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DELLOSA v. WEINBERGER

December 18, 1974

MARY DELLOSA
v.
CASPAR WEINBERGER, Secretary of Health, Education and Welfare



The opinion of the court was delivered by: WEINER

 This action has been brought to review the denial of Black Lung benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended in 1972. 30 U.S.C. § 901 et seq. Jurisdiction is invoked pursuant to 30 U.S.C. § 923(b) which incorporates 42 U.S.C. § 405(g).

 Plaintiff, Mary Delloso, *fn1" is the widow of Constantino Delloso who died in a mine accident in 1947. In 1970, she filed an application for Black Lung benefits with the Secretary of Health, Education and Welfare. The application was denied initially and again after a hearing by an Administrative Law Judge. When affirmed by the Appeals Council, the decision of the Administrative Law Judge became the final decision of the Secretary and thereafter this suit was filed. Presently before the court are cross motions for summary judgment.

 The record is composed of, among other things, the testimony of the plaintiff and three co-workers of the decedent, medical reports from a physician who had treated the decedent, earnings reports from the Social Security Administration and the death certificate of the deceased miner. The evidence established that the decedent had been working twenty-five (25) years in the mines at the time of his death. All the witnesses testified that he suffered from most of the symptoms of Black Lung (e.g., heavy coughing, oral discharge of blood and a black substance, severe shortness of breath and loss of weight) and that as a result thereof he often had to take time off from work. Mrs. Delloso further testified that in the last year before his death he was able to work only two days a week. The witnesses also testified that even when the decedent did go to work he was unable to perform satisfactorily without the assistance of his co-workers. Dr. William A. Schmit, a physician who treated the decedent as his family doctor from 1941 to 1947, submitted two reports stating that based on his observations and treatment it was his opinion that the decedent was suffering from advanced pneumoconiosis and that if it wasn't for the mine accident he would have succumbed shortly thereafter as a result of the disease. The doctor further stated that the decedent had been referred to the University of Pennsylvania for testing and treatment in 1944. However, as these and other records have since been destroyed, plaintiff was unable to present records of the results of any type of objective medical tests.

 Earnings reports from the Social Security Administration were also made part of the record. They purport to represent the decedent's reported annual earnings for the last ten years of his life (1937 to 1947). The decedent's highest reported per annum earnings appeared to have occurred in 1946 ($2,774.46) and it appeared that he would have earned at least that much had he lived through 1947.

 The death certificate states that the cause of death was a fractured skull and a broken neck due to an accident in the coal mines. The certificate also contains the words "1 day" written in a box designated with the caption "DURATION." *fn2" Mrs. Delloso testified that she was told he was caught in the fatal rock fall only because he was too sick to run like the other miners.

 DISCUSSION

 Under the mandate of 30 U.S.C. § 921(b), the Secretary issued regulations to establish guidelines for determining eligibility for Black Lung benefits. In order for a widow to receive benefits she must qualify under the following provision:

 An individual is entitled to benefits if such individual:

 
(a) Is the widow or surviving divorced wife of a miner;
 
(b) Is not married;
 
(c) Has filed a claim for benefits in accordance with the provisions of §§ 410.220-410.234;
 
(d) Was dependent on the miner at the ...

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