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                                   BRB No. 00-1080

MILDRED RECTOR                          )
(WIDOW of JAMES RECTOR)                 )
          Claimant-Petitioner           )
     v.                                 )
NEWPORT NEWS SHIPBUILDING               )    DATE ISSUED:   07/16/2001 
          Self-Insured                  )
          Employer-Respondent           )
COMPENSATION PROGRAMS,                  )
OF LABOR                                )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order of Richard E.  Huddleston,
     Administrative Law Judge, United States Department of Labor.

     Gary R. West (Patten, Wornom, Hatten & Diamondstein, L.C.), Newport
     News, Virginia, for claimant.

     Benjamin M. Mason (Mason, Cowardin & Mason, P.C.), Newport News,
     Virginia, for self-insured employer.
     Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER,
     Administrative Appeals Judges.


     Claimant appeals the Decision and Order (98-LHC-1109) of Administrative Law
Judge Richard E. Huddleston denying benefits on a claim filed pursuant to the
provisions of the  Longshore and Harbor Workers' Compensation Act, as amended,
33 U.S.C. §901 et seq. (the Act).  We must affirm the findings
of fact and conclusions of law of the administrative law judge which are
rational, supported by substantial evidence, and in accordance with law.
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359
(1965); 33 U.S.C. §921(b)(3). 

     Claimant's husband (decedent) worked for employer as a sheet-metal mechanic
from 1939 to 1979.  The parties stipulated that decedent was exposed to asbestos
during the course of his employment.  Decedent died on July 14, 1995, and claimant
filed a claim for death benefits under the Act, 33 U.S.C. §909, alleging that
work-related asbestosis contributed to decedent's death. 

     The administrative law judge found that claimant was entitled to invocation
of the Section 20(a) presumption, 33 U.S.C. §920(a), inasmuch as the parties
stipulated that decedent was exposed to asbestos, and Drs. SanDiego, Maddox and
Hutchins stated that decedent had some degree of asbestosis based on autopsy
evidence.  The administrative law judge found that employer presented insufficient
evidence to establish that decedent did not have asbestosis, and thus, that the
Section 20(a) presumption was not rebutted in this regard.  
     The administrative law judge then proceeded to consider whether decedent's
death was caused at least in part, or hastened, by his work-related asbestosis.  
Dr. Maddox stated that decedent died from multifactorial chronic lung disease with
elements of, inter alia,  grade 2-3C asbestosis.  Cl. Ex. 3.  Dr. Hutchins
opined that decedent had very mild asbestosis, grade 1A, which was of no functional
significance, played no role in any respiratory or pulmonary impairment, and did
not hasten or contribute to decedent's death.  The administrative law judge found
both opinions to be well-reasoned and credible.  He further stated that both
physicians are equally qualified Board-certified pathologists.  The administrative
law judge thus concluded that the opinions are of equal weight and that, therefore,
claimant did not establish that decedent's death was work-related.[1]   Accordingly, benefits were denied.[2]   See Director, OWCP v. Greenwich Collieries, 512 U.S.
267, 28 BRBS 43(CRT) (1994).

     Relevant to the instant appeal, the administrative law judge accorded no weight to the death
certificate.  The death certificate states the immediate cause of death as "acute cardiac arrest due to (or as a
consequence of) hypoxemia due to (or as a consequence of) COPD."  Listed as "other significant conditions
contributing to death but not resulting in the underlying cause" are "cardiomyopathy, CHF,  pneumonia,
asbestos exposure, prostate ca."  Cl. Ex. 1 (emphasis added).  The administrative law judge
rejected claimant's contention that this document establishes that asbestosis contributed to decedent's death.  He
stated, first, that asbestos exposure is not the same as asbestosis.  The administrative law judge further
stated that the death certificate was signed before the autopsy was performed, and that therefore, the physician who
signed the death certificate, Dr. Hoyt, would not have known that decedent in fact had asbestosis.  In this regard,
the administrative law judge noted the absence of evidence that Dr. Hoyt had ever examined or treated
decedent.  Decision and Order at 7.

     On appeal, claimant contends only that the administrative law judge erred in assigning no weight
to the death certificate in finding that decedent's death was not work-related.  Employer responds, urging
affirmance of the administrative law judge's decision.

     We affirm the administrative law judge's decision to accord no weight to the death
certificate.  The administrative law judge is entitled to determine the probative value of the evidence of
record. See Pittman Mechanical Contractors, Inc. v. Director, OWCP, 35 F.3d 122, 28 BRBS 89(CRT)
(4th Cir. 1994).  Contrary to claimant's contention, the administrative law judge was not required to infer
that Dr. Hoyt had knowledge of decedent's occupational history and medical condition merely because the death
certificate states he was the "attending physician" and he wrote on the death certificate that asbestos exposure was
an "other significant condition contributing to death."  The administrative law judge just as rationally
inferred from the record's absence of reports by Dr. Hoyt that he had not examined or treated decedent. See
generally Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941, 25 BRBS 78(CRT) (5th Cir. 1991) ("the choice
between reasonable inferences is left to the ALJ.").

     Moreover, the administrative law judge was not required to credit the notation of asbestos exposure
as establishing, in fact, that asbestosis contributed to decedent's death.  The administrative law judge
properly found that asbestosis was not diagnosed until after the autopsy was performed.  See Emp. Ex.
4-8.   Decedent's exposure to asbestos, to which employer stipulated, does not establish the compensability of
decedent's death.  Thus, the administrative law judge rationally concluded, based on the
fact that asbestosis was not diagnosed until after the autopsy was performed, that
the death certificate cannot establish that asbestosis, in fact, contributed to
decedent's death. See generally Brown & Root, Inc. v. Sain, 162 F.3d 813, 32 BRBS
205(CRT) (4th Cir. 1998).  As the Board is not empowered to reweigh the evidence, and as the administrative
law judge's finding is rational and supported by substantial evidence, we reject claimant's contention of error
and affirm the denial of death benefits. See generally Burns v. Director, OWCP, 41 F.3d 1555, 29 BRBS
28(CRT) (D.C. Cir. 1994).  

     Accordingly, the administrative law judge's Decision and Order denying benefits is affirmed.


                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge

                         ROY P. SMITH
                         Administrative Appeals Judge

                         NANCY S. DOLDER
                         Administrative Appeals Judge

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1) 1The administrative law judge did not apply the Section 20(a) presumption to whether decedent's death was work-related. This error is not specifically raised by claimant and is, in any event, harmless, as Dr. Hutchins's opinion is sufficient to rebut the presumed causal connection. Back to Text
2) 2Thus, the administrative law judge did not reach employer's claim for Section 8(f) relief. 33 U.S.C. §908(f). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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