On Petition for Review of an Order of the Benefits Review Board
Before: GIBBONS, BECKER, Circuit Judges, and FULLAM, District Judge*fn*
Opinion SUR DENIAL OF PANEL REHEARING
Becker, J., Circuit Judge
Both the Director of the Office of Workers' Compensation and National Mines, Inc. have petitioned for rehearing in this case. In doing so, they cite for the first time on this appeal a number of decisions of the Benefits Review Board (BRB) and of federal courts in support of the contention that the Director has consistently advocated the balancing approach to invocation of the interim presumption that this panel has rejected.*fn1
The new citations do not clearly relate to the Director's understanding of 20 C.F.R. § 718 -- many of the citations actually deal with Part B benefits under 20 C.F.R. § 410. Moreover, it is not a simple matter for us to divine the Director's position from judicial or agency decisions, and the briefs in the cases relied on by the parties to show the Director's "consistent position" are not readily accessible to us. However, the newly supplied citations do suggest that the agency has not recently reversed its position. Our discussion of agency deference, which was predicated in part on a reversal of agency position, may therefore have been off the mark.
Even if the agency has consistently interpreted the regulation in the manner advocated by Respondents -- and we still find this view difficult to square with the comments of the Secretary when promultgating the regulation, see 43 Fed. Reg. 36771, 36826 (1978) -- we continue to reject that interpretation as inconsistent with the regulation. For regulations to have significance, we must recognize limits on the malleability of words. As we interpret the regulation, we find no ambiguity. Only if we follow the Director and read the regulation to require complex shifting of different kinds of presumptions must we imply language that simply is not present.
As we explained in our panel opinion, the interpretation expressed by Judge Phillips in Stapleton v. Westmoreland Coal Co., 785 F.2d 424 (4th Cir. 1986), cert. granted sub nom., Mullins Coal Co. of Virginia v. Director, O.W.C.P., 107 S. Ct. 871 (1987), now endorsed by the Director, provides that some facts may be proved by some kinds of medical evidence without possibility of rebuttal by other kinds of medical evidence. Such a view is at least strongly in tension with the statutory requirement that benefits decisions be based on all the relevant evidence. Such a view is also difficult to square with the Secretary of Labor's comments in explaining why all relevant evidence must be considered in rebutting the presumption. The Secretary stated that the Department does not "have authority to exclude any relevant evidence from consideration in connection with any case." 43 Fed. at 36826.
Finally, we are unpersuaded by the predictions in terrorem about the impact of our decision. Under our holding, and under the plain language of the regulation, the weighing of evidence that does not occur before invoking the presumption simply occurs at the rebuttal stage. All relevant evidence must be considered at that point, and the mine operators may rebut on the basis of all the grounds provided by § 727.203(b).*fn2
In any event, the Supreme Court has granted certiorari in Stapleton and will determine the proper interpretation of the regulation.
The petition for rehearing will ...