UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided*fn*: November 12, 1987.
VIRGINIA ENSINGER, PETITIONER,
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, RESPONDENT
Petition for Review of an Order of the Benefits Review Board, United States Department of Labor.
Wood, Jr., Coffey, and Ripple, Circuit Judges.
Author: Per Curiam
Petitioner, Virginia Ensinger, the ex-wife of a former coal miner, was denied benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. The Department of Labor's Benefits Review Board affirmed the denial. Ensinger petitions this court for review of the Board's order. Because we conclude that the Board correctly determined that Ensinger does not qualify as a dependent divorced spouse, we deny her petition.
The facts of this case are uncontested. Petitioner married Charles Ensinger on July 12, 1939; they were divorced on June 27, 1964. Charles is a former coal miner, and, in 1980, he was found to be entitled to black lung benefits.
Under the regulatory definitions, petitioner is the "divorced spouse of a miner." See 20 C.F.R. 725.206.*fn1 As such, she is eligible for benefits under the Black Lung Act*fn2 if she: (a) receives at least one-half of her support from the miner; or (b) receives "substantial contributions from the miner pursuant to a written agreement"; or (c) a "court order requires the miner to furnish substantial contributions" to her support. 20 C.F.R. § 725.207; see also 30 U.S.C. § 902(a)(2).
From 1964 on, Charles Ensinger made no alimony payments to his ex-wife; no did he enter into a written agreement to make support payments to her. Instead, "in lieu of alimony," Charles conveyed the couples' home to Virginia pursuant to a settlement agreement which was incorporated into their divorce decree.*fn3 At the time of the administrative hearing, petitioner continued to live in the house. Also at that time, her only income consisted of social security benefits of $330 per month, and she estimated the rental value of her home as $300 per month.
Petitioner contends that, because her ex-husband deeded his interest in their house to her in lieu of alimony pursuant to the divorce decree, and because she continues to receive a benefit from that conveyance (equal, she implies, to the rental value of the house), she is currently receiving "substantial contributions" from the miner and is eligible for benefits under 20 C.F.R. § 725.207(b) or (c).*fn4 The ALJ, the Benefits Review Board and the Director disagree.
We note, first, that, although our standard of review of questions of law is de novo, when the construction of an administrative regulation is at issue, the Director's interpretation is controlling unless it is plainly inconsistent with the regulation. Director, OWCP v. Ball, 826 F.2d 603, 604 (7th Cir. 1987). The Director's interpretation of the administrative regulation at issue here is completely consistent with the regulatory language. The regulations clearly define "contributions" as payments provide by the minor from his "property, or the use thereof, or by the use of such individual's own credit." 20 C.F.R. § 725.233(b); see also Ball, 826 F.2d at 606. According to the Director's interpretation, this definition excludes whatever benefit petitioner currently receives from her house, since that benefit is not being provided by the miner from his property or his credit or the use of either. We can only agree.
Charles conveyed the house to Virginia in 1964. That conveyance ended their economic relationship. Since 1964, petitioner has been sole owner of the house. If she is currently realizing any benefit from the house, it has its source in her property, not Charles'. See Ball, 826 F.2d at 609 n.5. Any such benefit is therefore not a "contribution" and a fortiori not a "substantial contribution" under the clear regulatory language.
Petitioner argues, however, that this interpretation of the regulations is inconsistent with the policies underlying the Black Lung Benefits Act and therefore should be rejected. According to the petitioner, the purpose of the statute is "to provide a source of income to those persons who ought to be supported" rather than "to replace a source of income actually lost." At least in the context of this case, we are not persuaded.
In the Black Lung Benefits Act itself, Congress defined a divorced spouse who "ought" to be supported (in language closely tracked by the regulations) as one "who is receiving at least one-half of her support . . . from the miner, or is receiving substantial contributions from the miner, or is receiving substantial contributions from the miner (pursuant to a written agreement), or there is in effect a court order or substantial contribution to her support from such miner." 30 U.S.C. § 902(a)(2). We have recently addressed the issue of the legislative intent behind this dependency requirement in relation to the eligibility of death. See Ball, 826 F.2d at 607-09. While we limited our conclusion in Ball to the question whether social security benefits qualify as contributions from the miner's property, and stopped short of holding that black lung benefits could never be awarded in the absence of an actual economic loss of support, id. at 609, we did dispose of the same "legislative intent" arguments made by petitioner in this case.*fn5
As in Ball, it is unnecessary for us to hold that black lung benefits can never be awarded absent actual economic loss. However, we are not persuaded that the regulatory definition of "contributions" an an interpretation which excludes a one-time conveyance of a home as part of a divorce settlement is inconsistent with Congress' intent.
We therefore conclude that, because any value received by a divorced spouse form her ownership of a home received as part of a divorce settlement is not a contribution from the miner's property, it cannot constitute a "substantial contribution" qualifying her for black lung benefits. Because the Board correctly concluded that petitioner did not qualify for benefits as a dependent divorced spouse, the petition for review of its order is