BRB No. 02-0303 BLA
MONA V. CLINE )
(Widow of JOHNIE FLOYD CLINE) )
)
Claimant-Petitioner )
)
v. )
)
ISLAND CREEK COAL COMPANY )
) DATE ISSUED:08/30/2002
Employer-Respondent )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Daniel L. Leland, Administrative Law
Judge, United States Department of Labor.
S. F. Raymond Smith (Rundle & Rundle, L.C.), Pineville, West Virginia,
for claimant.
Mary Rich Maloy (Jackson & Kelly PLLC), Charleston, West Virginia, for
employer.
Before: DOLDER, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Claimant[1] appeals the Decision and Order
(00-BLA-0938) of Administrative Law Judge Daniel L. Leland denying benefits 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).[2] The instant case involves a survivor's claim filed on
January 4, 2000.[3] The administrative law judge
found that the evidence was insufficient to establish that the miner's death was
due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c). Accordingly, the
administrative law judge denied benefits. On appeal, claimant contends that the
administrative law judge erred in finding the evidence insufficient to establish
that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R.
§718.205(c). Employer responds in support of the administrative law judge's
denial of benefits. The Director, Office of Workers' Compensation Programs, has
not filed a response brief.
The Board must affirm the findings of the administrative law judge if they are supported by substantial evidence,
are rational, and are in accordance with applicable law. 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).
Because the instant survivor's claim was filed after January 1, 1982, claimant must establish that the miner's death
was due to pneumoconiosis pursuant to 20 C.F.R. §718.205(c).[4] See
20 C.F.R. §§718.1, 718.202, 718.203, 718.205(c); Neeley v. Director, OWCP, 11 BLR 1-85
(1988). A miner's death will be considered to be due to pneumoconiosis if the evidence is sufficient to establish that
pneumoconiosis was a substantially contributing cause or factor leading to the miner's death. 20 C.F.R.
§718.205(c)(2). Pneumoconiosis is a "substantially contributing cause" of a miner's death if it hastens the miner's
death. 20 C.F.R. §718.205(c)(5); see Shuff v. Cedar Coal Co., 967 F.2d 977, 16 BLR
2-90 (4th Cir. 1992), cert. denied, 113 S.Ct. 969 (1993).
After consideration of the administrative law judge's Decision and Order, the issues on appeal, and the evidence
of record, we conclude that substantial evidence supports the administrative law judge's denial of benefits under 20
C.F.R. Part 718. Dr. Racadag, the autopsy prosector, opined that the miner's death was "most probably" caused by
"respiratory failure due to pneumothorax associated with severe nodular simple coal workers' pneumoconiosis, bullous and
panacinar emphysema and acute bronchopneumonia."[5] Director's
Exhibit 14. The administrative law judge, however, properly found that Dr. Racadag's opinion was outweighed by the
contrary opinions of three reviewing pathologists, Drs. Oesterling, Bush and Tomashefski, based upon their superior
qualifications.[6] See Dillon v. Peabody Coal Co., 11 BLR
1-113 (1988); Decision and Order at 6; Director's Exhibit 13; Employer's Exhibits 6, 8, 13, 16. The administrative
law judge found that the opinions of Drs. Oesterling, Bush, and Tomashefski were "thorough and well reasoned as they
rationally concluded that severe emphysema from cigarette smoking was the cause of the miner's death and that his
pneumoconiosis affected too small a portion of his lungs to have played any part in his death."[7] Decision and Order at 6.
Although Dr. Ranavaya also indicated that the miner's pneumoconiosis was a
substantially contributing cause or factor leading to the miner's death, he
provided no explanation for his finding.[8]
Employer's Exhibit 15. The administrative law judge, therefore, properly found
that Dr. Ranavaya's opinion was not sufficiently reasoned. See Milburn
Colliery Co. v. Hicks, 138 F.3d 524, 21 BLR 2-323 (4th Cir. 1998); Lucostic v. United States
Steel Corp., 8 BLR 1-46 (1985); Decision and Order at 6.
Dr. Rasmussen is the only other physician of record to attribute the miner's death to his coal dust exposure.[9] Claimant's Exhibit 1. The administrative law judge accorded "little
weight" to Dr. Rasmussen's opinion because he found that it was "extremely speculative." Decision and Order at 6.
The administrative law judge found that Dr. Rasmussen offered no basis for attributing the miner's death to coal mine
employment other than a reference to medical studies which the doctor had deemed inadequate. Id. Although
Dr. Rasmussen noted the existence of multiple studies "associating coal mine dust exposure with the development of
centriacinar and in some cases panacinar emphysema," Dr. Rasmussen acknowledged that there were "multiple
inadequacies in many of [the] studies." Claimant's Exhibit 1. Other than citing medical studies, Dr. Rasmussen
provided no basis for linking the miner's emphysema to pneumoconiosis or coal dust exposure. Id. By
contrast, the administrative law judge found that the contrary opinions of the reviewing pathologists, Drs. Oesterling,
Bush and Tomashefski, were well reasoned and entitled to significant weight. Decision and Order at 6;
Lucostic, supra. The administrative law judge further found that the opinions of Drs.
Oesterling, Bush and Tomashefski were supported by the opinions of three pulmonary specialists, Drs. Castle,[10] Morgan[11] and
Zaldivar.[12] Decision and Order at 6-7; Employer's Exhibits 11,
12, 14, 16, 17. Id. Inasmuch as it is supported by substantial evidence, we affirm 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).[13]
Accordingly, the administrative law judge's Decision and Order denying benefits is affirmed.
SO ORDERED.
NANCY S. DOLDER, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)Claimant is the surviving spouse of the deceased miner who
died on November 6, 1999. Director's Exhibit 13.
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2)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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3)On January 30, 1970, the miner applied to the Social Security
Administration (SSA) for any benefits due him under the Federal Coal Mine Health
and Safety Act. Director's Exhibit 29. On May 9, 1970, the miner informed the SSA
that he did not wish to follow up on his "Federal Black Lung Protective Statement."
Id. On September 15, 1970, the SSA determined that the miner was not
entitled to benefits because he was still working. Id.
The miner subsequently filed a claim with the SSA on April 2, 1973. Id.
The SSA denied the claim on September 7, 1973. Id. The miner filed a claim
with the Department of Labor (DOL) on May 30, 1974. Id. On September 30,
1974, the DOL informed the miner that it could take no action on his claim until
the SSA made a determination on the claim that the miner filed with them.
Id. In a Hearing Decision dated December 26, 1974, Administrative Law Judge
James P. Lynch denied benefits on the miner's SSA claims. Id. By Decision
and Order dated November 22, 1985, Administrative Law Judge R. S. Heyer denied the
miner's 1974 DOL claim. Id. There is no evidence that the miner took any
further action in regard to his 1970, 1973 and 1974 claims.
The miner filed another claim for benefits on January 6, 1992. Director's
Exhibit 30. The district director denied benefits on April 27, 1992. Id.
There is no evidence that the miner took any further action in regard to his 1992
claim.
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4)Section 718.205(c) provides that:
(1) Where competent medical evidence establishes that pneumoconiosis was the cause of the miner's
death, or
(2) Where pneumoconiosis was a substantially contributing cause or factor leading to the miner's death
or where the death was caused by complications of pneumoconiosis, or
(3) Where the presumption set forth at §718.304 is applicable.
(4) However, survivors are not eligible for benefits where the miner's death was caused by traumatic
injury or the principal cause of death was a medical condition not related to pneumoconiosis, unless the
evidence establishes that pneumoconiosis was a substantially contributing cause of death.
(5) Pneumoconiosis is a "substantially contributing cause" of a miner's death if it hastens the miner's
death.
20 C.F.R. §718.205(c).
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5)Dr. Racadag also completed the miner's death certificate on November 7, 1999. Director's
Exhibit 13. Dr. Racadag attributed the miner's death to a pneumothorax due to bullous emphysema and coal workers'
pneumoconiosis. Id.
Although Dr. Racadag performed the miner's autopsy, the administrative law judge noted that Dr. Racadag did not
indicate that his opinions were based upon his gross examination. Decision and Order at 6. The administrative law judge,
therefore, held that Dr. Racadag's status as the autopsy prosector did not entitle his opinion to any additional weight.
Id.
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6)Drs. Oesterling, Bush and Tomashefski are Board-certified in Anatomical
and Clinical Pathology. Employer's Exhibits 6, 8, 13. Dr. Racadag's
qualifications are not found in the record.
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7)The record contains the opinions of two other reviewing
pathologists, Drs. Hansbarger and Naeye. See Employer's Exhibits 2, 4, 15.
The administrative law judge found that Dr. Hansbarger provided no basis for his
opinion that the miner's pneumoconiosis was too mild to have contributed to his
death and that Dr. Naeye did not address the cause of the miner's death. Decision
and Order at 6 n.1. While Dr. Naeye did not address the cause of the miner's
death in his September 9, 2000 report, Dr. Naeye prepared a supplemental report
dated August 27, 2001 wherein he opined that "the pulmonary impairments that were
responsible for the disability and contributed to the death of [the miner] were the
result of his many years of cigarette smoking and not his mild coal workers'
pneumoconiosis." Employer's Exhibit 15.
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8)Dr. Ranavaya completed a questionnaire on February 1, 2001.
In response to a question as to whether pneumoconiosis was a substantially
contributing cause or factor leading to the miner's death, Dr. Ranavaya merely
answered: "Yes." Director's Exhibit 15.
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9)After reviewing the medical evidence, Dr. Rasmussen prepared an August 7, 2001 report
wherein he stated that:
Based on the fact that none of the experts can clearly exclude coal mine dust exposure as a cause of [the
miner's] disabling and ultimately fatal chronic lung disease and because epidemiologic studies clearly
demonstrate that coal mine dust exposure causes excessive death due to chronic obstructive disease, (i.e.
emphysema and bronchitis) I must conclude to a reasonable degree of medical certainty that [the miner's]
death was caused in significant part by his coalworkers' pneumoconiosis and its associated emphysema.
Claimant's Exhibit 1.
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10)Dr. Castle reviewed the medical evidence of record. In a report dated January 10, 2001,
Dr. Castle opined that the miner's death was not caused by, contributed to, or hastened in any way, by his coal workers'
pneumoconiosis. Employer's Exhibit 11. Dr. Castle further opined that the miner suffered from tobacco smoke induced
chronic obstructive pulmonary disease. Id. Dr. Castle subsequently reviewed Dr. Rasmussen's report. In a
supplemental report dated September 7, 2001, Dr. Castle stated that Dr. Rasmussen offered no additional objective
information to cause him to alter any of his previous opinions. Employer's Exhibit 16. During a September 12, 2001
deposition, Dr. Castle reiterated his opinion that neither the miner's coal workers' pneumoconiosis nor his coal mine dust
exposure played any role in contributing to or hastening his death. Employer's Exhibit 17 at 14, 21. Dr. Castle opined that
the miner would have died at the same time regardless of his occupational history. Id. at 18.
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11)Dr. Morgan reviewed the medical evidence of record. In a
report dated February 6, 2001, Dr. Morgan opined that the miner's simple coal
workers' pneumoconiosis did not affect his lung function or contribute to his
death. Employer's Exhibit 12. Dr. Morgan attributed the miner's severe
respiratory impairment to his cigarette smoke induced chronic obstructive pulmonary
disease. Id. Dr. Morgan subsequently reviewed Dr. Rasmussen's report. In
a supplemental report dated August 31, 2001, Dr. Morgan indicated that he saw "no
reason to change [his] prior opinion as described in his report of February 6,
2001." Employer's Exhibit 16.
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12)Dr. Zaldivar reviewed the medical evidence of record. In
a report dated February 10, 2001, Dr. Zaldivar opined that the miner's death was
due to emphysema attributable to his smoking history. Employer's Exhibit 12. Dr.
Zaldivar further opined that the miner's coal workers' pneumoconiosis did not play
any role in his death. Id. In a supplemental report dated August 29, 2001,
Dr. Zaldivar opined that his review of Dr. Rasmussen's report had not caused him
to change any of his opinions set out in his February 10, 2001 report. Employer's
Exhibit 14.
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13)Because there is no evidence of complicated pneumoconiosis in the record, the
administrative law judge properly found that claimant is precluded from establishing entitlement based on the irrebuttable
presumption at 20 C.F.R. §718.304. See 20 C.F.R. §718.205(c)(3); Decision and Order at 7
n.2.
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NOTE: This is an UNPUBLISHED BLA Document.
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