                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 02-1764



CONSOLIDATION COAL COMPANY,

                                                         Petitioner,

          versus


DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR;
DAISY WILBURN, surviving spouse of Robert
Wilburn, deceased,

                                                        Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(01-634-BLA)


Argued:   February 27, 2004                 Decided:   June 23, 2005


Before WIDENER, WILKINSON, and GREGORY, Circuit Judges.


Petition for review denied by unpublished per curiam opinion.


ARGUED: William Steele Mattingly, JACKSON KELLY, P.L.L.C.,
Morgantown, West Virginia, for Petitioner. Peter David Dinardi,
Morgantown, West Virginia, for Respondents. ON BRIEF: Ashley M.
Harman, JACKSON KELLY, P.L.L.C., Morgantown, West Virginia, for
Petitioner.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

       Consolidation Coal Company petitions for review of the May 17,

2002   Decision   and    Order    of   the    Benefits     Review     Board       (BRB),

affirming the Administrative Law Judge’s (ALJ) award of Black Lung

disability and survivor benefits to Daisy Wilburn, the widow of

coal miner Robert Wilburn.

       Robert Wilburn began working as a coal miner in 1933.                           He

started work with Consolidation Coal in 1955 and remained employed

with that company until he retired in 1978.

       In 1979, Wilburn filed a claim for benefits under the Black

Lung   Benefits   Act    (BLBA),    30   U.S.C.      §   901    et   seq.         An   ALJ

determined that Wilburn was not entitled to benefits because there

was    insufficient       evidence       of    total       disability        due        to

pneumoconiosis.         Wilburn    appealed     to   the       BRB   and    the    Board

affirmed.

       In August 1996, Wilburn was diagnosed with acute myelogenous

leukemia.     Wilburn died on October 26, 1996.                 Wilburn’s treating

physician, Dr. Darrell Saunders, certified the immediate cause of

death as acute leukemia.          An autopsy was performed by Drs. Sydney

Goldblatt and James Pisano.         The autopsy report noted the presence

of “Macular, Simple Coal Worker’s Pneumoconiosis.”

       Daisy Wilburn, the widow of Robert Wilburn, filed a claim for

disability and survivor’s benefits with the Department of Labor’s

Office of Workers’ Compensation Programs.                A hearing was held on


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November 14, 2000 before an Administrative Law Judge. On April 19,

2001, the ALJ awarded benefits to Mrs. Wilburn.

     The essence of this petition for review is Consolidation’s

disagreement with the ALJ’s determination of the weight afforded to

an autopsy, to various x-rays, and to the testimony by way of

reports and depositions of expert witnesses.

     First, the ALJ held that Wilburn’s x-ray records did not

themselves contain sufficient evidence of pneumoconiosis.                 As part

of that analysis, the ALJ afforded greater weight to x-rays taken

for the purpose of diagnosing pneumoconiosis than to x-rays taken

for the purpose of diagnosing Wilburn’s leukemia and other related

illnesses.

     Second, the ALJ examined the medical history, autopsy records

and reports and depositions of the expert witnesses and found

sufficient evidence of pneumoconiosis to award benefits.                  The ALJ

based his opinion largely on the weight afforded to four experts:

Drs. Cyril H. Wecht, Richard L. Naeye, Stephen T. Bush and Joseph

F. Tomashefski, Jr.

     Dr. Wecht reviewed Wilburn’s medical history and autopsy

report on behalf of Mrs. Wilburn. Dr. Wecht concluded that Wilburn

died of pneumonia, a terminal complication of acute leukemia.                 Dr.

Wecht   also   concluded      that   pneumoconiosis    was    “a    substantial

contributing    factor   in    [Wilburn’s]   death.”         He    also   stated:




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“[s]pecifically, I believe that his pulmonary pathology was coal

workers’ pneumoconiosis.”

       Drs. Naeye, Bush and Tomashefski reviewed Wilburn’s medical

history for Consolidation Coal. Dr. Naeye concluded that there was

no evidence of pneumoconiosis and that Wilburn would have died “at

the same time and in the same way if he had never mined coal.”                    Dr.

Bush also concluded that there was no evidence of pneumoconiosis

and that “Wilburn would have died at the same time and in the same

manner if he had never been exposed to the pulmonary hazards of

coal mining employment.”            Dr. Tomashefski concluded that Wilburn

“did     not     have     coal   workers’       pneumoconiosis”      and    therefore

“pneumoconiosis was not a contributing factor in Mr. Wilburn’s

death.

             The ALJ afforded greater weight to Dr. Wecht’s report

because it was well reasoned, well documented, and supported by the

findings in the autopsy report.               In this connection, we note that

20 C.F.R. § 718.202(a)(2) provides in part that “A report of

autopsy shall be accepted unless there is evidence that the report

is     not     accurate    or    that   the     claim    has     been     fraudulently

represented,” conditions not present here.                    The ALJ found portions

of the reports from Consolidation Coal’s three experts to be

equivocal,        internally      inconsistent,         and     lacking    sufficient

explanation for their reasoning.




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     Consolidation Coal appealed the ALJ’s decision to the Benefits

Review Board.   The BRB found error in the ALJ’s decision to afford

less weight to x-ray readings interpreted for the purpose of

treating Wilburn’s leukemia, but found the error harmless. The

Board concluded that the ALJ’s decision to afford greater weight to

Dr. Wecht’s testimony and lesser weight to the testimony of Drs.

Naeye, Bush and Tomashefski was supported by substantial evidence.

Accordingly, the BRB affirmed the ALJ’s decision to award benefits.

     We review the Board's Decision and Order to determine whether

it properly concluded that the ALJ’s decision was supported by

substantial evidence in the record.   Dehue Coal Co. v. Ballard, 65

F.3d 1189, 1193 (4th Cir. 1995).       After consideration of the

briefs, record, and oral argument, we find that the Board correctly

addressed the questions now raised by Consolidation Coal in its

petition for review and that the Board properly found the ALJ’s

decision supported by substantial evidence.

     Accordingly, we are of opinion that there is not reversible

error in this case, and we therefore deny the petition for review

for the reasons expressed in the Benefit Review Board’s Decision

and Order.

                                        PETITION FOR REVIEW DENIED




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