UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CLINCHFIELD COAL COMPANY,
Petitioner,

v.

HENRY PHIPPS, deceased, by Arthell
                                                                   No. 98-1149
Phipps, widow; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(97-443-BLA)

Submitted: October 20, 1998

Decided: November 9, 1998

Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge,
and HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Timothy W. Gresham, PENN, STUART & ESKRIDGE, Abingdon,
Virginia, for Petitioner. Joseph E. Wolfe, Vernon M. Williams,
Bobby S. Belcher, Jr., WOLFE & FARMER, Norton, Virginia, for
Respondent Phipps. Marvin Krislov, Deputy Solicitor for National
Operations, Donald S. Shire, Associate Solicitor, Patricia M. Nece,
Counsel for Appellate Litigation, Rita A. Roppolo, Office of the
Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washing-
ton, D.C., for Respondent Director.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Clinchfield Coal Company ("employer") petitions for review of a
decision of the Benefits Review Board ("Board") affirming an admin-
istrative law judge's ("ALJ") decision awarding black lung benefits to
Arthell Phipps ("claimant"), the widow of Henry Phipps. This case
has an extensive procedural history. The miner filed a claim on March
27, 1978. The miner died in October 1983, before ALJ Guill held the
first hearing on his claim in May 1984. ALJ Guill issued a decision
denying benefits in August 1984. He found the autopsy evidence of
record sufficient to establish pneumoconiosis and invoke the interim
presumption of entitlement to benefits pursuant to 20 C.F.R.
§ 727.203(a)(1) (1998), but also found that presumption rebutted
under § 727.203(b)(2) (1998), based on his finding that employer's
evidence proved that the miner was not totally disabled from a respi-
ratory standpoint.

Claimant appealed the miner's claim to the Board and, while that
claim was pending, also filed a survivor's claim with the Department
of Labor in 1983. In May 1988, the Board reversed the ALJ's finding
of subsection (b)(2) rebuttal, both because his finding was in conflict
with this Court's decision in Sykes v. Director, Office of Workers'
Compensation Programs, 812 F.2d 890 (4th Cir. 1987), and because,
in the Board's view, the fact that the miner was deceased at the time
of the hearing precluded the employer from showing that the miner
was able to do his usual work or comparable work, as required by

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subsection (b)(2). The Board remanded, however, for consideration of
whether the evidence of record could establish subsection (b)(3)
rebuttal, which the ALJ had not considered. In August 1988, ALJ
Kerr issued a decision denying claimant's survivor's claim because
there was no dispute that the miner died of a self-inflicted gunshot
wound to the chest, and the statute and regulations preclude an award
of survivor's benefits on claims filed after January 1982 where the
miner's death is attributable to traumatic injury.

In his first decision on remand, ALJ Guill found that intervening
decisions of this Court and the Supreme Court subsequent to the
Board's remand mandated that he reconsider the miner's claim under
20 C.F.R. § 410.490 (1998), rather than under subsection (b)(3) of
Part 727. See Pittston Coal Company Group v. Sebben, 109 S.Ct. 414
(1988); Broyles v. Director, Office of Workers' Compensation
Programs, 824 F.2d 327 (4th Cir. 1987). Accordingly, he found that
his previous findings that the autopsy evidence established invocation
under subsection (a)(1) of § 727.203 similarly invoked the interim
presumption at § 410.490 pursuant to § 410.490(b)(1)(i). Finding that
§ 410.490's provision for rebuttal in cases where the miner is able to
do his usual or comparable work, see § 410.490(c)(2) (1998), could
be distinguished from the similar provisions of subsection (b)(2)
under section 727.203, the ALJ concluded that his previous finding
that the evidence established that the miner was not disabled from a
respiratory standpoint was sufficient to establish rebuttal. Accord-
ingly, he again denied benefits.

The Board considered this case for the second time in 1993. The
Board consolidated the miner's and survivor's claims for review. It
affirmed the denial of the survivor's claim, but again remanded the
miner's claim for further consideration. The Board held that in light
of the Supreme Court's decision in Pauley v. Bethenergy Mines, Inc.,
111 S.Ct. 2524 (1991), it was clear that miners such as Phipps who
received full review of their claims under Part 727 were not entitled
to further consideration under § 410.490. The Board therefore again
remanded the claim for weighing of the evidence under
§ 727.203(b)(3). Claimant filed an interlocutory appeal from this
decision, which we dismissed in 1994.

In his third consideration of the miner's claim, ALJ Guill found
that under this Court's decision in Grigg v. Director, Office of Work-

                    3
ers' Compensation Programs, 28 F.3d 416 (4th Cir. 1994), employer
could establish rebuttal under subsection (b)(3) in any one of three
ways: (1) by showing that the miner had no respiratory or pulmonary
impairment whatsoever; (2) by ruling out a causal relationship
between the miner's coal mine employment and his respiratory
impairment; or (3) by ruling out the possibility that the miner's respi-
ratory or pulmonary impairment played any role in his total disability.
Any of these showings, in the ALJ's view, could satisfy subsection
(b)(3)'s requirement that the party opposing entitlement prove that the
miner's total disability or death did not arise even in part out of coal
mine employment. See § 727.203(b)(3). After evaluating the medical
evidence, however, the ALJ concluded that employer could make
none of these showings and therefore awarded benefits.

Employer appealed to the Board, arguing that the Board previously
erred by finding subsection (b)(2) rebuttal unavailable in light of the
miner's death, and that the ALJ improperly rejected Dr. Byers' opin-
ion in finding that employer failed to establish subsection (b)(3)
rebuttal. The Board did not retreat from its prior holding that the
miner's death, alone, precluded subsection (b)(2), but clarified that,
in the alternative, the evidence was insufficient as a matter of law
under Sykes to establish subsection (b)(2) rebuttal in any event. The
Board further found that the ALJ provided proper reasons for reject-
ing Dr. Byers' opinion and, accordingly, affirmed the award of bene-
fits.

On appeal, employer first contends that the Board erred by finding
subsection (b)(2) rebuttal unavailable as a matter of law because the
miner died prior to the hearing. We need not resolve this question,
however, because we affirm the Board's finding that, under our deci-
sion in Sykes, the evidence was insufficient to establish subsection
(b)(2) rebuttal as a matter of law. Employer does not dispute the
Board's findings on this issue. It could not successfully do so,
because Sykes requires, for a showing of subsection (b)(2) rebuttal,
that the party opposing entitlement prove that the miner is not dis-
abled for whatever reason. See Sykes, 812 F.2d at 893-94. In this case,
none of the physicians of record addressed whether the miner was dis-
abled for whatever reason.

Employer further contends, however, that because Sykes estab-
lished a new standard for subsection (b)(2) rebuttal, considerations of

                    4
due process and fundamental fairness require that the ALJ be directed
to reopen the record and permit employer to present new evidence tai-
lored to the new standard. We disagree. The Sykes decision rejected
the Board's position that subsection (b)(2) rebuttal could be estab-
lished by showing that the miner was not totally disabled from a res-
piratory or pulmonary standpoint. Our opinion explained that the
cause of a miner's disability is not part of subsection (b)(2) rebuttal
analysis. Rather, the cause of the miner's disability is relevant under
subsection (b)(3), which permits rebuttal where it is shown that the
miner's total disability did not arise out of coal mine employment. Id.
at 894.

Our decision, however, did not "change" the applicable standard.
In fact, the Sykes decision states that the Board's interpretation of the
regulation "is belied by the language of the regulation." Id. at 893.
The regulation has always stated that in order to establish (b)(2)
rebuttal, the party opposing entitlement must show"that the individ-
ual is able to do his usual coal mine work or comparable and gainful
work." See 20 C.F.R. § 727.203(b)(2) (1998). This language put all
relevant parties on notice that it could establish rebuttal by proving
that the miner was not disabled. The existence of Board decisions pre-
ceding Sykes holding that a lesser showing, i.e., a showing of no
respiratory or pulmonary disability, would suffice to establish rebut-
tal, does not alter this fact. Hence, employer cannot claim that it was
prevented from presenting subsection (b)(2) rebuttal evidence; it sim-
ply chose not to do so. The fact that it may now regret that decision
provides no basis for reopening the record.

Employer further asserts that the Board's finding that subsection
(b)(2) rebuttal was unavailable due to the miner's death, coupled with
our decision in Grigg v. Director, Office of Workers' Compensation
Programs, 28 F.3d 416 (4th Cir. 1994), effectively renders the pre-
sumption irrebuttable in this case. We have already explained that
employer's evidence was insufficient as a matter of law to establish
subsection (b)(2) rebuttal. Regarding subsection (b)(3), the record
contains evidence which, if credited, could have established rebuttal
under our decision in Grigg.

Subsection (b)(3) permits establishment of rebuttal through evi-
dence establishing "that the total disability or death of the miner did

                     5
not arise in whole or in part out of coal mine employment." 20 C.F.R.
§ 727.203(b)(3). This language has long been held to require the
respondent to "rule out" the causal relationship between the miner's
presumed total disability and his coal mine employment. See
Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 123 (4th Cir. 1984).
In Grigg, we approved of Board law holding that medical evidence
showing that the miner has no respiratory or pulmonary impairment
is sufficient to meet this standard. We cautioned, however, that such
evidence could not rebut invocation under subsection (a)(1) (which
requires a showing of pneumoconiosis) if the physician's opinion was
premised on the erroneous finding that the miner did not have pneu-
moconiosis. See Grigg, 28 F.3d at 419-20.

Employer avers that our holding in Grigg thwarted its ability to
establish subsection (b)(3) rebuttal because its physicians did not
diagnose pneumoconiosis. It asserts that it is unfair to apply Grigg to
this case because the miner's pneumoconiosis was not detectable until
his autopsy results were available. Employer's problem is really with
its own evidence, rather than with the applicable standard. As dis-
cussed, the ALJ noted three ways, consistent with Grigg, that
employer could have established subsection (b)(3) rebuttal. Employ-
er's evidence was simply insufficient to establish (b)(3) rebuttal under
any of these avenues. Moreover, some of employer's evidence was
collected after the miner's autopsy.

Contrary to employer's contention, a respondent is not automati-
cally precluded from establishing (b)(3) rebuttal whenever the ALJ
finds invocation under (a)(1) and the opinions on which employer
must rely to establish (b)(3) rebuttal find no pneumoconiosis. We
have acknowledged that the rule announced in Grigg should not be
mechanically applied, because there are situations where a physi-
cian's findings regarding the cause or existence of impairment may
not be premised on his view that the miner does not have pneumoco-
niosis. See Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193-94 (4th
Cir. 1995).

In this case, the only medical opinion which tended to affirmatively
sever any connection between disability and coal mine employment
was offered by Dr. Byers, who found the absence of any respiratory
or pulmonary impairment. The ALJ, relying on Grigg, discounted his
opinion, in part, because Dr. Byers failed to diagnose pneumoconio-

                    6
sis. Employer could have argued, but did not, that Dr. Byers' finding
of no impairment was reached independently of his finding of no
pneumoconiosis, and therefore should not have been automatically
discredited under Grigg.

Had it done so in this case, however, its efforts would have been
unavailing because the ALJ also properly rejected Dr. Byers' report
on proper alternative grounds. The ALJ noted that the evidence of
record, including evidence gathered before the miner's death, demon-
strated the existence of chronic bronchitis and emphysema in addition
to the evidence of pneumoconiosis. The ALJ found that Dr. Byers'
failure to diagnose any of these respiratory diseases, all of which
could have caused respiratory impairment, casted doubt upon his find-
ing that the miner had absolutely no impairment. The ALJ rationally
reasoned that had Dr. Byers diagnosed any of these conditions, he
might have validated the miner's subjective complaints and found the
existence of some impairment.

We therefore conclude that the application of Grigg to this case in
no way rendered the (a)(1) presumption irrebuttable in violation of
employer's due process rights or the mandate of the regulations that
all relevant evidence be considered at the rebuttal stage. See 20 C.F.R.
§ 727.203(b)(1998). Moreover, the ALJ provided rational reasons,
aside from his reliance on Grigg, to reject the only report employer
submitted which could have arguably established subsection (b)(3)
rebuttal. In view of our observation that the application of Grigg was
not critical to the disposition of this case, we reject employer's con-
tention that the record must be reopened for the submission of new
evidence in light of the allegedly "new" standard for (b)(3) announced
by Grigg. We note, however, that Grigg , even more clearly than
Sykes, did not "change" the law, but merely confirmed an existing
principle of Board law and recognized the fallacy of crediting a physi-
cian's opinion where that opinion is premised on an assumption that
is contrary to a fact as determined by the ALJ.

Accordingly, the decision of the Board is affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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