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YENETSKIE v. SECRETARY OF HEALTH

February 17, 1977

GEORGE YENETSKIE
v.
SECRETARY OF HEALTH, EDUCATION AND WELFARE



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 This is a so-called "Black Lung" case arising under Part B, Title IV of the Federal Coal Mine Health and Safety Act, 30 U.S.C. ยง 901 et seq. Said Act establishes a program for the payment of benefits to living miners who are totally disabled due to pneumoconiosis arising out of coal mine employment and to the dependents of miners who die due to pneumoconiosis, or who were totally disabled due to pneumoconiosis at the time of their death.

 The Administrative Law Judge (ALJ) has made the following findings:

 
"2. Claimant had only in excess of three (3) years of qualifying coal mining employment, preceded and followed by 13 years of self-employed coal mining.
 
* * *
 
"7. Due to the limited coal mine employment found and both preceding and subsequent many years of self-employed coal mining, no causal relationship nor presumptions can be established between the qualifying coal mine employment and the presence of the disease.
 
"8. Claimant is not entitled to Black Lung Benefits."
 
(R. 13, 14)

 The plaintiff suffers from pneumoconiosis and its unfortunate effects and the ALJ has so found:

 
"5. Credible X-ray interpretations do establish that claimant has pneumoconiosis.
 
"6. The credible evidence, including X-ray, pulmonary function study results and other relevant evidence of record, does demonstrate a significantly impaired lung function as a result of a chronic respiratory or pulmonary condition."
 
(R. 13)

 Thus, plaintiff has apparently had sufficient exposure to mines and mining or other conditions to have contracted this unfortunate disease with its resultant disability, the condition which the Federal Coal Mine Health and Safety Act (Act) sought to reach by providing benefits therefor. That this plaintiff so suffers from this disease is understandable, considering that he has been exposed to the dust-laden atmospheric conditions incident to mines and mining since he was twelve years of age or earlier when he accompanied his father into what were then so-called "bootleg" or "independent" mines (R. 37). He thus worked with his father until graduation from high school in 1937 (R. 37). His work with his father was necessarily principally confined to weekends and summer due to his schooling to and including 1937.

 Thereafter, his work for a short period of time with "Philadelphia and Reading" "through 1941" was not in the mines, but rather was in a completely outside environment, repairing roads, albeit the material from coal refuse banks was used in the course of road repairs and maintenance (R. 39). He then worked for the East Bear Ridge Coal Company in 1944, earned only $132.00 (R. 41), when he went into the service following which he went back to East Bear Ridge and earned $6.62 before buying a barbershop (R. 42) in which he was self-employed as a barber. In 1959 he started selling World Book Encyclopedias (R. 42), but went back to his barbershop in 1968 or 1961 (R. 43, 44). While operating the barbershop, he also engaged in "independent" mining which he described as including the picking, cracking, hauling and selling of said coal by means of a pick-up truck (R. 43). In the performance of such work he described himself as self-employed:

 
"Q. What did you do there?
 
A. I picked coal, sold it, cracked it, hauled it -- mostly we sold it ...

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