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Kidda v. Director

August 6, 1985

BERNARD KIDDA (SON OF ANDREW KIDDA) PETITIONER
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, RESPONDENT



On Petition for Review of an Order of the Benefits Review Board, United States Department of Labor (Docket No. 82-641 BLA)

Author: Garth

BEFORE: WEIS, GARTH, and STAPLETON, Circuit Judges

Opinion OF THE COURT

GARTH, Circuit Judge:

Bernard Kidda was denied Black Lung Survivors Benefits because he was found not to have been continually disabled from the age of minority. Specifically, Kidda completed college and was employed for fifteen years before he became unemployed and, due to a current disability, unemployable. Kidda was initially granted benefits by the Administrative Law Judge (ALJ), but this determination was reversed by the Benefits Review Board. Kidda petitions this Court for direct review under 33 U.S.C. § 921(c).

I.

It is undisputed that Kidda's father was a miner who died of Black Lung disease when Kidda was eleven. Kidda himself contracted tuberculosis at the age of four and was hospitalized for six years. The tuberculosis resulted in a permanent disfigurement of Kidda's hip.

Despite his disability, Kidda completed his studies and received a Bachelor of Science degree, and in 1958 became employed as a chemist with Gillette Research Institute, in a program for the handicapped. In 1969 Kidda transferred to another Gillette division. In 1973 he was fired following an altercation with another employee. In addition to his physical handicap, Kidda currently suffers from depressive psychosis.

The ALJ determined that Kidda became totally disabled at the age of four, and that Kidda is currently totally disabled. The ALJ further found that Kidda's employment with Gillette was substantial, gainful employment. However, the ALJ determined that a period of employment after the age of majority, followed by a recurrence of total disability, did not bar resititution of black lung dependent children's benefits.

The Benefits Review Board reversed the ALJ, permitting the factual determinations to stand, but concluding that under the relevant statutory provisions, children's benefits may not be reinstituted following adult years of substantial gainful employment. We agree with the Board's conclusion and therefore deny Kidda's petition for review.

II.

The Black Lung Benefits Act of 1972, 30 U.S.C. § 901 et seq., provides a scheme of compensation benefits for miners disabled by pneumoconiosis, and for the surviving dependent spouses and children of those miners who die from pneumoconiosis. 30 U.S.C. § 922(a)(3) provides for payment of black lung benefits to the children of a miner if the miner dies of pneumoconiosis. 30 U.S.C. § 902(g) defines "child" as:

(g) The term "child" means a child or a ...


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