UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SARAH JANE BROOKS, Widow of

Clyde M. Brooks,

Petitioner,

v.

No. 95-1121

W. P. COAL COMPANY; DIRECTOR,

OFFICE OF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(93-0274-BLA)

Submitted: October 3, 1995

Decided: April 4, 1997

Before WILKINSON, Chief Judge, and HALL and

WILLIAMS, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Sarah Jane Brooks, Petitioner Pro Se. Konstantine Keian Weld,

OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,

Charleston, West Virginia; Patricia May Nece, Sarah Marie Hurley,

UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,

for Respondents.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Sarah Jane Brooks, the widow of Clyde Brooks, petitions for

review of an order of the Department of Labor's Benefits Review

Board (BRB) affirming the denial of her claim for survivor's benefits

under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945. Because

the administrative law judge's analysis fails to take into full account

an evidentiary concession made by the respondent operator, we are

unable to discern whether the decision rests on substantial evidence.

Accordingly, we remand the claim for reconsideration.

I.

Clyde Brooks labored in the Nation's coal mines for 41 of his 61

years. In addition to coal dust, his lungs were subjected to cigarette

smoking (two packs per day) for fourteen years (1946 through 1960).

In 1975, based on a finding that he suffered from occupational pneumoconiosis, he received a twenty percent permanent disability award

under West Virginia's worker's compensation system. On February

29, 1988, at the age of sixty, he suffered a heart attack, which necessitated bypass surgery and ended his working days. He filed a claim for

federal black lung benefits, but it was denied in March 1989 because

he failed to prove that he was totally disabled by the disease.

On November 26, 1989, at Myrtle Beach, South Carolina, Brooks

developed acute respiratory failure. He was hospitalized there, and

was later transferred to the care of his treating physician, Dr. Crotty,

in Charleston, West Virginia.

Dr. Crotty's admission diagnoses were coronary disease, coal

worker's pneumoconiosis, pulmonary fibrosis, and rheumatoid arthritis. Brooks went into cardiopulmonary arrest on November 30, 1989;

he was resuscitated, but his condition was hopeless. Upon learning

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that he suffered from irreversible right-side heart failure, his family

requested that he not be resuscitated again. Brooks succumbed on

December 17, 1989. Dr. Crotty listed the immediate cause of death

as cardiopulmonary arrest, caused in turn by pneumonia, pulmonary

fibrosis, and rheumatoid arthritis.

An autopsy was performed by Dr. Cuadra. He diagnosed (i) severe,

diffuse bronchopneumonia of both lungs, with severe bronchiectasis

and empyema of the right lung; (ii) focal interstitial fibrosis, emphysema, and fibrosing alveolitis; (iii) simple coal workers' pneumoconiosis with emphysema; (iv) severe fibrosis of the right pleura; (v)

status post coronary artery bypass surgery for severe coronary artery

disease; (vi) old myocardial infarction of the posterolateral wall of the

left ventricle; and (vii) generalized visceral congestion as the terminal

event.

Brooks' widow then filed this claim for survivor's benefits under

the Black Lung Benefits Act. A hearing on the claim was held before

an administrative law judge (ALJ). At the outset of this hearing, the

respondent operator conceded the presence of "pneumoconiosis" as

defined by the Act and implementing regulations.

All x-rays that were admitted were positive for simple pneumoconiosis, and, as we noted above, Dr. Cuadra's autopsy also found the

disease present. On the other hand, Dr. Zaldivar and Dr. Fino criticized the autopsy's finding of pneumoconiosis. Dr. Zaldivar stated:

 The pathologist did not describe any findings compatible

with CWP [coal worker's pneumoconiosis][;] therefore

there is no indication in the microscopic examination that

CWP is present at all. The term anthracosis means black

pigment which in itself is not specific for coal[worker's]

pneumoconiosis. There is no description of macules. Apparently rheumatoid arthritis was present. It can produce pulmonary fibrosis and bronchiectasis. The diagnosis of

emphysema apparently was made from the gross tissue and

not microscopic exam. The emphysema was described as

multifocal, i.e. patchy [and] not to be confused with the

focal emphysema surrounding macules in CWP.

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 This report should be sent back to the pathologist for clarification. As it stands there is no tissue evidence of CWP

and therefore no contribution of CWP to death. Death was

caused by pneumonia, pulmonary fibrosis and empyema and

bronchiectasis all unrelated to coal workers pneumoconiosis.

Dr. Fino sounded a similar theme. He conceded that Dr. Cuadra had

described "anthracosis" and that anthracosis"is a deposition of carbon

or coal dust within the lungs," but, like Dr. Zaldivar, he was insistent

on the presence of coal macules for a diagnosis of pneumoconiosis

(emphasis added):

 [Anthracosis] is not synonymous with the diagnosis of

coal workers' pneumoconiosis. In fact, to make a diagnosis

of coal workers' pneumoconiosis, one must have coal dust

pigment engulfed by microphages surrounded by perifocal

emphysema and fibrosis. The lesion that is necessary for the

diagnosis of coal workers' pneumoconiosis is the coal

macule.

From this finding, Dr. Fino could only conclude that"coal workers'

pneumoconiosis" did not contribute to Brooks' death. He did, however, also give an alternative opinion that the disease, even if present

in the degree noted by the autopsy, would not have hastened death.

The ALJ denied benefits, finding that Mrs. Brooks had failed to

establish that pneumoconiosis hastened her husband's death. The

BRB affirmed, and Mrs. Brooks petitioned this court for review.

II.

To be entitled to survivor's benefits, Mrs. Brooks must show that

her husband's death was "due to pneumoconiosis." This circuit has

approved the Director's interpretation of the statute and its implementing regulation,1 which requires the claimant to prove that "pneumoconiosis" as defined by the Act actually hastened death in any

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1 20 C.F.R. § 718.205(c).

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way. Shuff v. Cedar Coal Co., 967 F.2d 977, 979-980 (4th Cir. 1992),

cert. denied, 506 U.S. 1050 (1993). We must affirm the decision of

the ALJ if it is in accordance with law and is supported by substantial

evidence. Amigo Smokeless Coal Co. v. Director, OWCP, 642 F.2d

68 (4th Cir. 1981).

Experience has shown that Congress chose poorly when it picked

the word "pneumoconiosis" to denote the broad class of pulmonary

afflictions for which it intended to provide benefits. "Pneumoconiosis" is a word that was already taken, and, moreover, taken by the

very expert witnesses -- physicians and radiologists -- on which the

claims resolution process relies. In insisting upon the presence of coal

macules for a diagnosis of "pneumoconiosis," Drs. Fino and Zaldivar

used the term in the sense natural to them as clinicians.

Unfortunately, use of only the clinical sense of the word leaves

much unaddressed, because Congress defined "pneumoconiosis" as a

broad set of diseases, bound together not by a common pathology but

rather by a common cause: exposure to coal dust. 30 U.S.C. § 902(b).

The current version of the legal definition is found at 20 C.F.R.

§ 718.201:

 For the purpose of the Act, pneumoconiosis means a

chronic dust disease of the lung and its sequelae, including

respiratory and pulmonary impairments, arising out of coal

mine employment. This definition includes, but is not limited to, coal workers' pneumoconiosis, anthracosilicosis,

anthracosis, anthrosilicosis, massive pulmonary fibrosis,

progressive massive fibrosis, silicosis or silicotuberculosis,

arising out of coal mine employment. For purposes of this

definition, a disease "arising out of coal mine employment"

includes any chronic pulmonary disease resulting in respiratory or pulmonary impairment significantly related to, or

substantially aggravated by, dust exposure in coal mine

employment.

Thus, while the opinions of Drs. Fino and Zaldivar may well be

correct as a matter of medicine, they are not necessarily so as a matter

of law. Obviously, "anthracosis" -- mentioned by name in the regulation -- is "pneumoconiosis" if it results in respiratory or pulmonary

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impairment and is "significantly related to[ ] or substantially aggravated by" coal dust exposure. See Barber v. Director, OWCP, 43 F.3d

899, 900-901 (4th Cir. 1995) (Legal definition of pneumoconiosis

applies to "every instance the word is used in the statute and regulations"; autopsy finding of "no typical coal-worker's macules" did not

defeat claim.)

Though the ALJ acknowledged the breadth of the legal definition

in her opinion, there is an additional wrinkle here: the respondent

stipulated that "legal" pneumoconiosis was present. This stipulation

begs two questions, unaddressed and therefore unanswered below: (i)

Which of Brooks' pulmonary afflictions is or are conceded to meet

the legal definition? (ii) Did this affliction or afflictions actually hasten Brooks' death?

Without answers to these questions, the record and the ALJ's reasoning are ambiguous, and we cannot determine whether the denial

of benefits is supported by substantial evidence. 2 Accordingly, we

will remand the claim to the BRB with instructions for a further

remand to the ALJ.

The denial of benefits is vacated, and the claim is remanded for

reconsideration in accordance with this opinion.

VACATED AND REMANDED

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2 Recently, in Richardson v. Director, OWCP, 94 F.3d 164, 166 n.2

(4th Cir. 1996), we observed (citations omitted):

Much confusion . . . stems from the failure of counsel and witnesses to specify, when they use the term "pneumoconiosis,"

whether they are referring to legal or clinical pneumoconiosis,

and from the failure of the ALJ to resolve the conflict when this

ambiguity arises in the record. To make an accurate assessment

of whether the ALJ's decision is supported by substantial evidence, the litigants and the ALJ alike must cooperate to provide

a record free from this ambiguity. As we have observed, clinical

pneumoconiosis is only a small subset of the compensable afflictions that fall within the definition of legal pneumoconiosis

under the Act.

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