BRB No. 99-0347 BLA

JESSIE F. POTTER                   )
(Widow of EUGENE POTTER)           )                                                 )
          Claimant-Respondent      )
                         )
     v.                            )    
                         )
COLEMAN & DAMRON COAL         )    DATE ISSUED:   01/14/2000              
  
CORPORATION                        )
                         )
          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 - Award of Benefits of Robert L.
     Hillyard, Administrative Law Judge, United States Department of Labor.

     Herbert Deskins, Jr., Pikeville, Kentucky, for claimant.  

     Terri L. Bowman (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 - Award of Benefits (98-BLA-0369) of
Administrative Law Judge Robert L. Hillyard 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, adjudicating this claim pursuant to the permanent criteria set forth at
20 C.F.R. Part 718, credited the miner with "at least" thirty years of qualifying
coal mine employment and found that claimant[1] 
established the existence of pneumoconiosis arising out of coal mine employment 
pursuant to 20 C.F.R. §§718.202(a)(2) and 718.203(b) and that
pneumoconiosis was a substantially contributing cause of the miner's death pursuant
to 20 C.F.R. §718.205(c)(2).  Accordingly, the administrative law judge
awarded benefits.

     On appeal, employer argues that the administrative law judge erroneously found
that the miner's death was due to pneumoconiosis pursuant to 20 C.F.R.
§718.205(c).  Claimant has not filed a brief responding to employer's
arguments.  The Director, Office of Workers' Compensation Programs (the Director),
as party-in-interest, has filed a letter indicating that he will not participate
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 the 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
and Grylls Associates, Inc., 380 U.S. 359 (1965).

     In challenging the administrative law judge's findings under Section
718.205(c),  employer argues that the administrative law judge irrationally
accorded greater weight to the medical opinion of Dr. Dennis based solely on his
status as the autopsy prosector over the contrary opinions of Drs. Caffrey and
Hutchins.[3]   Although the administrative law
judge found Dr. Dennis's opinion entitled to substantial weight because he
performed the autopsy, the administrative law judge did not rely on this factor as
the sole reason for finding the opinion of Dr. Dennis entitled to substantial
weight.  The administrative law judge, within a proper exercise of his discretion,
found Dr. Dennis's opinion bolstered by the opinions of Dr. Naeye, a consulting
pathologist, and Dr. Nichols, the miner's treating physician. See
Director, OWCP v. Rowe, 710 F.2d 251, 5 BLR 2-99 (6th Cir. 1983); see
also Lane v. Union Carbide Corp., 105 F.3d 166, 21 BLR 2-34 (4th Cir. 1997)
(administrative law judge does need have to accept opinion or theory of any given
medical expert); Decision and Order at 17-18.  Furthermore, the administrative law
judge permissibly found the opinions of Drs. Caffrey and Hutchins, who had reviewed
autopsy slides, less persuasive because their opinions were based upon the
assumption that the miner suffered from either mild or moderate coal workers'
pneumoconiosis, contrary to the evidence of record establishing the presence of
"severe" pneumoconiosis.  Decision and Order at 18.  Inasmuch as the administrative
law judge rationally determined the relative credibility and weight of the
reviewing pathologists' contrary opinions and provided an adequate rationale for
his determination to accord substantial weight to the opinion of Dr. Dennis, we
reject employer's argument. See Urgolites v. Bethenergy Mines, Inc., 17 BLR
1-20, 1-23 (1992).

     Employer contends that the administrative law judge impermissibly accorded
determinative weight to Dr. Nichols's opinion because he was the miner's treating
physician since Dr. Nichols neither treated the decedent for a respiratory or
pulmonary disease during his lifetime nor diagnosed the existence of pneumoconiosis
during his treatment.  In addition, employer asserts that the administrative law
judge failed to consider Dr. Nichols's lack of pulmonary expertise in crediting his
opinion.[4]   Employer's arguments lack merit. 
Contrary to employer's argument, the United States Court of Appeals for the Sixth
Circuit, within whose appellate jurisdiction this case arises, has held that the
opinions of treating physicians may be entitled to greater weight than those of
non-treating physicians. See Griffith v. Director, OWCP, 49 F.3d 184, 19 BLR
2-111 (6th Cir. 1995); Tussey v. Island Creek Coal Co., 982 F.2d 1036, 17
BLR 2-16 (6th Cir. 1993).  After acknowledging that Dr. Nichols did not diagnose
pneumoconiosis during his treatment of the miner prior to his death and that Dr.
Nichols relied on a pulmonary function study that was not contained in the record,
the administrative law judge reasonably found that Dr. Nichols's opinion was not
entirely undermined in light of his status as the miner's treating physician and
the fact that his diagnosis of severe coal workers' pneumoconiosis was consistent
with the autopsy findings of Dr. Dennis. See Griffith, supra;
Tussey, supra; Decision and Order at 17; Director's Exhibits 8, 9,
53; Employer's Exhibits 1, 2.[5]   We, therefore,
affirm the administrative law judge's crediting of Dr. Nichols's opinion.

     Employer additionally avers that the administrative law judge erroneously
credited Dr. Naeye's opinion because Dr. Naeye's opinion lacks a conclusion
regarding the cause of the decedent's death and is equivocal.  We disagree.  The
administrative law judge correctly found that Dr. Naeye diagnosed severe simple
coal workers' pneumoconiosis  in the lung sections and concluded that the miner's
death was due to a combination of acute myocarditis and pulmonary insufficiency. 
Decision and Order at 12-13, 17; Director's Exhibits 10, 45; Employer's Exhibit 1. 
Moreover, although the administrative law judge noted the conditional nature of Dr.
Naeye's statement,[6]  he nonetheless credited Dr.
Naeye's opinion and found it supportive of a finding of death due to pneumoconiosis
as it was corroborated by the autopsy report of Dr. Dennis.  Decision and Order 
at 17.  Inasmuch as it is within the discretion of the administrative law judge to
determine whether a physician's opinion is equivocal or qualified, we reject
employer's argument. See Justice v. Island Creek Coal Co., 11 BLR 1-91, 1-94
(1988); Campbell v. Director, OWCP, 11 BLR 1-16, 1-19 (1987).

     Employer additionally avers that the administrative law judge impermissibly
discounted the opinions of Drs. Lane and Branscomb because Dr. Lane failed to
diagnose the existence of pneumoconiosis and Dr. Branscomb neither examined the
miner nor reviewed the autopsy slides.  Similarly, employer argues that the
administrative law judge improperly failed to consider all of the other medical
evidence of record, consisting of x-ray interpretations, blood gas studies, and
hospital records.  Employer's arguments lack merit.  The Sixth Circuit has held
that an administrative law judge may permissibly accord less weight to a
physician's opinion whose underlying premise   that the miner did not have
pneumoconiosis   is inaccurate. See Skukan v. Consolidation Coal Co., 993
F.2d 1228, 17 BLR 2-97 (6th Cir. 1993), vac'd sub nom., Consolidated Coal Co.
v. Skukan, 114 S. Ct. 2732 (1994), rev'd on other grounds, Skukan v.
Consolidated Coal Co., 46 F.3d 15, 19 BLR 2-44 (6th Cir. 1995); accord Toler
v. Eastern Associated Coal Corp., 43 F.3d 109, 19 BLR 2-70 (4th Cir. 1995). 
The administrative law judge summarized all of the x-ray interpretations, pulmonary
function studies, blood gas studies, and hospitalization records taken before the
miner's death.  While relevant to the presence or absence of pneumoconiosis and
total respiratory disability, these records are not determinative of the cause of
the miner's death. See generally Piniansky v. Director, OWCP, 7 BLR 1-171
(1984).

     Citing Peabody Coal Co. v. Smith, 127 F.3d 504, 21 BLR 2-180 (6th Cir.
1997), employer asserts that the evidence of record establishes that pneumoconiosis
was only a de minimis contributor in the miner's demise, therefore, claimant
did not satisfy her burden of establishing death due to pneumoconiosis as a matter
of law.  Smith involved the requisite standard to be applied in living
miner's claims where claimants must establish total disability due to
pneumoconiosis pursuant to Section 718.204(b). Smith, 127 at 507, 21 BLR at
2-185.  Moreover, the Sixth Circuit court held that, pursuant to Section
718.205(c), pneumoconiosis will be found to be a "substantially contributing cause
or factor" of a miner's death where it has actually hastened the miner's death.
Brown v. Rock Creek Mining Co., 996 F.2d 812, 816, 17 BLR 2-135, 2-140 (6th
Cir. 1993); see Lukosevicz v. Director, OWCP, 888 F.2d 1001, 13 BLR
2-100 (3d Cir. 1989); Shuff v. Cedar Coal Co., 967 F.2d 977, 16 BLR 2-90
(4th Cir. 1992).  Inasmuch as the administrative law judge's determination, that
the preponderance of the evidence established that pneumoconiosis was a
substantially contributing cause to the miner's death, is rational, contains no
reversible error, and is supported by substantial evidence, we affirm the
administrative law judge's Section 718.205(c) finding. See Rowe,
supra; Campbell v. Consolidation Coal Co., 811 F.2d 302, 9 BLR 2-221
(6th Cir. 1987); Fagg v. Amax Coal Co., 12 BLR 1-77 (1988).

     Accordingly, the Decision and Order - Award of Benefits of the administrative
law judge is affirmed.

     SO ORDERED.


                                                                           
    
                         BETTY J. HALL, Chief
                         Administrative Appeals Judge



                                                                           
                                               ROY P. SMITH
                         Administrative Appeals Judge



                                                                           
     
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.
 1)     1 Claimant, Jessie F. Potter, is the widow of Eugene
Potter, the miner, who died on November 29, 1994.  Director's Exhibits 9, 41. 
Claimant filed her application for benefits on June 22, 1995.  Director's Exhibit
3.  The miner's application for benefits, filed on February 16, 1989, was finally
denied on August 15, 1989.  Director's Exhibit 51. 
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 2)     2 We affirm the administrative law judge's findings
regarding length of coal mine employment and pursuant to 20 C.F.R.
§§718.202(a) and 718.203(b) inasmuch as these findings are unchallenged
on appeal. See Coen v. Director, OWCP, 7 BLR 1-30 (1984); Skrack
v. Island Creek Coal Co., 6 BLR 1-710 (1983); Decision and Order at 3, 15-16.

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 3) Dr. Dennis, the autopsy prosector, opined that the
miner died as a result of pulmonary congestion, edema and myocarditis, and
concluded, "While the anthracosilicosis did not cause the death primarily,
it certainly contributed to the demise of the patient."  Director's Exhibits
7, 9, 45.

     Drs. Caffrey and Hutchins diagnosed mild and moderate simple coal
workers' pneumoconiosis of insufficient severity to have contributed to the
miner's death.  Director's Exhibits 38, 44, 47.
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 4) Dr. Nichols is Board-certified in family medicine and
treated the miner from July 1978 until the miner died on November 29, 1994. 
Director's Exhibit 53.
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 5) In a report dated September 25, 1996, Dr. Nichols
opined that the miner's "coal workers' pneumoconiosis was in itself severe
enough to have contributed to his death, which was worsened by recurrent
aspiration."  Director's Exhibit 53; Employer's Exhibit 1.  During his
deposition on October 16, 1997, Dr. Nichols testified that he had not
diagnosed the miner as suffering from pneumoconiosis during this lifetime,
he nevertheless had "no doubt" that the miner had severe coal workers'
pneumoconiosis, which contributed to his death.  Director's Exhibit 53 at
4, 9. 
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 6) Dr. Naeye diagnosed the existence of severe coal
workers' pneumoconiosis (CWP) and stated, "if the lung tissues available for
examination are representative of the lungs as a whole, the CWP is severe
enough to have produced significant abnormalities in lung function that
would have prevented this man from undertaking hard physical work.  If
severe simple CWP was present throughout the lungs it likely also shorted
[sic] this man's life."  Director's Exhibits 10, 45; Employer's Exhibit 1. 
Therefore, the conditional nature of Dr. Naeye's statement speaks not to the
severity of the miner's pneumoconiosis, but rather to the representative
tissue sample. 
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