RECENT SIGNIFICANT DECISIONS
ONTHLY DIGEST # 148
Black Lung Benefits Act
June - July 2000

AA. Simpson, Jr.
Associate Chief Judge for Longshore

Thomas M. Burke
Associate Chief Judge for Black Lung


II. Black Lung Benefits Act

   A. Circuit Courts of Appeal

   The Fourth Circuit held, in Bill Branch Coal Corp. v. Sparks , ___ F.3d ___, 2000 WL 665639 (4th Cir. May 22, 2000), that it was error for the ALJ to credit the prosector's opinion over those opinions of reviewing pathologists solely on the basis that the prosector examined the miner's whole body at the time of death. The court stated that it has "previously noted that it is improper for an ALJ to 'mechanistically credit, to the exclusion of all other testimony,' the testimony of an examining or treating physician solely because the doctor personally examined the claimant." In the context of the case before it, the court held that "ALJs are not to credit the opinions of an autopsy prosector, to the exclusion of all other experts, solely because the autopsy prosector was the only physician to examine the whole body near the time of death." In so holding, the court cited to a decision by the Seventh Circuit in Freeman United Coal Mining Co. v. Stone , 957 F.2d 360, 362-63 (7th Cir. 1992) ("[n]othing in the record suggests that access to the body enhances the accuracy of diagnoses based on autopsy evidence"; it was error to credit the prosector's report over the reports of reviewing physicians solely because the prosector had access to the whole body).

[ autopsy evidence; prosector's report not entitled to greater weight ]

   In Eastern Associated Coal Corp. v. Director, OWCP [Scarbro] , ___ F.3d ___, 2000 WL 961592 (4th Cir. 2000), the circuit court affirmed the ALJ's finding that the x-ray and autopsy evidence of record supported invocation of the presumption at 20 C.F.R. § 718.304 (complicated pneumoconiosis). Initially, the court noted that the miner had 26 years of coal mine employment which ended in 1973. Of the x-rays dated from 1963 to 1991, the court noted that the studies conducted prior to 1970 were consistently interpreted as negative for the existence of pneumoconiosis. A 1970 study was interpreted both positively and negatively. Subsequent studies were consistently read as positive for the existence of simple pneumoconiosis and the most recent study, dated February 7, 1991, was read as demonstrating the presence of complicated pneumoconiosis. The court further noted that the prosector's autopsy report revealed extensive "pneumoconiotic nodules" which were scattered throughout the lungs and which ranged in size from 0.5 centimeter to one centimeter. The prosector concluded that the miner's "main disease" was extensive chronic obstructive pulmonary disease which was "caused mainly by panlobular macronodular pneumoconiosis."

   Dr. Naeye reviewed the slides and found the presence of "anthracotic micronodules" which were seven to eight millimeters in diameter and concluded that coal workers' pneumoconiosis may have been severe enough to hasten the miner's death. Dr. Kleinerman found lesions on the slides which varied in size from 0.3 centimeters to 1.7 centimeters. He concluded that the lesions were considered to be "within the range of simple coal workers' pneumoconiosis" and opined that coal workers' pneumoconiosis did not hasten the miner's death. The court noted that Dr. Naeye was requested to conduct a second examination of the slides after which he "concluded that the tissue samples he had previously examined could not in fact have been representative of the lungs as a whole" and that the miner did not suffer from complicated pneumoconiosis. The court stated that Dr. Naeye based his conclusion on the fact that the miner's "exposure to coal dust had ended in 1973," his pulmonary function study results were normal at that time, and "simple coal workers' pneumoconiosis 'rarely progresses to a more severe disorder if a coal worker quits exposure to mine dust.'" Dr. Renn also issued a report wherein he concurred with the findings contained in Dr. Naeye's second report. The court disagreed with Dr. Naeye's conclusions to note that he ignored the "assumption of progessivity that underlies much of the statutory scheme" in black lung.

   In its review of the ALJ's decision, the court initially stated that prongs (A), (B), and (C) under § 718.304 are written in the disjunctive such that a finding of complicated pneumoconiosis may be established based upon evidence presented under one of the prongs "[b]ut the ALJ must in every case review the evidence under each prong of § 921(c)(3) for which relevant evidence is presented to determine whether complicated pneumoconiosis is present."

   With regard to prong (A), which addresses the chest x-ray evidence, the court held that the ALJ properly determined that the x-ray studies revealed a progressively worsening condition over time and the most recent studies of record were properly accorded greater weight. In particular, the court found it persuasive that seven doctors interpreted the most recent February 7, 1991 study as revealing an opacity measuring greater than one centimeter. The court concluded that the "'later is better' rule" was not mechanically applied in this case; rather, it was properly used where the later x-rays were not inconsistent with earlier studies given the progressiveness and irreversibility of pneumoconiosis. Moreover, the court stated that "the x-ray evidence can lose force only if other evidence affirmatively shows that the opacities are not there or are not what they seem to be, perhaps because of an intervening pathology, some technical problem with the equipment used, or incompetence of the reader." No such deficiencies were present in this case.

   With regard to the autopsy evidence, the court found that Employer's argument against the ALJ's weighing of the evidence was "based on two flawed premises": (1) that the statutory definition of complicated pneumoconiosis must be "congruent with a medical or pathological definition"; and (2) that the reports of Drs. Naeye and Kleinerman, who concluded that the autopsy slides did not comport with the pathological definition of complicated pneumoconiosis, undermined the ALJ's finding of the disease. The court found, upon review of the plain language of the statute, that it "betrays no intent to incorporate a purely medical definition." As a result, the fact that Dr. Kleinerman concluded that the 1.7 centimeter nodules which he observed did not constitute complicated pneumoconiosis in the medical sense was insufficient to exclude its presence in the legal sense. In this vein, the court noted that Dr. Kleinerman failed to state whether the lesions met the statutory definition of the disease, and not merely the pathological or medical definition. It stated that there was no reason to conclude that the 1.7 centimeter nodules observed by Dr. Kleinerman on autopsy would not be seen as 1.0 centimeter opacities on chest x-ray.

   The ALJ accorded greater weight to the autopsy prosector's opinion because "she had the 'opportunity to see the miner's entire respiratory system, and was the only doctor who commented on the amount of lung tissue damaged by pneumoconiosis.'" The ALJ found that the prosector's report supported a finding of "massive lesions" in the miner's lungs having used the dictionary definition of "massive" to mean "'extensive or severe.'" The court found no error in the ALJ's use of a dictionary to define "massive" lesions. However, it noted that "any such definition must be applied so that the term 'massive lesions' will describe the same condition that would be disclosed by application of the prong (A) standard based on the size of the x-ray opacities." The court did conclude that the ALJ's analysis of the autopsy evidence was incorrect, but it did not state any reasons for this determination and it did not find that the autopsy evidence contradicted the ALJ's finding of complicated pneumoconiosis by chest x-ray. 1

   Employer argued that autopsy evidence constituted a superior diagnostic tool over chest x-rays in determining whether complicated pneumoconiosis is present. The court held, however, that complicated pneumoconiosis is established through application of "congressionally defined criteria" and the most objective measure of the condition is obtained through chest x-rays. As previously noted, the court found that the autopsy evidence did not contradict the x-ray findings and, therefore, the irrebuttable presumption at § 718.304 was properly invoked based upon the chest x-ray and autopsy evidence.

[ later evidence rule; weighing autopsy reports; complicated pneumoconiosis ]

    B. Benefits Review Board

   In Gowen v. Old Ben Coal Co. , 1997-BLA-1592 (ALJ, May 28, 1998)(Order), the ALJ cited to 29 C.F.R. § 18.703 as support for admitting expert medical opinions which are based, in part, upon evidence which is not part of the record. The ALJ noted that it was reasonable for the experts to rely on hospital and treatment records in rendering their opinions, even where such underlying medical records had been excluded from admission as evidence pursuant to 20 C.F.R. § 725.456. By unpublished Decision and Order in Gowen v. Old Ben Coal Co. , BRB No. 98-1532 BLA (BRB, June 9, 2000), the Board agreed with the ALJ's holding. Claimant argued on appeal that the ALJ could not weigh the accuracy or quality of the experts' opinions without the underlying evidence. The Board held, however, that the excluded records were "of a type reasonably relied upon by experts in forming opinions or inferences about the subject pursuant to 29 C.F.R. § 18.703." Citing to Peabody Coal Co. v. Director, OWCP [Durbin] , 165 F.3d 1126, 21 B.L.R. 2- 538 (7th Cir. 1999), as the case arose in the jurisdiction of the Seventh Circuit, the Board noted that the circuit court employed the use of Fed.R.Evid. 703, which formed the basis for 29 C.F.R. § 18.703, in a black lung claim to accept medical opinions based upon evidence not in the record where the opposing party had an opportunity to review the excluded evidence before the hearing to prepare for rebuttal. In Gowen , the Board held that the ALJ properly noted that Claimant actively participated in the cross-examination of the medical experts. Although Claimant maintained that she could not "'test the factual basis'" of the reports during cross-examination of the physicians because she did not receive copies of the underlying medical data, the Board found that Claimant had received the physicians' reports, which contained complete statements of their opinions and bases therefor, at least 20 days prior to the hearing pursuant to 20 C.F.R. § 725.456 and Fed.R.Civ.P. 26(a)(2)(B). The Board further noted that Claimant did not contend that the excluded evidence was not reliable, nor did she request that the record be kept open for the submission of rebuttal evidence. As a result, the Board held that the ALJ properly considered the expert opinions in question.

[ expert opinions based upon evidence not in the record ]

[ENDNOTES]

1 Possibly the court felt that the ALJ provided reasons for according greater weight to the prosector's opinion which were in contravention of the court's recent ruling in Bill Branch Coal Corp. v. Sparks , ___ F.3d ___, 2000 WL 665639 (4th Cir. May 22, 2000), as set forth supra .