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MCCONVILLE v. WEINBERGER

May 2, 1975

Mary E. McCONVILLE, Plaintiff,
v.
Caspar W. WEINBERGER, Secretary, Department of Health, Education and Welfare, Defendant


John L. Miller, District Judge.


The opinion of the court was delivered by: MILLER

JOHN L. MILLER, District Judge.

This proceeding has been filed pursuant to Part B, Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C.A. § 901 et seq. (Act). By virtue of same we are asked to review a final decision of the Secretary which denied Black Lung survivor's benefits to the wage earner's widow. The case is before us on the Secretary's motion for summary judgment.

 The facts are simply stated. Plaintiff is the widow of Patrick J. McConville who died on August 13, 1943, four days shy of his 45th birthday. They were married on November 28, 1923. Plaintiff testified that she was living with and being supported by her husband at his death. She has never remarried. The decedent worked in the mines twenty-one years the last sixteen of which were with the same employer, United States Steel Corporation.

 A copy of the coroner's report in evidence confirms the date of death and lists the cause as shock due to a crushed leg which Mr. McConville suffered in a mining accident. Plaintiff admitted that her husband died from shock and a blood clot and further testified that no X-rays were taken or autopsy performed. She also stated that no medical reports were available because the decedent's doctors are all deceased.

 The only evidence adduced to show the miner's physical condition at death was in the form of lay testimony. Plaintiff testified that the decedent had difficulty getting his breath, that doctors treated him for miner's asthma, that he took medication for his condition, and that he utilized home remedies in attempting to arrest his respiratory ailment.

 James Nichols, a long time friend and fellow employee of the deceased, corroborated plaintiff's testimony by stating his personal knowledge of the decedent's breathing problems. Mr. Nichols also attested to the dusty and dirty atmosphere of the area in which they worked and substantiated the fact that Mr. McConville had to be transferred from his job (cutting machine) because of his breathing problem. It was also disclosed that Mr. McConville, in transferring to another job, stayed in the mine as a laborer or driver and was working at the time of his fatal accident.

 DISCUSSION

 Plaintiff seeks to overturn the decision of the Secretary because his findings and evaluations are allegedly contrary to the evidence and law. Initially it should be noted that section 413(b) of the Act, 30 U.S.C.A. § 923(b), incorporates by reference section 205(g) of the Social Security Act for review purposes; thus, if substantial evidence exists on the record to support the Secretary's determination the motion must be granted.

 Whether plaintiff has sustained the burden of proving that she is entitled to survivor's benefits is governed by regulations the Secretary issued pursuant to 30 U.S.C.A. § 921(b). For a widow to qualify the conditions of entitlement are set out rather clearly:

 An individual is entitled to benefits if such individual:

 (a) Is the widow (see § 410.320) or surviving divorced wife (see § 410.321) of a miner (see § 410.110(j));

 (c) Has filed a claim for benefits in accordance with the provisions of §§ ...


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