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Keating v. Director

December 12, 1995

MARTHA KEATING, WIDOW OF JOHN KEATING, PETITIONER

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, RESPONDENT



PETITION FOR REVIEW OF AN ORDER OF THE BENEFITS REVIEW BOARD BRB Docket No. 92-1245

Before: NYGAARD and McKEE, Circuit Judges and FULLAM, District Judge *fn*

NYGAARD, Circuit Judge

Argued July 27, 1995

Filed December 12, 1995)

OPINION OF THE COURT

The claimant, Martha Keating, appeals from a Benefits Review Board decision affirming an Administrative Law Judge's order rejecting her petition for modification. Her claim for Black Lung benefits as the surviving spouse of John Keating has a shamefully long history. It has been before three different ALJs and before the Board on three separate occasions. Although given several chances to consider properly Mrs. Keating's claim for survivor benefits, the ALJs and the Board repeatedly failed to do so. Instead, they dismissed her persistence as merely shopping for a "friendly factfinder." It is not apparent from the record whether she was shopping for a friendly factfinder or just a fair one. It is painfully obvious, however, that she found neither. Today, we will end this travesty. Based on the uncontradicted evidence conceded by the Director to be credible, *fn1 we conclude that the record establishes that Mrs. Keating is entitled to survivor benefits. We will grant the petition for review, reverse the decision of the Board, and remand the cause for the limited purpose of awarding Mrs. Keating benefits from August of 1978. *fn2

I.

Nearly seventeen years ago, in February 1979, Mrs. Keating filed for survivor benefits under the Federal Black Lung Benefits Act, 30 U.S.C. Section(s) 901-945, as the surviving widow of miner John Keating, who died on July 19, 1978.

Benefits are provided under the Act for or on behalf of miners who are totally disabled due to pneumoconiosis, or who were totally disabled due to pneumoconiosis at the time of death . . . . 20 C.F.R. Section(s) 718.204(a).

The Department of Labor denied the claim and she requested a formal hearing before an ALJ. ALJ Marcellino (ALJ 1) held a hearing in December 1980, at which Mrs. Keating offered lay witness testimony and her husband's death certificate, but no medical evidence. *fn3 ALJ 1 denied benefits in April 1981.

ALJ 1 found that John Keating worked as a miner for various periods from 1939 through 1953. He worked part-time after school and on weekends in the "dog hole" mines from 1939 to 1942, for which ALJ 1 credited the deceased with one year of employment. The Director conceded seven years of coal mine employment from 1946 to 1953. Hence, ALJ 1 credited the deceased with a total of eight years as a miner and found that Mrs. Keating was not entitled to any presumptions under the Act, because the deceased had fewer than ten years of coal mine employment.

According to ALJ 1, "the death certificate conclusively establishe[d] that the cause of death was acute cardiac and respiratory failure, with anthracosilicosis contributing to death." He stated that lack of evidence to show pneumoconiosis was either: 1) a multiple cause of death not medically distinguishable from the cause of death, or 2) related to or an aggravating cause of death, prevented a finding that Keating died from pneumoconiosis. Therefore, Mrs. Keating would have to prove that, at the time of his death, Keating suffered total disability as a result of pneumoconiosis from coal mine employment.

ALJ 1 then mistakenly decided that because Mrs. Keating was not entitled to any presumptions she could not prove pneumoconiosis solely by lay testimony, stating [w]hile the lay testimony of a widow and persons with knowledge of the miner's condition could in some cases establish a presumption of pneumoconiosis, where the miner has less than ten years of coal mine employment this evidence is simply insufficient to establish the existence of pneumoconiosis.

(Emphasis added). Incongruously, the ALJ found the death certificate alone competent to conclusively establish the cause of death, acute cardiac and respiratory failure with anthracosilicosis with emphysema contributing to death, but not competent to establish pneumoconiosis. ALJ 1 denied ...


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