, the circuit court found that it was "irrational" to accord greater
weight to the opinion of a treating physician, who may not be a specialist. The court stated:
Treating physicians often succumb to the temptation to accommodate their
patients (and their survivors) at the expense of third parties such as insurers,
which implies attaching a discount rather than a preference to their views.
b.
After applicability of December 2000 regulations
At 20 C.F.R. § 718.104(d) (Dec. 20, 2000), the amended regulations
require that a treating physician's opinion be considered and state the following:
(d) Treating physician. In weighing the medical evidence of record relevant to
whether the miner suffers, or suffered, from pneumoconiosis, whether the
pneumoconiosis arose out of coal mine employment, and whether the miner is, or
was, totally disabled by pneumoconiosis or died due to pneumoconiosis, the
adjudication officer must give consideration to the relationship between the miner
and any treating physician whose report is admitted into the record. Specifically,
the adjudication officer shall take into consideration the following factors in
weighing the opinion of the miner's treating physician:
(1) Nature of relationship. The opinion of a physician who has
treated the miner for respiratory or pulmonary conditions is entitled
to more weight than a physician who has treated the miner for non-
respiratory conditions;
(2) Duration of relationship. The length of the treatment
relationship demonstrates whether the physician has observed the
miner long enough to obtain a superior understanding of his or her
condition;
(3) Frequency of treatment. The frequency of physician-patient
visits demonstrates whether the physician has observed the miner
often enough to obtain a superior understanding of his or her
condition;
(4) Extent of treatment. The types of testing and examinations
conducted during the treatment relationship demonstrate whether
the physician has obtained superior and relevant information
concerning the miner's condition;
(5) In the absence of contrary probative evidence, the adjudication
officer shall accept the statement of a physician with regard to the
factors listed in paragraphs (d)(1) through (4) of this section. In
appropriate cases, the relationship between the miner and his
treating physician may constitute substantial evidence in support of
the adjudication officer's decision to give that physician's opinion
controlling weight, provided that the weight given to the opinion of
a miner's treating physician shall also be based on the credibility of
the physician's opinion in light of its reasoning and documentation,
other relevant evidence and the record as a whole.
In its comments to the amended regulations, the Department states the following:
The Department emphasizes that the 'treating physician' rule guides the
adjudicator in determining whether the physician's doctor-patient relationship
warrants special consideration of the doctor's conclusions. The rule does not
require the adjudicator to defer to those conclusions regardless of the other
evidence in the record. The adjudicator must have the latitude to determine
which, among the conflicting opinions, presents the most comprehensive and
credible assessment of the miner's pulmonary health. For the same reasons, the
Department does not consider subsection (d) to be an evidentiary presumption
which shifts the burden of production or persuasion to the party opposing
entitlement upon the submission of an opinion from the miner's treating physician.
Accordingly, the Department declines to eliminate the requirement in subsection
(d)(5) that a treating physician's opinion must be considered in light of all relevant
evidence in the record.
Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, 65 Fed. Reg.
79,334 (Dec. 20, 2000).
In the preamble to the final rules, the Department notes that the new
treating physician regulation does not apply retroactively:
None of these changes, however, apply retroactively. Section 718.101(b) provides
that the 'standards for the administration of clinical tests and examinations' will
govern all evidence developed in connection with benefits claims after the
effective date of the final rule. Section 718.104 contains the quality standards for
any '[r]eport of physical examinations,' including reports prepared by the miner's
treating physician. Physicians' medical reports are expressly included in the terms
of § 718.101(b). Consequently, the changes to § 718.104 apply only
to evidence developed after the effective date of the final rule. With respect to
treating physicians' opinions developed and submitted before the effective date of
the final rule, the judicial precedent summarized in the Department's initial notice
of proposed rulemaking continues to apply. See 62 Fed. Reg. 3342 (Jan.
22, 1997). These decisions recognize that special weight may be afforded the
opinion of a miner's treating physician based on the physician's opportunity to
observe the miner over a period of time.
Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, 65 Fed.
Reg. 79,334 (Dec. 20, 2000). District Judge Emmet G. Sullivan likewise held that the treating
physician regulation does not apply retroactively in Nat'l. Mining Ass'n., et al v. Chao,
Civil Action No. 00-3086 (D. D.C. 2001).
2. Non-examining or
consultative
physician
In earlier case law, the Board held that an administrative law judge may
accord less weight to a consulting or non-examining physician's opinion on grounds that he or
she does not have first-hand knowledge of the miner's condition. Bogan v. Consolidation
Coal Co., 6 B.L.R. 1-1000 (1984). See also Cole v. East Kentucky Collieries, 20
B.L.R. 1-51 (1996) (the administrative law judge acted within his discretion in according less
weight to the opinions of the non-examining physicians; he gave their opinions less weight, but
did not completely discredit them). However, with regard to rebuttal under Part 727, the opinion
of such a physician is relevant. Szafraniec v. Director, OWCP, 7 B.L.R. 1-397 (1984).
A non-examining physician's opinion may constitute substantial evidence
if it is corroborated by the opinion of an examining physician or by the evidence considered as a
whole. Newland v. Consolidation Coal Co., 6 B.L.R. 1-1286 (1984); Easthom v.
Consolidiation Coal Co., 7 B.L.R. 1-582 (1984). Indeed, in Collins v. J & L Steel (LTV
Steel), 21 B.L.R. 1-182 (1999), the Board cited to the Fourth Circuit's decision in
Sterling Smokeless Coal Co. v. Akers, 121 F.3d 438 (4th Cir. 1997) and held that it was
error for the administrative law judge to discredit a physician's opinion solely because he
was a "non-examining physician." Also, in Chester v. Hi-Top Coal Co., 22
B.L.R. 1-___ (2001), the Board cited to Millburn Colliery Co. v. Hicks, 138 F.3d 524 (4th
Cir. 1998) to hold that an administrative law judge may not discredit a medical opinion solely
because the physician did not examine the claimant. But see Sewell Coal Co. v. O'Dell,
Case No. 00-2253 (4th Cir. July 26, 2001) (unpub.) (citing to Sterling Smokeless Coal Co. v.
Akers, 131 F.3d 438, 440 (4th Cir. 1997) to hold that opinions of examining physicians,
although not necessarily dispositive, deserve special consideration").
3. Criminal
conviction of
the
physician
In Boyd v. Clinchfield Coal Co., 46 F.3d 1122, 1995 WL 10226
(4th Cir. 1995) (table), the Fourth Circuit held that it was proper for the administrative law judge
to take judicial notice of Dr. Vinod Modi's criminal conviction. Moreover, citing to Adams
v. Canada Coal Co., Case No. 91-3706 (6th Cir. July 13, 1992)(unpublished) (the
administrative law judge "was obviously justified" in not crediting the testimony of
Dr. Modi because of his conviction), the court upheld the administrative law judge's decision to
accord no weight to Dr. Modi's medical opinion in light of his conviction for tax evasion.
D. Equivocal or vague
conclusions
An opinion may be given little weight if it is equivocal or vague.
Island Creek Coal Co. v. Holdman, 202 F.3d 873 (6th Cir. 2000) (a physician, who
concluded that simple pneumoconiosis "probably" would not disrupt a miner's
pulmonary function, was equivocal and insufficient to "rule out" causal nexus as
required by 20 C.F.R. § 727.203(b)(3)); Griffith v. Director, OWCP, 49 F.3d 184
(6th Cir. 1995) (treating physician's opinion entitled to little weight where he concluded that the
miner "probably had black lung disease); Justice v. Island Creek Coal Co., 11
B.L.R. 1-91 (1988) (an equivocal opinion regarding etiology may be given less weight);
Parsons v. Black Diamond Coal Co., 7 B.L.R. 1-236 (1984) (equivocal regarding
disability).
In addition, an opinion of the inadvisability of returning to coal mine
employment because of pneumoconiosis is not the equivalent of a finding of total disability.
Zimmerman v. Director, OWCP, 871 F.2d 564, 567 (6th Cir. 1989); Taylor v. Evans
& Gambrel Co., 12 B.L.R. 1-83 (1988); Justice v. Island Creek Coal Co., 11 B.L.R.
1-91 (1988); Bentley v. Director, OWCP, 7 B.L.R. 1-612 (1984); Brusetto v. Kaiser
Steel Corp., 7 B.L.R. 1-422 (1984).
E. Silent opinion
A physician's report, which is silent as to a particular issue, is not probative
of that issue. However, the report should not be discredited as a whole on this basis as he or she
may provide documented and reasoned opinions relevant to the resolution of other entitlement
issues in the claim. For example, in Island Creek Coal Co. v. Compton, 211 F.3d 203
(4th Cir. 2000), the administrative law judge concluded that the miner did not establish
pneumoconiosis through chest x-ray evidence under § 718.202(a)(1), but he did find
pneumoconiosis established via medical opinion evidence at § 718.202(a)(4). The Fourth
Circuit held that it was proper for the administrative law judge to accord less weight to the
opinions of physicians who did not consider pneumoconiosis as a possible cause of the miner's
total disability where the administrative law judge found that pneumoconiosis was established on
the record.
In Billings v. Harlan #4 Coal Co., BRB No. 94-3721 BLA (June
19, 1997) (en banc)(unpublished), the Board stated the following:
Contrary to employer's argument, the issues of total disability and causation are
independent; therefore, the administrative law judge was not required to reject Dr.
Baker's August 23, 1991 opinion on causation simply because the doctor did not
consider claimant's respiratory impairment at that time to be totally disabling.
In Osborne v. Clinchfield Coal Co., BRB No. 96-1523 BLA (Apr.
30, 1998) (en banc on recon.)(unpub.), the Board held that it was proper for the
administrative law judge to accord less weight to physicians' opinions which found that
pneumoconiosis did not contribute to the miner's disability on grounds that the physicians did not
diagnose pneumoconiosis.
F. Internally inconsistent reports
A report may be given little weight where it is internally inconsistent and
inadequately reasoned. Mabe v. Bishop Coal Co., 9 B.L.R. 1-67 (1986). See also
Cranor v. Peabody Coal Co., 22 B.L.R. 1-1 (1999) (en banc on recon.) (the Board concluded
that it was proper for the administrative law judge to give less weight to the report of Dr. Fino
because his opinion was based upon a CT-scan which was not in the record and he did not have
the benefit of reviewing the two most recent qualifying pulmonary function studies).
Further, it is proper to accord little probative value to a physician's opinion
which is inconsistent with his or her earlier report or testimony. Hopton v. U.S. Steel
Corp., 7 B.L.R. 1-12 (1984) (a failure to explain inconsistencies between two reports which
were eight months apart rendered the physician's conclusions of little probative value);
Surma v. Rochester & Pittsburgh Coal Co., 6 B.L.R. 1-799 (1984) (physician's report
discredited where he found total disability in a earlier report and then, without explanation, found
no total disability in a report issued five years later). See also Brazzale v. Director,
OWCP, 803 F.2d 934 (8th Cir. 1986) (a physician's opinion may be found unreasoned given
inconsistencies in the physician's testimony and other conflicting opinions of record).
G. Better supported by objective
medical data
Although a report cannot be discredited simply because a physician did not
consider all medical data of record, it is proper to accord greater weight to an opinion which is
better supported by the objective medical data of record, i.e., x-ray, blood gas, and
ventilatory studies. Minnich v. Pagnotti Enterprises, Inc., 9 B.L.R. 1-89, 1-90 n. 1
(1986); Wetzel v. Director, OWCP, 8 B.L.R. 1-139 (1985). In Church v. Eastern
Assoc. Coal Corp., 20 B.L.R. 1-8 (1996), the Board held that it was proper to accord greater
weight to a medical report "on the grounds that the doctor specifically identified the studies
upon which he relied and the conclusion he reached was consistent with the underlying objective
evidence of record." It is noted that the Board rejected Employer's argument that a
administrative law judge is compelled to discredit a physician's opinion that the miner suffered
from pneumoconiosis where the physician based his findings, in part, upon x-ray evidence which
the administrative law judge ultimately concluded did not support a finding of the disease. In so
holding, the Board noted that the physician also based his finding upon observations gathered
during the time he physically examined Claimant.
In Island Creek Coal Co. v. Compton, 211 F.3d 203 (4th Cir.
2000), the administrative law judge concluded that the miner did not establish pneumoconiosis
through chest x-ray evidence under § 718.202(a)(1), but he did find pneumoconiosis
established via medical opinion evidence at § 718.202(a)(4). The Fourth Circuit held that
the administrative law judge erred in crediting a physician's opinion finding pneumoconiosis
where that opinion was based solely upon a positive interpretation of an x-ray study when the
administrative law judge found the x-ray evidence of record did not establish pneumoconiosis.
On the other hand, the circuit court held that the administrative law judge properly credited
another physician's report which was based upon the miner's medical history, a physical
examination, and a pulmonary function test. The court concluded that an administrative law
judge "may choose to discredit an opinion that lacks a thorough explanation, but is not
legally compelled to do so." In particular, the court held that a physician's opinion was
reasoned and sufficiently documented even though the physician did not explain his conclusion
that Claimant's disease was partially caused by exposure to coal dust.
In Church v. Eastern Assoc. Coal Corp., 21 B.L.R. 1-51 (1997),
rev'g in part and aff'g in part on recon., 20 B.L.R. 1-8 (1996), the Board reaffirmed its
earlier holding that the administrative law judge properly analyzed the medical evidence under
§ 718.202(a)(4) in crediting physicians' opinions which were supported by underlying
objective studies. Moreover, the Board reiterated that "an administrative law judge may
not discredit an opinion solely on the ground that it is based, in part, upon an x-ray reading which
is at odds with the administrative law judge's finding with respect to the x-ray evidence of
record."
H. Reliance upon nonqualifying or
nonconforming testing
It is error to discredit a physician's report solely because of his or her
reliance upon nonqualifying testing where the physician also relied upon a physical examination,
work and medical histories, and symptomatology of the miner. Baize v. Director,
OWCP, 6 B.L.R. 1-730 (1984); Wike v. Bethlehem Mines Corp., 7 B.L.R. 1-593
(1984); Coen v. Director, OWCP, 7 B.L.R. 1-30 (1984); Sabett v. Director,
OWCP, 7 B.L.R. 1-299 (1984). See also Cornett v. Benham Coal, Inc., 227 F.3d
569 (6th Cir. 2000) (it "is clearly an inappropriate reason to reject a physician's
opinion" which is based upon non-qualifying pulmonary function study values "as
the regulations explicitly provide (that) a doctor can make a reasoned medical judgment that a
miner is totally disabled even 'where pulmonary function tests and/or blood-gas studies are
medically contraindicated.' 20 C.F.R. § 718.204(c)(4)"); Arnold v. Peabody
Coal Co., 41 F.3d 1203 (7th Cir. 1994) (it was improper for the administrative law judge to
discredit a physician's finding of total disability where the miner's ventilatory and blood gas
studies produced non-qualifying results but the physician relied upon the miner's medical history
and "significant physical symptoms and limitations").
On the other hand, in Jonida Trucking, Inc. v. Hunt, 124 F.3d 739
(6th Cir. 1997), the Sixth Circuit concluded that the administrative law judge properly weighed
medical evidence in finding that the miner was totally disabled and noted the following:
Although DelVecchio and Garson relied on pulmonary tests exhibiting levels of
impairment below that required to establish total disability under section
718.204(c)(1), these tests did demonstrate some impairment and can form a basis,
along with other evidence, for a reasoned medical decision establishing total
disability under Section 718.204(c)(1).
The Board, in Arnoni v. Director, OWCP, 6 B.L.R. 1-423 (1983),
held that an administrative law judge properly discredited a physician's opinion which was based
upon an x-ray study later interpreted as negative for existence of the disease by a B-reader and a
ventilatory study which was later found nonconforming. However, in Winters v. Director,
OWCP, 6 B.L.R. 1-877 (1984), the Board held that it was improper to discredit a physician's
opinion merely because the underlying x-ray and pulmonary function studies are determined to
be outweighed by other studies of record. See also Fitch v. Director, OWCP, 9 B.L.R. 1-
45, 1-47 n. 2 (1986) (physician's report may not be discredited as undocumented and unreasoned
only on grounds that it was based upon an x-ray interpretation which was outweighed by the
other interpretations of record). In Church v. Eastern Assoc. Coal Corp., 20 B.L.R. 1-8
(1996), the Board rejected Employer's argument that an administrative law judge is compelled to
discredit a physician's opinion that the miner suffered from pneumoconiosis where the physician
based his findings, in part, upon x-ray evidence which the administrative law judge ultimately
concluded did not support a finding of the disease. In so holding, the Board noted that the
physician also based his finding upon observations gathered during the time he physically
examined Claimant. It is noteworthy that, under Part 727, the Sixth Circuit holds that, in
assessing the probative value of a physician's opinion, the administrative law judge should
consider any contrary test results or diagnoses in the record in reaching a decision regarding
whether the presumption applies. Rowe v. Director, OWCP, 710 F.2d 251 (6th Cir.
1983).
I. Extensive medical data versus
limited data
In Church v. Eastern Assoc. Coal Corp., 20 B.L.R. 1-8 (1996), the
Board held that it was proper to accord greater weight to a medical report "on the grounds
that the doctor specifically identified the studies upon which he relied and the conclusion he
reached was consistent with the underlying objective evidence of record." Moreover, the
administrative law judge correctly assigned greater weight to a treating physician's opinion whose
diagnosis was based upon "'extensive medical information gathered over a period of many
years.'" As a result, the Board rejected Employer's argument that an administrative law
judge is compelled to discredit a physician's opinion that the miner suffered from
pneumoconiosis where the physician based his findings, in part, upon x-ray evidence which the
administrative law judge ultimately concluded did not support a finding of the disease. In so
holding, the Board noted that the physician also based his finding upon observations gathered
during the time he physically examined Claimant.
Greater weight may be accorded that opinion which is supported by more
extensive documentation over the opinion which is supported by limited medical data.
Sabett v. Director, OWCP, 7 B.L.R. 1-229 (1984). An opinion may be given less weight
where the physician did not have a complete picture of the miner's condition. Stark v.
Director, OWCP, 9 B.L.R. 1-36 (1986).
J. Physical limitations contained in
medical report
The Board, in Scott v. Mason Coal Co., 14 B.L.R. 1-37 (1990)(en
banc) and McMath v. Director, OWCP, 12 B.L.R. 1-6 (1988), held that it is for the fact-
finder to determine whether statements made in a physician's report constitute his or her
assessment of physical limitations which must be compared to the exertional requirements of the
claimant's last coal mine employment, or whether they are merely a narrative of the miner's
assertions which are insufficient to demonstrate total disability. See also Parsons v.
Director, OWCP, 6 B.L.R. 1-273, 1-276 and 1-277 (1983).
In DeFelice v. Consolidation Coal Co., 5 B.L.R. 1-275 (1982), the
administrative law judge relied on a physician's opinion to invoke the presumption which set
forth a medical assessment of the claimant's abilities to walk, climb, lift, and carry. The Board
held that on the basis of these exertional limits, it was proper for an administrative law judge to
conclude that the claimant's physical abilities were severely limited and would effectively rule
out all types of work. This case is distinguishable from those Board decisions which have held
that a narrative of symptoms in the "Medical Assessment" section of the Department
of Labor examination form or elsewhere is not the equivalent of a diagnosis of total disability.
Heaton v. Director, OWCP, 6 B.L.R. 1-2222 (1984); Parsons v. Director,
OWCP, 6 B.L.R. 1-212 (1983). Similarly, a physician's opinion that a claimant's respiratory
or pulmonary disease prevents him from engaging in gainful activity because of one block
dyspnea does not establish that the claimant is totally disabled. Parino v. Old Ben Coal
Co., 6 B.L.R. 1-104 (1983).
The Third, Fourth, and Eleventh Circuit Courts have held that an
administrative law judge cannot conclude, without specific evidence in support thereof, that
notations in a physician's report of limitations as to walking, climbing, carrying, and lifting,
constitute a mere recitation of a miner's subjective complaints as opposed to an assessment of the
physician. Scott v. Mason Coal Co., 60 F.3d 1138 (4th Cir. 1995); Kowalchick v.
Director, OWCP, 893 F.2d 615, 623 (3d Cir. 1990); Jordan v. Benefits Review Bd.,
876 F.2d 1455, 1460 (11th Cir. 1989).
K. Death certificates
A death certificate, in and of itself, is an unreliable report of the miner's
condition and it is error for an administrative law judge to accept conclusions contained in such a
certificate where the record provides no indication that the individual signing the death certificate
possessed any relevant qualifications or personal knowledge of the miner from which to assess
the cause of death. Smith v. Camco Mining, Inc., 13 B.L.R. 1-17 (1989); Addison v.
Director, OWCP, 11 B.L.R. 1-68 (1988).
Similarly, in Lango v. Director, OWCP, 104 F.3d 573 (3d Cir.
1997), the court adopted the Eighth Circuit's holding in Risher v. Office of Workers'
Compensation Programs, 940 F.2d 327, 331 (8th Cir. 1991), to state that "the mere
fact that a death certificate refers to pneumoconiosis cannot be viewed as a reasoned medical
finding, particularly if no autopsy has been performed." See also Bill Branch Coal Co.
v. Sparks, 213 F.3d 186 (4th Cir. 2000) (a death certificate stating that pneumoconiosis
contributed to the miner's death, without some further explanation, is insufficient).
However, the Board has held that a physician's opinion expressed on a
death certificate in addition to his testimony is sufficient to establish the cause of the miner's
death. Dillon v. Peabody Coal Co., 11 B.L.R. 1-113 (1988).
L. Determinations by other
agencies
A general disability determination by the Social Security Administration is
not binding on the Department of Labor with regard to a claim filed under Part C, but the
determination may be used as some evidence of disability or rejected as irrelevant at the
discretion of the fact-finder. The only exception to this rule is a final determination where the
miner is found totally disabled under § 223 of the Social Security Act, 42 U.S.C.
§ 423, as the result of coal workers' pneumoconiosis. 20 C.F.R. § 410.470;
Tackett v. Director, OWCP, 7 B.L.R. 1-703 (1985); Reightnouer v. Director,
OWCP, 2 B.L.R. 1-334 (1979).
Likewise, a state or other agency determination may be relevant, but is not
binding upon the administrative law judge. Schegan v. Waste Management & Processors,
Inc., 18 B.L.R. 1-41 (1994); Miles v. Central Appalachian Coal Co., 7 B.L.R. 1-744
(1985); Stanley v. Eastern Associated Coal Corp., 6 B.L.R. 1-1157 (1984) (opinion by
the West Virginia Occupational Pneumoconiosis Board of a "15% pulmonary functional
impairment" is relevant to disability but not binding).
M. Medical literature and studies
In LaBelle Processing Co. v. Swarrow, 72 F.3d 308 (3d Cir.
1996), the court rejected Employer's reliance on the Surgeon General's Report in support of a
finding that coal workers' pneumoconiosis does not progress in the absence of continued
exposure. While the Third Circuit noted that the report states that "'[s]imple (coal workers'
pneumoconiosis) does not progress in the absence of further exposure,'" it concluded that
the report "addressed only the progressive nature of clinical
pneumoconiosis." In this vein, the court stated that the legal definition of pneumoconiosis
is broader and includes chronic pulmonary diseases such as chronic bronchitis. With regard to
chronic bronchitis, the court found "[s]ignificantly, the Surgeon General's Report discusses
chronic bronchitis caused by coal dust exposure but at no point suggests that industrial chronic
bronchitis cannot progress in the absence of continuing dust exposure." See also
Peabody Coal Co. v. Spese, 117 F.3d 1001 (7th Cir. 1997) (the Seventh Circuit accepted the
Benefits Review Board's rejection of the Surgeon General's report as supportive of the
proposition that coal workers' pneumoconiosis does not progress in the absence of continued
exposure).
VII. Autopsy reports
[ IV(D)(7) ]
Autopsy evidence is the most reliable evidence of the existence of
pneumoconiosis. Terlip v. Director, OWCP, 8 B.L.R. 1-363 (1985). See also
Peabody Coal Co. v. McCandless, 255 F.3d 465 (7th Cir. 2001).
A. Principles of weighing autopsy
evidence
1. Performing
the autopsy
versus review
of the
slides
Greater weight may be accorded to a physician who performs the autopsy
over one who reviews the autopsy slides. Similia v. Bethlehem Mines Corp., 7 B.L.R.1-
535 (1984); Cantrell v. U.S. Steel Corp., 6 B.L.R. 1-1003 (1984). See also Peabody
Coal Co. v. Shonk, 906 F.2d 264, 269 (7th Cir. 1990); U.S. Steel Corp. v. Oravetz,
686 F.2d 197 (3d Cir. 1982); Gruller v. Bethenergy Mines, Inc., 16 B.L.R. 1-3 (1991) (a
case involving complicated pneumoconiosis). Indeed, the Board has held that autopsy reports
must be accorded significant probative value regarding the existence and degree of
pneumoconiosis because the pathologist who performs the autopsy sees the entire respiratory
system as well as other body systems. Fetterman v. Director, OWCP, 7 B.L.R. 1-688, 1-
691 (1985). In Northern Coal Co. v. Director, OWCP, 100 F.3d 871 (10th Cir. 1996),
the court held that it was proper for the administrative law judge to accord greater weight to the
opinion of an autopsy prosector over the opinions of reviewing pathologists.
On the other hand, the Fourth Circuit has held that it is error 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. Bill Branch Coal Corp. v.
Sparks, 213 F.3d 186 (4th Cir. 2000). 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).
It is also noted that, if the opinion of one who reviews the autopsy slides
conflicts with that of the prosector, then the report must contain evidence indicating whether the
tissue samples were representative of the total lung condition and whether they were properly
prepared and stored, which has an impact upon their value as valid samples. McLaughlin v.
Jones & Laughlin Steel Corp., 2 B.L.R. 1-103, 1-109 (1979).
The Seventh Circuit has also held that it is error to accord more weight to a
prosector's opinion over the opinion of a reviewing pathologist. In Peabody Coal Co. v.
McCandless, 255 F.3d 465 (7th Cir. 2001)8 , the ALJ accorded greater weight to the opinion of an autopsy prosector, who
found anthracotic pigment with reactive fibrosis and diagnosed the presence of pneumoconiosis,
over the contrary opinions of reviewing pathologists. While the Seventh Circuit held that
autopsy evidence was the most probative evidence of the presence of pneumoconiosis, it
disagreed with the ALJ's weighing of such evidence and stated the following:
A scientific dispute must be resolved on scientific grounds, rather than by
declaring whoever examines the cadaver dictates the outcome. (citation omitted).
If there were a medical reason to believe that visual scrutiny of gross attributes is
more reliable than microscopic examination of tissue samples as a way to
diagnose pneumoconiosis, then relying on the conclusions of the prosector would
be sensible. But neither the ALJ nor the BRB made such a finding. The mine
operator contends--and on this record we have no reason to doubt--that examining
tissue samples under a microscope and testing them for silica, is the best way to
diagnose black lung disease. What we have, therefore, is a conflict among
physicians based on their analysis of tissue samples. Bockelman's visual
examination of the whole lung played little or no role.
The court stated that "[b]ad science is bad science, even if offered by the first expert to
express a view" and that it is incumbent upon the ALJ to use his or her expertise to
evaluate technical evidence. In this vein the court noted that "[a]n agency must act like an
expert if it expects the judiciary to treat it as one."
2. Opinion of
autopsy
prosector
versus review
of
findings
It is reasonable to assign greater weight to the opinion of the physician who
performs the autopsy over the opinions of others who review his or her findings without
reviewing the slides. Terlip v. Director, OWCP, 8 B.L.R. 1-363 (1985); Fetterman
v. Director, OWCP, 7 B.L.R. 1-688 (1985).
B. Quality standards
An autopsy report should be found in compliance with the quality
standards unless there is good cause to believe that the autopsy report is not accurate or that the
condition of the miner is being fraudulently represented. McLaughlin v. Jones & Laughlin
Steel Corp., 2 B.L.R. 1-103, 1-108 (1979). See 20 C.F.R. § 718.106 (2000).
[ENDNOTES]
1 The amended provisions at 20 C.F.R. Part
725 are applicable to claims filed after January 19, 2001. These provisions do not apply to petitions for
modification (§ 725.310) or subsequent claims (§ 725.309) pending on January 19, 2001.
2 See also 64 Fed. Reg. 54,969
(Oct. 8, 1999) and 62 Fed. Reg. 3,341 (Jan. 22, 1997) (regulatory history to support the failure to promulgate the
"true doubt" rule was purposeful).
3 The amended regulations provide that
the provisions at 20 C.F.R. Part 718 should be applied to all cases currently pending, as well as claims filed on or
after January 19, 2001, as these provisions merely reflect current agency interpretations.
4 For x-ray evidence developed after
January 19, 2001, see the discussion of quality standards in this Chapter, supra.
5 For blood gas studies conducted on or
after January 19, 2001, see the discussion regarding quality standards in this Chapter, supra.
6 For medical reports generated on or
after January 19, 2001, the amended regulations provide that such reports must be in "substantial
compliance" with certain quality standards. See the discussion of quality standards in this Chapter,
supra.
7 It is noted that the Seventh Circuit
does not mention the amended regulations in its decision.
8 It is noted that the Seventh Circuit
does not mention the amended regulations in its decision.
