ON PETITION FOR REVIEW OF AN ORDER OF THE BENEFITS REVIEW BOARD.
Gibbons and Becker, Circuit Judges and Atkins, District Judge.*fn*
Frank J. Carozza, a former coal miner, petitions for review of a final decision of the Benefits Review Board, United States Department of Labor, reversing a decision of an administrative law judge awarding him benefits for disability resulting from pneumoconiosis. We have jurisdiction under 33 U.S.C. § 921(c) (1976). The Director, Office of Workers' Compensation Programs, United States Department of Labor, supports Carozza's petition. His last employer, United States Steel Corporation, opposes it. We grant the petition for review and direct the payment of benefits in accordance with the decision of the administrative law judge.
Carozza has worked in coal mines for thirty years. In June of 1978 he suffered a heart attack and was hospitalized for fifteen days. In April of 1979 he underwent a cardiac catheterization and was diagnosed as having coronary artery disease. He was examined in 1979 by three physicians. On May 4, Dr. Maude Vance, based on a negative x-ray, found no evidence of pneumoconiosis or pulmonary disease. On August 31, Dr. John Shively found Carozza to be totally disabled from severe cardiovascular disease, but stated that there was equivocal radiographical evidence of pneumoconiosis but no evidence of significant occupational lung disease, impairment, or disability. On September 14, Dr. J. D. Silverman diagnosed Carozza as being disabled primarily from his severe heart attack with valvular complications. He noted, as well, that pneumoconiosis contributed in part to Carozza's disability.
The Department of Labor, on October 26, 1979, certified Carozza as eligible for benefits. United States Steel Corporation refused to pay and requested a hearing. On March 24, 1980 Dr. Silverman conducted a second examination, and reported that Carozza was totally disabled from anthracosilicosis. After a hearing, the administrative law judge ordered the payment of benefits.
Noting that Carozza's thirty years of coal mine employment gave rise to the interim presumption in 20 C.F.R. § 727.203 (1983) of total disability from pneumoconiosis, he concluded that the medical evidence requirement of that regulation had been satisfied. That evidence comprised the x-rays taken by Drs. Shively and Silverman showing simple pneumoconiosis, and the March 24, 1980 opinion of Dr. Silverman that Carozza suffers from a totally disabling respiratory or pulmonary impairment. See 20 C.F.R. §§ 727.203(a)(1),(4) (1983). Once the interim presumption came into operation United States Steel Corporation was required to rebut it by "evidence establish[ing] 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. § 727.203(b)(3) (1983) (emphasis supplied). The administrative law judge observed:
The primary source of Claimant's total disability is his cardiac disease. . . . But this does not prove that his present total disability is unrelated to his pneumoconiosis. All the pulmonary function tests showed some degree of pulmonary impairment. In addition, Claimant testified that he had breathing problems before his heart attack and that he continues to have trouble breathing. Claimant has pneumoconiosis. Employer has a difficult burden in rebutting the interim presumption under § 727.203(b)(3). I find that it has not done so. Dr. Shively's report and the other medical evidence do not establish to my satisfaction that Claimant's total disability did not arise at least partially out of his coal mine employment.
App. at 4a-4 (emphasis supplied). United States Steel appealed to the Benefits Review Board, which reversed. The Board produced three opinions. Judge Ramsey relied on the Board's decisions in Jones v. The New River Company, 3 BLR 1-199 (1981), and Van Nest v. Consolidation Coal Company, 3 BLR 1-526 (1981), rev'd mem., 705 F.2d 460 (6th Cir. 1982), holding that the language "in whole or in part" in 20 C.F.R. § 727.203(b)(3) (1983) was inconsistent with the governing statute and beyond the rulemaking authority of the Secretary. Judge Miller, who had dissented from that holding in Van Nest, concurred solely on the ground that Jones was now a precedent which should be followed by the Board for the sake of consistency. He would otherwise have affirmed. Judge Kalaris approved the Board's Jones and Van Nest holdings, but would have remanded to the administrative law judge for further fact finding since the facts were found under an erroneous legal standard. This petition for review followed.
The opinions of the Board members make clear that had they considered 20 C.F.R. § 727.203(b)(3) to be a valid regulation they would have affirmed the order requiring payment of benefits. Thus the petition for review should be granted, and that order reinstated, if this court so concludes. Before addressing that question, however, we address the preliminary objection, advanced by the petitioner and the Director, Office of Workers' Compensation Programs, that ...