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Revak v. National Mines Corp.

argued: October 16, 1986.


On Petition for Review of an Order of the Benefits Review Board.

Author: Becker

Before GIBBONS, BECKER, Circuit Judges, and FULLAM, District Judge*fn*


BECKER, Circuit Judge.

This petition for review of a decision and order of the Benefits Review Board of the U.S. Department of Labor denying the claim of petitioner Michael Revak for benefits under the Black Lung Benefits Act as amended. 30 U.S.C. §§ 901 et seq., required us to answer a question that had divided the Circuits: many an Administrative Law Judge balance conflicting evidence in deciding whether to invoke the interim presumption of total disability due to pneumoconiosis disease pursuant to 20 C.F.R. 727.203(a), or must the ALJ find the presumption triggered so longa s the claimant adduces a single piece of qualifying evidence establishing disability. For the reasons that follow, we conclude that the balancing procedure applied by the ALJ in this case was improper and that Revak was entitled to a presumption of disability on the basis either of his qualifying ventilatory function study or of his qualifying medical report. Because Revak's claim was dismissed by the ALJ on the basis of a balancing procedure, and the BRB affirmed, we will reverse the order of the BRB and remand the case for reconsideration.


Revak who worked for 35 years in underground mining, is currently 67 years of age. In 1960 he began to have coughing spells, particularly when digging near the mine-face. His symptoms became progressively worse, During the mid-1970's he often had to leave the mine after only a few hours because of coughing attacks, In 1979, Revak was placed on disability by his employer because of shortness of breath, and he has not returned to mining since that time. From 1975 to 1981, Revak was hospitalized periodically at the Test Virginia University Medical Center and at Allegheny General HOspital in Pittsburgh. During each of these hospitalizations he was diagnosed variously as having chronic bronchitis and/or bronchial asthma.

In May 1978, Revak filed this claim seeking benefits for total disability resulting from pneumoconiosis under the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §§ 801 et seq. National Mines Corporation, his most immediate former employer, disputed his claim, and the parties proceeded to gather medical information for a hearing before an ALJ. That hearing took place on April 18, 1983.

At the hearing, Revak presented a report of one of his treating physicians, Dr. Peter Kaplan. In that report, Dr. Kaplan expressed his view that Revak suffered not from pneumoconiosis but from bronchial asthma. Dr. Kaplan stated, however, that the condition was related to Revak's exposure in his coal mine employment. he also stated that Revak's "working in coal mines may exacerbate his illness and produce an acute attack." In addition, Revak presented the report and deposition of Dr. Naresh I. Bhatt, Dr. Bhatt found Revak to be totally and permanently disabled as a result of pneumoconiosis due to coal mining employment.

Countering this evidence. National Mines presented the report and deposition of Dr. Ludwig Anderson. Dr. Anderson opined that Revak's respiratory condition was not pneumoconiosis but bronchial asthma. Dr. Anderson also stated that Revak was not disabled by a respiratory impairment. He agreed, however, that when Revak was exposed to coal dust his condition was exacerbated or aggravated, and he also agreed that it might not be medically advisable for Revak to return to an environment in which he would be exposed to coal dust.

Additionally, National Mines presented a number of medical studies performed on Revak. All the x-ray evidence presented was negative for pneumoconiosis, and none of the arterial blood gas studies yielded values low enough to demonstrate pulmonary impairment in accordance with the standards provided by the Labor Department's applicable regulation. However, one and perhaps two ventilatory functions studies yielded results that did meet the requirements for respiratory or pulmonary disease as provided in the regulations.*fn1


An ALJ must decide a claim for total disability pursuant to 20 C.F.R § 727.203, which permits a claimant an "interim" presumption of total disability arising out of coal mine employment, thereby shifting the burden of proving ineligibility for payments to the employer. According to § 727.203(a). The ALJ must accord this presumption of disability to any miner "who engaged in ...

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