BD10-B

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PART X

SURVIVORS' CLAIMS

B. DERIVATIVE ENTITLEMENT

An eligible survivor is derivatively entitled to an award of survivor's benefits if the deceased miner, as a result of a claim filed prior to January 1, 1982, was receiving benefits at the time of his death under a finally adjudicated award of benefits for total disability due to pneumoconiosis or if benefits are ultimately awarded on the miner's claim under Section 415, 30 U.S.C. §925, or Part C of Title IV of the Act. 20 C.F.R. §§725.212, 725.218, 725.222. Thus, where the miner's claim is ultimately denied, there is no miner's award from which a survivor's award can be derived. 30 U.S.C. §901(a); 20 C.F.R. §725.212; see Pothering v. Parkson Coal Co., 861 F.2d 1321, 1328, 12 BLR 2-60, 2-70 (3d Cir. 1988); Smith v. Camco Mining Inc., 13 BLR 1-17 (1989). In Beard v. Union Carbide Corp., 1 BLR 1-791 (1978), the Board upheld the validity and constitutionality of the derivative entitlement provisions then in effect, 20 C.F.R. §§715.201 and 715.207, that are substantively similar to those in Part 725, see 20 C.F.R. §§725.212, 725.218, 725.222.

The 1981 Amendments eliminated the language of the 1972 Act that allowed a survivor to receive benefits if the miner was totally disabled due to pneumoconiosis prior to death, but died from an unrelated cause. The remaining language directs that survivors are eligible for benefits if the miner's death was due to pneumoconiosis. 30 U.S.C. §901(a). If no claim was filed by the miner prior to January 1, 1982, which could provide a basis for derivative entitlement under Section 401(a), 30 U.S.C. §901(a), or for the survivor claimant to benefit from the miner's filing date under Section 422(l), 30 U.S.C. §932(l), see Smith, supra, the survivor must establish that death was due to pneumoconiosis, except where entitlement is established under Section 718.306, 20 C.F.R. §718.306, on a claim filed prior to June 30, 1982. 20 C.F.R. §§725.212, 725.218, 725.222; see Neeley v. Director, OWCP, 11 BLR 1-85 (1988). Consequently, where no miner's claim was filed prior to January 1, 1982, survivors cannot benefit from entitlement derivative of an award to the miner.

The Board will defer to the interpretation of the Director that automatic derivative entitlement is not available under Section 725.218(a)(2) where a determination has been made under Part B that the miner was totally disabled due to pneumoconiosis at the time of death or that the miner's death was due to pneumoconiosis. Reigh v. Director, OWCP, 19 BLR 1-64 (1995).

The Board declined to apply the holding of the Sixth Circuit in Director, OWCP v. Saulsberry, 887 F.2d 667, 13 BLR 2-80 (6th Cir. 1989) in a claim arising within the appellate jurisdiction of the Third Circuit, noting that, unlike Deloe v. Director, OWCP, 15 BLR 1-9 (1991), the Director did not concede the application of Saulsberry. Thus, the automatic derivative entitlement provision pursuant to Section 725.218(a)(2) is not available to claimant where the previous award of benefits was made pursuant to Part B. Reigh, supra.

CASE LISTINGS

DIGESTS

The Sixth Circuit has held that a prior determination of survivor benefit eligibility pursuant to Part B of Title IV of the Act, 30 U.S.C. §§921-925, eliminates the necessity of independently establishing the miner's total disability due to pneumoconiosis under the criteria in Part C of the Act in order to establish a survivor's entitlement under 20 C.F.R. §725.218(a)(2). Director, OWCP v. Saulsberry, 887 F.2d 667, 13 BLR 2-80 (6th Cir. 1989).

The Board held that inasmuch as the miner was determined to be totally disabled due to pneumoconiosis by the SSA, in a surviving children's claim filed prior to January 1, 1982, claimant, as the miner's surviving divorced spouse, is entitled to benefits pursuant to Section 725.212(a)(3)(ii). In doing so, the Board extended the holding of the Sixth Circuit in Director, OWCP v. Saulsberry, 887 F.2d 667, 13 BLR 2-80 (6th Cir. 1989), aff'g Saulsberry v. Director, OWCP, BRB No. 86-2650 BLA (Oct. 31, 1988)(unpub.), that Section 725.218(a)(2) requires only that the miner's disability be "determined as the result of a claim filed prior to January 1, 1982," to Section 725.212(a)(3)(ii). Deloe v Director, OWCP, 16 BLR 1-9 (1991).

The Director, in defending a Part C claim, acting for the interests of the participants in the Trust Fund, has not been provided with due process and the right to a full and fair hearing if the Trust Fund is assessed liability resulting from an obligation arising from a Part B claim. Reigh v. Director, OWCP, 19 BLR 1-64 (1995).

The Board will defer to the interpretation of the Director that automatic derivative entitlement is not available under Section 725.218(a)(2) where a determination has been made under Part B that the miner was totally disabled due to pneumoconiosis at the time of death or that the miner's death was due to pneumoconiosis. Reigh v. Director, OWCP, 19 BLR 1-64 (1995).

The Board declined to apply the holding of the Sixth Circuit in Director, OWCP v. Saulsberry, 887 F.2d 667, 13 BLR 2-80 (6th Cir. 1989) in a claim arising within the appellate jurisdiction of the Third Circuit, noting that, unlike Deloe v. Director, OWCP, 15 BLR 1-9 (1991), the Director did not concede the application of Saulsberry. Thus, the automatic derivative entitlement provision pursuant to Section 725.218(a)(2) is not available to claimant where the previous award of benefits was made pursuant to Part B. Reigh v. Director, OWCP, 19 BLR 1-64 (1995).

Based upon the current position of the Director, the Board modified its prior decision and held that under the statutory language of the Act at Section 432(l), a party filing a Part C claim is able to avail himself of derivative entitlement from a previous award of benefits under a Part B claim. The Board noted that by definition, Subchapter IV of Chapter 30 of the United States Code contains both Part B and Part C of the Act, and the language of Section 432(l) of the Act specifically provides that entitlement is available to be derived from any determination of entitlement from any claim arising under Subchapter IV which was filed prior to January 1, 1982, where the other conditions of derivative entitlement are met. Reigh v. Director, OWCP, 20 BLR 1-44 (1996), modifying on recon., 19 BLR 1-64 (1995).

On March 23, 2010, amendments to the Act, applicable to claims filed after January 1, 2005 that were pending on March 23, 2010, were enacted. See Pub. L. No. 111-148, §1556, 124 Stat. 119 (2010). The amendments, in part, revive Section 422(l) of the Act, 30 U.S.C. §932(l), which provides that a survivor of a miner who was eligible to receive benefits at the time of his or her death is automatically entitled to survivor’s benefits without having to establish that the miner’s death was due to pneumoconiosis. The Board held that retroactive application of amended Section 932(l) to claims filed after January 1, 2005 does not violate the Fifth Amendment Due Process Clause. The Board held that employer did not meet its burden to establish that Congress had no rational legislative purpose for retroactive application of amended Section 932(l), or that the choice of January 1, 2005 for application of the amendment rendered the legislative action unconstitutional. The Board also rejected employer’s argument that retroactive application of amended Section 932(l) constituted an unlawful taking of employer’s property under the Fifth Amendment, because employer did not meet its burden to establish that the 932(l) amendment imposed a severe economic impact on employer, disproportionately interfered with its distinct investment-backed expectations, or constituted an inappropriate governmental action. Mathews v. United Pocahontas Coal Co., 24 BLR 1-193 (2010).

The Board held that, under amended Section 932(l), an eligible survivor who files a claim after January 1, 2005 that is pending on or after the March 23, 2010 effective date of the Section 1556 amendments is entitled to benefits based solely on the miner’s lifetime award, without having to prove that the miner died due to pneumoconiosis. Specifically, the Board held that the plain language of Section 1556(c) mandates the application of Section 932(l), as amended, to survivors’ “claims” filed after January 1, 2005, that are pending on or after March 23, 2010. Pub. L. No. 111-148, §1556(c). The Board held that this interpretation is consistent with both the “fundamental purpose” and “practical reality” of amended Section 932(l), which makes derivative entitlement available to survivors who were previously required to file claims to establish their entitlement to benefits. The Board further held that the legislative history supports the Director’s reading of the plain text of Section 1556(c). Therefore, the Board rejected employer’s assertion that the date that the miner’s claim was filed determines whether the derivative entitlement provision of amended Section 932(l) is available to an eligible survivor. Stacy v. Olga Coal Co., BLR (2010).

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