BRB No. 99-1249 BLA
GLENNA MAE SHIRLEY (Surviving )
Divorced Spouse of ROY SHIRLEY) )
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Claimant-Petitioner )
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v. )
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DIRECTOR, OFFICE OF WORKERS' ) DATE ISSUED:08/31/2000
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
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Respondent ) DECISION and ORDER
Appeal of the Decision and Order - Denial of Survivor's Benefits of
Thomas F. Phalen, Jr., Administrative Law Judge, United States
Department of Labor.
Glenna Mae Shirley, Quincey, Ohio, pro se.
Helen H. Cox (Henry L. Solano, Solicitor of Labor; Donald S. Shire,
Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
Richard A. Seid and Michael J. Rutledge, Counsel for Administrative
Litigation and Legal Advice), Washington D.C., for the Director, Office
of Workers' Compensation Programs, United States Department of Labor.
Before: HALL, Chief Administrative Appeals Judge, BROWN, Administrative
Appeals Judge, and NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Claimant,[1] without assistance of counsel,
appeals the Decision and Order - Denial of Survivor's Benefits (99-BLA-0312) of
Administrative Law Judge Thomas F. Phalen, Jr.
on a claim filed pursuant to the provisions of Title IV of the Federal Coal Mine
Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et seq. (the
Act). The administrative law judge found that claimant's marriage to the miner[2] had lasted more than ten years as required by the
regulations set forth in 20 C.F.R. §725.216. Next, the administrative law
judge determined that claimant failed to demonstrate her dependency on the miner
pursuant to 20 C.F.R. §725.217 and, therefore, failed to qualify as a
surviving divorced spouse. Accordingly, the administrative law judge denied
benefits.
On appeal, claimant generally challenges the administrative law judge's denial
of survivor's benefits. The Director, Office of Workers' Compensation Programs
(the Director) responds to this pro se appeal, urging affirmance.[3]
In an appeal filed by a claimant without the assistance of counsel, the Board
considers the issue raised to be whether the Decision and Order below is supported
by substantial evidence. McFall v. Jewell Ridge Coal Co., 12 BLR 1-176
(1989). We must affirm the administrative law judge's Decision and Order if the
findings of fact and conclusions of law are rational, supported by substantial
evidence, and in accordance with law. 33 U.S.C. §921(b)(3), as incorporated
by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates,
Inc., 380 U.S. 359 (1965).
In order to establish entitlement to benefits under the Act, claimant, as a
surviving divorced spouse, bears the burden of establishing her dependency on the
miner by satisfying the requirements of Section 725.217(a). Walker v. Director,
OWCP, 9 BLR 1-233 (1987); McCoy v. Director, OWCP, 7 BLR 1-789, 1-792
(1985). Claimant may establish the requisite dependency if, for the month prior
to the month in which the miner died, she was receiving (1) at least one-half of
her support from the miner, or (2) substantial contributions from the miner
pursuant to a written agreement, or (3) a court order required the miner to furnish
substantial contribution to the individual's support. 20 C.F.R.
§725.217(a)(1)-(3); Dercole v. Director, OWCP, 3 BLR 1-76, 1-79 (1981).
Relevant to Section 725.217(a), a review of the evidence of record reveals a
divorce decree dated February 23, 1978 which dissolved the marriage between
claimant and the miner and only ordered the miner to endorse and deliver his
monthly Social Security check in the amount of $148.00 for his two daughters.
Director's Exhibit 10. A review of the hearing transcript from the formal hearing
held on April 8, 1999[4] reveals the undisputed
testimony of claimant and her daughters, Mrs. Debra Walter and Ms. Kathy Bradley,
that between the divorce in February 1978 and the miner's demise in October 1997,
the miner did not pay alimony or child support to claimant or her daughters.
Hearing Transcript at 20, 25, 40, 44.
We affirm the administrative law judge's determination that claimant failed
to demonstrate dependency on the miner as a surviving divorced spouse pursuant to
Section 725.217(a). The United States Court of Appeals for the Fourth Circuit,
within whose jurisdiction this case arises,[5] has
held that Social Security benefit payments do not constitute support contributions
under Section 725.217(a), and therefore, cannot demonstrate dependency on the miner
as defined in the Act. Taylor v. Director, OWCP, 967 F.2d 961, 963, 16 BLR
2-84, 2-89 (4th Cir. 1992); see Director, OWCP v. Hill, 831 F.2d 635, 10 BLR
2-308 (6th Cir. 1987). Consequently, the provision in the divorce decree ordering
the miner to endorse his monthly Social Security payments to claimant on behalf of
their two daughters does not qualify as support contributions from the miner
pursuant to Section 725.217.[6] See Taylor,
supra; Director, OWCP v. Logan, 868 F.2d 285, 12 BLR 2-175 (8th Cir. 1989);
Director, OWCP v. Ball, 826 F.2d 603, 10 BLR 2-210 (7th Cir. 1987).
Moreover, the administrative law judge reviewed the formal hearing testimony and
the evidence of record and properly found that the record was devoid of a written
agreement or court order indicating that the miner provided any monetary support
to claimant after their divorce in 1978. See Walker, supra; Decision
and Order at 4. Similarly, the administrative law judge permissibly found that
claimant and her two daughters unequivocally confirmed that the miner did not
contribute, voluntarily or by court order, any financial support after the divorce.
Ibid. Inasmuch as claimant failed to establish that she was receiving
support from the miner in the month preceding his death or that the miner was
required to provide her such support by a court order, we affirm the administrative
law judge's determination that claimant failed to establish her dependency on the
miner pursuant to Section 725.217(a) as this determination is rational and
supported by substantial evidence. See 20 C.F.R. §725.217(a)(1)-(3);
Decision and Order at 4. Claimant's failure to demonstrate that she is a surviving
divorced spouse as defined in the regulations precludes her entitlement to
survivor's benefits. See Walker, supra; McCoy, supra.
Accordingly, the Decision and Order - Denial of Survivor's Benefits of the
administrative law judge is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
JAMES F. BROWN
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
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Footnotes.
1) Claimant is Glenna Mae Shirley, the surviving divorced spouse, who filed an application for survivor's
benefits on March 6, 1998. Director's Exhibit 1.
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2) The miner, Roy Shirley, filed an application for benefits on February 12, 1974,
which was finally denied by the district director on February 29, 1980. Director's Exhibit 10. The record is
devoid of evidence indicating that the miner further pursued this claim. The miner died on October 12, 1997.
Director's Exhibit 3.
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3) We affirm the administrative law judge's finding pursuant to Section 725.216
inasmuch as this determination, which is not adverse to claimant, is unchallenged on appeal. See Coen
v. Director, OWCP, 7 BLR 1-30, 1-33 (1984); Skrack v. Director, OWCP, 6 BLR 1-710
(1983); Decision and Order at 4.
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4) Claimant was represented at the formal hearing before the administrative law
judge by one of her daughters, Mrs. Debra Walter, who was not an attorney and had no legal training. Hearing
Transcript at 11-12. Nevertheless, a review of the record and hearing transcript reveals that claimant was
afforded a full and fair hearing in accordance with 20 C.F.R. §725.362(b) inasmuch as the administrative
law judge fully complied with the procedural safeguards delineated in Shapell v. Director, OWCP,
7 BLR 1-304 (1984).
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5) Since the miner's most recent coal mine employment occurred in the state of
West Virginia, the United States Court of Appeals for the Fourth Circuit has jurisdiction over the instant claim.
See Shupe v. Director, OWCP, 12 BLR 1-200 (1989); Director's Exhibit 10.
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6) Mrs. Debra Walter stated that she and her sister ceased receiving the miner's
Social Security benefit payments when they reached eighteen years of age. Hearing Transcript at 20.
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NOTE: This is an UNPUBLISHED BLA Document.
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