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ROMANOT v. MATHEWS

July 2, 1976

MRS. JOAN ROMANOT
v.
DAVID MATHEWS, as SECRETARY OF HEALTH, EDUCATION AND WELFARE



The opinion of the court was delivered by: HIGGINBOTHAM

 John P. Romanot, a coal miner, died in October, 1970. After his death his surviving widow filed a claim for black lung survivor's benefits under the Federal Coal Mine Health and Safety Act (hereafter "Act"), as amended by the Black Lung Benefits Act of 1972. 30 U.S.C. § 901 et seq. After a hearing, the Administrative Law Judge, in April, 1975, denied Mrs. Romanot's claim for benefits, and, in July, 1975 that decision became the final decision of the Secretary of Health, Education and Welfare (hereafter "Secretary"), when it was adopted by the Appeals Council. Mrs. Romanot is plaintiff in this action seeking review of the Secretary's denial of her claim for benefits.

 The gravamen of the dispute *fn1" between the Secretary and the plaintiff is whether the latter has satisfied her burden of proof by demonstrating either that her husband died from pneumoconiosis or, that the deceased was totally disabled due to pneumoconiosis at the time of his death. Both parties to this dispute have filed cross-motions for summary judgment.

 On the basis of the entire record and the briefs filed in support of the parties' respective motions, the Court finds that the plaintiff's motion for summary judgment is without merit. The Court further finds that the defendant's motion for summary judgment is meritorious, and therefore, is GRANTED.

 The facts surrounding the decedent's death are easily summarized. John P. Romanot, according to his work records, was employed as a truck driver in a strip mine from January, 1951 through February, 1962. The plaintiff testified that the deceased had previously worked in a coal mine from 1946-1947. Mr. Romanot stopped working in 1962, and in November, 1963 the Social Security Administration determined that he was totally disabled because of chronic brain syndrome and a cerebral thrombosis (Tr. 69, 70). Mr. Romanot was hospitalized on several occasions prior to his death.

 The medical evidence submitted at the administrative hearing consisted of: (1) the considered opinions of five physicians, with varying degrees of specialized practice, on what, if any, evidence of pneumoconiosis was revealed by the three chest x-rays taken of the decedent in 1963, 1966 and 1970; and (2) the testimony and medical report of Dr. John Mika. The chest x-ray taken in May, 1963 was interpreted by Dr. Mulligan, a radiologist. Dr. Mulligan concluded that Mr. Romanot's lung fields evidenced no sign of active lung disease (Tr. 77). A second x-ray, taken in 1966, was interpreted by Dr. Barclay, a general practitioner. After noting a slight elevation of the left leaf of the deceased's diaphragm, having nothing to do with black lung disease, Dr. Barclay concluded that the chest x-ray was "otherwise not remarkable" (Tr. 79). The third chest x-ray, taken in March, 1970, was read by three different physicians. Dr. Bohnenblust, a radiologist, concluded that the x-ray was negative for active lung disease (Tr. 83). Another radiologist, Dr. Fink, determined that the same x-ray showed pneumoconiosis category 0/1 (Tr. 85). Finally, Dr. Furnary, a radiologist certified as a "B" reader of coal miners' chest x-rays by the National Institute of Occupational Safety and Health of the Public Health Service, reread and reclassified the x-ray as showing pneumoconiosis category 0/0 (Tr. 87).

 Dr. Mika, a general practitioner who treated the deceased miner on an intermittent basis for seven years, submitted a report to the Social Security Office in 1972. The doctor specifically stated in his report that:

 
I know this will upset Mr. Romanot's widow, but in all honesty, all his chest films (at least 4 over a 7 year period) were all normal.
 
He was disabled, but it was due to
 
1) chronic brain syndrome secondary to cerebral arteriosclerosis
 
2) gouty arthritis
 
3) severe hypertension (Tr. 94).

 Dr. Mika stated that he was preoccupied with his patient's cerebral condition, as were the other physicians interpreting the x-rays, so that the chest x-rays were taken quickly and were not carefully read for evidence of black lung disease. Dr. Mika contended, after becoming aware of Dr. Fink's report, that Mr. Romanot's clinical history was consistent with a finding of black lung disease.

 The death certificate, signed by a coroner without a license to practice medicine, stated that the cause of the miner's death was cerebral thrombosis and that death was sudden (Tr. 97). No contributing cause of death ...


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