On Petition for Review of an Order of the Benefits Review Board, United States Department of Labor.
Before CUMMINGS and CUDAHY, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*
Petitioner Frank Wetherill filed a claim for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq., on July 6, 1978. Approximately 10 months thereafter the Department of Labor notified respondent Green Construction Company ("Green") of its potential liability for payment of black lung benefits to Wetherill. Green denied liability on the ground that Wetherill was not totally disabled due to occupational pneumoconiosis (black lung disease).
In July 1980 a hearing was held before Administrative Law judge Maxson ("ALJ") in Evansville, Indiana, pursuant to the guidelines of the Administrative Procedure Act, 5 U.S.C. §§ 554 et seq. The following February the ALJ issued a decision and order awarding benefits to petitioner, Wetherill's claim was filed before April 1, 1980, and therefore the ALJ applied the criteria for benefits eligibility contained in subpart C of part 727. See 20 C.F.R. § 725.4(a) and (d). Because of Wetherill's coal-mine employment history exceeding 10 years' duration and x-ray evidence of black lung disease, the ALJ invoked the black lung interim presumption contained in 20 C.F.R. § 727.203(a)(1).*fn1 Wetherill had been employed more than 30 years in surface coal mines, first as a dragline operator and then for 23 years for respondent Green as a power-shovel operator. After a bout of pneumonia in 1975 he retired on Social Security benefits. he did not seek black lung benefits until 1978 and died of a heart attack in 1982.
Green attempted to rebut the black lung interim presumption pursuant to 20 C.F.R. § 727.203(b)(2) and (3).*fn2 However, the ALJ found to the expert opinions submitted by Green failed to establish to a "reasonable degree of medical certainty" that petitioner's disability was caused by a disease other than pneumoconiosis.*fn3 He found Green's medical testimony unpersuasive in light of petitioner's testimony of progressively worsening breathing problems. the ALJ refused to accept the testimony of pulmonary disease specialist Dr. William Anderson on the ground that he was hostile to the Black Lung Benefits Act*fn4 and because he did not establish the basis for the predicted values he had used to interpret the pulmonary function study of Wetherill.*fn5 Pursuant to 33 U.S.C. § 921(b) Green appealed from the ALJ's adverse decision to the Benefits Review Board the "Board"). By a 2 to 1 vote, it vacated the award and remanded the case to the ALJ to consider under § 727.203(b)(2) all relevant evidence offered to rebut the interim presumption contained in 20 C.F.R. § 727.203(a), one member dissenting on the ground that Dr. Anderson's testimony should not be considered because he was hostile to the Act. The Board did not remand to the ALJ the question of applicability of paragraph (b)(3), which he had decided a adversely to green. Because of the unavailability of Administrative Law Judge Maxson, the case was reassigned to Administrative Law Judge Giesey. Without discussing the relevant evidence in any detail, Judge Giesey found that Green had failed to rebut the interim presumption under 20 C.F.R. § 727.203(b)(2) and therefore sustained Wetherill's claim. This resulted in a second appeal to the Board which this time unanimously rejected Wetherill's claim on the ground that Dr. Anderson's medical opinions should have been accepted and showed an absence of a disabling respiratory impairment so that the interim presumption was properly rebutted under 20 C.F.R. § 727.203(b)(2). thereafter petitioner appealed to this court under 33 U.S.C. § 921(c). See 30 U.S.C. § 932(a) (incorporating inter alia 33 U.S.C. § 921, the procedures for administrative and judicial review in the Longshore for administrative and judicial review in the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq.).*fn6
Rebuttal of Total Disability under Regulation 20 C.F.R. § 727.203(b)
Petitioner claims that he was totally disabled by pneumoconiosis under the interim presumption of the Secretary of Labor's regulation contained in 20 C.F.R. § 727.203(a) (note 1 supra) while respondent Green contends that the interim presumption was rebutted under paragraph (b)(2), or in the alternative paragraph (b)(3), of the regulation (note 2 supra). (Respondent's Br. 23.) Petitioner does not challenge the applicability of paragraph (b)(2) but claims it was not satisfied by Green. We hold that he presumption was rebutted under paragraph (b)(3) and therefore affirm the Board's second decision denying benefits to Wetherill.
The interim presumption of § 727.203(a) can be rebutted by resort to the rebuttal provisions of § 727.203(b). The initial question in this case is which of the rebuttal provisions in paragraph (b) apply. The Board relied on paragraph (b)(2) as the basis for finding that Green rebutted the interim presumption. However, the evidence showed that Wetherill was not "able to do his usual coal mine work," 20 C.F.R. § 727.203(b)(2), because of his non-pneumoconiosis disability, so that he literal working of paragraph (b)(2) was not satisfied. The board apparently interpreted paragraph (b)(2) to allow rebuttal if the admitted inability to work is caused by a disease other than pneumoconiosis. (Petitioner's App. 38, 39a). This interpretation of paragraph (b)(2) seems contrary to its plain language and therefore erroneous. Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 162 n.5 (3d Cir. 1986); Ramey v. Kentland Elkhorn Coal Corp., 755 F.2d 485, 486 n.3 (6th Cir. 1985). We have previously noted that this interpretation of paragraph (b)(2) was problematic but did not need to resolve the issue because the Board also correctly relied on paragraph (b)(4) in that case. Knudtson v. Benefits Review Board, 782 F.2d 97, 100 (7th Cir. 1986). We reiterate that paragraph (b)(2) is probably an improper provision with which to rebut the presumption in a case such as this. Once again, however, there is no need to resolve that question because rebuttal has been accomplished here under paragraph (b)(3).
Paragraph (b)(3), which states in part that "the total disability . . did not arise in whole or in part out of coal mine employment," enables an employer to rebut the interim presumption by proving that the miner's pneumoconiosis was not a contributing cause of his total disability. Kertesz, 788 F.2d at 162 n.5, 163; Ramey, 755 F.2d at 486 n.3, 491-492; Gibas v. Saginaw Mining Co., 748 F.2d 1112, 1120 (6th Cir. 1984), certiorari denied, 471 U.S. 1116, 86 L. Ed. 2d 258, 105 S. Ct. 2357; American Coal Co. v. Benefits Review board, 738 F.2d 387, 391 (10th Cir. 1984); Bethlehem Mines Corp. v. Massey, the Sixth Circuit held that the employer successfully rebutted the interim presumption because "the ALJ found that that [the claimant's] cardiac condition was the sole cause of his total disability" and his pneumoconiosis was not a "contributing cause." 755 F.2d at 491-492. This interpretation of the (b)(3) rebuttal provision is consistent with the statutory definition of the term "total disability" wherein it is stated that the "regulations shall provide that a miner shall be considered totally disabled when pneumoconiosis prevents him or her from engaging in gainful employment requiring the skills and abilities comparable to those" of his former mining employment. 30 U.S.C. § 902(f)(1)(A) (emphasis added). Similarly, the regulations define "total disability" in a manner that requires pneumoconiosis to be a contributing cause of the disability: "a miner shall be considered totally disabled in pneumoconiosis . . . prevents or prevented the miner" from engaging in coal mining work or comparable and gainful work. 20 C.F.R. § 718.20(b). This definition is made applicable to paragraph (b)(3) by 20 C.F.R. §§ 727.3, 725.101(21). In the present case, Green argued that the relevant medical evidence proved that Wetherill's pneumoconiosis was not a contributing cause of his total disability, which instead was caused by his arteriosclerotic heart disease. Therefore, rebuttal paragraph (b)(3) is the correct provision for evaluating the ALJ's ruling that Green failed to rebut the interim presumption.
The Board's reliance on rebuttal provision (b)(2) and rejection of (b)(3) does not prevent us from affirming its decision on the basis of paragraph (b)(3). Kertesz, 788 F.2d at 162 n.5. Because the board applied the correct standard for rebuttal under 20 C.F.R. § 727.203(b)(3), seemingly albeit using the wrong label, neither party was prejudiced by the Board's error. All agree that Wetherill was not able to do his usual coal mine work; the central issue in this case has always been (and still is) whether pneumoconiosis was a contributing cause of Wetherill's disability.
In a recent consideration of the standard of review in black lung cases, the majority of the panel held Old Ben Coal Co. v. Prewitt, 755 F.2d 588 (7th Cir. 1985), that if the decision of an ALJ was supported by substantial evidence, a decision of the Benefits Review Board reversing the ALJ must be reversed. Therefore, we will start our consideration with the opinion of the second ALJ dated April 14, 1983. (Petitioner's App. 44-45.) There ALJ Giesey summarized Dr. William H. Anderson's deposition testimony as follows:
Claimant is physically incapable of performing his usual coal mine employment or manual labor on a regular and sustained basis. When asked a hypothetical question in which the presence of [Wetherill's mild] pneumoconiosis alone was posited, this physician responded that, "under the circumstances as given in the question he would be as able as any other man his age."
(Petitioner's App. 45 (emphasis supplied).) The second ALJ decided that Dr. Anderson's opinion was not sufficient to rebut the interim presumption of total disability due to pneumoconiosis disclosed by the x-ray because the record contained "no rationale for this opinion that claimant is not ...