Petition for Review of an Order of the Benefits Review Board
Before BAUER and ESCHBACH, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
Amax Coal Company ("Amax") petitions this court for review of a grant of benefits to Job Anderson under the Black Lung Benefits Act ("Act"), Title IV of the Federal Coal Mine Health and Safety Act, 30 U.S.C. §§ 901-960. Amax's primary contention in support of review is that the Administrative Law Judge and the Benefits Review Board improperly invoked the interim presumption of disability due to pneumoconiosis, see 20 C.F.R. § 727.203(a). We deny the petition.
Job Anderson was employed by coal mines for approximately forty-two years. In 1978, after experiencing declining health, he retired and filed a claim for benefits under the Act. The Department of Labor approved the claim and designated Amax as the coal operator liable to pay Anderson's benefits. Amax contested the grant of benefits, and a hearing was held on Anderson's claim before an administrative law judge.
Under regulations promulgated by the Department of Labor, a miner is entitled to a rebuttable presumption of disability due to pneumoconiosis if he has worked in coal mines for at least ten years and can produce certain types of medical evidence. 20 C.F.R. § 727.203(a). The record contained the results of several pulmonary function studies, or ventilatory studies, which measure respiratory activity and lung capacity. The studies produce two relevant measurements: forced expiratory volume ("FEV") and maximum voluntary ventilation ("MVV"). The regulations contain a table by which the FEV and MVV measurements obtained through a pulmonary function study may be compared to a claimant's height. If the FEV and MVV levels obtained are equal to or less than those listed for the miner's height in the table, and the study meets certain quality standards, the miner is entitled to the invocation of the presumption of disability. 20 C.F.R. § 727.203(a)(2).
On the basis of Anderson's over ten years of coal mine employment and two pulmonary function studies in the record, the ALJ found that Anderson was entitled to invoke the presumption of disability. The ALJ also found that Amax had not successfully rebutted the presumption. He therefore awarded Anderson benefits under the Act.
Amax appealed the decision to the Benefits Review Board, arguing that the presumption had been erroneously invoked.*fn1 The Board agreed with Amax that the ALJ's reliance on a March 1979 study was erroneous, as the results documented by that study were not based upon three attempts by the miner, and therefore did not meet the quality requirements of 20 C.F.R. § 410.430. However, the Board rejected Amax's claim that a pulmonary function study conducted in May 1979, and also relied on by the ALJ, was similarly flawed, as well as Amax's contention that the ALJ had failed to consider the results of an August 1979 study (which, the Board noted, also did not meet the quality standards in § 410.430).*fn2
Amax's final argument before the Board was based on its interpretation of the table contained in 20 C.F.R. § 727.203(a)(2). Anderson's height is 70 1/2 inches. The table lists height measurements only in whole numbers. Anderson qualifies for invocation of the presumption of disability only if the FEV and MVV values corresponding to a height of 71 inches are available to him; if he is treated as being only 70 inches tall, he cannot qualify for invocation of the presumption. Noting that the regulations give no guidance as to which values are applicable if the miner's height is reported in other than whole inches, the Board found the regulation ambiguous. In interpreting the regulation, it relied on legislative history indicating Congress's intent that the Act be liberally construed in favor of miners, and held that the ALJ did not err in applying the table values for a 71-inch tall miner. Accordingly, the Board affirmed the decision and order awarding benefits.
II.TIn support of it petition for review, Amax advances three arguments: (1) that the Board impermissibly engaged in fact-finding, (2) that the Board's interpretation of the regulation relieved the claimant of his burden of proof, and (3) that the Board failed to follow applicable precedent.
The scope of the Board's review of a decision of an administrative law judge is limited by statute: it may review the ALJ's factual determinations only to verify that they are supported by substantial evidence on the record as a whole. 33 U.S.C. § 921(b)(3). Amax argues that the Board exceeded the scope of its authority by making independent factual findings.*fn3 Specifically, Amax claims that the Board impermissibly found that the May study met the quality standards imposed by the regulations and that the March and August studies did not.*fn4 It argues, therefore, that the Board should have remanded the case to the ALJ for further consideration.
We note preliminarily that Amax did not request a remand before the Board. Moreover, Amax itself argued, with partial success, that the ALJ's decision should be reversed because the studies he relied on did not meet the quality standards of § 410.430. If the Board committed error in making determinations ...