GREENE v. DIRECTOR, OWCP, U.S. DEPT. OF LABOR
889 F.2d 794 (1989)
Alice GREENE, Widow of John Pierschbacher, Petitioner,
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
United States Court of Appeals, Eighth Circuit.
Submitted October 9, 1989.
Decided November 21, 1989.
Order Amending Judgment January 24, 1990.*
John A. Jarvis, Chariton, Iowa, for petitioner.
Ronald G. Ray, Washington, D.C., for respondent.
Before LAY, Chief Judge, SNEED,* Senior Circuit Judge, and McMILLIAN, Circuit Judge.
LAY, Chief Judge.
Alice Greene appeals the Benefits Review Board's decision overturning the Administrative Law Judge's determination that she was entitled to survivor's benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. (1982 & Supp. V 1987) (the Act). The primary issue is whether Greene, a miner's widow, presented sufficient evidence to benefit from a presumption under the Act that her husband died of a respiratory disease related to his employment in a coal mine.
John Pierschbacher, a coal miner for more than ten years, died on April 9, 1972. His widow, who took the name Greene upon a second marriage, first applied for benefits under the Black Lung Benefits Act in 1973. Her claim was denied. Following amendments to the Act in 1977, she elected to have her claim reviewed by the Social Security Administration (SSA). SSA denied her claim in 1979. SSA then forwarded her claim to the U.S. Department of Labor for subsequent review. The Department's Office of Workers' Compensation Programs denied her claim once again in 1980, and forwarded the claim to the Office of Administrative Law Judges. In 1985 the administrative law judge (ALJ) awarded her benefits, and in 1988 the Benefits Review Board (BRB) reversed. We reverse the BRB because we find the ALJ's decision supported by substantial evidence in the record.
The Act awards benefits to the survivors of miners who died from pneumoconiosis, or black lung disease, arising from coal mine employment. Under regulations applicable to Greene's case, the survivor is entitled to a rebuttable presumption of total disability due to black lung disease if the survivor establishes at least ten years of coal mine employment, and satisfies one of five medical criteria. 20 C.F.R.
§ 727.203(a) (1989). In a case where there is no medical evidence, the regulations provide that the presumption still may apply if affidavits of the survivor or other people with knowledge of the miner's physical condition demonstrate "the presence of a totally disabling respiratory or pulmonary impairment." 20 C.F.R. § 727.203(a)(5).
The present case was completely devoid of medical evidence concerning the miner's cause of death. Although the record contained a medical certification of death, the ALJ found that the certificate was merely a recording of the fact of death, and that the physician making the record performed no autopsy and had insufficient knowledge to determine the actual cause of death.
With no medical evidence, Greene sought application of the presumption based on affidavits and testimony by the miner's close friends and relatives. Greene testified that for years her husband "had a hacking cough." She said he "would cough at times so he'd just gasp for air and would have [trouble] catching his breath." She stated that near the time of his death, "he was weakening," and "the cough had gotten worse. * * * * He would cough until he couldn't get his breath. You wondered if he was going to be able to catch his breath at all and then he just finally gasped for air and be real weak after he had one of these coughing spells."
When not working at the mine, her husband had liked to work in the fields helping relatives and neighbors, and to pursue a woodworking hobby. In the several months before his death he had been unable to do this work, due to "a remarkable shortness of breath." Greene explained that on the day before his death her husband "was extremely tired" and "just couldn't hardly lift his arms even." He got a flat tire on his way home and was unable to change it himself. He sought help from his nephew to change it for him.