Director, Office of Workers' Compensation Programs, United States Department of Labor v. Addie Saulsberry , 887 F.2d 667 ( 1989 )

KEITH, Circuit Judge.

The Director, Office of Worker’s Compensation Programs, United States Department of Labor, petitions for review of a decision of The Benefits Review Board awarding black lung disability benefits to respondent, the dependent daughter of a deceased miner. This case poses the question of whether a prior determination of survivor benefit eligibility pursuant to Part B of Title IV of the Black Lung Benefits Act, 30 U.S.C. §§ 921-925, eliminates the necessity of independently establishing the miner’s total disability due to pneumoconiosis under the criteria in Part C of the Act in order to establish entitlement under 20 C.F.R. § 725.218(a)(2). Because we conclude that no such independent showing of disability is required, we deny the petition for review.

The miner, who never filed a claim, died in 1970. The miner’s widow, who is the mother of respondent, was awarded benefits under Part B of the Act in 1971. In 1978, respondent filed her claim for benefits under Part C of the Act. 29 C.F.R. § 725.218 sets forth the conditions of entitlement for a surviving child:

(a) An individual is entitled to benefits where he or she meets the required standards of relationship and dependency under this subpart (see 725.220 and 725.221) and is the child of a deceased miner who:

(1) Was receiving benefits under section 415 or Part C of Title IV of the Act at the time of death as a result of a claim filed prior to January 1, 1982; or

(2) Is determined as a result of a claim filed prior to January 1, 1982, to have been totally disabled due to pneumoconi-osis at the time of death or to have died due to pneumoconiosis. A surviving dependent child of a miner whose claim is filed on or after January 1, 1982, must establish that the deceased miner’s death was due to pneumoconiosis in order to establish entitlement to benefits, except where entitlement is established under 718.306 of Part 718 of a claim filed prior to June 30, 1982.

(b) A child is not entitled to benefits for any month in which a miner, or the surviving spouse or surviving divorced spouse of a miner, establishes entitlement to benefits.

Respondent’s claim was denied, and a hearing was held before an AU. The AU found that the miner did not have pneumoconiosis, and therefore denied benefits. On appeal to the Benefits Review Board, the Director requested a remand due to the failure of the AU to specify the regulations under which he considered the evidence or to set forth his rationale, 5 U.S.C. § 557(c)(3), or to consider lay evidence in the absence of medical evidence. 20 C.F.R. § 727.203(a)(5). Instead, the Board reversed the AU’s decision, holding that the prior determination of pneumoconiosis made pursuant to Part B of the Act satisfied the requirements of 20 C.F.R. § 725.218(a)(2).

In his petition for review, the Director argues that this court should accept its interpretation of 20 C.F.R. § 725.218(a) that prior determinations of entitlement under Part B are insufficient for establishing entitlement under 20 C.F.R. § 725(a)(2). The Director’s position based primarily on the fact that the federally-financed Part B program is more liberal than the mine owner-financed Part C program; thus, the criteria for establishing entitlement under Part B cannot simply be engrafted onto Part C claims. Moreover, argues the Director, 20 C.F.R. § 725.218(a)(1) becomes superfluous if any previous finding of entitlement were sufficient to establish entitlement under Part C under § 725.218(a)(2).

The Director’s interpretation of eligibility criteria “is deserving of substantial deference unless it is plainly erroneous or inconsistent with the regulation.” Mullins Coal Company v. Director, OWCP, 484 U.S. 135, 108 S.Ct. 427, 440, 98 L.Ed.2d 450 (1987). However, in this case, the Director’s interpretation is contrary to the plain wording of 20 C.F.R. § 725(a)(2). That subsection does not qualify the words “a claim;” it merely requires that the disability be “determined as the result of a claim filed prior to January 11,1982.” Because it is undisputed that respondent meets the relationship and dependency requirements of 20 C.F.R. §§ 725.220 and 725.221, and because respondent’s mother’s claim, which was filed prior to January 1, 1982, necessarily involved a determination of total disability due to pneumoconiosis or death due to pneumoconiosis, the Board did not err in granting benefits under 20 C.F.R. § 725.218(a)(2).

Accordingly, the petition for review is DENIED.