Tackett v. Benefits Review Bd.

• Decision Date: 21 October 1986
• Docket Number: No. 85-3973,85-3973
• Citation: 806 F.2d 640
• Parties: Alma TACKETT, Petitioner-Appellant, v. BENEFITS REVIEW BOARD; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 640

806 F.2d 640

Alma TACKETT, Petitioner-Appellant, v. BENEFITS REVIEW BOARD; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondent-Appellee.

No. 85-3973.

United States Court of Appeals Sixth Circuit.

Oct. 21, 1986.

Lawrence R. Webster, Webster, Clark & Johnson, Michael F. Johnson (argued), Pikeville, Ky., for petitioner-appellant.

Sylvia T. Kaser (argued), J. Michael O'Neill, Office of the Sol., U.S. Dept. of Labor, Washington, D.C., for respondent-appellee.

Before KEITH and KENNEDY, Circuit Judges, and BROWN, Senior Circuit Judge.

PER CURIAM.

Petitioner appeals a Benefits Review Board's (Board) decision reversing the Administrative Law Judge's (ALJ) grant of black lung benefits. Petitioner brought suit under section 921(c)(2) of the Black Lung Benefits Act, 30 U.S.C. Secs. 901-945 (1982) (Act), and the regulation promulgated thereunder. The ALJ awarded benefits, concluding that petitioner was entitled to invoke the rebuttable presumption that her husband's death was due to pneumoconiosis conferred by section 921(c)(2) and the implementing regulation because her husband worked more than ten years in the nation's mines and died from lung cancer. In concluding that lung cancer was a chronic lung disease sufficient to invoke the presumption, the ALJ relied on the Board's decision in Pyle v. Allegheny River Mining Co., 2 Black Lung Rep. 1-1143 (1981). The Board in Pyle concluded that lung cancer was a chronic disease of the lung as a matter of law, and thus was a sufficient basis for invoking the section 921(c)(2) presumption. After the parties argued the present case before the Board, but before the Board reached its decision, the Board overruled its decision in Pyle. Hunter v. Director, Office of Workers' Compensation Programs, 8 Black Lung Rep. 1-120 (1985), appeal docketed, No. 85-2359 (4th Cir. Nov. 14, 1985). In Hunter, the Board held that a claimant has the burden to establish that the miner's lung cancer was a chronic disease of the lung before the statutory presumption is invoked. The Board in the present case held that Hunter, not Pyle, applied to the case and concluded that petitioner failed to establish that her husband's lung cancer was a chronic lung disease. Because we believe that petitioner should have the opportunity to prove that her husband's lung cancer was a chronic lung disease, we reverse the Board's decision and remand to the Board for further proceedings in accordance with this opinion.

Section 921(c)(2) of the Act provides that "[i]f a deceased miner was employed for ten years or more in one or more coal mines and died from a respirable disease there shall be a rebuttable presumption that his death was due to pneumoconiosis." The implementing regulation provides as follows:

(a) Even though the existence of pneumoconiosis as defined in Sec. 410.110(o)(1) is not established as provided in Sec. 410.454(a), if a deceased miner was employed for 10 years or more in the Nation's coal mines and died from a respirable disease, it will be presumed, in the absence of evidence to the contrary, that his death was due to pneumoconiosis arising out of employment in a coal mine.

(b) Death will be found due to a respirable disease when death is medically ascribed to a chronic dust disease, or to another chronic disease of the lung. Death will not be found due to a respirable disease where the disease reported does not suggest a reasonable possibility that death was due to pneumoconiosis. Where the evidence establishes that a deceased miner suffered from pneumoconiosis or a respirable disease and death may have been due to multiple causes, death will be found due to pneumoconiosis if it is not medically feasible to distinguish which disease caused death or specifically how much each disease contributed to causing death.

20 C.F.R. Sec. 410.462 (1986).

The first issue we must consider is whether Hunter was correctly decided. ¹ Although the parties did not argue this issue before the Board in the present case, ² we believe that the Hunter Board was correct in concluding that the burden is on claimant in each case to establish the chronic nature of the miner's lung cancer before the presumption is invoked. ³ The statute and regulation provide that a claimant is entitled to the presumption that death was due to pneumoconiosis arising out of employment in a coal mine if the miner worked in a mine for more than ten years and died from a respirable disease under the regulation. Death will be found due to a respirable disease when death is medically ascribed to a chronic dust disease or to another chronic lung disease where the disease suggests a reasonable possibility that death was due to pneumoconiosis. Nothing in the Act or the regulation provides that...