547 F.2d 795 | 4th Cir. | 1976
Lead Opinion
Verna M. Collins, claimant and widow of a coal miner who was killed in a mine accident, appeals from the denial of widow’s black lung benefits by the Department of Health, Education and Welfare. This denial was affirmed by the District Court below. Collins v. Weinberger, 406 F.Supp. 552 (S.D.W.Va.1975). We reverse. Viewing the record as a whole, there is not substantial evidence
I.
THE EVIDENCE BELOW
The record discloses that Kenny Collins, a coal miner for more than 20 years, died on June 23, 1966, as a result of crushing injuries to the head and chest which were multiple and severe. These injuries were suffered in a roof fall in a coal mine in which he was working at the time of death. X-rays taken at the Baltimore City Hospital in 1962 and 1965 revealed emphysema and fibrosis. Although there were conflicting interpretations of these X-rays, the Administrative Law Judge determined the deceased coal miner had simple pneumoconiosis. This was established by cumulative reports and interpretations. The Appeals Council
II.
THE RULINGS BELOW
Benefits were denied on the ground that the widow failed to show that at the time of her husband’s death, he was totally disabled due to pneumoconiosis. With the deceased miner having established the existence of simple pneumoconiosis, a rebuttable presumption arises that the widow is entitled to the black lung benefits. 30 U.S.C. § 921. In his decision which was affirmed, the Administrative Law Judge held that this presumption was rebutted by evidence that the miner was doing his usual coal mine work, or comparable and gainful work. 20 CFR 410.490(c); 30 U.S.C. § 902(f).
III.
DISCUSSION AND REASONS FOR REVERSAL
There are certain limited circumstances under which a miner can, through sheer determination, continue to work and still qualify as totally disabled. In order to fit within this narrow category of “working disabled”, it is necessary for a claimant to show that the miner’s work attendance was
Other cases have recognized that a miner may have been employed, yet be totally disabled due to pneumoconiosis if his job was “make-work”.
30 U.S.C. § 902(f) mandates that the regulations regarding black lung benefits “shall not provide more restrictive criteria than those applicable under section 423(d) of Title 42 (Social Security Act).” Therefore, if the “total disability” test is met under the social security criteria, then total disability due to black lung is also established.
The total disability criteria for one still working were examined in Leftwich v. Gardner, 377 F.2d 287 (4th Cir. 1967). There we held that a 52-year-old manual laborer was totally and permanently disabled, and entitled to disability benefits under the Social Security Act. The claimant, Leftwich, suffered from spondylolisthesis, had congenital marked curvature of the spine, and could not stoop, bend or lift, suffered pain when he sat for more than 10 minutes and constantly while standing. The fact that he chose to work daily as a dishwasher to support his family did not bar his entitlement to disability benefits. Although Leftwich was at work for eight hours, he actually worked only four to five hours per day. This Court refused to punish the claimant simply because he sought to support his family, despite physical problems in doing so. Further, in Wilson v. Richardson, 455 F.2d 304 (4th Cir. 1972), the Court noted that the 1967 amendments to the Social Security Act legislatively modified the holding in Leftwich. However, if a disabled worker demonstrates his inability to be substantially gainfully employed, such claimant may still be entitled to disability benefits. As evidenced by Wilson, supra, this may hold true even though the claimant earns in excess of the average monthly maximum set out by the Secretary.
In Adkins v. Gardner, 392 F.2d 184 (4th Cir. 1968), this Court held that a claimant who worked in a coal mine could nevertheless be totally disabled. In Adkins, the claimant had worked in West Virginia coal mines for 35 years, was substantially illiterate, and suffered serious health maladies. Although he worked, he was physically able to do only one-third of his share. This Court held that the claimant was incapacitated to perform substantial gainful employment.
Specifically, we find that the Court below erred in ascribing controlling significance of the deceased miner’s earnings record. The statute says a miner is totally disabled due to pneumoconiosis when it prevents him from engaging in gainful employment in a mine or mines in which he previously engaged with some regularity over a substantial period of time. It is
The Secretary argues that, rather than proving a serious lung problem that became progressively worse, evidence proffered by the claimant indicated her deceased husband’s able capacity to work. This is shown, the Secretary submits, because he was planning to take off work for his scheduled vacation just as any regular employee. This argument is groundless. It is common knowledge in the coal fields that when “miner’s vacation” comes in the middle of every summer, the mines close for two weeks. This occurs regardless of whether you are sick or well, or regularly employed or not.
By denying benefits where evidence demonstrates a miner to be “totally disabled” within the statutory meaning, coal miners would be motivated to quit work in order to protect entitlement to black lung benefits. We find that the law was not intended to be so construed, and is contrary to public policy. When a disabled coal miner chooses to make a heroic effort to work, even when physically unable to do so, he or his family should not be deprived of benefits which Congress intended.
IV.
CONCLUSION
The claimant is entitled to widow’s black lung benefits.
REVERSED.
. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
. “Total disability” is defined in terms of the meaning given it by the regulations of the Secretary of HEW, except that the Coal Mine Health and Safety Act of 1969, as amended by the Black Lung Benefits Act of 1972, mandates that such regulations shall provide that a miner shall be considered totally disabled when, as a result of pneumoconiosis, he is unable to engage in gainful employment requiring the skills and abilities comparable to those of any employment in a mine or mines in which the miner previously engaged with some regularity and over a substantial period of time. 30 U.S.C. § 902(f).
. Records of the Social Security Administration reveal the deceased miner’s earnings for the last 9'/a years of his life to be as follows:
Earnings
$3,169.94
2,998.12
2,265.92
2,448.85
2,995.63
2,502.54
3,544.88
Year Earnings
1964 2,453.50
1965 3,224.04
1966 (6 months) 1,243.00
. “Pneumoconiosis” is defined as a chronic dust disease of the lung arising out of employment in a coal mine. 30 U.S.C. § 902(b).
. The claimant otherwise fully qualified for widow’s benefits. 20 CFR 410.210.
. According to the United States Bureau of Labor Statistics, the poverty statistics for West Virginia in 1966 show the maximum poverty level for a family of this size to be $4,135 in an urban area, and $2,900 in a rural area. Based on the record, the Collins family would fit in the rural category.
. See Social Security Ruling 73-36.
. See Felthager v. Weinberger, 529 F.2d 130, 133 (10th Cir. 1976), erring Lawson v. Weinberger, 401 F.Supp. 403 (W.D.Va.1975); and Rowe v. Weinberger, 400 F.Supp. 981 (W.D.Va.1975).
. This Court took judicial notice of a matter of common knowledge in Cooke v. Celebrezze, 365 F.2d 425 (4th Cir. 1966).
. The rate of pay increase for United Mine Workers of America from 1956 to 1966 was 34.25%. Dept. of Labor, Bureau of Statistics (1973), Bull. 1799, Wage Chronology, 9-14, 17.
Dissenting Opinion
(dissenting):
From my analysis of the record, I can neither conclude that the Secretary’s finding that the decedent was not totally disabled from pneumoconiosis at the time of his death is not supported by substantial evidence, nor that the only substantial evidence requires the converse finding. I respectfully dissent.
The principal evidence to support the Secretary’s finding is the earnings record of the deceased. It shows that for the full eight years prior to his death, his earnings remained relatively constant. The record is silent as to the average hourly wage in the coal fields of West Virginia throughout the crucial period and this is not a matter of which I feel free to take judicial knowledge. To my mind, the majority’s inference that Collins worked only because “management felt sympathy . . . and provided light labor for him” is unwarranted. His earnings record shows that he worked for divers employers. One could infer from that fact that it was very unlikely that Collins performed only “make-work.” Certainly the Secretary was not required to draw the majority’s inference; he could well draw that suggested by me.