Tackett v. Benefits Review Board

Petitioner appeals a Benefit Review Boards (Board) decision reversing the Administrative Law Judges (ALJ) grant of black lung benefits. Petitioner brought suit under section 921(c)(2) of the Black Lung Benefits Act, 30 U.S.C. ?? 901-945 (1982) (Act), and the regulation promulgated thereunder. The ALJ awarded benefits, concluding that petitioner was entitled to invoke the rebuttable presumption that her husbands death was due to pneumoconiosis conferred by section 921(c)(2) and the implementing regulation because her husband worked more than ten years in the nations mines and died from lung cancer. In concluding that lung cancer was a chronic lung disease sufficient to invoke the presumption, the ALJ relied on the Boards decision in Pyle v. Allegheny River Mining Co., 2 Black Lung Rep. 1-1143 (1981). The Board in Pyle concluded that lung cancer was a chronic disease of the lung as a matter of law, and thus was a sufficient basis for invoking the section 921(c)(2) presumption. After the parties argued the present case before the Board, but before the Board reached its decision, the Board overruled its decision in Pyle. Hunter v. Director, Office of Workers Compensation Programs, 8 Black Lung Rep. 1-120 (1985), appeal docketed, No. 85-2359 (4th Cir. Nov. 14, 1985). In Hunter, the Board held that a claimant has the burden to establish that the miners lung cancer was a chronic disease of the lung before the statutory presumption is invoked. The Board in the present case held that Hunter, not Pyle, applied to the case and concluded that petitioner failed to establish that her husbands lung cancer was a chronic lung disease. Because we believe that petitioner should have the opportunity to prove that her husbands lung cancer was a chronic lung disease, we reverse the Boards decision and remand to the Board for further proceedings in accordance with this opinion.