Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor v. Beatrice Pocahontas Co.

• Decision Date: 20 January 1983
• Docket Number: No. 81-1728,81-1728
• Citation: 698 F.2d 680
• Parties: DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. BEATRICE POCAHONTAS COMPANY and Acie D. Blankenship, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 680

698 F.2d 680

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Petitioner, v. BEATRICE POCAHONTAS COMPANY and Acie D. Blankenship, Respondents.

No. 81-1728.

United States Court of Appeals Fourth Circuit.

Argued March 30, 1982.

Decided Jan. 20, 1983.

Cristina C. Favis, U.S. Dept. of Labor, Washington, D.C. (T. Timothy Ryan, Jr., Sol. of Labor, Donald S. Shire, Associate Sol., J. Michael O'Neill, Asst. Counsel, Washington, D.C., for Black Lung Benefits on brief), for petitioner.

J. Randolph Query, III, Charleston, W.Va. (Jackson, Kelly, Holt & O'Farrell, Charleston, W.Va., on brief), for respondents.

Before WIDENER and SPROUSE, Circuit Judges, and KISER ^*, United States District Judge, sitting by designation.

KISER, District Judge.

This case arises out of the Black Lung Benefits Act (the Act), 30 U.S.C. Sec. 901, et seq. Acie Blankenship, a coal miner for 30 years, filed for black lung benefits, and the claim was approved by the Department of Labor. Beatrice Pocahontas Co. (Beatrice) contested its liability so the case was transferred for an Administrative Law Judge hearing. The Administrative Law Judge found that the presumption of total disability due to pneumoconiosis arising out of coal mine employment was established under 20 CFR Sec. 727.203(a)(1) by the x-ray evidence of record that indicated the claimant had black lung disease. However, the Administrative Law Judge also found that this presumption was rebutted under 20 CFR Sec. 727.203(b)(2) by medical evidence establishing that the claimant is not totally disabled by a physical impairment from performing his usual work as an electrician in the coal mines. The Benefits Review Board (the Board), affirming the Administrative Law Judge's decision, held that the presumption of total disability had been successfully rebutted by establishing that the miner is not totally disabled. The Board maintained that after such a determination, the rebutting party does not have to show that jobs are available requiring the miner's skill, the location of such jobs, and that the miner has a reasonable opportunity to be hired.

The position of the Director of the Office of Worker's Compensation Programs (the Director) is that in order to rebut the interim presumption of disability, Beatrice must introduce both medical evidence that the claimant is not disabled and evidence of economic job availability. In support of this position, the Director cites cases imposing a job availability requirement where the claimant is unable to perform his usual occupation, but is able to do other comparable work. We disagree with the Director's position.

Under 20 CFR Sec. 727.203(a), a claimant who has compiled a work record of at least ten years of coal mine employment is entitled to the benefit of a legal presumption that he is totally disabled due to pneumoconiosis arising out of such employment if certain medical requirements are met, such as a chest x-ray establishing the existence of black lung. Here, the claimant was entitled to rely upon the interim presumption and thus established a prima facie case of entitlement.

Beatrice sought to rebut the interim presumption by a showing under 20 CFR Sec. 727.203(b)(2) that "in light of all relevant evidence" the claimant is able to do coal mine work. "All relevant medical evidence shall be considered" in rebutting the presumption. 20 CFR Sec. 727.203(b). The regulations appear to consider medical evidence alone sufficient to rebut the initial presumption of disability. There is no language in the regulations requiring vocational evidence as a necessary element of rebuttal. If economic evidence were required to rebut the presumption, the Director could have written this requirement into the regulations.

Medical evidence was introduced showing that the claimant is still able to work in the mines and is not unemployed because of any physical disability, specifically pneumoconiosis. Dr. McGuire and Dr. Buddington examined the claimant and found that his cardiac and pulmonary functions were within normal limits. Dr. Erwin conducted a physical examination, pulmonary function studies, x-ray analyses, and blood gas tests, and was unable to find the claimant totally disabled from his regular job in the coal mining industry. Thus, the interim presumption was rebutted under Sec. 203(b)(2) of the regulations by medical evidence establishing the absence of any totally disabling respiratory or pulmonary impairment.

An employer's duty to come forward with vocational evidence does not arise unless and until the claimant establishes by adequate medical evidence that his disability prevents him from performing his previous work. In Newport News Shipbuilding & Dry Dock Co. v. Director, Office of Worker's Compensation Programs, 592 F.2d 762 (4th Cir.1979) ¹, the Court stated that a claimant seeking an award for total disability must prove that he is disabled from performing his regular employment. Until such facts are established, the burden does not shift to the employer to prove the...