On Petition for Review of a Final Order of the Benefits Review Board, United States Department of Labor, Case No. 82-BLA-7, BRB No. 86-2162 BLA, OWCP No. 174-09-2456.
Higginbotham, Greenberg and Hutchinson, Circuit Judges.
Penn Allegheny Coal Company and Old Republic Coal Companies (companies) petition this court for review of an order of the Benefits Review Board (BRB) dated October 31, 1988, which denied their motion for reconsideration of a decision and order of the BRB of May 27, 1988, in this case under the Black Lung Benefits Act (Act), 30 U.S.C. § 901-45. The May 27, 1988, decision and order affirmed a decision and order of an Administrative Law Judge (ALJ) awarding all benefits to an appropriate party, as authorized by 20 C.F.R. § 725.504, to which James Mercatell was entitled, and awarding survivorship benefits to Dorothy Mercatell, to which she was entitled as the widow of James Mercatell.*fn1 See Rochester & Pittsburgh Coal Co. v. Krecota, 868 F.2d 600, 601 (3d Cir. 1989).
The principal issue on the appeal is whether the ALJ properly discredited evidence which may have rebutted the interim presumption under 20 C.F.R. § 727.203(b)(3).*fn2 It is uncontested that the ALJ properly relied on the only pulmonary function study of record to invoke the interim presumption of 20 C.F.R. § 727.203(a)(2) that the miner, James Mercatell, was totally disabled by pneumoconiosis, as the result of his thirty-four years of coal mine employment.*fn3
At the first administrative hearing, the ALJ credited the medical report of James Mercatell's physician, Dr. Jay Paul, who had stated that the miner's presumed disability and his May 26, 1980, death were attributable to lung cancer as the result of cigarette smoking, not pneumoconiosis from his coal mine employment. On the basis of this report the ALJ found in a decision and order dated September 23, 1983, that the interim presumption had been rebutted and, consequently, he did not award benefits.
The Director of the Office of Worker's Compensation Programs appealed the denial of benefits to the BRB. In the first administrative appeal on January 24, 1986, the BRB vacated the ALJ's decision and order and remanded the matter for reconsideration in light of Hoffman v. B & G Construction Co., Black Lung Rep. (MB) 1-65 (Ben.Rev.Bd. 1985).*fn4 As summarized in the Director's brief on this appeal,
[in] Hoffman, the [BRB] held that Congress had recognized that simple pneumoconiosis could be totally disabling and that x-ray evidence of simple pneumoconiosis is categorized as 1, 2, or 3 according to the classification system required by the U.S. Department of Labor's quality standards. 20 C.F.R. § 718.102. However, some physicians believe that, without x-ray readings of 3/3 or greater or evidence of progressive massive pulmonary fibrosis, a miner cannot demonstrate that his pulmonary disease is due to coal mine employment. The [BRB] held that an ALJ cannot rely on such physicians to establish the cause of a miner's disability. The [BRB] added that such a physician's opinion may, nevertheless, establish the existence or absence of a breathing impairment.
Dr. Paul's testimony was not consistent with Congress's recognition of what respiratory conditions could be related to coal mine employment, as noted in Hoffman, as he believed that when the x-ray opacities are lower than 2/2 there cannot be totally disabling pneumoconiosis.*fn5
On remand, the ALJ, relying on Hoffman, consequently discredited Dr. Paul's testimony as to the cause of the miner's impairment.*fn6 The ALJ then determined that the remaining medical evidence was insufficient to rebut the interim presumption.*fn7
In the second administrative appeal to the BRB, the companies argued that the ALJ improperly considered the Director's argument that Dr. Paul's testimony should be discredited premised on his evidenced hostility to the Act. Under the BRB's ruling in Lyon v. Pittsburgh & Midway Coal Co., 7 Black Lung Rep. (MB) 1-199, 1-201 (Ben.Rev.Bd. 1984), the issue of hostility to the Act must be raised before the ALJ for the BRB to consider the issue on appeal. Thus, arguably the BRB improperly considered this issue on the first administrative appeal and the ALJ's initial denial of benefits should have been upheld.
The BRB on the second appeal observed, however, that the companies failed to object in the first administrative appeal to consideration of the issue regarding Dr. Paul's hostility to the Act which was accordingly considered on the merits. Relying on the law of the case, the BRB thus held that it would not consider the companies' argument that it should not have considered the issue of Dr. Paul's hostility on ...