Halon v. Director, Office of Workers' Compensation Programs, 82-3066

• Decision Date: 15 September 1982
• Docket Number: No. 82-3066,82-3066
• Parties: Charles J. HALON, Jr., Executor of the Estate of Bertha Kubilus and Personal Representative, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, as Designee of Raymond P. Donovan, Secretary of Labor, Respondent. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 30

713 F.2d 30

Charles J. HALON, Jr., Executor of the Estate of Bertha Kubilus and Personal Representative, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, as Designee of Raymond P. Donovan, Secretary of Labor, Respondent.

No. 82-3066.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6) Sept. 15, 1982.

Decided Oct. 22, 1982.

As Amended Dec. 7, 1982.

Maureen E. Krueger, Krasno & Krasno, Pottsville, Pa., for petitioner.

T. Timothy Ryan, Jr., Sol. of Labor, Donald S. Shire, Associate Sol., J. Michael O'Neill, Asst. Counsel for Black Lung Benefits, Bonnie J. Brownell, Atty., U.S. Dept. of Labor, Washington, D.C., for respondent.

Before GIBBONS, WEIS and SLOVITER, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

The Administrator of the Estate of Bertha Kubilus, widow of George Kubilus whom she claims was a coal miner, petitions for review of a decision of the Benefits Review Board affirming the decision of an administrative law judge denying her claim for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945 (1976). Petitioner claims (1) that the administrative law judge erred in depriving her of the benefits of a presumption of total disability; (2) that he erred in finding that she failed to establish that George Kubilus had ten years of coal mine employment, thus triggering the presumption of permanent disability or death due to pneumoconiosis, and (3) that in any event the Benefits Review Board should have remanded the case to consider the claim under 20 C.F.R.. § 718 (1982). The Director, Office of Workers' Compensation Programs, United States Department of Labor, while disputing the first two contentions, concedes the third, since the claim was adjudicated after March 30, 1980. Both parties agree that the criteria in 20 C.F.R. § 718 (1982) are more favorable to claimants situated as was Mrs. Kubilus.

We have received the record and conclude that the administrative law judge's finding that Mrs. Kubilus failed to show ten years of coal mine employment is supported by substantial evidence. Thus her second arguments lacks merit.

The Director, Office of Workers' Compensation concedes the validity of Mrs. Kubilus' third claim, that the Benefits Review Board should have remanded to the Administrative Law Judge for adjudication pursuant to 20 C.F.R. § 718 (1982). Thus it will be necessary to grant the petition for review and remand with a direction tot hat effect.

As to Mrs. Kubilus' first argument, that she should have the benefit of the presumption of total disability or death from pneumoconiosis, the Director contends that although Administrative Appeals Judge Miller dissented on the ground we should not consider it because it was not raised in the Agency by the petitioner. If the point was the sole ground relied upon in the petition for review the Director's objection to its consideration might have merit. However, the Director concedes that a remand is required in any event, and the point may be presented again. Thus it is appropriate to consider now the issue that divides the Benefits Review Board.

Judge Miller dissented in this case essentially for the reasons advanced in his dissent in Lynn v. Director, Office of Workers' Compensation Programs...