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Bishop v. Peabody Coal Co.

decided: October 12, 1982.

LOIS B. BISHOP, PETITIONER/CROSS-RESPONDENT, AND DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR, CROSS-RESPONDENT,
v.
PEABODY COAL COMPANY AND OLD REPUBLIC INSURANCE COMPANY, RESPONDENTS/CROSS-PETITIONERS



On Petition And Cross-Petition For Review Of An Order Of The Benefits Review Board United States Department Of Labor

Bauer, Nichols,*fn* and Wood, Circuit Judges.

Author: Nichols

NICHOLS, Circuit Judge.

This case comes before the court on appeal and cross-appeal from a decision and order of the Benefits Review Board (board) reversing Administrative Law Judge (ALJ) Richard A. Scully's decision granting petitioner here, claimant below, an award of benefits pursuant to the Federal Coal Mine Health and Safety Act of 1969, as amended, now commonly referred to as the Black Lung Benefits Act (hereinafter the Act) 30 U.S.C. §§ 901 et seq.

Claimant, Lois B. Bishop, was married to the deceased miner, William E. Bishop, from January 24, 1948, until he died on February 24, 1974, following cardiopulmonary bypass surgery.

At the time of his death, the decedent had been employed for over 8 years at the Squaw Creek Coal Company mine, which was operated by respondent/cross-petitioner, Peabody Coal Company. Prior to working at the Squaw Creek mine, decedent had worked continuously at the Tecumseh Coal Company mine. Except for periods of military service, his employment at Tecumseh exceeded 25 years.

The decedent worked as a welder, maintenance and repairman at both mines. At Tecumseh he worked in all areas of the mine. In 1965 he suffered a heart attack before going to work at the Squaw Creek mine. While at the Squaw Creek mine, decedent worked in the garage doing small repair jobs and apparently supervising other repairmen. He no longer did any heavy labor himself.

Claimant sought benefits pursuant to § 411(c) (5) of the Act, 30 U.S.C. § 921(c) (5) which provides a rebuttable presumption of entitlement to benefits for eligible survivors of a miner who died before March 1, 1978, and who was also employed prior to June 30, 1971, for 25 or more years in the nation's coal mines. Section 921(c) (5) also provides that a miner's survivors are not entitled to benefits if "it is established that at the time of his or her death such miner was not partially or totally disabled due to pneumoconiosis."

At the hearing before the ALJ, respondents, Peabody and Old Republic Insurance Company, presented evidence which included a report by Dr. R. H. Morgan, dated September 12, 1978, interpreting a chest X-ray of decedent showing no coal workers' pneumoconiosis; a second chest X-ray found by Dr. Morgan to be unreadable; and a death certificate which listed the immediate cause of death as intractable cardiac arrhythmia, the result of complications from cardiopulmonary bypass surgery due to aortic valve disease and coronary artery disease. The death certificate made no mention of pneumoconiosis. The record also includes three medical reports detailing decedent's heart disease and the respective treatment pursued by each of the physician authors.

Claimant presented evidence that prior to his first heart attack in 1965 the decedent had difficulty breathing during cold weather and at night, problem sleeping, and nocturnal coughing spells. Further, that decedent generally "went slower" in his efforts to do work around the house. Relying on this evidence and the fact that when decedent went to work at Squaw Creek mine he no longer did any strenuous work, the ALJ concluded that decedent was at least partially disabled at the time of his death.

The ALJ considered the X-ray evidence, which was negative for pneumoconiosis, and the death certificate, which made no mention of pneumoconiosis, in the light of 20 C.F.R. § 727.204(d). Section 727.204 is the regulation implementing the presumption created by 30 U.S.C. § 921(c) (5). That regulation provides in pertinent part:

(d) The following evidence alone shall not be sufficient to rebut the presumption:

(1) Evidence that a deceased miner was employed in a coal mine at ...


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