2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-25-2002

Marcella Kosik v. Director OWCP

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3176

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Marcella Kosik v. Director OWCP" (2002). 2002 Decisions. Paper 440.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/440
 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 01-3176 

 

 MARCELLA KOSIK, 

 (Widow of GEORGE M. KOSIK), 

 Petitioner 

 v. 

 DIRECTOR, OFFICE OF WORKERS’ COMPENSATION 

 PROGRAMS, UNITED STATES DEPARTMENT OF LABOR 

 

On Petition for Review of a Decision and Order of the 

Benefits Review Board, United States Department of Labor 

 (BRB No. 00-0923 BLA) 

 

 Argued March 7, 2002 

 Before: SCIRICA and COWEN, Circuit Judges, 

 RESTANI, Judge, United States Court of International Trade 

 (Filed: July 25, 2002) 

 GEORGE E. MEHALCHICK, ESQUIRE (ARGUED) 

Lenahan & Dempsey 

Kane Building, Suite 400 

116 North Washington Avenue 

Scranton, Pennsylvania 18503-0234 

 Attorney for Petitioner 

RITA ROPPOLO, ESQUIRE (ARGUED) 

JEFFREY S. GOLDBERG, ESQUIRE 

PATRICIA M. NECE, ESQUIRE 

United States Department of Labor 

Office of the Solicitor 

Suite N-2117 

200 Constitution Avenue, N.W. 

Washington, D.C. 20210 

 Attorneys for Respondent 

 

 OPINION OF THE COURT 

 

RESTANI, Judge. 
 This matter is before this court on Marcella Kosik’s petition of review of a 

decision and order of the Benefits Review Board of June 15, 2001, affirming a decision 

and order of an administrative law judge ("ALJ") of May 16, 2000. The ALJ denied her 

claim for survivor’s benefits under the Black Lung Benefits Act, as amended, 30 U.S.C. 

 910-934, on the grounds that pneumoconiosis did not contribute to the death of her 

husband, George Kosik ("decedent"). 

 We have jurisdiction over this black lung benefits appeal pursuant to 30 U.S.C. 

 932(a). See Lukosevicz v. Director, OWCP, 888 F.2d 1001, 1003 (3d Cir. 1989). 

We review the Board’s decision for errors of law and to ensure that the Board has 

adhered to its scope of review. See Oravitz v. Director, OWCP, 843 F.2d 738, 739 (3d 

Cir. 1988). Therefore, we must conduct an independent review of the record and "decide 

whether the ALJ’s findings are supported by substantial evidence." Sun Shipbuilding & 

Dry Dock Co. v. McCabe, 593 F.2d 234, 237 (3d Cir. 1979). "’Substantial evidence’ has 

been defined as ’more than a mere scintilla. It means such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.’" Kowalchick v. 

Director, OWCP, 983 F.2d 615, 620 (3d Cir. 1990) (internal quotation marks and 

citations omitted). 

 The ALJ and the Board set forth the background of the matter in their respective 

decisions, so we need not go into great detail here. In short, decedent worked as a coal 

miner from 1943 until 1972 and as a carpenter from 1972 until his retirement in 1993 at 

age 65. He filed claims for black lung disability benefits in 1986 and again in 1990, but 

his claims were denied because the medical evidence showed that he suffered from only 

a minor respiratory condition. On November 13, 1996, decedent was hospitalized after 

suffering a stroke. After eight days in the hospital, his family decided against pursuing 

aggressive measures and authorized his removal from the ventilator. He died on 

November 23, 1996. 

 On March 4, 1998, Mrs. Kosik filed a claim for survivor’s benefits under the 

Black Lung Benefits Act, asserting that coal worker’s pneumoconiosis hastened her 

husband’s death. On December 13, 1999, Administrative Law Judge Ainsworth Brown 

held a hearing, and on May 16, 2000, he issued an 11-page opinion denying petitioner’s 

claim for survivor’s benefits. See Kosik v. Director, OWCP, 1999-BLA-00235 (May 16, 

2000) (App. 21A-32A). On June 15, 2001, the Benefits Review Board affirmed the 

ALJ’s decision, concluding that it was supported by substantial evidence in the record. 

See Kosik v. Director, OWCP, BRB No. 00-0923 BLA (June 15, 2001) (App. 13A20A). 

 To be entitled to survivor’s benefits, petitioner must prove that her husband’s 

death was "due to pneumoconiosis" arising out of his employment in coal mines. 30 

U.S.C. 901(a). See also 20 C.F.R. 718.1. The regulations provide that "death will be 

considered due to pneumoconiosis" if "pneumoconiosis was a substantially contributing 

cause or factor leading to the miner’s death." 20 C.F.R. 718.205(c)(2). We held in 

Lukosevicz, 888 F.2d at 1006, that pneumoconiosis is a "substantially contributing 

cause" of death if it "actually hasten[s] the miner’s death." The Board affirmed the 

ALJ’s finding that decedent’s pneumoconiosis was too mild to have caused his death. 

Petitioner contends, however, that the ALJ erred in relying on the opinion of a reviewing 

physician instead of the opinions of three treating physicians in concluding that 

decedent’s pneumoconiosis was not a "substantially contributing cause" of death. 

 Petitioner’s argument is based largely on the faulty premise that medical 

opinions of treating physicians must be given greater weight than opinions of reviewing 

physicians. See Br. of Pet’r at 14, 15. To the contrary, the ALJ "is not bound to accept 

the opinion or theory of any medical expert, but may weigh the medical evidence and 

draw its own inferences." Director, OWCP v. Siwiec, 894 F.2d 635, 639 (3d Cir. 1990) 

(quoting Markus v. Old Ben Coal Co., 712 F.2d 322, 326 (7th Cir. 1983)). Indeed, we 

have refused to automatically credit the opinions of treating physicians, concluding that 

"the ALJ may permissibly require the treating physician to provide more than a 

conclusory statement." Lango v. Director, OWCP, 104 F.3d 573, 578 (3d Cir. 1997). 

Rather than simply accept a medical opinion, the ALJ must analyze the medical opinion 

to determine whether it is well supported and well reasoned. 

 The mere fact that an opinion is asserted to be based upon medical 

 studies cannot by itself establish as a matter of law that it is documented 

 and reasoned. Rather, that determination requires the factfinder to 
 examine the validity of the reasoning of a medical opinion in light of 

 the studies conducted and the objective indications upon which the 

 medical opinion or conclusion is based. 

Siwiec, 894 F.2d at 639 (quoting Director, OWCP v. Rowe, 710 F.2d 251, 255 (6th Cir. 

1983)) (internal footnote omitted). 

 Petitioner relies on Mancia v. Director, OWCP, 130 F.3d 579 (3d Cir. 1997), to 

support her position that the ALJ was required to credit the opinions of the treating 

physicians over the opinion of the reviewing pathologist. Her interpretation of the case, 

however, is flawed. In Mancia, the ALJ followed the medical conclusion of a nontreating physician instead of that of a treating physician in denying survivor’s benefits to 

the widow of a deceased coal miner. See id. at 593. We reversed the Board’s affirmance 

of the ALJ’s decision, concluding that the non-treating physician’s report which served 

as the sole basis for the ALJ’s decision was "inconsistent on its face" and was 

contradicted by the totality of the record evidence. Id. at 590-93. 

 As respondent argues in his brief, Mancia does not hold that a conclusory or 

insufficiently supported opinion of a treating physician always outweighs an opinion of a 

non-treating physician. Instead, Mancia provides that an unsupported opinion of a 

treating physician may outweigh an opinion of a non-treating physician if the latter 

opinion is contradicted by the objective medical evidence in the record. The factual 

situation in Mancia is distinguishable from the instant case: the medical opinion of the 

non-treating physician, Dr. Perper, is contradicted only by the opinions of Drs. Druffner, 

Pelczar, and Koval, not by the objective medical evidence found in the record. In fact, 

Mancia actually supports the ALJ’s decision to credit Dr. Perper’s conclusions over the 

treating physicians’ opinions, for the court explicitly stated in Mancia that "there may be 

situations where the nature of a non-treating physician’s report is sufficient, in context 

with all the other evidence in the case, to support a conclusion that is contrary to the 

opinion of a treating physician." Id. at 591. This case appears to be such a situation. 

 Petitioner also contends that the ALJ erred by "ignoring" the medical opinions 

of Drs. Druffner, Pelczar, and Koval that pneumoconiosis hastened decedent’s death. Br. 

of Pet’r at 12. Her argument, however, is without merit. The ALJ considered each 

doctor’s opinion but critically analyzed them in light of other medical evidence in the 

record namely, the medical evidence relating to the existence and extent of the 

decedent’s pneumoconiosis and Dr. Perper’s detailed, twenty-one page report. The ALJ 

neither blindly rejected the reports of Drs. Druffner, Pelczar, and Koval nor irrationally 

followed the analysis of Dr. Perper. Instead, he explained in a detailed and wellreasoned fashion why the opinions of the three treating physicians were not as persuasive 

as the opinion of Dr. Perper. 

 For instance, the ALJ observed that the treating physicians overstated the 

severity of decedent’s respiratory condition. See App. 28A-29A. The ALJ determined 

that the medical evidence - including an inconclusive chest x-ray on April 20, 1995; the 

most recent pulmonary function study on April 24, 1995, which showed only a "mild 

restriction"; decedent’s previous denials of black lung benefits because he suffered from 

only a mild respiratory condition; and the autopsy report’s diagnosis of "simple coal 

worker’s pneumoconiosis" - demonstrated that the decedent’s pneumoconiosis was mild. 

The ALJ reasonably concluded, therefore, that the opinions of the treating physicians 

were based on faulty assumptions about the severity of decedent’s pneumoconiosis before 

he died, which undermined the persuasiveness of their conclusions that the condition 

hastened his death. 

 The ALJ further discounted Dr. Druffner’s opinion because he did not explain 

how decedent’s pneumoconiosis contributed to his death, but instead simply stated that 

the condition made survival less likely and shortened his life. As the ALJ explained, a 

diagnosis of pneumoconiosis is not sufficient to carry the claimant’s burden of proving 

that death is hastened by it. The ALJ also concluded that Dr. Druffner’s opinion was 

undermined by his attempt to minimize the effect of the stroke on the decedent’s 

condition. The ALJ instead accepted Dr. Perper’s conclusion that decedent died of a 

massive stroke accompanied by terminal bronchopneumonia. The ALJ’s choice is further 

supported by the fact that Dr. Perper is a well-credentialed, board-certified forensic 

pathologist and Dr. Druffner is neither board-certified nor an internist, pulmonologist, or 

pathologist. 

 The ALJ also explained that he found Dr. Pelczar’s conclusions to be less 
convincing than Dr. Perper’s analysis insofar as Dr. Pelczar, who did not treat decedent 

during his final hospitalization, merely relied on Dr. Druffner’s death certificate and the 

limited autopsy report to form his conclusions, whereas Perper not only considered these 

items, but also examined autopsy slides of decedent’s lung tissue and reviewed all of the 

medical evidence in the record. See App. 29A-30A. The ALJ also rejected Dr. Pelczar’s 

conclusory finding that decedent’s "weakened lungs" were unable to sustain life. 

App. 29A. He found more convincing Dr. Perper’s explanation that decedent’s 

respiratory failure was brought on by terminal pneumonia, which is a common 

complication of cerebro-vascular coma and brainstem infarction. Along the same vein, 

the ALJ gave no weight to Dr. Koval’s opinion and "spare analysis" that decedent’s 

pneumoconiosis caused "retained secretions" and bronchopneumonia, which directly led 

to respiratory failure. App. 29A. Instead, he was persuaded by Dr. Perper’s opinion that 

the bronchopneumonia was caused by the stroke itself. The ALJ also determined that Dr. 

Koval’s opinion was impeached by Dr. Perper’s report, which explained that Dr. Koval 

could not have arrived at his diagnosis by simply conducting a physical examination of 

decedent after he was comatose and experiencing Cheynes-Stoke respiration. 

 Petitioner also characterizes the ALJ’s evaluation of the relevant medical 

evidence as "unexplained attacks" on the opinions of Drs. Druffner, Pelczar, and Koval. 

Br. of Pet’r at 11. Notwithstanding petitioner’s assertion, the ALJ’s critical analysis of 

the opinions rendered by the treating physicians cannot be characterized as "attacks." 

The ALJ was obligated "to examine the validity of the reasoning of [the] medical opinion 

in light of the studies conducted and the objective indications upon which the medical 

opinion or conclusion is based." Rowe, 710 F.2d at 255. Moreover, as already noted 

above, the ALJ’s evaluation of the treating physicians’ opinions hardly can be described 

as "unexplained," for the ALJ explains in significant detail why he has given little weight 

to opinions of the treating physicians. 

 In the end, having concluded that the ALJ committed no errors of law, we must 

determine whether the ALJ’s decision was based on substantial evidence. Accordingly, 

our task is not to conduct a de novo review of the evidence, but instead to determine 

whether a reasonable mind might conclude that the medical evidence is adequate to 

support the ALJ’s ruling. After carefully reviewing the briefs and the record, we find 

that although there is a conflict among the medical opinions regarding whether 

pneumoconiosis contributed to the death of petitioner’s husband, the ALJ properly and 

thoroughly evaluated all of the relevant evidence, and his conclusion that decedent’s 

death was not hastened by pneumoconiosis was supported by substantial evidence. 

Moreover, we also find that the Board appropriately deferred to the ALJ’s factual 

findings. Therefore, inasmuch as we find that there is substantial evidence to support the 

ALJ’s conclusion that petitioner failed to meet the burden of proving that her husband’s 

death was "due to pneumoconiosis," we will affirm the Board’s decision. 

 For the foregoing reasons, we will deny the petition for review of the decision 

and order of the Benefits Review Board issued on June 15, 2001. 

TO THE CLERK: 

 Please file the foregoing opinion. 

 /s/ Jane A. Restani 

 Judge 

 

Marcella Kosik (Widow of George M. Kosik) v. Director, OWCP, et al. 

No. 01-3176 

 

SCIRICA, Circuit Judge, dissenting. 

 The Black Lung Benefits Act is a remedial measure. Lukosevicz v. Dir., 

OWCP, 888 F.2d 1001, 1006 (3d Cir. 1989). Pneumoconiosis "is a serious and 

progressive pulmonary condition popularly known as ’black lung.’" Mullins Coal Co. of 

Va. v. Dir., OWCP, 484 U.S. 135, 138 (1987). It is "a chronic dust disease of the lung 

and its sequelae, including respiratory and pulmonary impairments, arising out of coal 

mine employment." 30 U.S.C. 902(b) (1986). Pneumoconiosis that hastens death in 
any way qualifies as a substantial cause of death and dictates the award of benefits. 

See Mancia v. Dir., OWCP, 130 F.3d 579, 585 (3d Cir. 1997). 

 George Kosik worked in coal mines for twenty nine years. As a result, 

he suffered from pneumoconiosis. Kosik was treated for respiratory problems by Drs. 

Lewis Druffner, Eugene Pelczar and Joseph Koval. Dr. Druffner treated Kosik for 

sixteen years, Dr. Pelczar for six years, and Dr. Koval during his final hospitalization. 

All three treating physicians opined that after suffering a stroke, pneumoconiosis 

hastened Kosik’s death. Dr. Joshua Perper, a non-treating physician retained by the 

Department of Labor to review the medical records and autopsy slides, opined Kosik’s 

pneumoconiosis was too mild to have hastened his death. Dr. Perper concluded that 

"Kosik died of a massive cerebro-vascular incident (massive brain stem infarct) with 

terminal mild bronchopneumonia." Finding Dr. Perper’s opinion persuasive, the ALJ 

denied survivor benefits. 

 The record contains uncontradicted evidence of a history of shortness of breath 

and pulmonary disease. In 1983, thirteen years before his November 1996 

hospitalization, Kosik suffered from shortness of breath upon exertion. Dr. Pelczar, 

who treated Kosik on a monthly basis from 1990 to 1996, stated that Kosik "was 

consistently short of breath" and as a result, he proscribed "Aminophylline 200 mg to be 

taken three times daily as needed." Kosik underwent pulmonary function studies in 1990 

and 1995. These studies consistently showed abnormal results in pulmonary lung 

restriction, demonstrating restrictive lung disease. Kosik had a weakened pulmonary 

reserve before he had the stroke in 1996. 

 Kosik was admitted to the hospital on November 13, 1996, following "the 

abrupt onset of unresponsiveness." The next day, "[i]ncreased respiratory secretions 

occurred requiring suctioning." On November 19, "there was an abrupt deterioration in 

his respiratory status and he was intubated and placed on a ventilator and returned to the 

Intensive Care Unit." On November 21, the family decided not to pursue aggressive 

measures. Kosik died on November 23, 1996. 

 The autopsy of Kosik’s lungs revealed "thick mucus" as well as "marked 

anthracoctic markings" and "silica crystals" consistent with "simple coal worker’s 

pneumoconiosis." The discharge summary listed "1. Brain Stem Infarct 2. Acute 

Respiratory Failure 3. Chronic Obstructive Pulmonary Disease Secondary to 

Anthracosilicosis 4. Arteriosclerotic Cardiovascular Disease 5. Diabetes Mellitus, 

Recent Onset, Type I" as the final diagnosis. Kosik’s treating physicians established a 

nexus between Kosik’s lung capacity as they observed it through physical examination 

and clinical studies, and his capacity to survive after suffering a stroke that impacted his 

lungs. Dr. Koval, who examined and treated Kosik during his final days, concluded, 

 [B]ased on my physical examination and in hospital care of Mr. Kosik, 

 as well as my review of the autopsy findings, that anthrasilicosis 

 directly contributed to, and hastened his death. Patients with 

 anthrasilicosis which causes chronic obstructive pulmonary disease, 

 cannot cough effectively and therefore cannot effectively clear their 

 pulmonary secretions. The end result is death due to respiratory failure. 

 This is exactly what happened to Mr. Kosik in the period after he 

 suffered his stroke. 

 The ALJ largely based its decision on Dr. Perper’s expert opinion. As noted, 

Dr. Perper concluded that Kosik’s pneumoconiosis was too mild to hasten Kosik’s death. 

Although Dr. Perper’s opinion was otherwise comprehensive, he did not explain this 

conclusion nor discuss Kosik’s pre-existing lung restrictions and his weakened 

pulmonary reserve in relation to the secretions in his lungs which necessitated suctioning, 

intubation, and mechanical ventilation. This is particularly troubling in light of the fact 

that all three treating physicians came to a different conclusion than Dr. Perper. 

Furthermore, there was insufficient evidence in the record to counter the opinions that 

Kosik’s death was hastened by his pneumoconiosis and that he did not die solely as the 

result of a brain stem infarct. Viewing the record as a whole, the grounds cited in 

support of the ALJ’s conclusion do not amount to substantial evidence. 

 We have noted that "courts have repeatedly recognized that the remedial nature 

of the statute requires a liberal construction of the Black Lung entitlement program to 

ensure widespread benefits to miners and their dependents." Keating v. Dir., OWCP, 71 
F.3d 1118 (3d Cir. 1995) (citation omitted). Kosik worked in the coal mines for nearly 

three decades and developed pneumoconiosis. "[C]oal workers’ pneumoconiosis . . . is a 

dreadful and insidious disease which interferes with the respiratory functions of its 

victims, and which slowly and progressively makes the very act of breathing more and 

more difficult." Curse v. Dir., OWCP, 843 F.2d 456, 457 (11th Cir. 1988) (quoting 124 

Cong. Rec. S2,333 (daily ed. Feb. 6, 1978) (statement of Sen. Williams)). 

 Kosik experienced more than a decade of breathing problems before his death. 

Kosik’s spouse, physician-son, Dr. Druffner, Dr. Pelczar and Dr. Koval all observed 

increased breathing problems up to the time of Kosik’s death. Kosik’s pulmonary 

function studies revealed restrictive lung disease. After suffering a stroke, Kosik’s lungs 

eventually filled with mucus that could not be cleared without suctioning, intubation and 

mechanical ventilation. The physicians that examined, tested and treated Kosik while he 

was alive concluded that his pneumoconiosis hastened his death. By contrast, Dr. 

Perper’s conclusion to the contrary is insufficiently explained or supported by the record. 

 For these reasons, I would find the ALJ’s decision was not supported by 

substantial evidence in the record. I would reverse the judgment of the Board affirming 

the ALJ’ s denial of survivor benefits and remand for the limited purpose of awarding 

survivor’s benefits.