BRB No. 98-1601 BLA
MARY AKERS )
(Widow of JOHN AKERS) )
)
Claimant-Respondent )
)
v. )
)
DRUMMOND COMPANY, INC. ) DATE ISSUED:08/27/1999 8/26/99
)
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 of Gerald M. Tierney, Administrative Law Judge, United States Department
of Labor.
Michael E. Bevers (Nakamura & Quinn LLP), Birmingham, Alabama, for claimant.
Laura A. Woodruff (Maynard, Cooper & Gale, P.C.), Birmingham, Alabama, for employer.
Before: HALL, Chief Administrative Appeals Judge, McGRANERY, Administrative Appeals Judge, and
NELSON, Acting Administrative Appeals Judge.
PER CURIAM:
Employer appeals the Decision and Order (97-BLA-0901) of Administrative Law Judge Gerald M. Tierney
awarding benefits on 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). The administrative
law judge found, and the parties stipulated to, at least thirty years of coal mine employment and the existence of
pneumoconiosis arising out of coal mine employment. Director's Exhibit 19. Considering entitlement pursuant to the
provisions of 20 C.F.R. Part 718,[1] the administrative law judge
concluded that the evidence of record was sufficient to establish that the miner's death was due to pneumoconiosis
pursuant to 20 C.F.R. §718.205(c). Accordingly, benefits were awarded. On appeal, employer contends that the
administrative law judge erred in weighing the medical opinion evidence pursuant to Section 718.205. Claimant
responds, asserting that substantial evidence supports the award of benefits. The Director, Office of Workers'
Compensation Programs, has filed a letter indicating that he would not participate in this 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 into the Act 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 pursuant to 20 C.F.R. Part 718 on 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 of death. See 20 C.F.R. §§718.1, 718.202, 718.203, 718.205, 725.201;
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). The United States Court of Appeals for the
Eleventh Circuit, within whose jurisdiction this case arises, has held that pneumoconiosis will be considered a
substantially contributing cause of death when it actually hastens the miner's death. See Bradberry v. Director,
OWCP, 117 F.3d 1361, 21 BLR 2-166 (11th Cir. 1997).
After consideration of the administrative law judge's Decision and Order, the arguments raised on appeal and the
evidence of record, we conclude that the Decision and Order of the administrative law judge is supported by substantial
evidence and that there is no reversible error contained therein. Initially, employer's contention that the administrative
law judge's Decision and Order fails to comport with the 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), is without merit.[2] The administrative law judge fully discussed the
relevant evidence of record and his reasoning is readily ascertainable from his discussion of the evidence.
With respect to the merits, the administrative law judge, in this instance, rationally found that the evidence of
record was sufficient to establish that the miner's death was due to pneumoconiosis pursuant to Section 718.205(c).
See Piccin v. Director, OWCP, 6 BLR 1-616 (1983). Employer contends that the administrative law judge
erred in according greater weight to the opinion of Dr. Padove then to the opinions of Drs. Russakoff, Goldstein and
Branscomb.[3] We do not find merit in employer's argument. Employer's
contention constitutes a request that the Board reweigh the evidence, which is beyond the scope of the Board's powers.
See Anderson v. Valley Camp Coal Company, 12 BLR 1-111 (1988). In the instant case, the administrative law
judge permissibly accorded greater weight to the opinion of Dr. Padove, claimant's treating physician, over the
opinions of Drs. Russakoff, Goldstein and Branscomb, and rationally found that the physician's opinion was
sufficient to establish that pneumoconiosis was a substantially contributing factor leading to the miner's death.
See 20 C.F.R. §718.205; Bradberry, supra; Neeley v. Director, OWCP,
11 BLR 1-85 (1988); Dillon v. Peabody Coal Co., 11 BLR 1-113 (1988); Piccin, supra;
Decision and Order at 7-9. Contrary to employer's assertion, the administrative law judge considered the
opinions of Drs. Russakoff, Goldstein and Branscomb, but acted within his discretion in concluding that the
opinion of Dr. Padove was entitled to more weight inasmuch as he was claimant's treating physician for an
eleven year span, in light of the physician's credentials and as his opinion was more thoroughly explained and
well reasoned. See Tedesco v. Director, OWCP, 18 BLR 1-103 (1994); Onderko
v. Director, OWCP, 14 BLR 1-2 (1989); Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989);
Wetzel v. Director, OWCP, 8 BLR 1-139 (1985); Lucostic v. Director, OWCP, 8 BLR 1-46
(1985); Piccin, supra; Decision and Order at 8. The administrative law judge is empowered to weigh the
medical opinion evidence of record and to draw his own inferences therefrom, see Maypray v. Island Creek Coal
Co., 7 BLR 1-683 (1985), and the Board may not reweigh the evidence or substitute its own inferences on appeal.
See Clark, supra; Anderson, supra; Worley v. Blue Diamond Coal Co., 12 BLR
1-20 (1988). Consequently, as the administrative law judge permissibly relied on Dr. Padove's opinion to find
that the miner's pneumoconiosis was a contributing cause to his death, we affirm the administrative law judge's
award of benefits in this survivor's claim as it is supported by substantial evidence and is in accordance with law.
Bradberry, supra; Neeley, supra; Trumbo, supra.
Accordingly, the administrative law judge's Decision and Order awarding benefits is affirmed.
SO ORDERED.
BETTY JEAN HALL, Chief
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
MALCOLM D. NELSON, Acting
Administrative Appeals Judge
To Top of Document
Footnotes.
1)The miner died on April 18, 1996. Director's Exhibit 4. Claimant, the miner's surviving
spouse, filed her survivor's claim, the subject of the instant appeal, on May 13, 1996. Director's Exhibit 1.
Back to Text
2)The Administrative Procedure Act requires each adjudicatory decision to include a statement
of "findings and conclusions, and the reasons or basis therefore, on all material issues of fact, law or discretion presented
on the record...." 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).
Back to Text
3)The relevant evidence of record consists of four medical opinions and the death certificate.
The death certificate, signed by Dr. Perrine, listed the cause of death as esophageal cancer. Director's Exhibit 4. Dr.
Padove, who treated the miner from 1985 through 1996 and is Board-certified in critical medicine, sleep medicine and
internal medicine with a pulmonary subspecialty, opined that the miner's coal workers' pneumoconiosis contributed to
his death by escalating his respiratory problems that damaged and weakened his lungs and that the miner's diminished
lung function contributed to and hastened his death by impairing his ability to successfully combat the esophageal cancer.
Director's Exhibits 5, 10; Claimant's Exhibit 1. Dr. Russakoff opined that the miner's death was due to esophageal
cancer with widespread metastases which was not caused by his pneumoconiosis nor did pneumoconiosis contribute to
or hasten his death. Employer's Exhibit 1. Dr. Branscomb opined that coal workers' pneumoconiosis did not play any
role whatsoever in the miner's final illness or death and that the miner would have died at the same time and in the same
way if he had never been in a mine and never had coal workers' pneumoconiosis. Director's Exhibit 15. Dr. Goldstein
opined that the miner's death was caused by metastatic carcinoma of the esophagus which had nothing to do with coal
dust exposure. Director's Exhibit 15.
Back to Text
NOTE: This is an UNPUBLISHED BLA Document.
To Top of Document
|
