BRB No. 02-0167 BLA
KATHLEEN MATNEY )
(Widow of EDEAM M. MATNEY) )
)
Claimant-Respondent )
)
v. )
)
ISLAND CREEK COAL COMPANY ) DATE ISSUED:08/29/2002
)
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order Awarding Benefits of Daniel F. Solomon,
Administrative Law Judge, United States Department of Labor.
Bobby S. Belcher, Jr. (Wolfe & Farmer), Norton, Virginia, for claimant.
Mary Rich Maloy (Jackson & Kelly PLLC), Charleston, West Virginia, for
employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and HALL,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order Awarding Benefits (01-BLA-0483) of
Administrative Law Judge Daniel F. Solomon (the administrative law judge) on 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).[1] The administrative
law judge initially found that claimant[2] established
the existence of pneumoconiosis which arose out of the miner's coal mine employment. The administrative law
judge also found that claimant met her burden to establish that the miner's death was due to pneumoconiosis under
20 C.F.R. §718.205(c) and pursuant to Shuff v. Cedar Coal Co., 967 F.2d 977, 16 BLR 2-90 (4th
Cir. 1992), cert. denied, 113 S.Ct. 969 (1993). Specifically, the administrative law judge found that the
miner's pneumoconiosis hastened the miner's death, by crediting the reports of Dr. Perper, a reviewing
pathologist, and Dr. Scott, a treating physician. The administrative law judge also credited the autopsy report
rendered by Dr. Segen, the autopsy prosector. On appeal, employer contends that the administrative law judge
erroneously shifted to employer the burden of proof, requiring employer to rule out coal workers' pneumoconiosis
as a contributing cause of the miner's death. Employer further alleges reversible error in the administrative law
judge's weighing of the medical evidence relevant to the cause of the miner's death.[3] Claimant responds, and seeks affirmance of the decision below. The Director, Office of Workers'
Compensation Programs, has not filed a brief in the appeal.
The Board's scope of review is defined by statute. If the administrative law judge's findings of fact and
conclusions of law are supported by substantial evidence, are rational, and are consistent with applicable law, they
are binding upon this Board and may not be disturbed. 33 U.S.C. §921(b)(3), as incorporated by 30 U.S.C.
§932(a); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).
Employer contends that the administrative law judge shifted to employer the burden of proof by requiring
that employer rule out pneumoconiosis as a contributing cause of the miner's death, when he stated that although
each of employer's experts concluded that pneumoconiosis played no role in the miner's death, employer's experts
"failed to provide a valid rationale to exclude the possibility that pneumoconiosis is the cause of [the miner's]
death." Decision and Order at 21. Employer's contention lacks merit. Notwithstanding the fact that the
administrative law judge made this statement, he expressly and repeatedly correctly placed the burden of proof
on claimant to establish that the miner's pneumoconiosis substantially contributed to, or hastened, the
miner's death, which the administrative law judge found was undisputedly due to giant cell carcinoma with tumor,
related necrosis and pulmonary edema. Id. at 2-4, 12, 14, 21, 26.
Employer next contends that Dr. Perper's medical opinion,[4]
linking the miner's centrilobular emphysema and chronic obstructive pulmonary disease to his coal mine
employment, is not credible because it is based on theory and unsubstantiated by any objective evidence.
Employer asserts that the administrative law judge failed to recognize that Dr. Perper was unable to link "anything
in the miner's own history with the possibilities that these various conditions could be related
to pneumoconiosis." Employer's Brief at 32 (emphasis in original). Employer argues that by crediting Dr.
Perper's opinion, the administrative law judge accorded claimant a presumption of entitlement.
The administrative law judge credited Dr. Perper's opinion as he determined that it was reasoned and
documented, and contained a description of the material Dr. Perper examined on the autopsy slides. Decision and
Order at 17. The administrative law judge rejected employer's argument that Dr. Perper incorrectly linked the
miner's centrilobular emphysema to his coal dust exposure based on employer's assertion that the evidence does
not show that the miner's pneumoconiosis caused the miner any impairment during his life. The administrative
law judge stated:
I find this argument irrelevant to [the miner]. Pulmonary function studies and arterial blood gas
findings made at the time of examination may not accurately reflect the Miner's condition upon his
demise. Actually blood gasses performed by Dr. Rosser and at the Buchannan Hospital on
September 2 are positive, but since they were made during an acute period, they are not very
valuable. See Hess v. Director, OWCP, 21 BLR 1-141 (1998). There may have been a time
lapse when such findings could not have been made. There is proof the Miner had worsening
shortness of breath (CX 1, CX 2, EX 1).
Moreover, this argument adds another layer of proof [that] is not required by the law and
regulations. 20 C.F.R. §718.205(c) sets forth, in part pertinent that proof may include:
(2) Where pneumoconiosis was a substantially contributing cause
or factor leasing to the miner's death or where the death was caused
by complications of pneumoconiosis [ ]
Emphasis added. Case law requires that the "hastening" standard must be
applied.
Decision and Order at 19.
The administrative law judge also found that a review of the literature cited by Dr. Zaldivar does not
impeach the literature cited by Dr. Perper in support of his opinion that pneumoconiosis can cause emphysema.
Decision and Order at 22. In this regard, the administrative law judge noted that emphysema may fall within the
regulatory definition of pneumoconiosis if it is related to coal mine employment. Id. at 24, 25. The
administrative law judge further noted that hypoxemia was indicated in the Buchannan and Holston [Hospitals']
records, which was "consistent with Dr. Perper's rendition of the causal events and his theory concerning
emphysema. It is logical that Dr. Perper's opinion considers the record evidence that [the miner had] shortness
of breath that was worsening with time." Decision and Order at 25, see also Decision and Order at 22.
The administrative law judge further credited Dr. Perper's opinion as based on sufficient information. Id.
With regard to the cause of the miner's cancer, the administrative law judge found:
Dr. Perper sets forth that the pneumoconiosis combined with a history of cigarette smoking to
establish the cancer. He sets forth articles and medical authority for this proposition. Moreover,
a review of the fifteen references cited by Dr. Naeye do not support impeachment of Dr. Perper's
opinion. There may be a split of opinion, but I do not accept that Dr. Naeye's view is more rational
tha[n] Dr. Perper's. Dr. Naeye and Dr. Bush attack the opinion and the underlying literature, but
I accept that Dr. Perper is more logical than either, in part because some of the literature he
submitted is the policy of the United States Department of Health and Human Services and the
Department of Labor.
Decision and Order at 25, 26. The administrative law judge concluded that Dr. Perper's opinion was entitled to
more weight than the opinions of employer's experts because Dr. Perper's opinion is more logically reasoned and
substantiated by objective medical evidence.[5] Id. at 26. In
finding that claimant met her burden under 20 C.F.R. §718.205(c), the administrative law judge also credited
the June 4, 2001 opinion of Dr. Scott who indicated that it was his impression that the miner's "chronic obstructive
pulmonary disease/coal workers' pneumoconiosis was a major factor in his demise." Claimant's Exhibit 1. The
administrative law judge specifically found that while Dr. Scott was not a pathologist he was a treating physician
and was "competent" to render an opinion as he had treated the miner over time. Decision and Order at 24.
Employer argues that Dr. Perper's opinion is not credible and should not have been credited by the
administrative law judge. Employer argues that the administrative law judge failed to recognize that Dr. Perper
was unaware of the miner's smoking history; that Dr. Perper failed to analyze claimant's normal and "super-normal" pulmonary function study results; that Dr. Perper ignored the fact that the pneumoconiosis present in the
miner's lungs was mild, and that Dr. Perper failed to explain how any of the objective data accounts for the
miner's death.
Employer's contentions lack merit. The administrative law judge properly credited Dr. Perper's opinion
that the miner's coal workers' pneumoconiosis with associated centrilobular emphysema was a "substantial
contributory cause" of the miner's death, Director's Exhibit 10, and found that claimant established that the
miner's pneumoconiosis hastened the miner's death. 20 C.F.R. §718.205(c). The administrative law judge
found, within his discretion, that Dr. Perper's opinion, including his opinion that this miner's centrilobular
emphysema was due to his pneumoconiosis and coal mine employment, was reasoned and documented. Clark
v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Fields v. Island Creek Coal Co.,
10 BLR 1-19 (1987). Specifically, the administrative law judge found that Dr. Perper's opinion was supported
by the physician's findings on examination of the autopsy tissue slides and by the medical literature cited,
Id., and was consistent with other evidence of record, Wetzel v. Director, OWCP, 8 BLR 1-139
(1985). Further, the administrative law judge properly determined that the record contains proof that the miner
experienced worsening shortness of breath, see Claimant's Exhibits 1, 2, Employer's Exhibit 1, and that
Dr. Perper reasonably opined that the miner's coal workers' pneumoconiosis with associated centrilobular
emphysema was a "substantial contributory cause" of the miner's disability. See Clark, supra; Director's
Exhibit 10. Further, insofar as employer lists reasons why the administrative law judge should not have credited
Dr. Perper's opinion, employer's arguments are rejected as they amount to a request that the Board reweigh the
evidence. See Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989). Based on the foregoing, we
reject employer's assertion that the administrative law judge credited Dr. Perper's opinion without evaluating it.
Employer next contends that the administrative law judge improperly discredited the opinions of Drs.
Zaldivar, Hippensteel, Bush, Naeye and Oesterling, that the miner's coal workers' pneumoconiosis neither
contributed to the miner's death nor disabled him during his lifetime, see Employer's Exhibits 2-8, 10,
11, based on the administrative law judge's finding that these physicians were influenced by the fact that the
objective evidence shows a lack of functional pulmonary impairment in 1997, two years prior to the miner's death.
Employer argues that the administrative law judge erroneously found that the pulmonary function study evidence
and blood gas study evidence, as of 1997, provided no insight on the issue of whether pneumoconiosis contributed
to the miner's death. Employer asserts:
The undisputed evidence of worsening shortness of breath relied upon heavily by the
Administrative Law Judge (D&O at 19, 20) does not dispute or invalidate the information available
to the experts by the 1997 objective studies: worsening shortness of breath does not prove - or even
support an assumption of - worsening pneumoconiosis or worsening pulmonary impairment due to
pneumoconiosis.
Employer's Brief at 34 (emphasis in original). Employer also asserts that the administrative law judge irrationally
discredited employer's experts' opinions stating that there was "insufficient" pneumoconiosis in the miner's lungs
to have contributed to his death based on the administrative law judge's erroneous assumption that "some" or
"any" pneumoconiosis in the miner's lungs is presumed to be sufficient to hasten death. Employer argues that the
objective evidence in this case showing that pneumoconiosis compromised "no more than a small percentage of
the miner's lungs is unquestionably more probative, and more rationally linked to the analysis in this case, than
the invalid assumption that some' or any' pneumoconiosis in the miner's lungs is presumed to hasten death."
Employer's Brief at 34. Employer further argues that the administrative law judge substituted his opinion for that
of the medical experts when he accorded less weight to the credible medical opinions of Drs. Zaldivar, Hippensteel
and Jarboe regarding the cause of the miner's death, based on the administrative law judge's findings that these
physicians did not sufficiently acknowledge the importance of the pathological evidence or consider the pulmonary
function testing of record, the miner's history of shortness of breath and the autopsy report. Employer asserts that
there is no evidence that the miner was functionally impaired due to pneumoconiosis and asserts that rather, the
objective evidence dated between 1985 and 1997 supports a finding that the miner was not impaired due to
pneumoconiosis.
Employer's contentions lack merit. The administrative law judge found that the opinions of Drs. Naeye
and Oesterling, finding that the autopsy tissue slides either were not or may not have been representative of the
miner's lungs, were unsubstantiated and contrary to the autopsy report in which the autopsy prosector, Dr. Segen,
discussed all four quadrants of the miner's lungs and diagnosed coal workers' pneumoconiosis. Fuller v.
Gibraltar Coal Co., 6 BLR 1-1291 (1984); Director's Exhibit 8. The administrative law judge further
permissibly found that the opinions of Drs. Zaldivar, Bush, Naeye, Hippensteel and Oesterling were based, in part,
on the faulty premise that the miner's objective studies must establish that he was functionally affected by
pneumoconiosis during his lifetime in order for claimant to establish that the miner's pneumoconiosis was severe
enough to have contributed to or hastened the miner's death. The administrative law judge found, inter
alia, that the regulations impose no such requirement on a claimant who seeks to prove death due to
pneumoconiosis under 20 C.F.R. §718.205(c). 20 C.F.R. §718.205(c); Decision and Order at 19, 20.
The administrative law judge rationally determined, moreover, that it was not reasonable to extrapolate from the
non-qualifying results of objective studies performed in 1997, the cause of the miner's death which occurred two
years later in 1999. Id. at 20. Further, the administrative law judge properly found that the record
contains evidence that the miner had pneumoconiosis as early as October 1985 and that his shortness of breath
increased over time through mid-1999, see Director's Exhibit 23; Claimant's Exhibits 1, 2, and, therefore,
that the contrary opinions expressed by employer's experts were refuted by the record. We thus hold that
substantial evidence supports the administrative law judge's determination that this miner's
pneumoconiosis progressed. See 20 C.F.R. §718.201(c). The administrative law judge also
correctly stated that simple pneumoconiosis is legally and medically competent to hasten death under the Act and
regulations, and found that the miner had pneumoconiosis. 20 C.F.R. §§718.201, 718.205(c);
Employer's Exhibit 20 at 10 (Dr. Naeye's deposition testimony); Decision and Order at 12.
Based on the foregoing, we affirm the administrative law judge's conclusion that Dr. Perper's opinion, that
the miner's simple coal workers' pneumoconiosis was a "substantial contributory cause" of the miner's death,
see Director's Exhibit 10, is entitled to more weight than the contrary opinions expressed by employer's
experts. Lane v. Union Carbide Corp., 105 F.3d 166, 21 BLR 2-34 (4th Cir. 1997); Worley v. Blue
Diamond Coal Co., 12 BLR 1-20 (1988). Because substantial evidence, including the medical opinions of
Drs. Perper and Scott, supports the administrative law judge's finding that claimant established death due to
pneumoconiosis under 20 C.F.R. §718.205(c), we affirm the administrative law judge's finding and the
award of survivor's benefits in the instant case.
Accordingly, the administrative law judge's Decision and Order Awarding Benefits is affirmed.
SO ORDERED.
______________________
NANCY S. DOLDER, Chief
Administrative Appeals Judge
_________________________
ROY P. SMITH
Administrative Appeals Judge
_________________________
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1)The Department of Labor has amended the regulations implementing the Federal Coal
Mine Health and Safety Act of 1969, as amended. These regulations became effective on January 19, 2001, and
are found at 20 C.F.R. Parts 718, 722, 725, and 726. All citations to the regulations, unless otherwise noted, refer
to the amended regulations.
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2) 2Claimant, the miner's widow, filed the instant claim for benefits on June 27, 2000.
Director's Exhibit 1. The miner's death certificate indicates that he died on September 3, 1999 due to pulmonary
embolism and end stage renal disease. Director's Exhibit 16.
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3)Employer does not appeal from the administrative law judge's's finding that the miner
had pneumoconiosis which arose out of his coal mine employment. See Skrack v. Island Creek Coal Co.,
6 BLR 1-710 (1983).
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4)Dr. Perper opined that the miner's coal workers' pneumoconiosis with associated
centrilobular emphysema was a substantial contributory cause of the miner's death. Director's Exhibit 10. Dr.
Perper also found that the autopsy findings revealed that the miner had at least three potential co-existent causes
of death, namely severe acute bronchopneumonia, lung cancer and significant coal workers' pneumoconiosis with
associated centrilobular emphysema. Id. Dr. Perper further opined that centrilobular emphysema can be
caused by exposure to coal mine dust and coal workers' pneumoconiosis and concluded that coal workers'
pneumoconiosis was a "substantial contributory cause" of the miner's disability both directly and through the
associated centrilobular emphysema through hypoxemia. Id. Dr. Perper also indicated that a growing
body of literature substantiated a causal connection between exposure to mixed coal mine dust and coal workers'
pneumoconiosis and the development of lung cancer. Id.
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5)The administrative law judge discussed the relative qualifications of the physicians of
record. See Decision and Order at 12, 13. The administrative law judge found that Drs. Perper, Naeye,
Bush and Oesterling are Board-certified pathologists and that Drs. Zaldivar, Jarboe, Hippensteel and Robinette
are Board-certified in internal medicine and pulmonary medicine. The administrative law judge also found that
the qualifications of Drs. Santos and Scott, as well as those of Dr. Segen, the autopsy prosector, are not contained
in the record. Id. at 12, 13. The administrative law judge indicated that he placed no weight on the
opinion of Dr. Forehand, who is Board-certified in pediatrics in allergy and immunology and who examined the
miner during his lifetime in 1994 and 1995, Claimant's Exhibit 4. Id. In further analyzing the credibility
of the evidence, the administrative law judge also indicated that he was not persuaded by the numerical superiority
of employer's experts. Id. at 21. The administrative law judge's consideration of the qualitative and
quantitative nature of the evidence is consistent with the decisions of the United States Court of Appeals of the
Fourth Circuit in Milburn Colliery Co. v. Hicks, 138 F.3d 524, 21 BLR 2-323 (4th Cir. 1998) and
Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 21 BLR 2-269 (4th Cir. 1997).
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NOTE: This is an UNPUBLISHED BLA Document.
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