Petition for Review Benefits Review Board.
Aldisert, Weis, and Rosenn, Circuit Judges.
The question for decision in this petition for review of an order of the Benefits Review Board, United States Department of Labor, is whether there was substantial evidence to support a factual finding that the presumption of total disability in a black lung case had not been rebutted by the employer. We have jurisdiction under the Longshoremen's and Harbor Workers' Compensation Act, as amended, 33 U.S.C. § 921(c), as incorporated in the Black Lung Benefits Act, 30 U.S.C. § 932(a).
Perry Simonazzi filed a claim for benefits under the Black Lung Benefits Act which was controverted by the petitioner Mathies Coal Company and forwarded to an administrative law judge for a hearing. On the basis of pulmonary function studies included in the record, the administrative judge invoked the presumption of disability ("interim presumption") provided in 20 C.F.R. § 727.203 (1983). The judge also found that the employer failed to rebut the presumption under methods provided in 20 C.F.R. § 727.203(b) (1983). A timely appeal was filed to the Benefits Review Board, which affirmed. This appeal followed.
The petitioner admits that the claimant worked in the nation's coal mines for approximately 45 years and last worked for it on May 23, 1977. The petitioner concedes that the ALJ properly found that claimant had an excess of coal mine employment and that the pulmonary function studies were sufficient to invoke the interim presumption.*fn1
The interim presumption provides for a presumption of total disability if the claimant has ten years of coal mine employment and any one of the following: positive x-ray or autopsy, qualifying pulmonary function studies, qualifying arterial blood gas studies, or other medical evidence meeting certain requirements. Although the interim presumption aids the claimant, the employer can rebut the presumption if:
(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.
20 C.F.R. § 727.203(b) (1983).
Petitioner's sole argument is that substantial evidence in the record supports the finding that the employer met its burden of proof and rebutted the presumption under (3) and (4) above in that respondent's respiratory impairment did not arise ...