                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-1-1995

Plesh v. Dir., Office of Workers' Comp. Programs
Precedential or Non-Precedential:

Docket 94-3572




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                    UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                              ----------

                              No. 94-3572

                              ----------

                           SALVADORE PLESH,

                                            Petitioner

                                  v.

         DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
                  UNITED STATES DEPARTMENT OF LABOR,

                                            Respondent

                              ----------

           On Petition for the Review of the Final Decision
                     of the Benefits Review Board
                           (No. 92-2292 BLA)

                              ----------

                     Argued Tuesday, June 27, 1995

         BEFORE:   HUTCHINSON,0 ROTH and GARTH, Circuit Judges

                              ----------

                   (Opinion filed December 1, 1995)

                              ----------

                                 Andrew K. Soto (Argued)
                                 Ball, Janik & Novack
                                 101 Southwest Main Street
                                 Suite 1100
                                 Portland, OR 97204

                                 Attorney for Petitioner


0
    Judge Hutchinson heard argument of this appeal and participated
     in its decision. However, Judge Hutchinson died before this
                          opinion was filed.


                                   1
                                Thomas S. Williamson, Jr.
                                Donald S. Shire
                                Christian P. Barber
                                C. William Mangum (Argued)
                                Suite N-2605
                                United States Department of Labor
                                Office of the Solicitor
                                200 Constitution Avenue, N.W.
                                Washington, DC 20210

                                Attorneys for Respondent

                              ----------

                         OPINION OF THE COURT

                              ----------

GARTH, Circuit Judge:


       Petitioner Salvadore Plesh, a retired miner, petitions for

review of an order entered by the Benefits Review Board (BRB) of

the United States Department of Labor (DOL).    The BRB upheld the

decision of the DOL administrative law judge (ALJ) who terminated

Plesh's benefits under the Black Lung Benefits Act, 30 U.S.C.

§901 et seq. (BLBA).    We conclude that the BRB erred in

terminating Plesh's benefits and we will therefore reverse.
                                 I.

       Born on May 28, 1917, Plesh began working in a coal mine in

1943, for the Lehigh Valley Coal Company in Hazelton, Pennsylva-

nia.    Plesh worked for more than seventeen years, from 1943 to

1960, in underground mines and later in strip mines as a rock and

coal driller.    Plesh testified that he left the coal mines after

he began to feel ill and his doctor advised him to discontinue




                                  2
coal mine employment.    After abandoning coal mine work, Plesh

worked as a janitor, a nightwatchman and a mail sorter.

     Plesh first filed a claim for benefits under the BLBA on May

29, 1979.0   This application was governed by the guidelines set

forth in 20 C.F.R. Part 727, which provide certain presumptions

in favor of the miner.    On March 29, 1980, the Director awarded

benefits and began making monthly payments retroactive to May

1979.

     More than six years later, on September 16, 1986, the

Director sent a letter to Plesh informing him that a recent

review of Plesh's claim file revealed "certain deficiencies." The

letter requested that Plesh provide "[m]edical information

showing the condition of your lungs" and "[d]ocuments to

establish your relationship to any dependents."    The letter

further instructed Plesh to "undergo a complete set of medical

tests at [DOL] expense."

     Plesh underwent the required medical testing.    On November

6, 1986, Dr. Leo Corazza examined Plesh, performed a chest x-ray,

and conducted a pulmonary function study (PFS) and an arterial

blood gas study (BGS).    Dr. Corazza found that the x-ray

"demonstrate[d] no evidence of pneumoconiosis."    Jt. App. 377.


0
 In connection with his application for black lung benefits,
Plesh was examined by Dr. Harold Silver on December 21, 1979 and
by Dr. Roscoe C. Young on April 29, 1980. Dr. Silver diagnosed
chronic bronchitis but opined that the condition was unrelated to
coal mine employment. Dr. Young reported that a chest x-ray
showed evidence of pneumoconiosis and that a pulmonary function
study indicated a moderately severe restrictive ventilatory
defect. Dr. Young diagnosed early simple coal workers'
pneumoconiosis and moderate restrictive respiratory disability.

                                 3
Dr. Stanley Laucks and Dr. W.S. Cole, both "B-readers,"0 reread

the x-ray and concluded that it was negative for pneumoconiosis.

     Dr. Corazza found that the BGS results were within normal

limits but noted that the PFS results were "compatible with the

diagnosis of chronic obstructive pulmonary disease, moderately

severe."    Jt. App. 380.    Based on his examination of Plesh, Dr.

Corazza diagnosed chronic bronchitis, pulmonary emphysema and

ankle edema (of unknown etiology).      Dr. Corazza also opined,

without explanation, that Plesh's condition was not related to

coal mine employment.

     After conducting further PFS and BGS tests on January 14,

1987, Dr. Corazza observed a decrease in vital capacity

"compatible with the presence of some restrictive pulmonary

disease."    Jt. App. 367.    Dr. Corazza further opined that "[t]he

appearance of the spirogram0 [wa]s compatible with some degree of

obstructive disease."       Id.

     The Director determined that the additional medical evidence

compiled by Dr. Corazza failed to establish that Plesh was

totally disabled due to pneumoconiosis.      Consequently, on March

11, 1987, the Director issued an Order to Show Cause, which

directed Plesh to "show cause within thirty (30) days why the

original award should not be modified to reflect that eligibility

0
  A "B reader" is a physician who has demonstrated proficiency in
reading x-rays for pneumoconiosis by passing annually an
examination established by the National Institute of Safety and
Health and administered by the U.S. Department of Health and
Human Services. See 20 C.F.R. § 718.202(a)(ii)(E); 42 C.F.R.
§37.51.
0
  A spirogram is "a tracing or graph of respiratory movements."
Dorland's Illustrated Medical Dictionary 1563 (27th ed. 1988).


                                   4
shall cease effective April 1, 1987."   Jt. App. 360.   The Order

to Show Cause required Plesh to submit evidence showing that he

was totally disabled due to pneumoconiosis caused by coal mine

employment.

     Rather than complying with this mandate, Plesh returned the

Order with the following handwritten note on the last page of the

Order:
     Dear Sir - I am appealing this as of now. Having went
     to the Howard Hospital, for my Pulmonary Medical
     Records and I was told they were sent to Mt. Sterling
     KY Labor Dept - and having taken another exam at Dr.
     Corrazza [sic] -- Now I am going to get another exam
     and will give you further med. evidence of my health
     for Black Lung after 26 years in coal mines. I will
     send this to you as soon as possible - thank you

                          Sincerely yours

                          Salvadore Plesh
                          [Social Security number omitted]

     P.S. Mr. Ratliff - this is the only means of survival
     that my wife and I have to live on now - thank you.


Jt. App. 360-61 (emphasis added).   This letter was received by

the Office of Workers' Compensation (OWCP) on March 26, 1987. The

Director did not respond to Plesh's letter, but instead issued a

final order on April 28, 1987 terminating benefits, effective

April 1, 1987.   Plesh did not appeal this order.

     Two years later, on April 13, 1989, Plesh submitted a new or

second claim for benefits.   On July 5, 1989, Dr. Philip Witorsch

examined Plesh, took x-rays, and conducted PFS and BGS tests.

Based on these tests, Dr. Witorsch diagnosed "chronic obstructive

pulmonary disease - chronic bronchitis . . . most likely due to



                                5
[Plesh's] history of tobacco use."   Dr. Witorsch observed that

the "chest x-ray is consistent with simple coal workers'

pneumoconiosis."   Dr. Witorsch opined, however, that "[t]he

contribution, if any, of patient's coal mine employment to this

impairment is uncertain."   At the same time, Dr. Witorsch

recommended performing further tests, including a lateral x-ray,

lung volume test and an exercise study, to further evaluate

whether Plesh's respiratory impairment was attributable to coal

dust exposure.   Permission to perform these tests was denied.

     The Director issued a Proposed Decision and Order Denying

Benefits on October 23, 1989.   In denying Plesh's claim, the

Director explained that because Plesh had filed his second claim

more than one year after the denial of his first claim, Plesh's

second claim would be treated as a duplicate claim under 20

C.F.R. § 725.3090 rather than as a request for modification under

20 C.F.R. § 725.310.0   The Director explained further that Plesh

0
  Section 725.309, which is titled "Duplicate claims, provides in
part:
      If an earlier claim subject to review under part 727 of
      this subchapter has been denied after review, a new
      claim filed under this part shall also be denied, on
      the ground of the prior denial, unless the [Director]
      determines that there has been a material change in
      conditions or the later claim is a request for
      modification and the requirements of § 725.310 are met.
20 C.F.R. § 725.309(c).
0
  Section 725.310 provides in part:
      Upon his or her own initiative, or upon the request of
      any party on grounds of a change in conditions or
      because of a mistake in a determination of fact, the
      [Director] may, at any time before one year from the
      date of the last payment of benefits, or at any time
      before one year after the denial of a claim, reconsider
      the terms of an award or denial of benefits.
20 C.F.R. §725.310(a).

                                 6
had failed to establish "a material change in condition," a

necessary prerequisite to filing a duplicate claim.

     Plesh appealed to the BRB, which remanded to the Office of

Administrative Law Judges pursuant to Lukman v. Director, OWCP,

896 F.2d 1248 (10th Cir. 1990).0       The ALJ concluded that Plesh's

March 26, 1987 letter, wherein Plesh declared "I am appealing

this as of now," constituted an effective appeal of the

Director's final order terminating Plesh's benefits.

     Because Plesh filed his first claim for benefits before

April 1980, the ALJ first evaluated Plesh's claim under 20 C.F.R.

Part 727.   Part 727 provides for a rebuttable "interim"

presumption that a claimant with at least ten years of coal mine

employment is totally disabled due to pneumoconiosis if the

claimant meets any one of the criteria set forth in 20 C.F.R.

§ 727.203(a).   The ALJ found that Plesh had satisfied the (a)(2)0

and (a)(4)0 requirements.




0
  Previously, the BRB had required that duplicate claims be
appealed directly to the BRB rather than to an ALJ. Lukman v.
Director, OWCP, 10 Black Lung Rep. (MB) 1-56 (1987), aff'd on
recon., 11 Black Lung Rep. (MB) 1-71 (Ben. Rev. Bd. 1988) (en
banc), rev'd, 896 F.2d 1248 (10th Cir. 1990). The Tenth Circuit
later reversed Lukman, holding that a claimant who filed a
duplicate claim had a right to a hearing before an ALJ. Lukman,
896 F.2d at 1254.
0
  A claimant may invoke the interim presumption under subsection
(a)(2) if ventilatory studies produce values less than those
specified in the table incorporated into section 727.203(a)(2).
0
  A claimant may invoke the interim presumption under subsection
(a)(4) if "[o]ther medical evidence, including the documented
opinion of a physician exercising reasoned medical judgment,
establishes the presence of a totally disabling respiratory or
pulmonary impairment." 20 C.F.R. § 727.203(a)(4).

                                   7
     The ALJ further found, however, that the interim presumption

had been rebutted, pursuant to 20 C.F.R. § 727.203(b)(3),0 by Dr.

Witorsch's testimony that Plesh's coal mine employment did not

significantly contribute to his disability.   The ALJ therefore

concluded that Plesh was not entitled to benefits under Part 727.

     Relying on Caprini v. Director, OWCP, 824 F.2d 283 (3d Cir.

1987),0 the ALJ then proceeded to evaluate Plesh's claim under

the standards set forth in Part 718.   Part 718 requires that the

claimant bear the burden of proving (1) that he suffers from

pneumoconiosis; (2) that the disease arose out of coal mine

employment; and (3) that he is totally disabled due to

pneumoconiosis.   See 20 C.F.R. § 718.201-.204.   See also

Director, OWCP v. Mangifest, 826 F.2d 1318, 1320 (3d Cir. 1987).

The ALJ found that Plesh had established the first two prongs but

not the last prong (i.e. total disability).   Accordingly, the ALJ

denied benefits to Plesh.

     The BRB, on appeal, held that Plesh had not timely appealed

the April 28, 1987 order and hence the ALJ had erred in applying

Part 727.   The BRB reasoned that the ALJ had improperly merged

Plesh's second claim with Plesh's first claim, and vacated the

ALJ's Part 727 findings.



0
  A presumption established under subsection (a) may be rebutted
in one of several ways, including submission of "evidence [which]
establishes that the total disability or death of the miner did
not arise in whole or in part out of coal mine employment
. . . ." 20 C.F.R. § 727(b)(3).
0
  In Caprini, we held that where the claim was filed before March
31, 1980 but adjudicated after that date, the ALJ must evaluate
the claim under Part 718. 824 F.2d 283, 284 (3d Cir. 1987).


                                8
     Turning to Plesh's second claim, the BRB held that Plesh, by

submitting new medical evidence, established a "material change

in conditions," as required by 20 C.F.R. § 725.309.     See supra

note 5.   The BRB, having decided that Part 727 was inapplicable

because Plesh's appeal was untimely, did not review the ALJ's

Part 727 findings, which it had vacated.     The BRB then concluded

that the ALJ's decision to deny benefits under Part 718 was

supported by substantial evidence.     Plesh filed a timely petition

for review of the BRB's decision.

                                 II.

     The BRB had jurisdiction to review the final order of an ALJ

granting or denying compensation benefits under section 21(b)(3)

of the Longshore and Harbor Workers' Compensation Act ("LHWCA"),

33 U.S.C. § 921(b)(3), as incorporated into the BLBA by 30 U.S.C.

§ 932(a).   See Elliot Coal Mining Co. v. Director, OWCP, 17 F.3d

616, 625 (3d Cir. 1994).    We have jurisdiction over an appeal

from the final order of the BRB under section 21(c) of the LHWCA,

33 U.S.C. § 921(c).   Id.

     The BRB is bound by an ALJ's findings of fact "if they are

rational, supported by substantial evidence, and consistent with

applicable law."   Id. at 626.   See also 33 U.S.C. § 921(b)(3), as

incorporated into the BLBA by 30 U.S.C. § 932(a); O'Keeffe v.

Smith, Hinchman & Grylls Assocs., 380 U.S. 359 (1965).    We review

the BRB's decision to ensure that the Board has accepted those

findings of the ALJ that are supported by substantial evidence.

Oravitz v. Director, OWCP, 843 F.2d 738, 739 (3d Cir. 1988).        We




                                 9
exercise plenary review over questions of law.   BethEnergy Mines,

Inc. v. Director, OWCP, 32 F.3d 844, 846 (3d Cir. 1994).

                               III.

     We must first address the threshold issue of whether the

Director possessed authority to reopen and reconsider Plesh's

1980 award.   Plesh has challenged the validity of 20 C.F.R.

§ 718.404(b),0 which effectuates section 22 of the LHWCA, 33

U.S.C. § 922,0 and which is incorporated into the BLBA by 30

U.S.C. § 932(a).

     Specifically, Plesh contends that Congress has acknowledged

that pneumoconiosis is an incurable, progressive disease, and

0
  Section 718.404(b) provides:
           An individual who has been finally adjudged to be
      totally disabled due to pneumoconiosis shall, if
      requested to do so upon reasonable notice, where there
      is an issue pertaining to the validity of the original
      adjudication of disability, present himself or herself
      for, and submit to, examinations or tests as provided
      in § 718.101, and shall submit medical reports and
      other evidence necessary for the purpose of determining
      whether such individual continues to be under a
      disability. Benefits shall cease as of the month in
      which the miner is determined to be no longer eligible
      for benefits.
0
  Section 922 provides in relevant part:

     Upon his own initiative, or upon the application of any
     party in interest . . ., on the ground of a change in
     conditions or because of a mistake in a determination
     of fact by the [Director], the [Director] may, at any
     time prior to one year after the date of the last
     payment of compensation, whether or not a compensation
     order has been issued, or at any time prior to one year
     after the rejection of a claim, review a compensation
     case . . . in accordance with the procedure prescribed
     . . . and . . . issue a new compensation order which
     may terminate, continue, reinstate, increase, or
     decrease such compensation, or award compensation.

33 U.S.C. § 922.

                                10
hence the Director may not withdraw benefits based upon the

premise that the claimant has recovered from the illness or that

the miner's disability has lessened.    Indeed, the Director has

conceded that a miner who is totally disabled by pneumoconiosis

will never recover, and the Secretary of the DOL has disavowed

authority to terminate or modify an award based upon recovery

from pneumoconiosis:
     Although one comment praises [section 718.404], the
     overwhelming majority of comments on this section
     suggest that it be stricken. These comments note that
     pneumoconiosis is a progressive disease, and that while
     the symptoms may, on occasion, subside, the condition
     itself does not improve. . . .

     . . . In order to reflect the fact that the symptoms of
     pneumoconiosis generally continue, even though
     statutory entitlement may cease, the Department has
     changed the title of this section from "cessation of
     disability" to "cessation of entitlement." Although
     the Department agrees that the disease does not
     improve, section 22 of the [LHWCA] provides for
     modification of awards on a change in condition or
     mistake in determination of fact. Subsection (b) of
     this regulation effectuates this provision.


45 Fed. Reg. 13,694 (Feb. 29, 1980) (emphasis added).
     We agree that pneumoconiosis is progressive and incurable.

The legislative history of the Black Lung Benefits Reform Act of

1977 clearly demonstrates that Congress recognized that coal dust

inhalation causes permanent damage.    See H.R. Rep. No. 95-151,
95th Cong., 2d Sess. 6 (1977), reprinted in 1978 U.S.C.C.A.N.

237, 242.   In fact, the Supreme Court, this court and other

courts have recognized the irreversible nature of black lung

disease.    See Mullins Coal Co. v. Director, OWCP, 484 U.S. 135,

138 (1987); Shendock v. Director, OWCP, 893 F.2d 1458, 1467 n.10


                                 11
(3d Cir.), cert. denied, 498 U.S. 826 (1990); Kowalchick v.

Director, OWCP, 893 F.2d 615, 621 (3d Cir. 1990); Back v.

Director, OWCP, 796 F.2d 169, 172 (6th Cir. 1986); Orange v.

Island Creek Coal Co., 786 F.2d 724, 727 (6th Cir. 1986);

Consolidation Coal Co. v. Chubb, 741 F.2d 968, 973 (7th Cir.

1984); Andryka v. Rochester & Pittsburgh Coal Co., 14 Black Lung

Rep. (MB) 1-34 (1990); Stanley v. Betty B Coal Co., 13 Black Lung

Rep. (MB) 1-72 (1990); Belcher v. Beth-Elkhorn Corp., 6 Black

Lung Rep. (MB) 1-1180 (1984).

           The Director argues, however, that the regulation in

question, as well as the DOL's authority to reopen a case, does

not rely upon an assumption that the claimant's condition can

improve.   Rather, the Director posits that section 718.404(b),

consistent with the statute, authorizes the OWCP to reopen a case

only upon a finding of a mistake in the original determination or

of a change in condition other than recovery from pneumoconiosis.

     Here, the record does not reveal the specific reasons that

the Director chose to reopen Plesh's file.   The Director's letter

to Plesh merely states that his file was "found to have certain

deficiencies."   This statement is equivocal as to the Director's

motivation for reopening Plesh's file.   Because our analysis as

to the timeliness of Plesh's appeal differs substantially from

that of the BRB's, we have no need to address the following two

issues, which were not explicitly discussed by either party in

their briefs.

     First, neither party has informed us as to whether the

Director's initial failure to identify the particular "change in


                                12
[Plesh's] condition" or the Director's "mistake in determination

of fact" precludes a remand to enable the Director to make such a

finding.     See 33 U.S.C. § 922 and supra note 3.   Second, neither

party has informed us as to whether the Director, in claiming a

"change in condition" or a "mistake in determination of fact,"

bears the burden of proof or only a burden of production.

        Accordingly, we do not find it necessary to remand for

further briefing because under our view of Plesh's appeal, we are

satisfied that his letter received by the Director on March 26,

1987, in which he stated "I am appealing this as of now," was

sufficient to effectively appeal the termination of his Part 727

benefits.     Moreover, holding as we do infra that Plesh's appeal

was timely and effective, our review of the ALJ's findings and

conclusions persuades us that substantial evidence existed of

Plesh's continuing pneumoconiosis and total disability --evidence

which has not been rebutted by the Director.

                                  IV.

        For claims filed before April 1, 1980, the DOL's "interim"

presumptions apply.     Plesh filed his initial claim on May 29,

1979.     Under the more liberal Part 727 standards, a presumption

of total disability due to pneumoconiosis is established if a

living claimant has worked for more than ten years as a miner and

meets at least one of four specified medical requirements.       See
20 C.F.R. § 727.203(a)(1)-(4).0    If the claimant successfully

0
    Section 727.203(a) provides in relevant part:
        A miner who engaged in coal mine employment for at
        least 10 years will be presumed to be totally disabled
        due to pneumoconiosis . . . arising out of [coal mine]

                                  13
invokes an interim presumption, the Director bears the burden of

rebutting the presumption in one of four ways:
          (1) The evidence establishes that the individual
     is, in fact, doing his usual coal mine work or
     comparable and gainful work . . .; or
          (2) In light of all relevant evidence it is
     established that the individual is able to do his usual
     coal mine work or comparable and gainful work . . .; or
          (3) The evidence establishes that the total
     disability or death of the miner did not arise in whole
     or in part out of coal mine employment; or
          (4) The evidence establishes that the miner does
     not, or did not, have pneumoconiosis.


Id. at § 727.203(b).

     If a claimant "files more than one claim for benefits . . .,

the later claim shall be merged with the earlier claim for all

purposes if the earlier claim is still pending."   Id. at

§ 725.309(d); see also Tonelli v. Director, OWCP, 878 F.2d 1083,

1086-87 (8th Cir. 1989).   Plesh's claim was properly evaluated

under Part 727 because his first claim was still pending at the


     employment, if one of the following medical
     requirements is met:
          (1) A chest roentgenogram (X-ray), biopsy, or
     autopsy establishes the existence of pneumoconiosis
     . . .;
          (2) Ventilatory studies establish the presence of
     a chronic respiratory or pulmonary disease . . . as
     demonstrated by values which are equal to or less than
     the values specified in the following table . . .;
          (3) Blood gas studies which demonstrate the
     presence of an impairment in the transfer of oxygen
     from the lung alveoli to the blood as indicated by
     values which are equal to or less than the values
     specified in the following table . . .;
          (4) Other medical evidence, including the
     documented opinion of a physician exercising reasoned
     medical judgment, establishes the presence of a totally
     disabling respiratory or pulmonary impairment . . . .
20 C.F.R. § 725.203(a)(1)-(4).



                                14
time he filed his second claim.    Whether Plesh's first claim

would be considered still pending depends upon whether Plesh

effectively appealed the 1989 denial of benefits due under his

first claim.

     The ALJ found that Plesh's handwritten letter, which was

received by the Director on March 26, 1987, and which was written

in response to the Order to Show Cause, was a proper appeal of

the order terminating benefits.    The BRB disagreed with the ALJ's

determination of this issue and vacated the ALJ's findings as to

the timeliness of Plesh's appeal and merger of Plesh's claims.

     We first note that Plesh's message to the Director, although

terse and informal, clearly and unequivocally communicated

Plesh's intent to "appeal . . . as of now."    Under the

regulations, the Director must refer a claim to the Office of

Administrative Law Judges if a party requests a formal hearing,

which we deem Plesh's "letter-appeal" to have sought.      See 33

U.S.C. § 919(c) ("The [Director] shall make or cause to be made

such investigations as he considers necessary in respect of the

claim, and upon application of any interested party shall order a

hearing thereon . . . .") (emphasis added); 20 C.F.R. §725.421(a)

("In any claim for which a formal hearing is requested . . ., the

[Director] shall refer the claim to the Office of Administrative
Law Judges for a hearing.") (emphasis added).

     We are unaware of any mandatory requirements as to the form

that an appeal must take, other than that it be in writing.      Nor

has the Director apprised us of any such requisites with which

Plesh has failed to comply.   Hence, we conclude that Plesh's


                                  15
handwritten note constituted a request for a formal hearing

before an ALJ, triggering the Director's duty to refer all

contested issues to an ALJ for resolution.

     The Director argues, however, that Plesh's request for

review of the decision to terminate his benefits was ineffective

because Plesh made the request prior to the entry of a final

order.   In support of this contention, the Director cites several

regulatory provisions, including section 725.450, which provides:
     Any party to a claim . . . shall have a right to a
     hearing concerning any contested issue of fact or law
     unresolved by the [Director]. There shall be no right
     to a hearing until the processing and adjudication of
     the claim by the [Director] has been completed. There
     shall be no right to a hearing in a claim with respect
     to which a determination of the claim made by the
     [Director] has become final and effective in accordance
     with this part.


20 C.F.R. § 725.450.

     The Director also relies on section 725.419(a), which

provides in part:
     Within 30 days after the date of issuance of a proposed
     decision and order, any party may, in writing, request
     a revision of the proposed decision and order or a
     hearing. If a hearing is requested, the [Director]
     shall refer the claim to the Office of Administrative
     Law Judges.


Id. at § 725.419(a).   The Director also points to the Secretary's

comments reported in the Federal Register:
     One comment recommends that the [Director] should be
     required to terminate the processing of a claim as soon
     as a hearing is requested, and immediately forward the
     claim for a hearing.
     . . . .
     . . . A party should not be allowed to proceed to a
     hearing before informal procedures are completed. It
     is not appropriate for a hearing to go forward until
     the issues are fully identified and most evidentiary


                                16
     development completed. These preliminary activities
     are within the purview of the [Director], and not the
     [ALJ].


43 Fed. Reg. 36,797 (Aug. 18, 1978).

     The Director posits that a claimant cannot exercise his or

her right to a hearing until after a final determination has been

made as to the claimant's entitlement to benefits.       We agree that

a claimant is not entitled to a hearing until after the Director

has "completed development and adjudication [of claimant's

application for benefits]."    20 C.F.R. § 725.421(a).    That is, a

formal hearing may not be conducted until after the Director has
made an initial finding as to the claimant's eligibility for

black lung benefits.

     Nevertheless, we cannot agree that a premature appeal (that

is, a hearing request filed before entry of a final order) is

ineffective as an invocation of a claimant's right to a hearing

before an ALJ.   Notably, none of the regulations cited by the

Director forbid a claimant from requesting a hearing prior to

entry of a final order; they merely indicate that the claimant

cannot "proceed to a hearing before informal procedures are

completed."   43 Fed. Reg. 36, 797 (Aug. 18, 1978).

     The Director argues that Plesh was required to take some

further action after, but within thirty days of, receiving the

Proposed Decision and Order.    Plesh's failure to file a second

request for a hearing, according to the Director, was fatal.

      The Director further suggests that the Notice of Appeal

Rights, which was included with the Proposed Decision and Order,



                                 17
should have alerted Plesh to the necessity of submitting a

written request for a hearing.   The notice advised that

"[f]ailure to appeal with [sic] that thirty (30) day period will

result in the Order becoming final . . . ."

     However, Plesh explained, during the hearing before the ALJ,

that the reason he took no further action (after receiving the

Proposed Decision and Order and the Notice of Appeal Rights) was

that he believed he had already appealed the termination of his

benefits by his letter, which stated "I am appealing this [order]

as of now."   The ALJ found Plesh's testimony on this issue to be

credible.

     It is easy to understand how Plesh, who was not represented

by counsel at the time the Director advised him that his award

was under reconsideration, could be confused as to the proper

protocol for appealing the order which terminated his benefits.

The Proposed Decision and Order bears a striking resemblance to

the Order to Show Cause.   The first four paragraphs of each

document are identical; and both are printed on DOL letterhead.

The only significant difference between the two documents was

that the final order was captioned "Proposed Decision and Order

of Modification of Award of Benefit" rather than "Order to Show

Cause."   However, a layperson might well fail to discern the

legal distinction between an Order to Show Cause and a Proposed

Decision and Order.

     The Director cites a litany of cases for the proposition

that an appeal from an order to show cause is premature because

the order to show cause is not a final order.   The Director,


                                 18
however, never responded to Plesh's counter-argument that a

premature request for a hearing can be perfected by the

subsequent entry of a final order.

     Indeed, we have taken such an approach in the context of

premature filings of notices of appeal to this court.     We have

held that an appeal from "an order which is not final but which

is followed by an order that is final may be regarded as an

appeal from the final order in the absence of a showing of

prejudice to the other party."   Richerson v. Jones, 551 F.2d 918,

922 (3d Cir. 1977); see also Cape May Greene, Inc. v. Warren, 698

F.2d 179, 185 (3d Cir. 1983); New Castle County v. Hartford

Accident & Indem. Co., 933 F.2d 1162, 1178 (3d Cir. 1991);

Dowling v. City of Philadelphia, 855 F.2d 136, 138 (3d Cir.

1988); Hodge v. Hodge, 507 F.2d 87, 89 (3d Cir. 1975).    Our own

appellate rules of procedure, which pertain to certain

postjudgment motions, have always provided jurisdictional

deadlines.    Yet, even these rules have recently been amended, see

Fed. R. App. P. 4(a)(2) (as amended Apr. 22, 1993, effective Dec.

1, 1993), to provide for a premature filing of a notice of

appeal.   Federal Rule of Appellate Procedure 4(a)(2) explicitly

provides that "[a] notice of appeal filed after the court

announces a decision or order but before the entry of the

judgment or order is treated as filed on the date of and after

the entry."

     We have been given no reason to hold that a premature

request for a hearing should be treated differently than a

premature appeal from the decision of a district court.     Plesh's


                                 19
letter "appealing" from the Order to Show Cause rather than from

the subsequent final order will accordingly be deemed filed as of

the date the Director's final order was entered.     In our view,

such a rule does not prejudice the Director.

        We therefore conclude that the BRB erred in determining that

Plesh had not appealed the 1987 modification of his first claim.

In light of our conclusion that Plesh's first claim was still

pending, we hold that the ALJ properly merged Plesh's second

filed claim with his earlier first claim and hence properly

determined that Plesh's claim for benefits should be evaluated

under the interim presumptions of Part 727.

                                   V.

        We next turn to the ALJ's analysis under Part 727.   Under 20

C.F.R. § 727.203(a), a claimant may invoke the presumption of

entitlement to benefits if the claimant has been engaged in coal

mine employment for at least ten years and the claimant satisfies

at least one of five medical requirements.0     Based upon the

Director's stipulation and Plesh's Social Security record, the

ALJ credited Plesh with seventeen and three-fourth years of coal

mine employment.     This finding is supported by substantial

credible evidence.

        The ALJ found that the x-ray and arterial blood gas study

evidence insufficient to satisfy the requirements under sections

727.203(a)(1) and (a)(3).     On the other hand, the ALJ found that

the interim presumption could be invoked based on the pulmonary


0
    See supra note 14 for the text of section 727.203(a).


                                   20
function study and medical opinion evidence pursuant to

subsections (a)(2) and (a)(4).   Based on our review of the

record, we conclude that the ALJ's finding that Plesh satisfied

subsections (a)(2) and (a)(4) is supported by substantial

evidence.

      To invoke the presumption based on ventilatory study results

under section 727.203(a)(2), a claimant who is less than 67

inches tall must demonstrate FEV1 (forced expiratory volume)

values equal to or less than 2.3 liters per second and MVV

(maximum voluntary ventilation) values equal to or less than 92

liters per minute.    Plesh, who is 5' 4" tall, see Jt. App. 380,

underwent ventilatory study testing on five occasions, from

December 1979 to July 1989.   The ALJ found that the FEV1 values

ranged from 1.33 to 1.92; and the MVV values ranged from 42 to

59.   Jt. App. 102.   Therefore, Plesh was entitled to invoke the

presumption under subsection (a)(2).

      To invoke the presumption under subsection (a)(4), a

claimant may establish the presence of a totally disabling

respiratory or pulmonary impairment through "[o]ther medical

evidence, including the documented opinion of a physician

exercising reasoned medical judgment . . . ."   20 C.F.R.

§ 727.203(a)(4).   The ALJ relied on the reports of Drs. Young and

Witorsch to conclude that Plesh had established a totally

disabling respiratory impairment within the meaning of the BLBA.

Dr. Young, who had examined Plesh in May 1980, concluded that

Plesh suffered from a moderate respiratory disability.    Dr.

Witorsch, who examined Plesh in July 1989, characterized Plesh's


                                 21
respiratory impairment as mild but agreed that Plesh's

respiratory impairment would prevent him from performing heavy

manual labor as required in coal mine employment.   These medical

reports constitute substantial evidence supporting the ALJ's

finding that Plesh could invoke the presumption under subsection

(a)(4).

     Once a claimant has successfully invoked the interim

presumption under section 727.203(a), as Plesh did under

subsections (a)(2) and (a)(4), the burden of production and

persuasion shifts to the Director to rebut the presumption in one

of the four methods set forth in 20 C.F.R. § 727.203(b).    The ALJ

found that the Director had failed to rebut the presumption under

subsections (b)(1), (b)(2) or (b)(4).   Substantial evidence

supports the ALJ's determination with respect to the Director's

burden of rebuttal under these subsections.0


0
 Under subsection (b)(1), the Director may rebut the presumption
by proving that the claimant is in fact engaged in his usual coal
mine work or comparable and gainful work. The record reveals
that Plesh has not worked in a coal mine since 1966; indeed, the
Director does not contend that rebuttal is established under this
subsection.
     Under subsection (b)(2), the Director may rebut the
presumption if the evidence establishes that the claimant is
capable of performing his usual coal mine work or comparable and
gainful work. Dr. Witorsch found that Plesh was unable to engage
in heavy manual labor because of his respiratory condition; and
the Director did not offer any evidence to the contrary.
     Under subsection (b)(4), the interim presumption may be
rebutted by establishing that the claimant does not have
pneumoconiosis. First, there is record evidence to support a
finding that Plesh suffers from pneumoconiosis; for example, Dr.
Young read Plesh's x-rays as positive for pneumoconiosis.
Moreover, the Director relies solely on the reports of Drs.
Witorsch and Corazza to establish rebuttal under this subsection.
Neither report, however, is sufficient to establish rebuttal.


                               22
     As to subsection (b)(3), however, the ALJ found that the

Director had established that Plesh's disability did not arise,

in whole or in part, out of coal mine employment.   Under Third

Circuit precedents, in order to rebut a presumption of

pneumoconiosis under subsection (b)(3), the party opposing the

award of benefits must "'rule out' a possible causal connection

between a miner's disability and his coal mine employment." Kline

v. Director, OWCP, 877 F.2d 1175, 1179 (3d Cir. 1989) (emphasis

original).   In ruling that the Director had met her burden of

rebutting the presumption under subsection (b)(3), the ALJ relied

entirely on Dr. Witorsch's testimony.

     We cannot agree that Dr. Witorsch's testimony "rules out" a

possible causal connection between Plesh's disability and his

employment as a coal mine worker.    Dr. Witorsch never


     First, Dr. Witorsch's findings were equivocal. Indeed, he
concluded that Plesh's x-rays were "consistent" with
pneumoconiosis and that pulmonary function studies showed some
mild restrictive pulmonary condition. Dr. Witorsch merely noted
that a lateral x-ray and additional lung volume tests were
necessary for a conclusive determination as to the presence of
pneumoconiosis.
     Second, Dr. Corazza's opinion was based solely on the fact
that "[t]here is no evidence of pneumoconiosis on the x-ray." Jt.
App. 378. As noted by the Supreme Court, however, "significant
evidence demonstrat[es] that x-ray testing that fails to disclose
pneumoconiosis cannot be depended upon as a trustworthy indicator
of the absence of the disease." Usery v. Turner Elkhorn Mining
Co., 428 U.S. 1, 31-32 (1976). The ALJ properly discounted Dr.
Corazza's opinion as inconsistent with the BLBA because the
statute "specifically provides that a presumption of
pneumoconiosis comes into play even though it cannot be proved by
x-ray." Black Diamond Coal Mining Co. v. Benefits Review Bd.,
758 F.2d 1532, 1534 (11th Cir. 1995) (holding that ALJ properly
refused to accredit opinion of physician who stated that he would
not diagnose pneumoconiosis absent positive x-ray evidence that
the disease existed).


                                23
affirmatively stated that Plesh's coal mine employment did not

contribute to his disability.   Rather Dr. Witorsch merely

expressed his reservations about diagnosing the cause of Plesh's

chronic respiratory disease with any degree of medical certainty.

Dr. Witorsch's deposition testimony is enlightening:
          Q: [D]o you believe that Mr. Plesh has a chronic
     lung disease significantly related to or substantially
     aggravated by coal dust exposure?

          A: I'm not certain that he does. He has a
     chronic lung disease but I can't say with any degree of
     medical certainty that it relates to his coal dust
     exposure.

     . . . .

          Q: Is that statement [in Dr. Diggs's medical
     report] consistent with a chronic lung disease
     significantly related to or substantially aggravated by
     coal dust exposure?

          A: It is consistent with it but not diagnostic of
     it. . . . [W]e'd need at least a lateral x-ray [to
     make such a diagnosis].

     . . . .

          Q: Are these findings [in your July 5 report]
     consistent with a chronic lung disease significantly
     related to or substantially aggravated by coal dust
     exposure?

          A: Again, they are consistent with it but not
     diagnostic of it. . . .

     . . . .
          Q: Does Mr. Plesh's history of coal dust exposure
     support a determination that he has a coal dust related
     impairment?

          A: I think it neither supports it or refutes it.
     It is consistent with his -- at least it indicates that
     he had exposure but it's only supportive in the sense
     that if he never worked in a coal mine or never had any
     exposure, it would be very inconsistent with that.



                                24
     . . . .

          Q: Can you rule out the causal contribution of
     the restrictive impairment to his lung impairment?

          A: Well, I think if he has any, it's at most,
     very slight and I think he probably doesn't have any.
     And the reason I say that is his predominant impairment
     is air flow obstruction . . . . So, any contribution
     of any restrictive impairment would be negligible to
     very small.
     . . . .

          Q:   You say the contribution is uncertain?

          A: It -- I couldn't be a hundred percent certain
     from a scientific point of view.

          Q: Okay, so forgive me if I'm trying to -- I
     don't want to put words in your mouth but I want you to
     address specifically, can you rule out the causal
     contribution?

          A: I cannot absolutely rule it out with this
     information [i.e. without further tests].


Jt. App. 271-79.

     Dr. Witorsch's testimony cannot be read to "rule out" coal

workers' pneumoconiosis as a contributing factor to Plesh's

disability.    Rather, Dr. Witorsch merely stated that he could not
confirm the extent to which pneumoconiosis contributed to Plesh's

respiratory ailment.   In fact, Dr. Witorsch, on several

occasions, opined that the medical evidence was consistent with

coal workers' pneumoconiosis.

     We were faced with a similar set of facts in Kline v.

Director, OWCP, 877 F.2d 1175 (3d Cir. 1989).    In that case, the

ALJ found that the claimant had established the presumption under

section 727.203(a).    However, the ALJ concluded that the

presumption was rebutted under subsections (b)(3) and (b)(4)


                                 25
based upon the testimony of Dr. McQuillan.        Id. at 1177.   Dr.

McQuillan reviewed the medical records and concluded that the

miner's pulmonary condition was due to advanced tuberculosis,

stating that he was "unable to substantiate a disabling diagnosis

of pneumoconiosis in this case."        Id. at 1178.   The BRB affirmed,

finding that the ALJ had "properly credited the opinion of Dr.

McQuillen [sic]."   Id. at 1177.

     We reversed, holding that Dr. McQuillan's opinion was

insufficient to rebut the presumption.        We explained that "Dr.

McQuillan's strongest statement is that he was not able to

substantiate a diagnosis of pneumoconiosis.        The fact that Dr.

McQuillan could not confirm pneumoconiosis does not suggest that

such a condition is inconsistent with the medical evidence."           Id.

at 1179.

     Similarly, in the case at bar, Dr. Witorsch's testimony that

he could not conclude with any degree of medical certainty that

Plesh's condition was caused by coal dust exposure does not

establish the lack of a causal connection.        Indeed, Dr. Witorsch

requested the DOL's permission to perform additional tests

(lateral x-rays and lung volume tests) to ascertain whether

Plesh's chronic respiratory problems were related to coal dust

exposure.   Dr. Witorsch's request was denied, and the record does

not reveal the reasons for the denial.        However, the fact that

Dr. Witorsch requested these tests indicates at the very least

that Dr. Witorsch was uncertain as to whether Plesh suffered from

pneumoconiosis arising out of coal mine employment.




                                   26
     Therefore, we conclude that the ALJ's finding of rebuttal

under subsection (b)(3) is not supported by substantial evidence.

The interim presumption under section 727.203(a) consequently

remains unrebutted.   Thus, Plesh is entitled to benefits under

the BLBA.

                               VI.

     In sum, we conclude that the record establishes Plesh's

entitlement to black lung benefits as a matter of law.   We will

therefore reverse the BRB's decision and order and remand this

case solely for reinstatement of Plesh's benefits, which had been

erroneously terminated.




                                27
