Totally F***ed Up
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Totally F***ed Up
The petition states that on November 20, 1924, the defendant executed and delivered to the plaintiff its policy of insurance, whereby in consideration of an annual premium of $107.10 the defendant insured her life for $5,000; that in consideration of an additional premium of $8.05 per year the defendant agreed that in the event of total and permanent disability on the part of the insured before attaining the age of 60 years, it would, during the continuance of such disability, waive payment of each premium as it became due and pay to the insured $50 per month; that on September 14, 1939, while the policy was in full force and effect the insured became permanently and totally disabled; that the defendant made the monthly payments of $50 to her until November, 1940, at which time it refused to recognize her condition as being one of total and permanent disability and has refused to make any such payment for November, 1940, or thereafter; and that there was due to her by the defendant under the policy at the time when this action was filed in December, 1941, the sum of $700 which the defendant has failed and refused to pay. The petition prays judgment against the defendant in the sum of $700; that the plaintiff be adjudged permanently and totally disabled under the stipulations of the policy, and that she be adjudged payment of $50 per month from the defendant for the remainder of her natural life. The petition for removal alleges diversity of citizenship between the parties and that the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000. It states in support of these allegations that in accordance with the requirements of the law of New York it is required to carry reserves for disability benefits and that in accordance with sound actuarial principles and practices it has set up against the plaintiff's claim and now maintains a reserve which exceeds $8,000; that the plaintiff was 36 years of age at the time of filing her action and had a reasonable expectancy of life of more than ten years; and if the plaintiff sustains her claim in this action and lives during her reasonable life expectancy and remains totally and permanently disabled the defendant will be required to pay her more than 120 monthly installments of $50 each or a total sum of more than $6,000, and waive more than ten annual premiums of $115.50 each, which makes a total payment of *170 monthly income and waiver of premiums of more than $7,151.50.
The plaintiff here enlisted in the navy on January 7, 1918, and was discharged on June 22 thereafter. During that time he procured war risk insurance to the extent of $10,000, for which he, through his father as next friend, sues. It is claimed that during the life of this insurance contract he became a psychopathic type to an extent that he was, and still is, and will continue to be, an irresponsible person, and was thereafter, and is now, totally and permanently disabled. A claim for compensation is set up in the petition, but that has been abandoned by the plaintiff, and the suit is for the value of the policy.
The government denies that he was totally disabled. Among other things it alleges that such disability as now exists is due to a constitutional defect or congenital condition; that his trouble, therefore, did not originate during his service, and, furthermore, is not of a type that will prevent him from pursuing a gainful occupation.
The policy is a contract. In the consideration of it every reasonable presumption must be indulged in favor of the plaintiff. He was an enlisted man, and the whole scheme of war risk insurance was designed to benefit men who thus served, and who, from any cause during the period of their service, became disabled. Great liberality of construction must therefore be indulged. If this plaintiff can be said to have become totally disabled during his service, even though the cause of it may be traced back to remote conditions, with which his service had nothing to do, I think he should recover a judgment here. The very purpose of the insurance was to protect the service man against such a misfortune.
So we have a case where the record shows an enlisted man in whose favor a policy of insurance was issued, who was dismissed from the service on account of his mental condition, who is unfit for vocational training, who is presently suffering from a condition of mind that, to say the least of it "reacts to life as a typical psychopath," and who, until this time, is totally disabled for work.
Appellant meets all the personal eligibility requirements for a widow seeking benefits as stated in 20 C.F.R. 410.210. The issues in this appeal concern whether she has proved the additional requirement that the deceased miner either (a) died of pneumoconiosis (black lung) or (b) was totally disabled due to pneumoconiosis at the time of his death. Benefits were denied on the grounds she had proved neither alternative. If the Secretary's decision is supported by substantial evidence, we must affirm the judgment. 42 U.S.C. 405(g); Richardson v. Perales, 402 U.S. 389 (1971).
The Secretary found the evidence established that the deceased did not have pneumoconiosis and that he did not have any totally disabling respiratory impairment. We doubt whether there is substantial evidence establishing that the deceased did not have pneumoconiosis. However, we must affirm the judgment on the basis of the evidence of total disability. Because appellant has not shown the deceased was totally disabled due to chronic respiratory impairment, the presumption that the impairment was pneumoconiosis does not arise.
The term "total disability" has the meaning given it by regulations of the Secretary of Health, Education, and Welfare, except that such regulations shall provide that a miner shall be considered totally disabled when pneumoconiosis prevents him from engaging in gainful employment requiring the skills and abilities comparable to those of any employment in a mine or mines in which he previously engaged with some regularity and over a substantial period of time . . . (emphasis added).
Appellant would phrase the issue before us as follows: Can a miner be "totally disabled due to pneumoconiosis" as defined in the Act and regulations if he was employed in the mines at the time of his death? Appellant's question must be answered affirmatively, but that does not mean she is entitled to benefits on the basis of the evidence in this case. Under the statutory definition, the mere fact of employment does not preclude a finding of total disability. The circumstances of the employment may be consistent with a finding of total disability. Social Security Ruling 73-36 stated that a miner could be totally disabled and still be employed if the employment was characterized by "sporadic work, poor performance and marginal earnings." Ruling 73-36 has been followed in subsequent cases. E.g., Farmer v. Weinberger, 519 F.2d 627 (6th Cir. 1975); Tibbs v. Weinberger, 401 F.Supp. 1139 (E.D. Ky. 1975). In addition, other cases have recognized a miner may have been employed and yet totally disabled due to pneumoconiosis if his job was a "make-work" position. Lawson v. Weinberger, 401 F.Supp. 403 (W.D. Va. 1975); Rowe v. Weinberger, 400 F.Supp. 981 (W.D. Va. 1975). In such circumstances a miner may have been given a job through the courtesy of the management even though he was no longer able to do work comparable to his usual mine employment.
Some cases similar to the one at bar have been remanded with directions for the administrative law judge to determine what the decedent's work performance actually was. Corridoni v. Weinberger 402 F.Supp. 983 (M.D. Pa. 1975); Rowe v. Weinberger, supra; Dellosa v. Weinberger, 386 F.Supp. 1122 (E.D. Pa. 1974). In these cases the court found inadequate investigation and consideration by the administrative law judge of the circumstances of the deceased's employment. Appellant has not argued, however, that the factual inquiry was inadequate in this case, or that her late husband's employment would in fact satisfy either condition in which a miner may be employed and yet be totally disabled due to pneumoconiosis. Nothing in the evidence or the argument warrants an assumption on our part that appellant could show an entitlement to benefits under the above standards if we did remand.[3]
Finally, appellant argues it is contrary to legislative intent to deny survivor's benefits when the deceased was totally disabled for all practical purposes, but through inordinate effort continued to work because of economic compulsion amounting to duress. She cites statements to this general effect made by congressmen during the hearings on the 1972 amendments to the Act. She also cites congressional statements, made since the amendments became effective, which indicate some congressmen's displeasure with the Secretary's harshness in administering the Act.
Under the facts of this case, the denial of benefits because the deceased was employed may seem harsh. But the fact he was doing his usual work in the mines at the time of his death, if not conclusive, is at least substantial evidence in support of the Secretary's finding the deceased was not totally disabled due to pneumoconiosis. This finding must be allowed to stand.
[3] In cases similar to the present one, where "make-shift" or "sporadic" work was not a factor, the Secretary's finding that the deceased was not totally disabled has uniformly been upheld. See Farmer v. Weinberger, 519 F.2d 627 (6th Cir. 1975); Lawson v. Weinberger, 401 F.Supp. 403 (W.D. Va. 1975); Cox v. Weinberger, 389 F.Supp. 268 (E.D. Tenn. 1975); Rainey v. Weinberger, 388 F.Supp. 1277 (E.D. Tenn. 1975); England v. Weinberger, 387 F.Supp. (S.D. W.Va. 1974); Statzer v. Weinberger, 383 F.Supp. 1258 (E.D. Ky. 1974). 041b061a72