BRB No. 01-0184       

BETTY H. JEFFERY                        )
(Widow of FRANKLIN C. JEFFERY)          )
                                        )
                                        )
          Claimant-Respondent           )
                                        )
     v.                                 )
                                                                                                                                                

 
   
      )
NEWPORT NEWS SHIPBUILDING               )    DATE ISSUED:   10/23/2001
                                             10/23/01
AND DRY DOCK COMPANY                    )
                                        )
          Self-Insured                  )
          Employer-Petitioner           )              DECISION and ORDER

     Appeal of the Decision and Order of Daniel A. Sarno, Jr., Administrative
     Law Judge, United States Department of Labor.

     Jonathan H. Walker (Mason, Cowardin & Mason, P.C.), Newport News,
     Virginia, for self-insured employer.

     Before: HALL, Chief Administrative Appeals Judge, SMITH and DOLDER,
     Administrative Appeals Judges.

     PER CURIAM:

     Employer appeals the Decision and Order (99-LHC-0673) of Administrative Law
Judge Daniel A. Sarno, Jr., rendered on a claim filed pursuant to the provisions
of the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C.
§901 et seq. (the Act).  We must affirm the findings of fact and
conclusions of law of the administrative law judge if they are rational, supported
by substantial evidence and in accordance with law. O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965); 33 U.S.C. §921(b)(3).  

     Claimant's husband (the decedent) was employed as a machinist by employer for
approximately thirty-nine years, during which time he was exposed to airborne
asbestos dust and fibers.  In 1987, the decedent retired and, on January 8, 1998,
he died.  Claimant thereafter sought death benefits pursuant to Section 9 of the
Act, 33 U.S.C. §909, contending that decedent's exposure to asbestos
contributed to his demise.

     In his Decision and Order, the administrative law judge found that decedent
suffered from asbestosis as a result of his exposure to asbestos while working for
employer, and that decedent's asbestosis was a significant contributing factor and
cause of his death.  Accordingly, the administrative law judge awarded claimant
death benefits.

     Employer now appeals, contending that the administrative law judge erred in
determining that decedent's death was causally related to his employment with
employer.  Claimant has not responded to this appeal.

     Section 9 of the Act provides for death benefits to certain survivors "if the
injury causes death." 33 U.S.C. §909.  In addressing the scope of Section 9
where the immediate cause of death is not work-related, the Board has applied the
maxim that "to hasten death is to cause it." See Fineman v. Newport News
Shipbuilding & Dry Dock Co., 27 BRBS 104 (1993); Woodside v Bethlehem Steel
Corp., 14 BRBS 601 (1982)(Ramsey, C.J., dissenting); see also Shuff v. Cedar
Coal Co., 967 F.2d 977, 16 BLR 2-90 (4th Cir. 1992) (in a Black Lung case,
court holds that if a medical condition hastens death in any way, it contributes
to that death).

     Following the decedent's death, Dr. Legier, a board-certified pathologist,
performed an autopsy and, in his subsequent report,  noted that he had found
evidence of occupational exposure to asbestos, emphysema due to smoking, folded
lung syndrome and multiple hyaline pleural plaques with focally calcified parietal
and diaphragmatic pleura asbestos bodies.  Emp. Ex. 11.  Based upon these findings,
Dr. Legier concluded that the decedent suffered from mild asbestosis, grade 1A,
which set the stage for and made the decedent vulnerable to pneumonia, thus
contributing to his death.  Clt. Exs. 4, 5; Emp. Ex. 11.  Dr. Gluckman, the
decedent's long standing treating physician, testified that his  records note that 
the decedent experienced minor respiratory problems in 1995, that he may have
suffered from lung cancer in 1997, but that the decedent's neurologic condition
prevented testing and treatment of any respiratory condition he may have had. 
Following the decedent's demise,  Dr. Gluckman signed the Death Certificate listing
only advanced dementia due to Parkinson's Disease, with a terminal illness of
pneumonia, as the cause of death. See  Clt. Ex. 1; Emp. Ex. 12.  Thereafter, 
he opined that there was no reason to associate the decedent's death with any lung
disease, Clt. Ex. 7; however, after reviewing Dr. Legier's autopsy report, Dr.
Gluckman accepted Dr. Legier's diagnosis of asbestosis and concluded that the
terminal event which ultimately led to the decedent's death, i.e.,
pneumonia, was assisted by his asbestosis which made that terminal event more
assured.  Emp. Ex. 17 at 12-13. Specifically, despite the fact that the decedent
was terminally ill with his neurological condition, Dr. Gluckman concluded that the
death was hastened albeit by only a matter of days or weeks.[1] Id. In contrast to the opinions of Drs. Legier and Gluckman, Dr.
Cagle, a board-certified pathologist, reviewed the decedent's autopsy records and,
while agreeing that the decedent had emphysema, pneumonia, pleural plaques,
fibrosis of lung tissue and numerous asbestos bodies, concluded that the decedent
did not have asbestosis and, therefore, had no asbestos-related impairment that
would have affected his death.  Emp. Ex. 16.

     In his Decision and Order, after considering all of the medical evidence of
record, the administrative law judge credited and relied upon the opinions of Dr.
Legier and Dr. Gluckman over contrary opinion of Dr. Cagle.  Specifically, the
administrative law judge found Dr. Legier's opinion to be well-reasoned, fully
explained and credible, and Dr. Gluckman's testimony to be reliable and credible. 
The administrative law judge found Dr. Cagle's testimony to be unreliable in part
because that physician appeared reluctant to answer questions, frequently did not
elaborate, and was often unresponsive.[2]  
See Decision and Order at 8.   

     It is well-established that an administrative law judge is  not bound to
accept the opinion or theory of any particular medical examiner;  rather, the
administrative law judge has the authority to address questions of witness
credibility and to weigh the evidence, including medical evidence. See Calbeck
v. Strachan Shipping Co., 306 F.2d 693 (5th Cir. 1962), cert. denied,
372 U.S. 954 (1963); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir.
1962); John W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir. 1961).  In the
instant case, the administrative law judge set forth and considered  each of
employer's concerns regarding the medical evidence of record and concluded that the
presence of work-related asbestosis was a contributing factor to the decedent's
death.   In rendering these determinations, the administrative law judge
specifically acknowledged that Dr. Gluckman, after reviewing and accepting Dr.
Legier's autopsy finding of asbestosis, changed his opinion regarding the
relationship between the decedent's terminal event and his underlying lung
condition.  Thus, contrary to employer's contention of error, the administrative
law judge did not misinterpret Dr. Gluckman's opinion, as that physician ultimately
opined that the onset of  the decedent's pneumonia was assisted by his lung
condition.  The administrative law judge's decision to rely upon the opinion of Dr.
Legier, as supported by the opinion of Dr. Gluckman, that a causal relationship
exists between the decedent's work-related asbestosis and his death  is rational
and within his authority as fact-finder.  We therefore  affirm the administrative
law judge's decision that the decedent's asbestosis was a contributing factor to
his death, as it is supported by substantial evidence and is in accordance with
law.  Based on this finding, his award of death benefits to claimant pursuant to
Section 9 of the Act is also affirmed. See Fineman, 27 BRBS 104.  

     Accordingly, the administrative law judge's Decision and Order is affirmed.

     SO ORDERED.


                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                   
                         NANCY S. DOLDER
                         Administrative Appeals Judge


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Footnotes.
 1)Thus, Dr. Gluckman concluded that
          
     ...this kind of dementia patient that dies at home, in general they die a
     respiratory death of some infection and that his chronic lung disease,
     whatever the nature of that lung disease, made him more susceptible to that,
     so he would die more rapidly from that or actually or might get an event
     earlier.

Emp. Ex. 17 at 10.
 Back to Text

 2)Additionally, while Dr. Legier performed the autopsy on the
decedent, the administrative law judge noted that Dr. Cagle relied upon tissue
slides, was unfamiliar with folded lung syndrome, found no asbestosis despite
identifying both fibrosis and asbestos bodies along with other potential asbestosis
indicators, and used stricter standards in making his diagnosis than those provided
by the CAP/NOSH guidelines.
 Back to Text

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