ON PETITION FOR REVIEW OF AN ORDER OF THE BENEFITS REVIEW BOARD (BRB No. 79-358 BLA)
Before Gibbons and Hunter, Circuit Judges and Stern, District Judge.*fn*
Mary Ann Clites, the widow of a deceased coal miner, and the Director, Office of Workers Compensation Programs, Department of Labor, petition for review of a final order of the Benefits Review Board denying Clites' application for benefits under Section 411(c)(3) of the Black Lung Benefits Act. 30 U.S.C. § 921(c)(3). We have jurisdiction under Section 21(c) of the Longshoremen's and Harbor Workers' Compensation Act, as amended. 33 U.S.C. § 921(c); 30 U.S.C. §§ 925(a), 932(a) (1976). We hold that in reversing the decision of the Administrative Law Judge in Clites' favor the Benefits Review Board exceeded the scope of its statutory review powers, and we reverse.
The widow of a miner who at the time of his death was permanently disabled from pneumoconiosis is entitled to Black Lung benefits whether or not pneumoconiosis was in part the cause of her husband's death. Section 411(c) of the Black Lung Benefits Act establishes an irrebuttable presumption of total disability prior to death or of death due to pneumoconiosis in cases of "complicated" pneumoconiosis.*fn1 Mr. Clites, a coal miner for Jones & Laughlin Steel Company for 21 years, died on January 12, 1975 of a self-inflicted gunshot wound. At the request of his widow an autopsy was performed the next day by Dr. William Ayres, a pathologist. Included in the pathologist's report was a diagnosis of coal miner's pneumoconiosis, pulmonary emphysema, pulmonary fibrosis and cor pulmonate. On January 21, 1975, relying on Section 411(c), Mrs. Clites filed a claim for benefits. Jones & Laughlin resisted the claim, but the Administrative Law Judge concluded that by virtue of the irrebuttable presumption she is entitled to benefits. The Benefits Review Board reversed.*fn2 It held that the evidence was insufficient to satisfy the requirements of Section 411(c). The Board reasoned that there was no medical evidence in the record from a period prior to death, and that pneumoconiosis had not been established by one of the means set forth in Section 411(c)(3). The Administrative Law Judge, on the other hand, found that the nodules described in the February 13, 1975 autopsy report, were "massive lesions of the lung", although those precise words did not appear in Dr. Ayres' report. In reaching this conclusion the Administrative Law Judge credited Dr. Ayres' deposition testimony to the effect that had the nodules he found been x-rayed while Mr. Clites was alive they would show opacities measuring between 1 and 1.5 centimeters. Such opacities fall within the categories for x-ray determination of pneumoconiosis specified in Section 411(c)(3)(A). Taking the autopsy report and Dr. Ayres' expert opinion together, the Administrative Law Judge concluded that the claimant satisfied the requirement of a diagnosis "made by other means" (than x-ray or autopsy) of "a condition which would reasonably be expected to yield results described in clause (A)(x-ray) or (B)(autopsy) if diagnosis had been made in the manner prescribed in Clause (A) or (B)." 30 U.S.C. § 921(c)(3)(C).
A divided Benefits Review Board, overruling its prior unanimous decision in Katko v. Jones and Laughlin Steel Corp., 6 BRBS 490, BRB No. 76-466 BLA (1977), held that a diagnosis of "large opacities (greater than 1 cm. in diameter)" sufficient to satisfy § 411(c)(3)(A) could not be made by extrapolation from autopsy findings under § 411(c)(3)(C) and (2) that a diagnosis by biopsy or autopsy of massive lesions of the lung could not satisfy § 411(c)(3)(B) unless the specific words "massive lesions" appeared in the diagnosis. Appeals Judge Miller would have affirmed because Dr. Ayres' testimony and the autopsy report furnished substantial evidence in support of the Administrative Law Judge's finding that prior to death Mr. Clites had massive lesions in his lungs. The majority doubted that the autopsy report should be credited at all, and noted the conflicting expert testimony of Dr. Hales, who reviewed the autopsy slides made by Dr. Ayres. They concluded:
Neither administrative law judges nor the Board have the medical competence to make an equivalency determination of nodules found on autopsy and opacities on x-ray, based on size alone.
We have held that in reviewing decisions of an Administrative Law Judge under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 et seq. the Benefits Review Board must accept findings of fact so long as they are supported by substantial evidence. Moreover our review confines the Board to that standard of review. Sun Shipbuilding and Dry Dock Co. v. McCabe, 593 F.2d 234, 237 (3d Cir. 1979). The Longshoremen's and Harbor Workers' Compensation Act prescribes the adjudicative procedures for all private, employer-funded workers' compensation programs administered by the Department of Labor, including the black lung program. Director, Office of Workers' Compensation Programs v. National Mines Corporation, 554 F.2d 1267, 1273 (4th Cir. 1977). Thus the McCabe case determines our scope of review.
We conclude, as did Judge Miller of the Board, that substantial evidence, consisting of Dr. Ayres' autopsy report and his deposition testimony, supports the Administrative Law Judge's finding that prior to his death Mr. Clites had massive lesions in his lungs. In speculating about the credibility of the autopsy report or about the credibility of competing experts the Board majority exceeded its statutory authority. Moreover we reject the Board's reasoning quoted above, that the designated factfinder in the statutory scheme lacks competence to make an equivalency determination between autopsy findings and X-ray findings. Section 411(c)(3)(C) states plainly that equivalency determinations shall be made. They cannot be made without some evidentiary basis, but here there was such a basis. The Administrative Law Judge was no less competent to evaluate expert testimony in this instance than on any other subject for which such evidence may be necessary.
The Order of the Benefits Review Board will be reversed and the Administrative Law Judge's ...