UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EASTERN ASSOCIATED COAL
CORPORATION,
Petitioner,

v.
                                                                       No. 98-2812
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
RALPH M. HANNAH,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(91-1978-BLA)

Submitted: June 15, 1999

Decided: September 27, 1999

Before LUTTIG and KING, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Mark E. Solomons, Laura Metcoff Klaus, ARTER & HADDEN,
L.L.P., Washington, D.C., for Petitioner. Henry L. Solano, Solicitor
of Labor, Donald S. Shire, Associate Solicitor, Christian P. Barber,
Richard A. Seid, Office of the Solicitor, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C.; S. F. Raymond
Smith, RUNDLE & RUNDLE, L.C., Pineville, West Virginia, for
Respondents.

_________________________________________________________________

OPINION

PER CURIAM:

Eastern Associated Coal Corporation ("employer") petitions for
review of a decision of the Benefits Review Board ("Board") revers-
ing the administrative law judge's ("ALJ") decision to deny the appli-
cation of Ralph Hannah, a former coal miner, for black lung benefits.
This case appears before us for the second time. Previously, we found
that the evidence of record was insufficient to support the ALJ's find-
ing of rebuttal under 20 C.F.R. § 727.203(b)(3) (1998), and remanded
to the Board for consideration of the propriety of the ALJ's alterna-
tive finding of rebuttal pursuant to 20 C.F.R. § 727.203(b)(2) (1998).
We instructed the Board that if it found the evidence insufficient to
support subsection (b)(2) rebuttal, it should award benefits. See
Hannah v. Eastern Associated Coal Co., No. 94-2017 (4th Cir. Apr.
11, 1997) (unpublished).

On remand, the Board held that because none of the medical opin-
ions offered in support of subsection (b)(2) rebuttal addressed total
disability without regard to cause, they were insufficient to establish
rebuttal under our decision in Sykes v. Director, Office of Workers'
Compensation Programs, 812 F.2d 890 (4th Cir. 1987). Employer
avers on appeal that in so finding, the Board exceeded the scope of
its review by effectively making a de novo finding concerning rebuttal
rather than accepting the ALJ's determination that because the
reports, which addressed only pulmonary disability, did not mention
any other kind of disability, the absence of any other disability could
be inferred. We rejected a similar argument in Bethlehem Mines Corp.
v. Henderson, 939 F.2d 143 (4th Cir. 1991). In that case, we upheld
the Board's finding that three medical opinions that addressed only
respiratory impairment, but did not directly address the miner's ability
to perform his usual work or comparable work, were insufficient to
establish subsection (b)(2) rebuttal through the negative inference that

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if the physicians failed to mention a non-respiratory impairment, there
must not be any. See id. at 150. We therefore affirm the Board's find-
ing that the evidence of record in this case fails to support subsection
(b)(2) rebuttal.

Employer contends that if the evidence does not support rebuttal
under subsections (b)(2) or (3), due process considerations dictate
either that the record be reopened so that it may submit new evidence,
or that liability be transferred to the Black Lung Disability Trust
Fund. Employer believes that our decisions in Sykes and Grigg v.
Director, Office of Workers' Compensation Programs , 28 F.3d 416
(4th Cir. 1994), altered the legal standards applicable to subsection
(b)(2) and (b)(3) rebuttal, respectively, and that it should be permitted
an opportunity to tailor its evidence to the holdings in those cases.
Even if we agreed with the dubious assertion that Sykes "changed" the
law applicable to subsection (b)(2) rebuttal, it would be of no avail
to employer in this case, because that decision issued seven months
prior to the first hearing before the ALJ. Consequently, employer can-
not reasonably argue that it had no opportunity to develop evidence
in light of Sykes.

As for Grigg, that case clearly did not change the law. Rather, that
decision merely upheld existing Board precedent holding that a find-
ing of no respiratory or pulmonary impairment of any kind may sup-
port a finding of subsection (b)(3) rebuttal. See Grigg, 28 F.3d at 419
(upholding but outlining parameters of Board's decision in Marcum
v. Director, Office of Workers' Compensation Programs, 11 BLR 1-
23 (1987)). Accordingly, we reject employer's due process argu-
ments.

The decision of the Board is therefore affirmed. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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