BRB No. 01-0895 BLA
RACHEL RANDOLPH )
(Survivor of WILLIAM G. RANDOLPH) )
)
Claimant-Petitioner )
)
v. )
)
DRUMMOND COMPANY, ) DATE ISSUED:08/21/2002
INCORPORATED )
)
Employer-Respondent )
)
and )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION AND ORDER
Appeal of the Decision and Order - Denying Benefits of Gerald M.
Tierney, Administrative Law Judge, United States Department of Labor.
James C. King (Franklin G. Williams), King, Harrison & Bryan, Jasper,
Alabama, for claimant.
Carranza M. Pryor, Maynard, Cooper & Gale, P.C., Birmingham, Alabama,
for employer.
Jennifer U. Toth (Eugene Scalia, Solicitor of Labor; Donald S. Shire,
Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
Michael J. Rutledge, Counsel for Administrative Litigation and Legal
Advice), Washington, D.C., for the Director, Office of Workers'
Compensation Programs, United States Department of Labor.
Before: SMITH, HALL, and GABAUER, Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and Order - Denying Benefits (00-BLA-973) of
Administrative Law Judge Gerald M. Tierney with respect to a claim filed pursuant
to the provisions of Title IV of the Federal Coal Mine Health and Safety Act of
1969, as amended, 30 U.S.C. §901 et seq. (the Act). The miner had
thirty-eight years of coal mine employment before retiring in 1979. Director's
Exhibit 3. He died on February 28, 1999, at age 83. The miner filed two lifetime
claims for benefits (1983, 1993), which were denied. Director's Exhibits 29-46,
30-11. Claimant, the miner's surviving spouse, filed this survivor's claim with
the Department of Labor in 1999, Director's Exhibit 1, which also was denied by the
Office of Workers' Compensation Programs. Director's Exhibit 15. A hearing then
was held before Administrative Law Judge Tierney.
Before the administrative law judge, claimant asserted that the evidence
established that the miner's death was due to pneumoconiosis within the meaning of
Section 718.205(c) because Dr. Datnow's autopsy report, sworn statement, and
deposition demonstrated that pneumoconiosis was a substantially contributing cause
of the miner's death. Claimant also asserted that the miner suffered from
complicated pneumoconiosis, and therefore claimant was entitled to the irrebuttable
presumption that death was due to pneumoconiosis pursuant to Section 718.304. 20
C.F.R. §§718.205(c), 718.304.[1]
Employer submitted the reports of three physicians (two pathologists and one
specialist in pulmonary medicine), who found that the miner died as a result of
diffuse bronchopneumonia or aspiration pneumonia related to Alzheimer's disease.
Director's Exhibits 13 (Perper); 26 (Fino); Employer's Exhibits 1, 2 (Caffrey).
The administrative law judge found claimant established the existence of
pneumoconiosis caused by the miner's coal mine employment;[2] but failed to establish that the miner's death was due to
pneumoconiosis within the meaning of 20 C.F.R. §718.205(c). Decision and
Order at 3-6. Accordingly, he denied benefits.
On appeal claimant argues that the administrative law judge's reliance on the
death certificate in finding that pneumoconiosis was not the cause of death is
contrary to Eleventh Circuit precedent; and the administrative law judge
erroneously favored the opinions of Drs. Caffrey, Fino, and Perper over those of
autopsy prosector Datnow in finding that pneumoconiosis was not a substantially
contributing cause or factor leading to the miner's death, did not hasten death,
and death was not caused by complications of pneumoconiosis. 20 C.F.R.
§718.205(c)(1), (c)(2), (c)(5). Claimant also contends that the
administrative law judge erred in finding claimant not entitled to the irrebuttable
presumption that the miner's death was due to pneumoconiosis pursuant to Sections
718.205(c)(3) and 718.304.[3] Employer argues in
response that the factual findings regarding the cause of death are supported by
substantial evidence, the administrative law judge's partial reliance on the
miner's death certificate is not contrary to Eleventh Circuit precedent, and Dr.
Datnow's opinion is not entitled to any deference because he demonstrated bias.
The Director, Office of Workers' Compensation Programs, as a party-in-interest, has
not responded to this appeal.
The Board's scope of review is defined by statute. The administrative law
judge's Decision and Order must be affirmed if it is supported by substantial
evidence, is rational, and is in accordance with applicable law. 33 U.S.C.
§921(b)(3), as incorporated into the Act by 30 U.S.C. §932(a);
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
To establish entitlement to survivor's benefits, claimant must establish that
the miner suffered from pneumoconiosis, the pneumoconiosis arose out of coal mine
employment, and the miner's death was due to pneumoconiosis. 20 C.F.R.
§§718.3, 718.202, 718.203, 718.205(a); see Trumbo v. Reading
Anthracite Co., 17 BLR 1-85 (1993); Haduck v. Director, OWCP, 14 BLR 1-29 (1990); Boyd v. Director, OWCP, 11 BLR 1-39 (1988). For survivors'
claims filed on or after January 1, 1982, death will be considered to be due to
pneumoconiosis if pneumoconiosis was the cause of the miner's death, pneumoconiosis
was a substantially contributing cause or factor leading to the mine's death, death
was caused by complications of pneumoconiosis, or the presumption relating to
complicated pneumoconiosis set forth at Section 718.304 is applicable. 20 C.F.R.
§718.205(c)(1)-(4). Pneumoconiosis is a substantially contributing cause of
the miner's death if it hastens it. 20 C.F.R. §718.205(c)(5) (2001); see
Lukosevicz v. Director, OWCP, 888 F.2d 1001 (3d Cir. 1989).
It is within the administrative law judge's discretion, as the trier-of-fact,
to determine the weight and credibility to be accorded the medical experts, see
Mabe v. Bishop Coal Co., 9 BLR 1-67 (1986); Sisak v. Helen Mining Co.,
7 BLR 1-178, 1-181 (1984), and to assess the evidence of record and draw his own
conclusions and inferences from it, see Maddaleni v. The Pittsburg & Midway Coal
Mining Co., 14 BLR 1-135 (1990); Lafferty v. Cannelton Industries, Inc.,
12 BLR 1-190 (1989); Stark v. Director, OWCP, 9 BLR 1-36 (1986). An
administrative law judge may give more weight to physicians' opinions that he finds
are based on a more thorough review of the evidence of record and better reasoned.
See Hall v. Director, OWCP, 8 BLR 1-193 (1985).
The administrative law judge's findings that claimant failed to establish
death due to pneumoconiosis within the meaning of Sections 718.205(c)(1), (c)(2),
and (c)(5), are rational and supported by substantial evidence. The administrative
law judge found that claimant failed to establish death due to pneumoconiosis
pursuant to Section 718.205(c)(1) because the miner's death certificate as well as
hospital records listed respiratory acidosis due to aspiration pneumonia as the
immediate cause of death; the autopsy report of Dr. Datnow identified
bronchopneumonia as the immediate cause of death; and Drs. Perper, Caffrey and Fino
-- who reviewed the autopsy report as well as the miner's medical records --
identified aspiration pneumonia or bronchopneumonia related to Alzheimer's disease
as the primary cause of death. Decision and Order at 5.
Additionally, contrary to claimant's assertion, the administrative law judge's
partial reliance upon the cause of death listed in the death certificate was
reasonable and not contrary to McClendon v. Drummond Coal Co., 861 F.2d 1512
(11th Cir. 1988). In that case, the court of appeals found a death certificate
listing myocardial infarction as the cause of death did not rebut the Section
718.303 presumption that pneumoconiosis caused death where the autopsy physician
reported findings of anthracosis, fibrosis, central lobular emphysema, and moderate
hypertrophy of the pulmonary arteries; and the miner was treated for respiratory
problems for several months before his death. In contrast to McClendon, in
this case the death certificate was consistent with longstanding medical diagnoses,
hospital records, and the opinions of Drs. Perper, Caffrey, and Fino. Claimant
offers no other reason to reject the administrative law judge's finding with regard
to Section 718.205(c)(1), and we find none. Therefore, the findings are supported
by substantial evidence in the record and are affirmed. O'Keeffe,
supra.
Substantial evidence also supports the administrative law judge's finding that
claimant did not prove that pneumoconiosis substantially contributed to or hastened
death, or that death was due to complications of pneumoconiosis within the meaning
of Section 718.205(c)(2) and (c)(5). 20 C.F.R. §718.205(c)(2), (c)(5). The
administrative law judge found Dr. Datnow's opinion that pneumoconiosis was a
substantially contributing cause of death, and that the miner's bronchopneumonia
was a complication of his pneumoconiosis, outweighed by contrary evidence,
including findings of Drs. Caffrey, Perper, and Fino that the miner's simple
pneumoconiosis was mild and did not substantially contribute to the miner's death.
The administrative law judge found it significant that, in addition to the autopsy
report, Drs. Perper, Caffrey, and Fino reviewed the miner's extensive lifetime
medical records, which Dr. Datnow did not. Decision and Order at 5-6.
Dr. Datnow diagnosed "advanced diffuse emphysema and anthracosis involving
both right and left lungs," incidental right pleura mesothelioma, bilateral lower
lobe bronchopneumonia, cor pulmonale secondary to the advanced emphysema,
concentric left ventricular hypertrophy, atherosclerosis of the coronary arteries,
a cardiac pacemaker in place, and Alzheimer's disease (clinical). Director's
Exhibit 7. Dr. Datnow concluded that there "is advanced emphysema and anthracosis
(black lung disease) with a complicating terminal broncho-pneumonia. . . . The
heart exhibits the changes secondary to the emphysema and in addition there is
enlargement of the left ventricle." Id. He later testified that the
advanced emphysema and anthracosis were the cause of the miner's death. Director's
Exhibit 24 at 8.
On the other hand, after reviewing the miner's extensive medical records as
well as the autopsy report, Dr. Perper found evidence of simple coal workers'
pneumoconiosis based upon the miner's employment history, x-rays read "by a number
of radiologists as indicative of mild simple coal workers' pneumoconiosis. . . ,"
and the histological appearance of mild simple pneumoconiosis with associated
centrilobular emphysema. Director's Exhibit 13. Dr. Perper noted that, although
centrilobular emphysema has been causally associated with exposure to coal mine
dust, the miner had two additional causes for his emphysema -- a history of heavy
smoking and a history of bronchial asthma. Dr. Perper concluded that "[a]lthough
the coal workers' pneumoconiosis and associated centrilobular emphysema might have
been a contributory cause of death, there was no sufficient evidence to indicate
that it was a substantially contributory cause of death. . . ." Id.
(Emphasis in original). Dr. Perper based this opinion on the facts that the
miner's "major and primarily operative cause of death was aspiration pneumonia, old
and recent with the presence of multinucleated giant cells;" aspiration pneumonia
is not a complication of coal workers' pneumoconiosis, and was most likely related
to the miner's Alzheimer's disease; the contribution of coal worker's
pneumoconiosis to the miner's emphysema was difficult to assess because of the
confounding factors of heavy smoking history and bronchial asthma; there was a five
year gap in the miner's medical records (from 1993-1998); and the abnormal
pulmonary function and blood gas studies done in the last year of the miner's life
could have been entirely related to the miner's recurrent episodes of aspiration
pneumonia. Id.
Dr. Caffrey provided a report based upon his evaluation of the autopsy report
and its supporting slides, as well as the miner's medical records. He found that
the miner had a "very mild degree of simple coal workers' pneumoconiosis" that
could not have caused his pulmonary disability. Employer's Exhibit 1. Because of
the paucity of the lesions associated with simple coal workers' pneumoconiosis, Dr.
Caffrey found that the miner's coal workers' pneumoconiosis could have been
responsible for only a small fraction of his emphysema. He found death was due to
diffuse bronchopneumonia associated with a history of aspiration pneumonia.
Id. Dr. Caffrey concluded:
[T]he fact that Mr. Randolph was a coal worker, in my opinion,
did not cause, contribute to, or hasten his death, nor did the
fact that he had simple coal workers' pneumoconiosis cause him
pulmonary disability when he was alive. The pulmonary
disability which the patient had would have been due to his
emphysema which was due to his years of smoking cigarettes.
The degree of pulmonary disability which the patient had as
noted by Dr. Jack Hasson when he examined the patient on 07-06-93, some fourteen years after he retired, was at most,
mild, according to Dr. Hasson's report, and it must be noted
that at that time the patient had organic brain syndrome and
had previously had a pacemaker installed some seven years
prior to that.
Employer's Exhibit 1.
Dr. Fino, who reviewed the autopsy report as well as the miner's medical
records, found that simple coal workers' pneumoconiosis was present pathologically,
but not clinically; there was no respiratory impairment arising out of the
inhalation of coal mine dust; the miner was disabled due to his Alzheimer's disease
and coal mine dust inhalation played no role in his overall disability; his death
was due to Alzheimer's disease and pneumonia and not caused by, contributed to, or
hastened by the inhalation of coal mine dust. Director's Exhibit 26.
Claimant argues that the administrative law judge erred in crediting the
opinions of Drs. Perper, Caffrey, and Fino over those of prosector Datnow,
asserting that Dr. Datnow's opinions "must" be given more weight. Claimant's
Memorandum Brief at 5. It may be appropriate in a given case to give a
prosector's opinion more weight than those of reviewing physicians, Gruller v.
Bethenergy, 16 BLR 1-3 (1991). However, such an outcome is not required.
See Urgolites v. Bethenergy, 17 BLR 1-20 (1992) (error to mechanistically
give more weight to prosector's opinion). In light of the administrative law
judge's carefully articulated rationale for finding the opinions of Drs. Perper,
Caffrey, and Fino more credible than that of Dr. Datnow's, the judge's
determination is rational and supported by substantial evidence. Moreover, in
light of the foregoing facts, the administrative law judge's decision to give more
weight to the opinions of Drs. Perper, Caffrey, and Fino, while according less
weight to Dr. Datnow's opinion is well within his wide discretion. Mabe,
supra; Sisak, supra. Therefore, we affirm his finding that
claimant failed to establish death due to pneumoconiosis within the meaning of
Section 718.205(c)(2) and (c)(5).
Claimant's principal argument is that the administrative law judge's finding
that claimant did not establish complicated pneumoconiosis and entitlement to the
irrebuttable presumption of death due to pneumoconiosis under Section 718.304 is
not supported by substantial evidence. We disagree. In determining not to give
controlling weight to Dr. Datnow's diagnosis of complicated pneumoconiosis, the
administrative law judge found that although Dr. Datnow used the term complicated
pneumoconiosis to describe the miner's condition in his sworn statement and in a
later deposition, Claimant's Exhibit 2, the doctor's findings did not meet the
Section 718.304 criteria to establish the existence of complicated pneumoconiosis.
In fact, the administrative law judge noted that in diagnosing complicated
pneumoconiosis Dr. Datnow did not refer to or discuss any of the criteria set forth
in the Section 718.304 regulation. Decision and Order at 4.
Rather, the administrative law judge credited the reports of Drs. Perper,
Caffrey and Fino, none of whom concluded that the miner suffered from complicated
pneumoconiosis. Id. The administrative law judge gave particular weight
to Dr. Caffrey who disputed Dr. Datnow's findings. In reviewing the medical
evidence of record, the administrative law judge found that Dr. Caffrey "explained
why . . . neither the gross nor microscopic autopsy findings reported by Dr. Datnow
nor Dr. Datnow's final diagnoses supported a diagnosis of complicated
pneumoconiosis as set forth in the standards published in The Archives of
Pathology and Laboratory Medicine in May 1979. . . . Dr. Caffrey was not
convinced that Dr. Datnow was familiar with those standards." Id. The
administrative law judge further found Dr. Caffrey's opinion to be more persuasive
than Dr. Datnow's, and found that Drs. Perper and Fino supported Dr. Caffrey's
opinion that the miner did not suffer from complicated pneumoconiosis. Thus, the
administrative law judge concluded that the Section 718.304 presumption is not
available to this case.
We find nothing in the administrative law judge's determination to accord more
weight to the opinions of Drs. Perper, Caffrey, and Fino than to those of Dr.
Datnow beyond the bounds of his discretion. Mabe, supra;
Sisak, supra. Consequently, the administrative law judge's finding
that claimant was not entitled to the irrebuttable presumption of complicated
pneumoconiosis is rational and supported by substantial evidence. O'Keeffe,
supra; see Lohr v. Rochester & Pittsburgh Coal Co., 6 BLR 1-1264 (1984); Clites v. Jones & Laughlin Steel Corp., 2 BLR 1-1019 (1980);
Gaudiano v. United States Steel Corp., 1 BLR 1-949 (1978)(in which Board has
strictly construed requirements of Section 718.304).[4]
In view of our affirmance of the administrative law judge's finding that the
evidence is insufficient to establish that the miner's death was due to
pneumoconiosis pursuant to 20 C.F.R. §718.205(c), an essential element of
entitlement under 20 C.F.R. Part 718 in a survivor's claim, see Trent v.
Director, OWCP, 11 BLR 1-26 (1987); Perry v. Director, OWCP, 9 BLR 1-1
(1986)(en banc), we affirm the administrative law judge's denial of
benefits.
Accordingly, the Decision and Order - Denying Benefits of the administrative
law judge is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1) The Department of Labor has amended the regulations
implementing the Act. These regulations became effective on January 19, 2001, and
are found at 20 C.F.R. Parts 718, 725, and 726 (2001). All citations to the
regulations, unless otherwise noted, refer to the amended regulations.
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2) No party challenges the findings that claimant established the
existence of pneumoconiosis, and that it was caused by the miner's coal mine
employment; therefore they are affirmed. Skrack v. Island Creek Coal Co.,
6 BLR 1-710 (1983).
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3) Claimant also argues that she is entitled to the Section
718.303 rebuttable presumption of death due to pneumoconiosis. That presumption
does not apply to claims such as this that were filed after 1982. Smith v. Camco
Mining, Inc., 13 BLR 1-17, 1-19, n.3 (1989).
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4) On appeal, claimant asserts that Dr. Datnow's diagnosis of
"advanced emphysema and anthracosis (black lung disease) in both the right and left
lungs" is synonymous with complicated pneumoconiosis. At one point in his
decision, the administrative law judge states that Dr. Datnow in his autopsy
report, did not identify the existence of complicated pneumoconiosis, see
Decision and Order at 3, but then later recognizes that in his deposition
subsequent to his autopsy report, Dr. Datnow indicates that although he did not use
the term "complicated" in the autopsy report, the top five listed diagnoses in the
autopsy report were indicative of complicated pneumoconiosis. See Decision
and Order at 4. Ultimately, however, the administrative law judge concludes that
Dr. Datnow's findings did not meet the Section 718.304 criteria for determining
complicated pneumoconiosis and were outweighed by the other evidence of record.
Moreover, we reject claimant's assertion that any diagnosis of complicated
pneumoconiosis is sufficient to trigger entitlement to benefits. Rather, in order
to invoke the presumption of Section 718.304, the fact finder must weigh the
conflicting evidence. Gray v. SLC Coal Co., 176 F.3d 382, 21 BLR 2-615 (6th
Cir. 1999); Lester v. Director, OWCP, 993 F.2d 1143, 17 BLR 2-114 (4th Cir.
1993).
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NOTE: This is an UNPUBLISHED BLA Document.
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