Although her husband clearly had totally disabling pneumoconiosis, and would have been eligible were he alive, he may have died in a rock fall, or accident, or even a heart attack which may not be established medically to be casually related to pneumoconiosis. Under these circumstances his widow would not be eligible. However, the widow's neighbor, whose husband died of natural causes after receiving (the) title IV benefits, is entitled to the benefit of title IV. Such a result would seem to be unduly harsh with respect to widows whose husbands gave their health, and in many cases their lives, in the service of the nation's critical coal needs. (Senate Rep. No. 72-743, U.S.Code Cong. & Admin.News, p. 2312 (1972)) (Emphasis Supplied).

It cannot be disputed that it...