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ROWAN v. CALIFANO

May 2, 1977

MRS. MARION G. ROWAN
v.
JOSEPH A. CALIFANO, JR., Secretary of Health, Education and Welfare



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 This case arises under Part B, Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended. 30 U.S.C. ยง 901 et seq. The 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 died due to pneumoconiosis, or who were totally disabled due to pneumoconiosis at the time of their death.

 Plaintiff's decedent died in 1957 as the result of pneumoconiosis after having been employed in the nation's coal mines for at least thirty years. The plaintiff and the decedent were married over twenty-eight years but were divorced on or about May 10, 1954. At the time of the divorce, it was agreed that the decedent would contribute to the plaintiff and her son the sum of $100.00 per month, plus $60.00 in food and groceries. The record establishes, without contradiction, that including the month of his death the decedent had complied with the agreement. The question involved is whether plaintiff has proven dependency in accordance with the statutory provisions and the applicable regulations. There are three methods provided for proving dependency. The first method requires a showing that, for the month in which the miner died, the divorced wife was receiving at least one-half of her support from the miner. 20 CFR 410.361(a). "One-half support" is defined as regular contributions in cash or kind equal to or exceeding one-half the total cost of the divorced wife's support for the one-month period. 20 CFR 410.395(g) defines the term "one-half support":

 
"The term 'one-half support' means that the miner made regular contributions, in cash or in kind, to the support of a divorced wife (sec. 410.351(a)), or of a surviving divorced wife (410.361(a)), at the specified time or for the specified period, and that the amount of such contributions equaled or exceeded one-half the total cost of such individual's support at such time or during such period."

 Section 410.395(a) defines the term "support":

 
"The term 'support' includes food, shelter, clothing, ordinary medical expenses, and other ordinary and customary items for the maintenance of the person supported."

 The Administrative Law Judge (ALJ), in reaching his conclusions, repeatedly alluded to the fact that the plaintiff had attempted to "change" her testimony as regards the contributions received from the decedent in that she stated that the $100.00 per month contribution was for the minor son and then later attempted to change this testimony. Perhaps a quite technical reading of the record supports this conclusion. However, a reading of the record as a whole supports a contrary conclusion. Notwithstanding the fact that the plaintiff was represented by counsel, the ALJ conducted his own examination. Approaching first an itemization of the plaintiff's monthly expenses (R. 23) and then departing quickly to other matters (R. 24 et seq.), he returned to monthly expenses (R. 27 et seq.) and then asked a series of somewhat leading questions to determine whether the $100.00 payment received in cash from the decedent each month was for the support of the son or for the support of the plaintiff, or for their combined support (R. 30). The record reads as follows:

 
"Q. Now, that $50 was not -- I want to -- Now, what about the hundred for your son's support? Was that the $50 that he gave you every 2 weeks?
 
A. Yes.
 
Q. Now, I'm talking about yourself. Did he give you anything for you? Aside from this hundred --
 
Q. The hundred dollars was for your child's support?
 
A. Uh-huh.
 
Q. And plus $60 a month for food.
 
A. Yeah.
 
Q. Okay. Well, that was for both you and your son.
 
A. (No response.)
 
MR. MIERNICKI: Do you understand what he's asking?"
 
(R. 30)

 The examination by the ALJ resulted in complete confusion on the part of the plaintiff:

 
"BY ADM. LAW JUDGE:
 
Q. See, what I want to determine is what your requirements were, not what your son's were. ...

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