20 CFR 410.520

SSR 72-66

Held, payment of burial expenses and periodic payments under Section 342.070, Kentucky Revised Statutes, made to widow of coal miner as result of miner's death do not constitute payments under workmen's compensation, unemployment compensation, or disability insurance laws of State on account of miner's disability; therefore, no reduction is required against the widow's "black lung" benefits under section 412(b) of Federal Coal Mine Health and Safety Act of 1969, as amended.

A question has been raised as to whether compensation paid to a miner's widow under § 342.070, Kentucky Revised Statutes, because of the death of her husband, constitutes payment under the Kentucky workmen's compensation, unemployment, or disability insurance laws on account of the disability of the miner; if it does, such compensation would require a reduction in Black Lung benefits under section 412(b) of the Federal Coal Mine Health and Safety Act of 1969, as amended.

Section 342.070, Kentucky Revised Statutes, provides in pertinent part that where death of an employee results within two years from a compensable accident or occupational disease, certain burial expenses are payable, as well as compensation to persons wholly dependent on the deceased employee (among others). If death occurs as a result of the injury or an occupational disease after a period of total or partial disability, the period of disability must be deducted from the total period of compensation and the benefits paid thereunder from the maximum allowed by the statute for death.

Section 342.075, Kentucky Revised Statutes, further provides in pertinent part:

(1) The following persons shall be presumed to be wholly dependent upon a deceased employee:
(a) A wife upon a husband whom she had not voluntarily abandoned at the time of the accident, or who having been abandoned by her husband has not engaged in such conduct since his abandonment as would at common law constitute grounds justifying the abandonment of such wife by her husband; * * *.

Section 412(b) of the Federal Coal Mine Health and Safety Act of 1969, as amended (30 U.S.C. 922(b)), reads in pertinent part:

* * * benefit payments under this section to a miner or his widow . . . shall be reduced, on a monthly or other appropriate basis, by an amount equal to any payment received by such miner or his widow . . . under the workmen's compensation, unemployment compensation, or disability insurance laws of his State on account of the disability of such miner * * *.

This section is contained in part B of Title IV of the above Act. That part provides benefits not only for miners but also for their surviving widows. It requires the reduction of either type of benefit on account of any State workmen's compensation payment received "on account of the disability of such miner." The absence of a specific reduction provision aimed expressly at State payments a widow entitled to Black Lung benefits would be most likely to receive, supports the view that death payments were not intended to be included within the term "disability." This interpretation also reflects the general principle of statutory construction that if only one specific item in a class of items is referred to in a statute, specific items not referred to are intended to be excluded therefrom.

In view of the liberal construction usually afforded to remedial legislation generally and to workmen's compensation statutes in particular, the better view of the reduction provisions of section 412(b) is that in extending to payments made on account of the disability of the miner, they do not thereby also extend to payments made on account of his death.

The Court of Appeals of Kentucky, the highest court of that State, has on many occasions rendered decisions on claims brought under sections 342.070 and 342.075, Kentucky Revised Statutes. In Proctor and Gamble Mfg. Co. et al v. Little, 357 S.W.2d 866 (1962), the Court of Appeals in referring to the Workmen's Compensation Laws, Kentucky Revised Statutes, Chapt. 342, stated:

The statutes create two different types of claims, one by the employee and the other by his representatives or dependents. The latter claim is not dependent on the assertion of the former.

In Reynolds Metal Co. v. Glass, 195 S.W.2d 280 (1946), the Court of Appeals set forth the purposes of the Kentucky Compensation Act, Kentucky Revised Statues, Chapt. 342, citing with approval an earlier decision, Blue Diamond Coal Co. v. Frazier, 229 Ky. 450, 17 S.W.2d 406, 407 (1929) which stated:

The rule also is that the Compensation Act must be liberally construed with the view to promoting its purposes. One of the purposes of the Act is to provide for the dependents of the workman injured in the course of his employment, for their right to sue and obtain compensation for his death, under the constitutional provision, is taken away. The statute, therefore, should be liberally construed in their favor.

The decisions of the Kentucky Court of Appeals indicate that compensation paid to dependents under section 342.070, Kentucky Revised Statutes, is not workmen's compensation for the disability of a worker but compensation to his dependents who have lost their legal rights to sue for his death at common law. Such compensation is for their own loss of maintenance and support on account of the worker's death.

Thus, in the case of a miner's widow who is presumed to have been wholly dependent upon her husband, or is determined to have been dependent upon him under the statute, and accordingly is paid compensation on account of his death under section 342.070, Kentucky Revised Statutes, held, section 412(b) of the Federal Coal Mine Health and Safety Act of 1969, as amended, does not require the amount of such death compensation to be offset against the widow's Black Lung benefits.

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