A. If death results from coal worker’s pneumoconiosis or if the employee was totally disabled by coal worker’s pneumoconiosis at the time of his death and claim for compensation is made within three years after such death, the employer shall pay or cause to be paid to the surviving spouse of the deceased employee until his death or remarriage or the minor dependents of the employee until such minor dependents reach the age of eighteen (or twenty-three, so long as they remain as full-time students in a generally accredited institution of learning) or such other legal dependents as the deceased employee might have had at the time of his death for the duration of such dependency, 66 2/3 percent of the employee’s average weekly wage during the last three years that he worked in the coal mines, up to 100 percent of the average weekly wage of the Commonwealth as defined in § 65.2-500 without any specific limit as to the number of such weeks. However, any claim for compensation of an employee who was totally disabled by coal worker’s pneumoconiosis at the time of his death shall be paid only to the extent required by federal law.

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B. The Commission shall, by regulation duly drawn and published after notice and hearing, prescribe standards, not inconsistent with those prescribed by the Secretary of Health and Human Services under the 1969 Federal Coal Mine Health and Safety Act, as amended, for determining whether the death or total disability of an employee was due to pneumoconiosis or any chronic occupational lung disease.

C. In prescribing such standards the following factors shall be included:

1. If an employee who died from a respirable (respiratory) disease was employed for ten years or more in an environment where he was injuriously exposed to such a disease, there shall be a rebuttable presumption that his disease arose out of such employment, or if he became totally disabled from coal worker’s pneumoconiosis or if such disease significantly contributed to his death or disability, there shall be a rebuttable presumption that his death or disability was due to such disease.

2. Where there is clear evidence of exposure to an occupational lung disease, the Commission may make its determination whether compensation is payable to the dependents based on the description of the employee’s symptoms, X-rays, and other competent medical evidence, and the opinion of experts as to whether those symptoms reasonably described the symptoms of such an occupational disease.

3. The statement as to the cause of death on a death certificate may be considered as evidence in any such cases but shall not be controlling on the Commission’s findings. The Commission may also, by regulation, establish standards, not inconsistent with those prescribed by the Secretary of Labor under the 1969 Federal Coal Mine Health and Safety Act as amended, for apportioning liability for benefits under this section and under § 65.2-504 A 4 among more than one operator, where such apportionment is appropriate, provided that no apportionment shall operate to deprive an employee of the full benefits due him under this title.

1972, c. 619, § 65.1-65.1; 1973, cc. 401, 436; 1974, c. 560; 1975, c. 447; 1991, c. 355.