UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-1764
CONSOLIDATION COAL COMPANY,
Petitioner,
versus
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR;
DAISY WILBURN, surviving spouse of Robert
Wilburn, deceased,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(01-634-BLA)
Argued: February 27, 2004 Decided: June 23, 2005
Before WIDENER, WILKINSON, and GREGORY, Circuit Judges.
Petition for review denied by unpublished per curiam opinion.
ARGUED: William Steele Mattingly, JACKSON KELLY, P.L.L.C.,
Morgantown, West Virginia, for Petitioner. Peter David Dinardi,
Morgantown, West Virginia, for Respondents. ON BRIEF: Ashley M.
Harman, JACKSON KELLY, P.L.L.C., Morgantown, West Virginia, for
Petitioner.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Consolidation Coal Company petitions for review of the May 17,
2002 Decision and Order of the Benefits Review Board (BRB),
affirming the Administrative Law Judge’s (ALJ) award of Black Lung
disability and survivor benefits to Daisy Wilburn, the widow of
coal miner Robert Wilburn.
Robert Wilburn began working as a coal miner in 1933. He
started work with Consolidation Coal in 1955 and remained employed
with that company until he retired in 1978.
In 1979, Wilburn filed a claim for benefits under the Black
Lung Benefits Act (BLBA), 30 U.S.C. § 901 et seq. An ALJ
determined that Wilburn was not entitled to benefits because there
was insufficient evidence of total disability due to
pneumoconiosis. Wilburn appealed to the BRB and the Board
affirmed.
In August 1996, Wilburn was diagnosed with acute myelogenous
leukemia. Wilburn died on October 26, 1996. Wilburn’s treating
physician, Dr. Darrell Saunders, certified the immediate cause of
death as acute leukemia. An autopsy was performed by Drs. Sydney
Goldblatt and James Pisano. The autopsy report noted the presence
of “Macular, Simple Coal Worker’s Pneumoconiosis.”
Daisy Wilburn, the widow of Robert Wilburn, filed a claim for
disability and survivor’s benefits with the Department of Labor’s
Office of Workers’ Compensation Programs. A hearing was held on
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November 14, 2000 before an Administrative Law Judge. On April 19,
2001, the ALJ awarded benefits to Mrs. Wilburn.
The essence of this petition for review is Consolidation’s
disagreement with the ALJ’s determination of the weight afforded to
an autopsy, to various x-rays, and to the testimony by way of
reports and depositions of expert witnesses.
First, the ALJ held that Wilburn’s x-ray records did not
themselves contain sufficient evidence of pneumoconiosis. As part
of that analysis, the ALJ afforded greater weight to x-rays taken
for the purpose of diagnosing pneumoconiosis than to x-rays taken
for the purpose of diagnosing Wilburn’s leukemia and other related
illnesses.
Second, the ALJ examined the medical history, autopsy records
and reports and depositions of the expert witnesses and found
sufficient evidence of pneumoconiosis to award benefits. The ALJ
based his opinion largely on the weight afforded to four experts:
Drs. Cyril H. Wecht, Richard L. Naeye, Stephen T. Bush and Joseph
F. Tomashefski, Jr.
Dr. Wecht reviewed Wilburn’s medical history and autopsy
report on behalf of Mrs. Wilburn. Dr. Wecht concluded that Wilburn
died of pneumonia, a terminal complication of acute leukemia. Dr.
Wecht also concluded that pneumoconiosis was “a substantial
contributing factor in [Wilburn’s] death.” He also stated:
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“[s]pecifically, I believe that his pulmonary pathology was coal
workers’ pneumoconiosis.”
Drs. Naeye, Bush and Tomashefski reviewed Wilburn’s medical
history for Consolidation Coal. Dr. Naeye concluded that there was
no evidence of pneumoconiosis and that Wilburn would have died “at
the same time and in the same way if he had never mined coal.” Dr.
Bush also concluded that there was no evidence of pneumoconiosis
and that “Wilburn would have died at the same time and in the same
manner if he had never been exposed to the pulmonary hazards of
coal mining employment.” Dr. Tomashefski concluded that Wilburn
“did not have coal workers’ pneumoconiosis” and therefore
“pneumoconiosis was not a contributing factor in Mr. Wilburn’s
death.
The ALJ afforded greater weight to Dr. Wecht’s report
because it was well reasoned, well documented, and supported by the
findings in the autopsy report. In this connection, we note that
20 C.F.R. § 718.202(a)(2) provides in part that “A report of
autopsy shall be accepted unless there is evidence that the report
is not accurate or that the claim has been fraudulently
represented,” conditions not present here. The ALJ found portions
of the reports from Consolidation Coal’s three experts to be
equivocal, internally inconsistent, and lacking sufficient
explanation for their reasoning.
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Consolidation Coal appealed the ALJ’s decision to the Benefits
Review Board. The BRB found error in the ALJ’s decision to afford
less weight to x-ray readings interpreted for the purpose of
treating Wilburn’s leukemia, but found the error harmless. The
Board concluded that the ALJ’s decision to afford greater weight to
Dr. Wecht’s testimony and lesser weight to the testimony of Drs.
Naeye, Bush and Tomashefski was supported by substantial evidence.
Accordingly, the BRB affirmed the ALJ’s decision to award benefits.
We review the Board's Decision and Order to determine whether
it properly concluded that the ALJ’s decision was supported by
substantial evidence in the record. Dehue Coal Co. v. Ballard, 65
F.3d 1189, 1193 (4th Cir. 1995). After consideration of the
briefs, record, and oral argument, we find that the Board correctly
addressed the questions now raised by Consolidation Coal in its
petition for review and that the Board properly found the ALJ’s
decision supported by substantial evidence.
Accordingly, we are of opinion that there is not reversible
error in this case, and we therefore deny the petition for review
for the reasons expressed in the Benefit Review Board’s Decision
and Order.
PETITION FOR REVIEW DENIED
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