UNPUBLISHED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.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).

_________________________________________________________________

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 pneu-
moconiosis, 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 necessi-
tated 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 arthri-
tis. 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, emphy-
sema, and fibrosing alveolitis; (iii) simple coal workers' pneumoconi-
osis 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 pneumoco-
niosis, and, as we noted above, Dr. Cuadra's autopsy also found the
disease present. On the other hand, Dr. Zaldivar and Dr. Fino criti-
cized 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. Appar-
          ently rheumatoid arthritis was present. It can produce pul-
          monary 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 clar-
          ification. 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 pneumoconio-
          sis.

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, how-
ever, 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 imple-
menting regulation,1 which requires the claimant to prove that "pneu-
moconiosis" as defined by the Act actually hastened death in any
_________________________________________________________________

1 20 C.F.R. § 718.205(c).

                     4
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. "Pneumoconio-
sis" 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 lim-
          ited 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 respira-
          tory 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 regula-
tion -- is "pneumoconiosis" if it results in respiratory or pulmonary

                    5
impairment and is "significantly related to[ ] or substantially aggra-
vated 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 regula-
tions"; 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 has-
ten Brooks' death?

Without answers to these questions, the record and the ALJ's rea-
soning 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 wit-
          nesses 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 evi-
          dence, 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 afflic-
          tions that fall within the definition of legal pneumoconiosis
          under the Act.

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