BRB No. 01-0904 BLA
ELSIE KOZELE )
(Widow of JOSEPH KOZELE) )
)
Claimant-Respondent )
)
v. )
)
KEYSTONE COAL MINING ) DATE ISSUED:06/25/2002
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 - Awarding Benefits of Michael P.
Lesniak, Administrative Law Judge, United States Department of Labor.
Blair V. Pawlowski (Pawlowski, Bilonick & Long), Ebensburg,
Pennsylvania, for claimant.
George H. Thompson (Thompson, Calkins & Sutter), Pittsburgh,
Pennsylvania, for employer.
Before: SMITH, McGRANERY and HALL, Administrative Appeals Judges.
PER CURIAM:
Employer appeals the Decision and Order - Awarding Benefits (00-BLA-0127) of
Administrative Law Judge Michael P. Lesniak on a survivor's claim[1] 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 administrative
law judge initially noted that in 1997, employer conceded liability in a claim for benefits filed by the miner during his
lifetime. Decision and Order at 2; see Director's Exhibit 26. Pursuant to the parties' stipulations, the
administrative law judge credited the miner with at least thirty-eight years of coal mine employment and found that claimant
established that the miner had pneumoconiosis which arose out of his coal mine employment. On the merits of the claim,
the administrative law judge found that claimant established that the miner's pneumoconiosis hastened his death under 20
C.F.R. §718.205(c) and pursuant to Lukosevicz v. Director, OWCP, 888 F.2d 1001, 13 BLR 2-100 (3d Cir.
1989). Accordingly, benefits were awarded.
On appeal, employer contends that the administrative law judge committed reversible error in failing to make any
findings regarding whether the miner's metastatic carcinoma, present in his lungs at the time of his autopsy, was related
to the miner's coal mine employment or what role the disease played in causing his death. Employer asserts that the
administrative law judge thereby ignored evidence which shows that the miner's metastatic prostate cancer, which invaded
his lungs and would not have been related to his coal mine employment, was a factor in the miner's death. Employer also
contends that the administrative law judge erred in relying on the opinions of Drs. Rizkalla, Perper and Pisano in finding
that claimant established that the miner's pneumoconiosis hastened his death under 20 C.F.R. §718.205(c). Claimant
responds, and seeks affirmance of the decision below as supported by substantial evidence. 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).
In order to establish entitlement to benefits in a survivor's claim filed after January 1, 1982, such as in the instant
case, claimant must establish that the miner had pneumoconiosis arising out of coal mine employment and that his death
was due to pneumoconiosis. See 20 C.F.R. §§718.201, 718.202, 718.203, 718.205(c); 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). Under 20 C.F.R. §718.205(c)(2), death will be considered to be due
to pneumoconiosis if pneumoconiosis was a substantially contributing cause or factor leading to the miner's death. Pursuant
to the revised regulation at 20 C.F.R. §718.205(c)(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)(5). In the instant case, employer has stipulated
to the existence of pneumoconiosis which arose out of the miner's coal mine employment. Decision and Order at 10;
see Hearing Transcript at 9, 10. Thus, the sole issue is whether claimant has met her burden to establish that the
miner's death was due to pneumoconiosis under 20 C.F.R. §718.205(c).
Employer contends that it was error for the administrative law judge not to determine whether or not the miner's
cancer, present in his lungs at the time of the autopsy, was related to his coal mine employment or what role the disease
played in the miner's demise. Employer argues that the evidence shows that the miner's carcinoma was not related to his
coal mine employment and that it contributed to his death, and asserts that this evidence could alter the outcome of this case.
Employer also argues that Dr. Rizkalla's opinion regarding the miner's cancer should not have been accorded determinative
weight by the administrative law judge. Claimant responds that claimant actually died from a cardiac event and thus, the
administrative law judge properly analyzed the medical evidence to determine whether or not the miner's pneumoconiosis
was a substantially contributing cause of his death. Claimant asserts that while the presence of cancer in the miner's lungs
is a serious medical matter, the administrative law judge was not required to determine what role the miner's cancer played
in his death.
Employer's contentions lack merit. The administrative law judge properly analyzed the evidence to determine
whether it was sufficient to meet claimant's burden to establish that the miner's death was due to his pneumoconiosis which
arose from his coal mine employment. See 20 C.F.R. §718.205(c). The administrative law judge correctly
noted that under 20 C.F.R. §718.205(c)(2), death will be considered to be due to pneumoconiosis if pneumoconiosis
was a substantially contributing cause or factor leading to the miner's death, and that pursuant to the revised regulation at
20 C.F.R. §718.205(c)(5), pneumoconiosis is a "substantially contributing cause" of a miner's death if it hastens the
miner's death. See Decision and Order at 15-17. Because no physician of record related the miner's cancer, present
in his lungs at the time of the autopsy, to his coal mine employment, the administrative law judge was not required to
determine its etiology nor what role the cancer played in the miner's death.[3]
Consequently, employer's assertions of error on the administrative law judge's part are without merit.
Employer next contends that the administrative law judge's finding that the miner's pneumoconiosis hastened his
death is not supported by substantial evidence. The record contains the following relevant medical evidence supportive
of claimant's burden at 20 C.F.R. §718.205(c): Drs. Pisano and Shenouda performed the autopsy. Director's Exhibit
4.[4] In a January 20, 1999 letter attached to the autopsy, Dr. Pisano indicated that
the miner's coal workers' pneumoconiosis was an accelerating factor in his death as it increased the stress on the miner's
atherosclerotic coronary artery disease and decreased his pulmonary respiratory reserve. Id. On deposition, Dr.
Pisano testified that the miner's pneumoconiosis was a significant factor in his death as it was a major, substantially
contributing cause of his hypoxemia or ischemia of the heart. Claimant's Exhibit 5 at 52; see also Claimant's
Exhibit 11. In his opinion dated March 6, 2000, Dr. Pisano indicated, "So, in conclusion, there are plenty of sections of
lung parenchyma included among the slides to draw valid conclusions regarding the severity of the black lung disease in
the decedent. Claimant's Exhibit 6. Dr. Schaaf reviewed the medical evidence and opined that the miner's coal workers'
pneumoconiosis was a major contributory factor in causing the miner's death. Claimant's Exhibits 3, 10. Dr. Perper
reviewed the medical evidence, including the autopsy slides, and opined that the miner's coal workers' pneumoconiosis,
with associated chronic obstructive lung disease and pulmonary cancer, was a substantially contributing cause of death by
inducing hypoxemia. Claimant's Exhibits 1, 7. Dr. Rizkalla reviewed the medical evidence and opined that the miner's
coal workers' pneumoconiosis was a substantially contributing factor in his death, which Dr. Rizkalla attributed to
arteriosclerotic coronary artery disease. Claimant's Exhibit 8.
The record also contains the following medical evidence which does not support claimant's burden in this case:
The miner's death certificate indicates that he died due to pneumonia and pulmonary hypertension. Director's Exhibit 3.
Dr. Oesterling reviewed the autopsy slides and other medical evidence and opined
that cardio-vascular disease was the primary cause of the miner's death while
metastatic carcinoma was a secondary contributory cause. He added that it was
difficult to assess the import of the miner's coal workers' pneumoconiosis because
the tissue slides did not appear to be representative of the miner's functioning
lung tissue. Dr. Oesterling indicated, "I am sorry I cannot specifically answer
your questions related to the role of coal workers' pneumoconiosis, but again I
would express that I doubt seriously that it was in any way a significant
contributory factor in this gentleman's demise, nor did it accelerate his death."
Employer's Exhibits 1, 7. Dr. Tuteur reviewed the medical evidence and opined that
the miner's death was due to acute, superimposed on chronic, congestive heart
failure with bilateral pleural effusions and hypoxemia, with metastatic prostate
cancer also a contributing factor. Dr. Tuteur added that the miner's death was in
no way related to, aggravated by, or caused by either the inhalation of coal mine
dust or the development of his coal workers' pneumoconiosis. Employer's Exhibit
3. Dr. Griffin reviewed the medical evidence, including the autopsy slides, and
opined that the miner's coal workers' pneumoconiosis occupied less than five
percent of his pulmonary tissue and as such could not have contributed to causing
his death. He attributed the miner's death to congestive heart failure caused by
severe coronary artery disease, with metastatic carcinoma as a significant
contributory factor. Employer's Exhibits 5, 8.
Considering the relevant evidence of record, the administrative law judge
initially accorded less weight to the death certificate as he found no evidence
that the certifying physician, Dr. Ednie, possessed any relevant qualifications or
personal knowledge of the miner's condition. Decision and Order at 17. The
administrative law judge accorded greater weight to the opinions of Drs. Pisano,
Perper and Rizkalla whom he found to be highly qualified. The administrative law
judge found the opinions of Dr. Pisano, the autopsy prosector, and Dr. Perper to
be well reasoned and supported by the objective studies of record as well as the
gross and microscopic findings on autopsy. Decision and Order at 18. He also
found that although it was not clear whether Dr. Rizkalla actually reviewed the
autopsy slides, he persuasively explained that the miner's pneumoconiosis
substantially contributed to the miner's death by adding stress to his heart and
by inducing hypoxemia and increasing the workload to his cor pulmonale and dilated
right atrium, thereby adding more strain to the severity of the miner's
arteriosclerotic coronary artery disease. Id. The administrative law judge
accorded less weight to the opinions of Drs. Schaaf and Tuteur because he found
these doctors less qualified than Drs. Pisano, Perper, Rizkalla, Oesterling and
Griffin, and because they did not review the autopsy slides and had relied, at
least in part, on the assessments made by other pathologists of record in
determining the cause of the miner's death. Id. He further found that Dr.
Tuteur's opinion was not well reasoned and was contrary to the record evidence.
Decision and Order at 18, 19. He also accorded less weight to the opinions of Drs.
Oesterling and Griffin as he found that they were inconsistent, inadequately
reasoned and equivocal. Decision and Order at 19.
Employer argues that the administrative law judge selectively analyzed the
evidence by crediting Dr. Rizkalla's opinion notwithstanding his finding that it
was not clear whether Dr. Rizkalla reviewed the autopsy slides, while discrediting
the contrary opinions of Drs. Schaaf and Tuteur because, inter alia, these
physicians did not review the autopsy slides. Employer also asserts that the
opinions rendered by both Drs. Rizkalla and Perper, that the miner's cancer
was not a factor in his death, is contrary to the weight of the evidence. Employer
also argues that the administrative law judge, in crediting Dr. Pisano's opinion,
erroneously relied on the physician's status as the autopsy prosector. Employer
asserts that the administrative law judge erred by not addressing the differing
opinions offered by Drs. Perper and Pisano regarding the role of the miner's
cancer in his death. Employer reiterates its argument that the
administrative law judge erred in not addressing evidence which shows that the
miner's cancer originated in the prostate gland and not in the lungs and was
unrelated to his coal mine employment and contributed to his death.
Contrary to employer's contention, the administrative law judge's finding that
claimant met her burden to establish death due to pneumoconiosis under 20 C.F.R.
§718.205(c) is supported by substantial evidence, including the opinions of
Drs. Pisano, Perper and Rizkalla. The administrative law judge properly found that
these pathologists were highly qualified. Dillon v. Peabody Coal Co., 11 BLR
1-113 (1988); Martinez v. Clayton Coal Co., 10 BLR 1-24 (1987). Contrary
to employer's assertion, the administrative law judge did not summarily rely on
Dr. Pisano's status as the autopsy prosector. Rather, he found that Dr. Pisano's
opinion was well reasoned and supported by the objective tests of record as well
as the gross and microscopic findings presented in the autopsy. Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Fields v. Island
Creek Coal Co., 10 BLR 1-19 (1987). After observing that Dr. Pisano was the
only physician of record to conduct a gross examination of the relevant organs and
tissues, the administrative law judge properly found that Dr. Pisano explained, on
deposition, the relationship between pulmonary hypertension, cor pulmonale,
hypoxemia and pneumoconiosis in rendering his opinion that the miner's death was
due to hypoxemia or ischemia of the heart secondary to coronary artery disease and
pneumoconiosis. See U.S. Steel Corp. v. Oravetz, 686 F.2d 197, 4 BLR 2-130 (3d Cir. 1982). Further, the
administrative law judge found, within his discretion, that Dr. Perper's medical opinion was well reasoned and well
documented and substantially corroborated Dr. Pisano's opinion. See Clark, supra; Fields, supra.
We find merit in employer's argument that the administrative law judge
selectively analyzed the evidence by crediting Dr. Rizkalla's opinion
notwithstanding his finding that it was not clear whether Dr. Rizkalla reviewed the
autopsy slides, while discrediting the contrary opinions of Drs. Schaaf and Tuteur
because they did not review the autopsy slides. We note, however, that the
administrative law judge provided additional reasons for according less weight to
the opinions of Drs. Schaaf and Tuteur. Specifically, the administrative law judge
found that Drs. Schaaf and Tuteur, both Board-certified in Internal Medicine and
Pulmonary Disease, are less qualified to assess the cause of death than, inter
alia, Dr. Rizkalla who is a Board-certified pathologist. Dillon, supra;
Martinez, supra. The administrative law judge also permissibly found that Dr.
Tuteur's conclusions are not well reasoned and do not correlate with the medical
evidence of record. Clark, supra. Accordingly, notwithstanding his error
in selectively analyzing the evidence, the administrative law judge provided valid
reasons for according greater weight to Dr. Rizkalla's opinion, while according
less weight to the opinions of Drs. Schaaf and Tuteur. See Searls v. Southern
Ohio Coal Co., 11 BLR 1-161 (1988).
We decline to address employer's additional arguments in support of its
position that the administrative law judge erred in not determining the cause of
the miner's cancer and what role the disease played in his demise. As discussed
above, because no physician of record related the miner's cancer to his coal mine
employment, the administrative law judge was not required to determine the etiology
of the miner's cancer or what role the disease played in his death. See
discussion, supra.
Based on the foregoing, we affirm the administrative law judge's finding that
claimant met her burden to establish that the miner's death was due to
pneumoconiosis under 20 C.F.R. §718.205(c) as it is rational, supported by
substantial evidence, and in accordance with law. We thus further affirm the
administrative law judge's award of benefits in the instant survivor's claim.
Accordingly, the administrative law judge's Decision and Order - Awarding Benefits is affirmed.
SO ORDERED.
ROY P. SMITH
Administrative Appeals Judge
REGINA C. McGRANERY
Administrative Appeals Judge
BETTY JEAN HALL
Administrative Appeals Judge
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Footnotes.
1)Claimant, the miner's widow, filed the instant claim on March
10, 1999. Director's Exhibit 1. The miner's death certificate indicates that he
died on July 31, 1998 due to pneumonia and pulmonary hypertension. Director's
Exhibit 3.
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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 (2001). All citations to the regulations, unless otherwise
noted, refer to the amended regulations.
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3)Dr. Pisano indicated that the primary site or origin of the
miner's metastatic squamous cell carcinoma could not be assessed due to the fact
that the autopsy was limited to the miner's chest. Director's Exhibit 4;
Claimant's Exhibit 5 at 32, 33, 85. Dr. Pisano generally recognized a link between
carcinoma of the lung and exposure to silica dust, but found "no direct evidence"
in this case that the miner's cancer was due to his coal mine employment.
Claimant's Exhibit 5 at 37, 87-89.
Dr. Oesterling diagnosed metastatic adenocarcinoma consistent with the primary
site being the prostate gland, which was unrelated to the miner's coal mine
employment. Employer's Exhibit 7 at 26-38.
Dr. Schaaf opined, "Although the pathologic examination describes carcinoma
in the lungs and implies that it is metastatic, there is no clinical suspicion of
carcinoma (except for prostate cancer ) noted during life." Claimant's Exhibit 3.
Dr. Perper opined that if the miner's cancer originated in his lungs, it is
possible that it was a result of his coal workers' pneumoconiosis and his exposure
to mixed coal and silica dust. He referred to a number of studies which indicate
that exposure to silica dust can cause cancer. Dr. Perper emphasized, however,
that in this case, there is "no reliable evidence" that the miner's metastatic lung
tumor originated in his lungs and other primary sites are possible. Claimant's
Exhibit 1. On deposition, Dr. Perper testified that he could not relate the
miner's squamous cell carcinoma to his coal workers' pneumoconiosis and exposure
to coal and silica dust because the primary site of the cancer could not be
identified. He noted that research has shown an association between squamous cell
carcinoma of the lung and exposure to coal and silica, adding, "But as I said in
this particular case, there is a possibility, but it's not a possibility which I
can say within reasonable satisfactory comment," because the primary site of the
miner's cancer cannot be identified definitively. Claimant's Exhibit 7 at 28-29.
Dr. Tuteur found that the miner's prostate cancer, diagnosed in 1995, was
metastatic at the time of his death and was not related to, aggravated by nor
caused by coal mine employment or coal workers' pneumoconiosis. Employer's Exhibit
3.
Dr. Griffin opined that the miner's metastatic prostate cancer of the lung was
not caused by his exposure to coal dust. Deposition of Dr. Griffin on September
13, 2000 at 80-83.
Dr. Rizkalla ruled out the prostate gland as the source of the miner's
squamous cell carcinoma and indicated that the lung could have been the primary
site. He did not relate the miner's carcinoma to his coal mine employment.
Claimant's Exhibit 8.
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4)Dr. Pisano testified that he was assisted in the autopsy by Dr.
Shenouda, a resident. Claimant's Exhibit 5 at 9, 10.
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NOTE: This is an UNPUBLISHED BLA Document.
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