BRB No. 98-0880 BLA
CHRISTINE McPHERSON (Widow of )
DALLAS McPHERSON) )
)
Claimant-Petitioner )
)
v. ) DATE ISSUED:08/12/1999
)
PEABODY COAL COMPANY )
)
and )
)
OLD REPUBLIC INSURANCE )
COMPANY )
)
Employer/Carrier- )
Respondents )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, )
UNITED STATES DEPARTMENT )
OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Donald W. Mosser, Administrative Law
Judge, United States Department of Labor.
Joseph H. Kelley, Madisonville, Kentucky, for claimant.
Richard A. Dean (Arter & Hadden LLP), Washington D.C., for employer.
Before: HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order (97-BLA-0678) of Administrative Law
Judge Donald W. Mosser awarding benefits in a survivor's 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). Based on the filing
date, the administrative law judge applied the regulations at 20 C.F.R. Part 718.
At the hearing, employer stipulated to at least ten years of coal mine employment
and withdrew its challenge to the issue of the existence of pneumoconiosis arising
out of coal mine employment at 20 C.F.R. §§718.202(a) and 718.203(b).
At 20 C.F.R. §718.205(c)(2), the administrative law judge found the evidence
of record sufficient to establish that pneumoconiosis hastened the miner's death.
Accordingly, benefits were awarded. On appeal, employer challenges the findings
of the administrative law judge at Section 718.205(c)(2) and the award of benefits.
Claimant, the miner's surviving spouse,[1]
responds, urging affirmance of the administrative law judge's Decision and Order
as supported by substantial evidence. Employer filed a reply brief, in which it
reiterates its previous contentions. The Director, Office of Workers' Compensation
Programs, has filed a letter indicating that he will not respond in this appeal.[2]
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).
In order to establish entitlement to benefits in a survivor's claim filed
after January 1, 1982, claimant must establish that the miner suffered from
pneumoconiosis arising out of coal mine employment and that the miner's death was
due to pneumoconiosis or that pneumoconiosis was a substantially contributing cause
or factor leading to the miner's death or that death was caused by complications
of pneumoconiosis. See 20 C.F.R. §§718.205(c), 718.202(a),
718.203; Griffith v. Director, OWCP, 49 F.3d 184, 19 BLR 2-111 (6th Cir.
1995); Brown v. Rock Creek Mining Co., 996 F.2d 812, 17 BLR 2-135 (6th Cir.
1993); Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993); Neeley v.
Director, OWCP, 11 BLR 1-85 (1988); Boyd v. Director, OWCP, 11 BLR 1-39
(1988). The United States Court of Appeals for the Sixth Circuit has held that any
condition that hastens the miner's death is a substantially contributing cause of
death for purposes of Section 718.205(c)(2).[3]
See Griffith, supra; Brown, supra.
In challenging the administrative law judge's finding under Section
718.205(c)(2), employer contends that the administrative law judge erred when he
found the medical opinion of Dr. Simpao sufficient to establish that pneumoconiosis
hastened the miner's death.[4] Specifically,
employer asserts that Dr. Simpao's opinion presumed that there was a pulmonary
disability, which the physician based only on a history that the miner received
coal mine benefits. Employer also notes that Dr. Simpao admitted that his opinions
were based solely on the records of treatment at the time of the miner's final
hospitalization, contending that there was nothing in the records which indicated
that the miner had any lung impairment due to coal mine employment. Thus, employer
contends that there is no objective basis for Dr. Simpao's finding of chronic
obstructive pulmonary disease due to coal mine employment or a finding that
pneumoconiosis hastened the miner's death. Employer further argues that by
crediting Dr. Simpao's medical opinion, the administrative law judge created an
irrebuttable presumption that if a miner suffered from pneumoconiosis,
pneumoconiosis automatically contributed to, or hastened, the miner's death.
In his August 18, 1997 letter, Dr. Simpao stated that the x-ray taken
in connection with the miner's final hospital admission showed that the
miner had a chronic lung disease superimposed "with acute infection." Dr.
Simpao suggested that the miner's ten or more years of coal dust exposure
contributed to the condition. Claimant's Exhibit 1. Dr. Simpao also opined
that with the preexisting chronic lung disease, the miner could not
withstand the effects of the acute infection. Id.;Employer's Exhibit
4 at 12-13. In his deposition, Dr. Simpao testified that an individual's
chances of surviving pneumonia are lessened if the individual has other
chronic pulmonary conditions, including chronic obstructive pulmonary
disease (COPD) and coal workers' pneumoconiosis. Employer's Exhibit 4 at
20. Dr. Simpao also testified that because the miner was seriously ill at
the time of his final hospitalization, almost any other coexistent pulmonary
condition would have had a very detrimental effect on his ability to survive
the pneumonia. Id. at 24. Dr. Simpao indicated that, for this
reason, he listed COPD as an "other contributing cause" on the death
certificate. Id.; Director's Exhibit 7.
In according determinative weight to Dr. Simpao's opinion, the administrative
law judge stated that:
I find Dr. Simpao's explanation reasoned and credible. He
noted that Mr. McPherson was so ill that almost any pre-existing pulmonary condition would have weakened his ability
to fight off the pneumonia, and it is undisputed that Mr.
McPherson suffered from pneumoconiosis, which is a pulmonary
condition. Thus, I find that the pneumoconiosis made it more
difficult for the miner to survive the pneumonia, thereby
hastening his death. Drs. Branscomb, Burki, and Fino offer no
reasoned dispute of this point. Drs. Branscomb and Burki do
not address this point, other than [to]make bald statements
that pneumoconiosis did not contribute to or influence Mr.
McPherson's death. They offer no explanation of how they
arrived at this conclusion and do not address Dr. Simpao's
hypothesis at all.
Decision and Order at 4. Contrary to employer's contention, the administrative law
judge permissibly found the medical opinion in which Dr. Simpao described the miner
as seriously ill with bilateral multilobar pneumonia reasoned and credible. See
generally Director, OWCP v. Rowe, 710 F.2d 251, 5 BLR 2-99 (6th Cir. 1983).
The administrative law judge also found that because Dr. Simpao explained that
almost any coexisting pulmonary condition would have weakened the miner's ability
to fight his pneumonia, Employer's Exhibit 4 at 24, and because it was undisputed
that the miner suffered from pneumoconiosis, a pulmonary condition,[5] Dr. Simpao's opinion was sufficient to meet
claimant's burden under Section 718.205(c)(2). Griffith, supra; Carson
v. Westmoreland Coal Company, 19 BLR 1-18 (1994); Fields v. Island Creek
Coal Company, 10 BLR 1-19 (1987). Employer's contention that the mere crediting of Dr. Simpao's
report by the administrative law judge created an irrebuttable presumption is without merit as the administrative law
judge considered, weighed and evaluated all the medical reports of record and provided a rationale for his treatment of
this evidence. See Administrative Procedure Act (APA), 5 U.S.C. §557(c)(3)(A), as incorporated into
the Act by 5 U.S.C. §554(c)(2), 33 U.S.C. §919(d) and 30 U.S.C. §932(a). We therefore
affirm the administrative law judge's findings concerning the medical report of Dr.
Simpao.
Employer also challenges the administrative law judge's decision not to accord
any determinative weight to Dr. Branscomb's medical opinion.[6] Employer specifically argues that the administrative law judge erred
in finding that Dr. Branscomb did not offer an explanation for his opinion that
claimant's pneumoconiosis did not contribute to death. Employer argues that
Branscomb did offer an explanation inasmuch as Dr. Branscomb found that because the
miner had no pulmonary impairment, pneumoconiosis did not contribute to his death.
Employer also argues that the administrative law judge erred in discounting Dr.
Branscomb's opinion on the ground that it did not address the issues raised in Dr.
Simpao's report as Dr. Branscomb's report predated Dr. Simpao's report. The
administrative law judge permissibly found that Dr. Branscomb's opinion did not
address whether the miner's pneumoconiosis affected his ability to fight off his
pneumonia, the basis for Dr. Simpao's conclusion that pneumoconiosis hastened the
miner's death, and lacked any explanation for his conclusion on the relationship
between the miner's pneumoconiosis and death.[7]
See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989) (en banc);
Fagg v. Amax Coal Co., 12 BLR 1-77 (1988), aff'd 865 F.2d 916 (7th
Cir. 1989); McGinnis v. Freeman United Coal Mining Co., 10 BLR 1-4
(1987); Lucostic v. United States Steel Corp., 8 BLR 1-46 (1985); Krizner
v. Bethlehem Mines Corp., 8 BLR 1-5 (1985).
Employer also argues that the administrative law judge erred in discrediting
Dr. Fino's opinion because it was based on the fact that pneumonia is no more
common in coal workers than in the general population. Employer further argues
that the administrative law judge erred in discrediting Dr. Fino's opinion that the
miner was not disabled because it was based on testing that was over a decade old
at the time of the miner's death.
With regard to Dr. Fino's opinion the administrative law judge stated that:
Dr. Fino facially offers more support to his opinion that Mr.
McPherson's death was unrelated to pneumoconiosis. However,
Dr. Fino's reasoning is based on two factors: that Mr.
McPherson was not totally disabled and that pneumonia is no
more common in coal workers than in the general population.
Regarding the latter issue, it is academic whether pneumonia
is more or less present in the coal worker population. This
case is not about coal workers in general, but about a
specific coal worker, Dallas McPherson. In his specific case,
Dr. Simpao concluded that pneumoconiosis made it more
difficult for the miner to fight off the pneumonia already
contracted. There is no allegation that the pneumonia itself
was caused by coal dust work. Secondly, Dr. Fino's findings
about a lack of a disability are based on testing that was
over a decade old at the time of Mr. McPherson's death.
Pneumoconiosis is a progressive disease, and could easily have
grown worse in the intervening years. Furthermore, in a
survivor's claim, the issue is not total disability, but
whether pneumoconiosis hastened death. In any event, Dr.
Fino's opinion also does not address the issue of
pneumoconiosis making pneumonia less survivable.
Decision and Order at 4-5. The administrative law judge permissibly concluded that
Dr. Fino's statement that pneumonia was a disease of the general population which
was not more prevalent in coal workers was irrelevant to the issue in the instant
case. See generally Goss v. Eastern Associated Coal Corp., 7 BLR 1-400 (1984). In addition, the administrative law judge acted within his discretion
in finding that Dr. Fino's diagnosis of no pulmonary disability, based on records
more than ten years old at the time of the miner's death, was irrelevant to the
issue of whether the miner's pneumoconiosis lessened his chances of surviving
pneumonia. See generally Fagg, supra; Clark, supra; McGinnis,
supra.
As the administrative law judge is not required to accord determinative weight
to the better qualified physicians, the administrative law judge did not err when
he credited the medical opinion of Dr. Simpao, who is the Director of the Miners'
Respiratory Clinic at Muhlenberg Community Hospital, over the medical opinions of
Drs. Branscomb and Fino, who are Board-certified in internal medicine and pulmonary
disease. See Clark, supra; McMath v. Director, OWCP, 12 BLR 1-6
(1988); Employer's Exhibits 1, 2, and 4 at 4. Finally, employer's
contention that in order to establish entitlement to benefits, claimant must show
that the miner would have survived the pneumonia if he had not had simple
pneumoconiosis is rejected. At Section 718.205(c)(2), claimant must establish only
that pneumoconiosis actually hastened, even briefly, the miner's death. See
Brown, supra; Shuff v. Cedar Coal Co. 967 F.2d 977, 16 BLR 2-90 (4th
Cir. 1992), cert. denied 113 S.Ct. 969 (1993); Lukosevicz v. Director,
OWCP, 888 F.2d 1001, 13 BLR 2-100 (3d 1989). We therefore affirm the
administrative law judge's finding that claimant established that the miner's death
was hastened by pneumoconiosis under Section 718.205(c)(2) and the award of
benefits. See Brown, supra.
Accordingly, the Decision and Order of the administrative law judge awarding
benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
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Footnotes.
1)The miner, Dallas McPherson, died on April 13, 1994.
Director's Exhibits 1, 7. Claimant filed her application for survivor's benefits
on February 13, 1996. Director's Exhibit 1.
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2)The administrative law judge's findings that claimant failed
to establish that the miner's death was due to pneumoconiosis under 20 C.F.R.
§718.205(c)(1) and (c)(2) are affirmed as unchallenged on appeal. See
Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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3) Since the miner's last coal mine employment took
place in Kentucky, the Board will apply the law of the United States Court
of Appeals for the Sixth Circuit. See Shupe v. Director, OWCP, 12 BLR
1-200 (1989)(en banc).
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4)The death certificate, signed by Dr. Simpao, listed the
immediate cause of death as cardiopulmonary arrest. Bilateral multilobar
pneumonia due to, or as a consequence of, possible acute coronary emboli due
to, or as a consequence of, coronary artery occlusion with possible
myocardial infarction and chronic obstructive pulmonary disease were listed
as conditions leading to the immediate cause of death. Director's Exhibit
7. In their medical reports, Drs. Simpao, Branscomb and Fino agreed that
bilateral multilobar pneumonia was the primary cause of the miner's death.
Employer's Exhibits 1, 2, 4.
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5)The hospital records for the miner's last illness
reflect that the miner was admitted for treatment of bilateral multilobar
pneumonia and that medical staff performed an arterial blood gas study on
the day of admission. Director's Exhibit 9.
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6)Employer does not challenge the administrative law
judge's treatment of the medical opinion of Dr. Burki. We, therefore,
affirm the finding of the administrative law judge with respect to this
report as unchallenged on appeal. See Skrack v. Island Creek Coal
Co., 6 BLR 1-710 (1983).
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7)Contrary to employer's assertion, the administrative law
judge did not reject Dr. Branscomb's report because the physician did not
review Dr. Simpao's report; rather the administrative law judge declined to
credit Dr. Branscomb's opinion on the issue of whether the miner's
pneumoconiosis hastened his death because the physician did not address a
hypothesis similar to the hypothesis of Dr. Simpao that pneumoconiosis made
it more difficult for the miner to survive his pneumonia. See
Decision and Order at 4.
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NOTE: This is an UNPUBLISHED BLA Document.
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