Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-24-2002

Consolidation Coal v. Kramer
Precedential or Non-Precedential: Precedential

Docket No. 01-4398




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PRECEDENTIAL

       Filed September 24, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-4398

CONSOLIDATION COAL COMPANY,
Responsible Operator/Petitioner

v.

BEATRICE J. KRAMER, widow of
MARION W. KRAMER, deceased,
Claimant/Respondent

and

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, United States Department of Labor
Party-in-Interest

On Appeal from the Benefits Review Board
U.S. Department of Labor
(BRB Docket No. 01-0118 BLA)

Submitted Under Third Circuit LAR 34.1(a)
July 30, 2002

Before: BECKER, Chief Judge, Roth and Rendell,
Circuit Judges.

(Filed: September 24, 2002)




       WILLIAM S. MATTINGLY, ESQUIRE
       Jackson & Kelly, PLLC
       6000 Hampton Center
       P.O. Box 619
       Morgantown, WV 26507

       Counsel for Petitioner
       Consolidation Coal

       CHERYL CATHERINE COWEN,
        ESQUIRE
       769 Lippencott Road
       Waynesburg, PA 15370

       Counsel for Respondent
       Beatrice J. Kramer, widow of
       Marion W. Kramer, deceased

       HELEN H. COX, ESQUIRE
       PATRICIA M. NECE, ESQUIRE
       United States Department of Labor
       Office of the Solicitor
       Suite N-2117
       200 Constitution Avenue, NW
       Washington, D.C. 20210

       Counsel for Respondent
       Director, Office of Workers’
       Compensation Programs

OPINION OF THE COURT

BECKER, Chief Judge.

Consolidation Coal Company ("Consolidation") petitions
for review of a determination of the United States
Department of Labor Benefits Review Board (the "Board")
that occupational pneumoconiosis hastened the death of
Claimant Beatrice J. Kramer’s deceased spouse, Marion W.
Kramer ("Kramer"), who also suffered from metastasized
colon cancer. Because we conclude that the Board’s
October 10, 2001 Decision and Order affirming the award
to Claimant of survivor’s benefits pursuant to Title IV of the
Federal Coal Mine Health and Safety Act of 1969, as

                                2


amended, 30 U.S.C. SS 901 et seq. (the "Act") was supported
by substantial evidence, including the competent opinion of
the examining forensic pathologist, and was in accordance
with the law, the petition will be denied.

I.

Kramer had more than thirty-three years of coal mine
employment, and the parties have stipulated that he
suffered from occupational black lung disease, a form of
pneumoconiosis.1 During his lifetime, Kramer’s claims for
benefits were denied because testing conducted by
Consolidation’s examining physicians did not establish that
Kramer was "totally disabled" by a respiratory or pulmonary
impairment, as required for lifetime benefits. See 30 U.S.C.
SS 901 et seq.

The Act and its implementing regulations provide
compensation and other benefits to living coal miners and
their dependents where the miner is totally disabled due to
pneumoconiosis, and to miners’ surviving dependents
where death is due to pneumoconiosis. For purposes of the
Act, death is considered due to pneumoconiosis if the
disease was a "substantially contributing cause or factor"
leading to death. 20 C.F.R. S 718.205(c). This term has
been held to encompass situations in which
pneumoconiosis "actually hastened" the miner’s death. See,
e.g., Shuff v. Cedar Creek Coal Co., 

, 980 (4th
Cir. 1992); Lukosevicz v. Director, OWCP, 

,
1004 (3d Cir. 1989) (stating that the test is whether the
black lung disease "even briefly" hastened the miner’s death).2
_________________________________________________________________
1. Pneumoconiosis is a chronic dust disease of the lungs and its
sequelae that includes respiratory and pulmonary impairments. Black
lung disease is a form of pneumoconiosis that arises out of exposure to
coal dust.

2. It should be noted that the parties agreed by briefing to the ALJ that,
as Kramer’s last coal mine work (his final 17 years) was in West Virginia,
the decisions of the Court of Appeals for the Fourth Circuit controlled
this claim. See September 14, 2000 Decision and Order Granting
Benefits at 3. Consolidation appealed to this Court on the basis of
Kramer’s prior employment history in Pennsylvania.

                                3


At the time of his initial application for lifetime benefits
in 1991, Kramer testified that shortness of breath interfered
with his ability to continue employment, prompting his
early retirement at age 55, and Kramer’s internist was of
the opinion that Kramer was disabled by pneumoconiosis.
The administrative law judge’s (the "ALJ") 1992 decision
concluded that Kramer’s alleged shortness of breath was
not totally disabling, based on testing performed by
Consolidation’s physician, Dr. Gregory Fino, whose
diagnosis included pneumoconiosis. See September 14,
2000 Decision and Order Granting Benefits at 7. The last of
Kramer’s non-qualifying pulmonary function and blood gas
studies was administered in 1996, when Kramer filed a
duplicate claim, approximately two-and-one-half years prior
to his death.3 Shortly thereafter, Kramer was diagnosed
with cancer of the colon, which metastasized to his liver
and then to his lungs.

Following Kramer’s death in October, 1998, Dr. Cyril
Wecht ("Wecht") conducted an autopsy, reviewed Kramer’s
medical records, and concluded that Kramer died due to
adenocarcinoma of the sigmoid colon with multiple
metastases. Wecht also concluded that Kramer’s
"moderately severe pneumoconiosis" was a substantial
contributing factor to his death in that the presence of this
secondary disease process further compromised Kramer’s
respiratory function and added to his cardiovascular
burden. Wecht explained that, were it not for the
pneumoconiosis, Kramer’s non-cancerous lung tissue
would have been better able to maintain normal blood gas
exchange, allowing Kramer to compensate for a longer time
for the respiratory burden caused by the lung tumors.
Kramer’s treating surgeon, Dr. Michael Reilly ("Reilly"),
concurred in the conclusion that pneumoconiosis hastened
death, noting that as a result of this condition Kramer’s
lung tissue was less capable of maintaining oxygenation
and CO2 exchange than it otherwise would have been, so
_________________________________________________________________

3. Although they remained within normal limits, Kramer’s pulmonary
function results decreased from a high of 110% of normal to 85% of
normal. See September 14, 2000 Decision and Order Granting Benefits
at 27 (citing deposition testimony of Dr. Fino).

                                4
that Kramer could tolerate and compensate for less"tumor
load" than an individual with otherwise healthy lung tissue.

In the original hearing on Claimant’s request for
survivor’s benefits, Consolidation submitted to the ALJ the
medical opinions of its own pathologists, Drs. Jerome
Kleinerman, Joseph Tomashefski, and Richard Naeye, and
that of a pulmonary disease specialist, Dr. Gregory Fino.4
Each of Consolidation’s experts concluded that Kramer’s
pneumoconiosis did not hasten death. As a basis for this
conclusion each expert cited the absence of clinically
significant lung dysfunction during Kramer’s lifetime and
the premise that Kramer’s pneumoconiosis was a non-
progressive disease, i.e., one that does not worsen after a
miner leaves employment.

In the Decision and Order Granting Benefits, the ALJ
concluded that Kramer’s pneumoconiosis hastened, and
was therefore a substantially contributing factor in,
Kramer’s death, pursuant to 20 C.F.R. S 718.205(c)(2).5 In
so holding, the ALJ discussed the medical evidence in great
detail and declined to accept the lifetime studies as
dispositive. Rather, the ALJ focused on the evidence of
Kramer’s pulmonary condition near the time of death. In
addition, he expressly accorded less weight to
Consolidation’s experts because of the import they affixed
to the lifetime studies.6 On appeal to the Board,
_________________________________________________________________

4. As discussed above, Dr. Fino performed the lifetime studies which
were the basis of the 1992 denial of Kramer’s claim. At that time, Dr.
Fino diagnosed pneumoconiosis, but the studies did not demonstrate
total disability, as required for lifetime benefits. See supra at 2.
5. See September 14, 2000 Decision and Order Granting Benefits at 36
(accepting as viable the theory that "a [m]iner’s condition can be so
weakened that he had a susceptibility caused by pneumoconiosis that
hastened death"); 

n.16 (citing Kirk v. Director, OWCP, 

(4th Cir. 1996) (holding that increased susceptibility can hasten
death because "[d]iseases . . . kill the weak more readily than the
strong").

6. See September 14, 2000 Decision and Order Granting Benefits at 37.
The ALJ also accorded less probative value to these reports because he
found them to be internally inconsistent and inadequately reasoned, and
because they omitted consideration of other physical evidence of
pneumoconiosis, such as enlargement of the right side of the heart and
clubbing of the fingers. These conclusions are discussed in detail
throughout the Decision and Order Granting Benefits. See 

contended, as it does before this Court, that
the ALJ erred in his weighing of the medical evidence and
substituted his own judgment for that of the medical
experts. The Board rejected these contentions in toto and
affirmed Claimant’s entitlement to survivor’s benefits. We
have appellate jurisdiction in this matter pursuant to 20
C.F.R. S 410(a).

II.

The determinations of the Benefits Review Board are
reviewed only "for error of law and to assure . .. that it has
properly adhered to its scope of review." Walker v. Universal
Terminal and Stevedoring Corp., 

, 172 (3d Cir.
1981). The decision of the administrative law judge must be
affirmed by the Board if it is supported by substantial
evidence and is in accordance with the law. See 33 U.S.C.
S 921(b)(3); 30 U.S.C. S 932(a); 20 C.F.R. S 802.301; see
also O’Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 

(1965); Oravitz v. Director, OWCP, 

,
739 (3d Cir. 1988).7 Appellate review thus necessarily
entails an independent review of the record and a decision
as to whether the administrative law judge’s findings were
supported by substantial evidence. 

. Substantial evidence is defined as such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion. See Richardson v. Perales , 

, 401 (1991); 

.

A claimant is entitled to survivor’s benefits pursuant to
20 C.F.R. S 718.205(c) if she demonstrates by a
preponderance of the evidence that the miner had
pneumoconiosis arising from his employment and that the
pneumoconiosis was a substantial contributing cause or
factor in -- defined as one which hastened -- the miner’s
_________________________________________________________________

7. In reaching his decision, the administrative law judge has discretion
to accord varying weight to physician testimony. See 20 C.F.R.
S 718.206; Kertesz v. Crescent Hills Coal Co., 

(3d Cir.
1986) (noting that an administrative law judge is not bound to accept the
opinion or theory of any medical expert, but may weigh the medical
evidence and draw his own inferences).

                                6


death. See 20 C.F.R. SS 718.205(a)(1)-(3), (c)(2), (4) and (5);
see also supra p. 3.

III.

Consolidation first asserts that all evidence attributable
to Wecht should have been disregarded because Wecht
failed to include a uniquely detailed description of his
microscopic findings in his autopsy report. The microscopic
findings portion of that report simply referred to findings
consistent with the gross autopsy report;8 in addition, a
supplemental report contained a detailed, though
standardized, description of his microscopic findings.9
Consolidated asserts that Wecht’s use of a reference to
findings consistent with the gross autopsy in his autopsy
report, and his use of a standard description of microscopic
findings in supplemental reports on pneumoconiosis, do
not comply with statutory requirements and constitute a
"fail[ure] to provide a meaningful microscopic description"
of Kramer’s lung tissue. See Consolidation’s Brief in
_________________________________________________________________

8. Wecht testified that the microscopic portion of the autopsy report
referred to findings that confirmed the gross autopsy, and that he only
includes additional detail in the microscopic description if microscopic
examination reveals findings in addition to those already reflected in the
gross autopsy. In this case, the gross autopsy report encompassed
Kramer’s black lung disease as, for example, in the description of the
lungs as having an "intervening pulmonary parenchyma show[ing] black
anthracotic markings and small nodules, which [were] separate and
discrete from the large tumor masses." See JA 011-012.

9. Wecht wrote:

       The microscopic autopsy slides which I have prepared show diffuse
       depositions of black anthracotic pigment in the peribronchiolar and
       periarteriolar lymphatics. Ruptured alveolar walls, consistent with
       pulmonary emphysema, pulmonary fibrosis, thickening of the pleura
       with subpleural deposits of anthracotic pigment, fibroanthracotic
       and fibrohyaline macules and micronodules, and fibroanthracosis
       and fibrohyalinization of mediastinal and peribronchial lymph
       nodes, are also noted. In addition, examination of lung tissue under
       polarized light reveals scattered birefringent crystals, consistent with
       silica. All these findings in the lungs are compatible with the
       antemortem history and a clinical diagnosis of pneumoconiosis.

Director’s Exhibit 13 at 2.

                                7


Support of Petition for Review at 9; 20 C.F.R. S 718.106(a)
(requiring that an autopsy report include a "detailed gross
macroscopic and microscopic description" of the lung). The
ALJ and the Board found that the autopsy report was
"consistent in form with the regulation." October 19, 2001
Decision and Order at 8 (citing Dillon v. Peabody Coal Co.,
11 BLR 1-113, 114-15 (1988)).

In Dillon, the Board held that "while the[ALJ] should
consider the quality standards found in Section 718.106,
the standards are not mandatory, and autopsy or biopsy
reports cannot be mechanically precluded from
consideration . . . solely because [of failure] to comply with
those standards." To the contrary, in reviewing the autopsy
evidence, the ALJ "should determine whether the missing
information is essential to the reliability or the probative
value of the report" and, where such information is non-
essential, the ALJ may consider and accept the report. The
Board held that this determination "can only be made by
the [ALJ], as fact-finder, based on the unique facts of each
case" and that the ALJ is not limited to "the four corners"
of the autopsy report in determining its reliability, but "may
look to other supportive documents in the record in an
attempt to cure any defects in the actual report." 

regulations require that the report include
a microscopic description of the lungs, they contain no
express requirements regarding the form or nature thereof.
Here, the autopsy report stated that the microscopic
findings were "consistent with", i.e., confirmed, the gross
autopsy findings, and incorporated by reference the detailed
findings contained elsewhere in the report. The report
therefore complied with the letter of the regulation, and
Consolidation is thus asking this Court to impose
additional formal requirements which both the ALJ and the
Board expressly declined to impose. Most importantly, it
should be noted that there is no suggestion that the
microscopic findings reflected in Wecht’s standardized
language were in any way inaccurate nor that they did not
represent his actual findings in this case. Cf. Director,
OWCP v. Mangifest, 

, 1327 (3d Cir. 1987)
(holding that medical judgment contained in a
noncomplying report may constitute substantial evidence of

                                8


disability if it is reasoned and based on medically
acceptable clinical and laboratory diagnostic techniques).

Each of Wecht’s findings and conclusions was agreed
with by one or more of Consolidation’s medical experts.
Moreover, the microscopic findings on which Consolidation
sought to bar consideration of Wecht’s evidence, including
his testimony, are collateral to Consolidation’s current
disagreement with Wecht’s testimony, which turns on his
finding of causation. That finding was manifestly not
boilerplate, but was specifically explained in the context of
this case. Nothing in the regulations or authority suggests
that a technical deficiency in an autopsy report renders
separate expert opinions delivered by the examining
pathologist incompetent.

Finally, we owe substantial deference to the Board’s
interpretation of its own administrative regulatory
requirements. The Board’s finding that Wecht’s autopsy
report was consistent with the applicable regulation was a
reasonable interpretation of that regulation and,
accordingly, Consolidation’s petition for review will be
denied.10

IV.

Consolidation maintains that the Board’s affirmance of
the ALJ’s decision must be set aside because it was not
supported by substantial evidence. Consolidation’s position,
and that of its experts, is that pneumoconiosis is a non-
progressive disease. Each of Consolidation’s experts cites to
and expressly relies upon Kramer’s continued ability to
_________________________________________________________________

10. Consolidation also asserts that Wecht’s reports and testimony should
have been disregarded because Wecht testified that, in his experience,
where there is evidence of a significant degree of pneumoconiosis, it is a
contributing factor to death in the great majority of cases (approximately
85 to 90%). See Consolidation’s Brief in Support of Petition for Review at
20. Consolidation argues that this testimony evinces a "dogmatic" view
that must be disregarded. See 

To the contrary, an opinion
couched in terms of a range of probability cannot fairly be characterized
as an article of faith. In addition, Wecht’s extensive pathology experience
renders him well qualified to form an opinion with respect to that
probability range.

                                9


complete pulmonary function testing and arterial blood gas
studies with results within normal limits -- testing that
demonstrated no clinically significant impairment in his
pulmonary capacity up to two and one-half years prior to
death -- in concluding that Kramer’s pneumoconiosis could
not have contributed in any degree to his pulmonary
burdens and consequently hastened death.11

Thus, Consolidation’s experts expressly predicated their
opinions on the tenet that Kramer’s pneumoconiosis could
not have progressed.12 Consolidation argues that the ALJ’s
"failure to meaningfully weigh and analyze" these experts’
evidence "requires the decision be set aside and remanded."
Consolidation’s Brief in Support of Petition for Review at
22.

As both the ALJ and the Board found, the tenet that
pneumoconiosis is non-progressive is simply inconsistent
with the "assumption of [disease] progressivity that
underlies much of the statutory regime." October 19, 2001
Decision and Order at 9. See 20 C.F.R. S 718.201(c)
("[P]neumoconiosis is recognized as a latent and progressive
disease which may first become detectable only after the
cessation of coal mine dust exposure."); Mullins Coal Co. of
Va. v. Director, OWCP, 

, 151 (1987). Indeed,
our sister Courts of Appeals have uniformly observed this
presumption and have gone so far as to caution the
industry against continuing to advance an insufficiently
supported position to the contrary. See, e.g. , Peabody Coal
_________________________________________________________________

11. It should be noted that although Consolidation continues to dispute
Wecht’s diagnosis of Kramer’s pneumoconiosis as"moderately severe", as
opposed to "simple", both Reilly and Consolidation’s own expert, Dr.
Naeye, agreed with Wecht’s diagnosis. See September 14, 2000 Decision
and Order Granting Benefits at 13 (citing Dr. Naeye’s testimony that the
autopsy slides showed moderately severe pneumoconiosis). Cf. LaBelle
Processing Co. v. Swarrow, 

, 315 (3d Cir. 1995) (rejecting
employer’s contention that simple pneumoconiosis is not progressive).

12. Two of Consolidation’s experts, Drs. Kleineman and Fino, specifically
conclude that there can be no contributing factor finding absent a
substantiation of lifetime impairment. A third expert, Dr. Naeye, does
allow a few exceptions to the rule of non-progressivity, including where
a miner was employed as a roof bolter, which in fact Kramer had been.
See September 14, 2001 Decision and Order Granting Benefits at 12.

                                10


Co. v. Spese, 

(7th Cir. 1997) (en banc)
(noting that progressivity is inherent in the duplicate claims
regulation itself); Lovilla Coal Co. v. Harvey , 

(8th Cir. 1997); Orange v. Island Creek Coal Co. , 

, 727 (6th Cir. 1986); Old Ben Coal Co. v. Scott, 

(7th Cir. 1998) (holding that the Department of
Labor’s view that the disease is progressive "may be upset
only by medical evidence of the kind that would invalidate
a regulation"). See also 

.13
Accordingly, the ALJ was well within his discretion in
discounting the opinions of Consolidation’s experts as, if
not hostile to the Act, at least premised on a legally
untenable presumption.14

In addition, even if the disease were not progressive, the
mere absence of any "clinically significant" pulmonary
impairment two and one-half years prior to Kramer’s death
-- in tests conducted to determine Kramer’s qualification
for lifetime benefits, which depended on a finding of total
disability -- certainly does not establish that Kramer had
_________________________________________________________________

13. In LaBelle, we observed that:

       A latent condition such as pneumoconiosis may not become maniest
       until long after exposure to the caustive agent (i.e. coal dust).
       Indeed, Congress, in enacting the BLBA, recognized the perniciously
       progressive nature of this disease.

14. See, e.g., Thorn v. Itmann Coal Co., 

, 719 (4th Cir. 1993)
(directing that an administrative law judge must not rely upon the
opinion of an expert who expresses an opinion based on a premise
"antithetical to the Black Lung Benefits Act" because such opinion "is
not probative" and stating that a physician’s opinion may be discredited
when it is based on "a premise fundamentally at odds with the statutory
and regulatory scheme"). See also September 14, 2000 Decision and
Order Granting Benefits at 18 n.20 (citing additional Courts of Appeals
cases)

For these same reasons, Consolidation’s argument that Wecht’s
evidence should be disregarded because he dismissed the lifetime
studies as irrelevant to the question of the contribution to death is
without merit. Cf. Consolidation’s Brief in Support of Petition for Review
at 21-22 (asserting that Wecht’s opinion was not well reasoned because
he failed to compare the pathology results to the lifetime studies of
ventilatory function and arterial blood gas analysis).

                                11


incurred no damage to his lung tissue and no pulmonary
burden of any degree whatsoever as a result of his
occupational exposure. Indeed, nothing in the evidence that
Consolidation points to would negate the conclusion that a
preexisting pulmonary burden, albeit insufficient standing
alone to result in a measurable loss of lung function, could
nonetheless in combination with a further affront to the
pulmonary system through advancing cancer have
decreased to some degree the lungs’ ability to continue to
compensate.15
As the Board noted, the ALJ applied the proper test,
which is whether pneumoconiosis hastened the miner’s
death in any way. See 20 C.F.R. S 718.205(c)(4). And as the
ALJ correctly concluded, lifetime disability or impairment
"is not an element of proof in ‘hastening’." September 14,
2000 Decision and Order Granting Benefits at 30.
Assessing the evidence from the proper perspective, and
taking into account the statutory assumptions regarding
the progressive nature of the disease, the ALJ reasonably
discounted the evidence of those experts who relied heavily
on lifetime studies administered between 1991 and 1996 in
concluding that pneumoconiosis did not hasten Kramer’s
death in October, 1998. See October 19, 2001 Decision and
Order at 10 (citing Milburn Colliery Co. v. Hicks. 

, 533 (4th Cir. 1998) (observing that an administrative
law judge must assess the quality of a physician’s
reasoning). In addition, as the Board also noted, the
unequivocal opinions of Wecht and Reilly, on which the ALJ
relied, explained clearly how pneumoconiosis hastened the
_________________________________________________________________

15. As Reilly testified, pulmonary function tests taken years prior to
Kramer’s death are unhelpful to the determination of causation, as the
lungs have a great ability to compensate for underlying disease. While
pulmonary function studies may be an appropriate measure for a
determination of lifetime disability, an ability to pass such tests within
normal limits simply does not demonstrate that the subject’s lungs are
healthy. To the contrary, as noted above, Consolidation’s examining
physician, Dr. Fino, diagnosed Kramer’s pneumoconiosis in 1991. In
addition, another of Consolidation’s experts, Dr. Tomashefski, testified
that, on the basis of Kramer’s 1996 pulmonary studies, the degree of
pneumoconiosis present in Kramer’s lung tissue may have caused mild
respiratory impairment and some physical limitations.

                                12


miner’s death.16 Where the ALJ has discussed the
qualifications of the competing physicians and the quality
of their respective reasoning, and substantial evidence
supports the ALJ’s findings, which are in accordance with
law, the Board will not be held to have erred in affirming
his decision.17
_________________________________________________________________

16. See, e.g., September 14, 2000 Decision and Order Granting Benefits
at 29 (quoting Wecht’s evidence that "[t]he secondary disease process,
pneumoconiosis, added to the cardiovascular burden, added to the
presence of hypoxemia . . . some diminution of oxygenation, and thereby
contributed to [Kramer’s] death"); 

(quoting Reilly’s evidence that
the cancer cells "cause death when their replacement of normal tissue
causes residual noncarcinogenic tissue to fail in their normal physiologic
mechanism, therefore the pneumoconiosis . . . certainly did contribute to
the patient’s death").

Consolidation’s assertions on appeal that Wecht’s determination of
causation turned on a controversial finding of hypoxemia
notwithstanding, the ALJ was careful to note in his decision that
causation did not turn on hypoxemia, but was based on multi-faceted
findings, including Wecht’s findings of right-side hypertrophy of the
heart (concurred in by Consolidation’s expert, Dr. Tomashefski), cor
pulmonale (a right ventricular enlargement secondary to lung
malfunction), and a widening of Kramer’s fingers (commonly called
"clubbing"), all indicative of chronic obstructive pulmonary disease.
Compare Consolidation’s Brief in Support of Petition for Review at 24
with September 14, 2000 Decision and Order Granting Benefits at 9, 25,
30, 32-33 & n.44.

17. Finally, Consolidation argues that the ALJ erred in premising his
decision on a "presumption" that pneumoconiosis is always progressive.
See Consolidation’s Reply Brief at 6, 42. However, we do not read the
opinion of the ALJ, or that of the Board, as adopting or applying any
such presumption. Rather, the ALJ and the Board properly accorded
diminished weight to the opinions of Consolidation’s experts to the
extent they were predicated on the impermissible assumption that the
disease process is never progressive. See, e.g., September 14, 2000
Decision and Order Granting Benefits at 24 n.32 (discussing Dr.
Kleinerman’s position as in contrast to the often stated rule that
pneumoconiosis is a disease process which may be progressive in
nature).

                                13


V.

It is not the function of this Court to weigh conflicting
evidence. Competent evidence for the Claimant tends to
establish that pulmonary burden from occupational
pneumoconiosis hastened her husband’s death from
cancer. The ALJ was entitled to accept this evidence and to
assign it greater weight than Consolidation’s contrary
evidence; it is not for us to re-weigh. The petition for review
of the decision of the Board will therefore be denied.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                14