Michael Revak v. National Mines Corporation and Old Republic Companies, and Director, Office of Workers' Compensation Programs, Party-In-Interest, 808 F.2d 996

Michael Revak v. National Mines Corporation and Old Republic Companies, and Director, Office of Workers' Compensation Programs, Party-In-Interest

808 F.2d 996

3rd Cir.

1987

Check Treatment

*1 Smith complaint, interpreted as dissenters orders the School District Carnegie-Illi v. Thomas See proposed. comply Jersey decision the New (3d Cir.1949) Corp., nois Steel 174 F.2d 711 Department of Education May dated (Supreme misinterpretation of Fair Court's orders the pay School District to Act, corrected Portal- Standards expenses residential educational An- 1947; applied latter to-Portal Act of May (where drew Diamond at the Institute pending cases). Thus that section we hold placed), Andrew Diamond is now orders applies 3 of 99-372 Dia Pub.L. No. School District to reimburse Dia- Andrew monds’ counterclaim. parents expenses mond’s for incurred to placement, for date his residential orders Because the district court dismissed the the School District to redraft Dia- Andrew insufficient, legally we counterclaim Program, mond’s Individualized Education findings nor have neither a record fact and orders the School District to submit permit dispose us to Jersey New of Education damage claim at this The Diamonds necessary documents Dia- Andrew allege damaged by son that their has been mond’s continued placement residential the adamant failure of the School District May ap- Institute. In the Diamonds’ provide him a free appropriate with edu- peal dismissing we will reverse order rely They upon cation. 42 U.S.C. 1983. the counterclaim and remand for further Conley Applying pleading standard proceedings opinion. consistent with this Gibson, v. S.Ct. say they L.Ed.2d 80 cannot prove

could upon set of facts damage

compensatory relief could be

granted for violation the Constitution or the laws of the United States. We hold no REVAK, Michael Petitioner, stage more at this of the case.5 Diamonds also contend dis- in neglecting trict court erred to include in NATIONAL MINES CORPORATION judgment the final prejudg- an award of Republic Old Companies, ment liquidated interest on the amounts Respondent, they have been awarded as reimbursement of expenses their son’s residential placement. District, The School Director, Office of Workers’ claim, addressing the merits of that coun- Compensation Programs, ters that the Diamonds it in waived Party-in-Interest. trial court. Since remand on counter- No. 86-3211. claim is required for the already reasons forth, set prejudg- we conclude that United States Court of Appeals, ment open interest claim should be left Third Circuit. consideration the district court in the Argued Oct. 1986. first instance. Decided Dec.

V. Opinion Rehearing 6, 1987. March Rehearing Rehearing En Conclusion Banc 3, 1987. April Denied In the appeal School District’s we will affirm the judgment of the district court

insofar as it dismisses the School District’s joins portion opin- Becker in this private right damages is a there action for understanding panel ion on the that the under section 504 of un- the Rehabilitation Act judgment question, reserved on the which was der circumstances of this case. argued briefed, adequately of whether *2 Gilardi, (argued), Coo- John P. Gismondi Gismondi, Pa., Pittsburgh, peti-

per and tioner. Jones, (argued), Eric Jr. Christo- John Wildfire, Thompson, L. Tillman and pher Pa., Corp. Pittsburgh, National George (argued), R. Kenneth S. Sollars Shire, Salem, O’Neill, S. J. Michael Donald Holzman, Labor, Dept, Thomas L. U.S. Solicitor, D.C., Washington, Office Compensa- Director, Office of Workers’ . Programs. tion GIBBONS, BECKER, Before Circuit FULLAM, Judge.* District Judges, and OPINION THE OF COURT BECKER, Judge. Circuit petition This for review of decision Benefits Board of the order Review denying U.S. petitioner Revak for bene- claim Michael Lung Benefits Act as fits under the Black amended, seq., requires 901 et 30 U.S.C. §§ question that has divided us answer Law Circuits: an Administrative conflicting in decid- Judge balance presump- the interim to invoke whether pneumoconio- due to tion total Fullam, Pennsylvania, sitting designation. John Chief *The Honorable P. United States District for the Eastern District hearing information for a before an 727.- AU. pursuant sis disease hearing April 18, place That took the AU find the 203(a), must long ad- as the claimant triggered hearing, presented At qualifying evidence piece of single duces a treating physicians, of one of his Dr. Peter disability. reasons For establishing Kaplan. report, Kaplan Dr. ex- balancing follow, we conclude that the pressed his view that Revak suffered not *3 this case the AU in procedure applied pneumoconiosis from from but bronchial entitled improper and that Revak was was stated, Kaplan however, asthma. Dr. disability the basis on to a expo- was condition related Revak’s ventilatory qualifying function either of his his coal employment. sure in mine He also report. qualifying his study medical or of “working that Revak’s in coal stated mines claim was dismissed Because Revak’s may produce and exacerbate his illness an balancing proce- the basis a the AU on addition, present- attack.” In Revak acute dure, affirmed, BRB will re- and the report deposition of ed the and Dr. Naresh remand the the BRB and verse the order I. Bhatt. Dr. Revak Bhatt found to be case for reconsideration. permanently and disabled as a re- pneumoconiosis mining sult of to coal due employment. I. Revak, years worked in un- Countering who for 35 National Mines mining, derground currently years presented report deposition 67 of Dr. age. began coughing Ludwig In he 1960 to have opined Anderson. Dr. Anderson spells, particularly digging when near the respiratory that Revak’s condition was not symptoms progres- His pneumoconiosis mine-face. became but bronchial asthma. Dr. During sively worse. the mid-1970’s he Anderson also Revak stated that was not leave impairment. often had to the mine after a respiratory disabled He coughing In however, few hours attacks. agreed, because Revak that when was 1979, placed disability by was Revak his exposed to coal dust his condition was exac- breath, employer shortness aggravated, agreed because or he erbated also mining and he has returned to since medically it be advisable for 1981, that time. From 1975 to Revak was to return to an environment hospitalized periodically West at the Vir- exposed he would be coal dust. University ginia Medical and at Al- Center Additionally, presented National Mines legheny Hospital Pittsburgh. General performed number medical studies During hospitalizations of these each he presented All the x-ray Revak. diagnosed variously having was as chronic negative pneumoconiosis, was for and none bronchitis and/or bronchial asthma. gas yielded the arterial blood studies May Revak filed seek- this claim enough values low pulmo- to demonstrate ing resulting for disability benefits total nary impairment in accordance with the from under provided the Federal Depart- standards Safety Coal Mine Health and applicable Act regulation. However, ment’s seq. amended, 801 et as 30 U.S.C. perhaps Na- ventilatory one and two §§ function Corporation, tional yielded his most immedi- studies did results that meet employer, ate disputed claim, former his requirements respiratory or pulmonary proceeded parties and the gather provided regulations.1 disease 1. The A.201 A.223 A.242-43 A.204-11 A.230 EXHIBIT DATE yielded bronchodilator) (after (after 6/3/80 bronchodilator) bronchodilator) 3/26/75 2/28/79 (after 11/30/79 10/28/82 following function FEVj results: 2.69 2.43 2.37 2.43 2.59 2.32 2.70 2.74 MW HGT TRACING 94.5 ^[99] studies 67" 68" 67" 68" 67" of record Yes Yes Yes Yes No the FEV November the MW As the Director’s brief our produce qualifying The June AU found the November qualifying under 20 CFR vember ues, disposition but the rest must have been erroneous equal to 1979 1980 study produced qualifying equal or less than 92. In view of study person study values states, however, matter, study to or less than 2.3 and 727.203(a)(2). (Appendix irrelevant. height arguably values were non- the status of the because, 1979 67” this find- study the No- less, val- to invoke the He refused tions. II. (a)(2) though at even subsection tion under for total a claim decide must An AU ventilatory function studies set least one 727.203, to 20 C.F.R. pursuant disability values, because the ma- yielded "interim” a claimant permits studies, including most the two jority of arising out disability total sumption of recent, the AU refused Finally, did not. shifting the thereby employment, mine coal (a)(4) presumption under be- pay- ineligibility proving burden Dr. Bhatt’s found that cause he According to employer. ments primar- it in that not well reasoned “relie[d] accord 727.203(a), AU must non-qualifying x-ray, ily upon negative “who miner sumption of study not consider gas blood [did] for at employment engaged in coal history asthma.” of bronchial claimant’s of four meets one and who years”2 least contrast, Dr. Anderson’s AU found requirements: Dr. Anderson reasoned and report well biop- (x-ray), roentgenogram (1) A chest *4 in qualified than Dr. Bhatt addition. more the existence sy, autopsy establishes or opinion, the AU Crediting Anderson’s Dr. ...; pneumoconiosis presumption and de- refused to invoke pres- (2) Ventilatory studies establish pneumoco- Revak neither has termined that pulmo- respiratory or of a chronic ence by respirato- a totally is disabled nor niosis (which require- meets the nary disease The BRB affirmed. ry impairment. 410.412(a)(2) of in ments for duration review, Revak claims petition for In his title) by values as demonstrated this affirming judg- in BRB erred that the equal to or less than are [certain He that the ALJ AU. claims ment of the regulation’s ta- specified in values denying the interim erred ble]; evidence; balancing of the a on the basis (3) which demonstrate gas studies Blood that the ventila- contends impairment in the presence of an re- studies and Dr. Bhatt’s tory study or lung alveoli oxygen from transfer of port invocation mandate as indicated values to the blood points also as matter law. Revak tion a values equal to less than are or [certain in the record regard to evidence in this undermining tables]; specified regulation’s in the finding Dr. that the AU’s (4) including the Other medical Appellees, report was unreliable. Bhatt’s exer- opinion physician of a documented Director of the Mines and the National judgment, estab- cising reasoned medical Compensation Pro- Office of Workers’ presence totally disabling lishes the quite properly respond the AU grams, that pulmonary impairment; or respiratory deciding not to the evidence balanced Appellees also invoke case, qualify- supports notwithstanding that this contend Dr. Bhatt’s re- or and the that study studies determination AU’s Revak, reports port introduced not credible.3 was pre- interim AU refused had sumption. He found that Revak failed III. (a)(1) (a)(3) satisfy be- subsections to to nega- refusing invoke the x-ray cause all of the weighed sumption, all of the evi- the AU gas studies did tive and the arterial blood categories: in each of the relevant regula- dence specified values in the not meet the employment.” dispute He no that Revak has met this 727.203. then 2. There is points Kaplan to the statements of both Dr. requisite. exposure that Revak's coal dust Dr. Anderson to makes a second claim: that the 3. Revak also aggravated symptoms his had exacerbated or AU erred in his final determination that Revak (or not) and that it would not be medical- by pneumoconiosis is not disabled be- ly employment advisable for Revak return to recognize that the defini- cause AU failed 108-109, 97-98, (Appendix at near the mines 235). the statute and tion of inability We that an to return to the note regulations is that in common broader than satisfy appear mines would the test for total usage. requirements Revak claims 902(f)(1). disability ever, set out in 30 U.S.C. How- demonstrating “any are met chronic statute agree his with Revak on first because to, impairment pulmonary significantly related claim, we not reach the second. need by, exposure aggravated or dust in coal mine studies, case, blood ventilatory function in this sets forth four distinct x-rays, deci- studies, reports. The requirements, any and medical one of which if gas cate- all the evidence each weigh met establishes the interim sion to engaged gory long than to invoke claimant has coal rather as a single (b), item years. favorable mining of a least ten Part the basis other evi- import rebutted regardless dence, provides if, is approach taken in considering “all evi- accords relevant medical Director, Workers’ dence,” Engle v. claim- the AU determines that the Office of (6th 1n. Compensation, or his doing could do usual coal ant Engle Cir.1986). provided work; comparable, court no gainful or work reasoning position, however. did not in whole or in arise employment; or part out of coal mine banc, Sitting in the Fourth Circuit not, not, pneu- did miner “does or Stapleton adopted contrary position moconiosis.” Westmoreland Coal 785 F.2d 424 (4th Cir.1986). Amax Accord Coal Co. v. (4) (a), by Subsections of Part Director, Compensa Workers’ terms, provide Office qual- their own single that a Program, (7th F.2d Cir. ifying x-ray single physician’s opinion or a 1986). Although Stapleton court divid disabling that a claimant has a pulmonary issues, majority ed a number of held impairment trigger sufficient single x-ray, single quali that a credible sumption: (a)(1) “a subsection refers fying ventilatory study, quali function one [x-ray]” (a)(4) chest and subsection refers fying gas study, a qualifying phy blood to “the of physician documented *5 opinion sician’s would suffice to invoke the exercising judgment” reasoned medical presumption regardless conflicting of evi (emphasis supplied). respect With to the may present dence that be in the record. requirements medical (a)(2) subsections Id. at 426 (per opinion). agree. curiam We (a)(3), regulation and the uses the Additionally, the Stapleton held court plural, employing term “ventilatory the on rebuttal all relevant medical evidence studies” and ever, gas “blood studies.” How- weighed must be considered and regardless Judge pointed Hall has out in his type of forming evidence the basis Stapleton, 785 F.2d at the Id. at 427. presumption. for the alsoWe plural of use the reflects the fact that agree. gas a and blood test consists many set a regulations example, studies. For the Stapleton lengthy The four opinions pulmo- demonstrate that each explored have the ramifications the nary function test consists of several stud- question us in depth4 before enormous accompanied ies and by must two to point we see engaging no in such exten- three tracings performed. each test analysis will, however, sive here. We ex- 410.430, C.F.R. Similarly, 718.103. plain §§ the salient for reasons our endorse- gas study blood separate will often have ment forcefully stated in components, reflecting one the results ob- opinions Hall, of Judges Sprouse, and tained at reporting rest the other single Widener that a qualifying test or testing during results of exercise. medical report is sufficient 718.105. single That a qualifying test or medical A. opinion is sufficient to invoke the tion is evident from important Secretary The La- rejecting most reason for addressing bor’s balancing approach comments the standard of to the interim sumption rebuttal: is the and structure of itself.5 The cannot, Department as has been [T]he parts. issue is divided requested into two 20 C.F.R. by some, single look for the (a), 727.203 Part is directly at issue item qualify evidence which would opinions Stapleton 95-239, 4. consume some 44 Benefits Reform Act of Pub.L. No. pages Reporter. Stapleton of the Federal also signed 92 Stat. 95 into law on March questions present- ("The Amendments”) dealt with several that are not del- instead present ed egated record. Labor. Congress prescribe quali- declined itself to Lung fications benefits for in the Black Benefits Rock Bowles Seminole sumption. interim on the basis Cf. claimant 1215, 1217, 410, 413, 65 S.Ct. previously ignore other sumption, and (1945) (“intention of Con- mean L.Ed. This does not evidence. obtained interpreting for gress ... be relevant” evidence single item Sprouse described regulation). As is overcome establishes Congress deeply Stapleton, was which rebuts in detail single item evidence by a difficulty of establish- about concerned through medical evi- Rulemaking under Final Notice Black Congressional Testimony before dence. Act Lung Benefits Reform influ- the statements of committees added). 36,826 (emphasis Fed.Reg. emphasized Congressmen repeatedly ential negative test results were the fact that 203(a), subsec- to subsection In contrast pneumoconio- lack of probative highly 203(b), dealing the standards with tion test only truly accurate sis, and that rebuttal, the AU explicitly states not of that was by autopsy, a method medical evi- the relevant consider all must living miners.8 help to presumption re- deem the and must dence weighing if, after butted Furthermore, Congress was troubled one of the rebuttal is satisfied that AU indicating devastating grim statistics ground explicit One proven. pneu miners suffered from extent to which 203(b)(4), the relevant rebuttal, is that all Congress study moconiosis. One cited does that the miner demonstrates Simon, example, found that man Paul provi- Such a pneumoconiosis.6 years autopsies of coal miners with 21 superfluous if the AU were sion would be in the coal mines showed that more all the relevant already have considered pneumoconiosis. them had 90-95% initial evidence at the Comm, Labor, on Education and House Moreover, theory appellees’ Lung Sess., Black Cong., 1st 96th Benefits miner to burden on the place the would Lung Act and Black Rev Reform Benefits prove preponderance of the by a (Comm. Print enue Act of 1977 282-83 Feb. stage that he evidence at This identified Con interpreta- pneumoconiosis. Such good gress afforded deprive establishing presumption of reason for *6 any presumptive of effect.7 due to total single positive findings the of a based on shifting opinion, thus some test or medical B. faulty of onto the of the risk test results addition, regula- legislative language employer. the histo In addition to the tion, Congress contemplated legislative history helpful is indicates that ry only although spe- use “all evidence” it does of available Revak’s cifically mechanism, endorsing further our question address the whether a rebuttal interpretation of 718.203.9 single study is sufficient to invoke the overall part: provides pertinent twenty-five percent of them even 20 727.203 niosis 6. though x-rays contained in their medical adjudi- (b) interim Rebuttal of negative were for the disease. Senate records cating subpart, all relevant a claim under this Comm, Labor, on Labor and Pub Subcomm. on The shall be considered. medical evidence Session, Welfare, Cong., Legislative lic 94th 1st (a) sumption paragraph of this section shall History Coal Mine Health and Federal ... be rebutted if: of 91-173) (Public Safety 1969 Law As Act does evidence establishes that miner The of Through Including Lung Amended Black not, not, pneumoconiosis. or did (Comm.Print Aug. Amendments added.) (Emphasis of argue appellees The invocation 7. Report a The included in its letter from 9. House the basis of one item of interim on defending the constitu- the Solicitor of Labor gives disproportionate effect tionality on the interim of evidence offered the claimant. This item that all relevant evidence would argument unconvincing, the rebuttal stage: at considered the rebuttal rights any alleged phase imbalance. A rebuttable suffers from consti- is, fact, infirmity study, According if it irrebutt- cited Senator tutional 8. to one surrounding light Long, autopsies two hundred deceased able in circumstances clearly presence pneumoco- applicability. not the case its This coal miners revealed history regulation presumption; The also reveals cian invokes other medical Congress intimately rebuttal). involved with evidence considered As far as tell, development proce interpretation of standards and we can lasted until Co., claims. Meadows v. Westmoreland Coal dealing lung with black dures for Congress delegated (1984). Although B.L.R. 1-773 The Meadows deci- develop Lung Black practice standards to the sion then reversed entirely this Labor, Congress and its staff the basis of the Fourth Circuit’s decision in Sanati, apparently writing were involved in the of Consolidation Coal Co. v. regulations, including (4th pre Cir.1983), F.2d which the Fourth Solomons, A sumption provision. See Crit Circuit overruled in Stapleton. The Mead- Analysis Legislative ical History ows decision did not any articulate other Surrounding Lung the Black Interim reason for this change poli- substantial Presumption and a Survey Its Unre cy, nor did it articulate facts on which Issues, solved (1981). 83 W.Va.L.Rev. 869 it relied justify policy. the new According history compiled by to the coun time, sel for the Labor Notwithstanding the deference Congressional Bowles, persons staff required by agency even directed an cannot proposal deletion of a requiring change an established course conduct weighing of prior all medical test articulating “a analysis” reasoned invoking Id. at 896 n. that makes a “rational connection between the facts found and the choice made.” Mo tor Vehicle Ass’n the United Mfrs. Farm States State Mutual Automobile C. Co., Ins. 463 U.S. 103 S.Ct. appellees remonstrate that the Sta- (1983). 77 L.Ed.2d 443 We do not pleton approach does not accord the re- believe that we should defer to the Labor quired deference interpretation Department’s change policy in the ab agency charged with administration of sence of such an articulation.10 the statute. Since Bowles v. Seminole Rock and Sand 410, 414, Furthermore, if even Depart- Labor 1215, 1217, S.Ct. 89 L.Ed. 1700 interpretation consistent, ment’s had been law has been settled that courts must defer different, result would be no for we to a interpretation consistent agency an uphold agency’s interpretation regulation of its own unless “plainly erro- of its own if “plainly it is errone- neous or inconsistent regulation.” Bowles, ous.” 325 U.S. at 65 S.Ct. at Cohen, See Barnes v. already explained We have our (3d Cir.1984). understanding upon 727.203 based its case, however, In this Depart- legislative and structure and the interpreted ment history. until 1983 Neither the BRB decision nor the in the manner advocated Director any explanation has offered *7 accepted by us. See Stiner v. Bethlehem how support we find for the Di- Corp., 3 (1981) B.L.R. 1-487 (single rector’s in the of the reasoned and opinion documented physi- regulation. least, of very At the a reasonable respect with Any to the interim criteria. 10. We also doubt that we should defer to an coal operator ample opportunity has agency reinterpretation and resources regulation of its own present available to him to substantially changes sound medical that regulation meaning so tending evidence eligibility deed, presumption to rebut the promulgation of as to amount to the of created regulation the interim criteria. In- opportunity a new for notice operator greater a coal often Notwithstanding re- and comment. our usual def- disposal sources at his agency's than does a interpretation claimant. erence to an of its own Expert testimony, regulation, agency as well as a claim- must abide its own responsibilities, ant's actual work only regulations are until it rescinds them. United States examples possible Nixon, two rebutting 683, 695-96, of evidence. v. 94 S.Ct. H.R.Rep. Sess., Cong., 3101-02, No. reprinted (1974). 95th 2d 41 L.Ed.2d 1039 That obli- (1978) Ad.News, 237, Cong. in U.S.Code gation & especially important regulation if a Obviously, comment, if the relevant evidence were regulation bal- follows notice and for the presumption anced at the stage, initial product only agency expertise there then is the not of potential would be no infirmity, public participation constitutional but also of and occasional- case, and the ly, Solicitor would Congressional have no need to stress as occurred in this of the broad participation consideration of all evidence at the as well. stage. rebuttal ous, reject it. We hold instead that explain we be advanced must interpretation benefit Revak was entitled to the that all rel- regulation’s insistence why the long as there was at the rebut- be considered evidence evant ventilatory qualifying study or if at least one that superfluous stage not would tal physician’s opinion. qualifying one occurred at already had consideration full III. brief, agency in the Director’s Even record explanation, but refers Examination of the reveals provide an not does unequivocally that is at reasoning by Judge there least one offered only us ventilatory study concurring dissenting qualifying sufficient in his Phillips opinion invoke the interim Addition Stapleton. Yet that of- opinion physician’s interpretation ally, of was one complicated 727.- there § fers opinion. gainsay do not that the medi relevant We which contracts report comprehen Dr. stage it makes more cal Anderson even as rebuttal at the sive, Bhatt but the of Dr. was suffi at available no agency has cited us indica- cient under the stage.11 A invokes accept physician’s report pre the full law. willingness its (1) documented, (2) sumption Judge Phillips’ interpreta- if it is: dem ramifications showing, an exercise reasoned of such a onstrates In the absence tion. judgment, dis this endorsement of establishes only consider can litigation posi- abling respiratory pulmonary impair Phillips’ to be Judge views 727.203(a)(4) (1980). deference. See See no ment. which we owe tion to Murphy According Secretary’s Kickapoo Oil Corp., comments Oil Co. issuing regulation, (Temp.Em.Ct.App.1985) when documentation 66-67 779 F.2d exclusively objective position in brief ac- need not “consist (litigation amicus Per- medical tests. deference); It is that Alaniz v. physi intended corded Office miner, personal Management, cian’s observation sonnel (no knowledge ab- miner’s condition and (Fed.Cir.1984) deference accorded applied history, work and other similar matters agency inter- of evidence sence Ames v. Merrill would documentation.” Fed. practice); constitute pretation Smith, Pierce, Reg. 36,826. & at Fenner F.2d Lynch, (no (2d Cir.1977) deference n. diagnosis perma- Dr. of total and Bhatt’s position in absence of indication to amicus nent as a of coal result worker’s interpretation practice). is actual based, alia, upon pneumoconiosis was inter history years patient’s coal agency Because we lack articulated employment, complaints of his short- interpreting 727.203 other reason years, ness of for 12 and the find- done, breath as we have we conclude than ings study indicating ab- agency’s interpretation plainly errone- presumption, any particular Judge Phillips rebuttal of would find the depending grounds differ presumption stage balance evidence at the those es- sentially by bifurcating 727.203(a) reason into differ- presumptions. ap- interpretation kinds Judge ent Under this well Phillips’ We consider proach, colleague Judge weigh ALJ would all the relevant his refuted category specified As evidence under each medical & nn. 8-12. Sprouse. F.2d 454-55 727.203(a) deciding explained, whether to does invoke Sprouse invoked, presumption; presumptions, once the facts distinguish found different kinds clearly provides would become irrevocable. Rebuttal all the under and the 727.203(b) permissible (b) would then be rebut- § grounds available for Part are *8 support that did not evi- using the invocation of the relevant ting presumption "all the - Furthermore, example, the For if the ALJ that Phil- note we dence.” weighing found the after might permit invoked an unrebutta- interpretation lips’ x-rays, through the all that mere proof irrevoca- ble evidence, bly pneumoconio- establish that the miner has preponderance of one kind employer studies, though The sis. could rebut this the unani- e.g., even by introducing tending disprove of medical of other kinds mous mass e.g., x-rays (cid:127) pneumoconiosis, only by the opinions, existence of but indicated doctors' demonstrating interpretation that the individual is not contrary. Such an the very develop pneumoconiosis requirement statutory disabled did not that as the violate well employment. Interpreting a result of his "all relevant evidence.” be based on decisions way, grounds only 923(b). in this now set 30 U.S.C. (b) forth under Part would be available for (Appendix interpretation pulmonary function as reg- normal inconsistent with the regulations, regulations ulation. For signifi- Under the to have cance, qualified recognize documented and we must was thus both limits on the judgment. malleability of words. interpret a reasoned circumstances, Under these As we regulation, in- ambiguity. Only the ALJ should have we find no if presumption.12 we follow the Director and regula- voked the interim read the require complex shifting tion to of differ- reasons, petition foregoing For the presumptions ent kinds of imply must we granted and the case for review will be language simply present. is not proceed- remanded to the board for further ings opinion. this explained panel consistent with in opinion, As we our expressed interpretation by Judge Phillips Stapleton v. Westmoreland Coal in OPINION SUR DENIAL OF Cir.1986), (4th granted rt. ce PANEL REHEARING Virginia sub nom. Mullins Coal Co. BECKER, J., Judge. Circuit — Director, O.W.C.P., —, U.S. Both the Director of the Office of Work- S.Ct. 93 L.Ed.2d 826 now en Compensation Mines, Director, ers’ and National provides Inc. dorsed that some petitioned rehearing in proved by this case. facts some kinds of so, doing they cite for the first time on medical evidence possibility of re appeal this a number of decisions of the other buttal kinds of medical evidence. (BRB) Benefits Review Board and of strongly feder- Such a view is at in least tension support al courts in statutory the contention that requirement with the that bene consistently the Director has advocated the fits decisions be based all the relevant balancing approach to invocation of the in- evidence. Such a view is also difficult to terim panel square Secretary has re- of Labor’s com jected.1 explaining why ments all relevant evi rebutting dence must be considered in clearly The new citations do not relate to Secretary The stated that understanding the Director’s of 20 C.F.R. does not “have many actually of the citations deal § 718— any to exclude relevant evidence from con with Part B benefits under 20 C.F.R. any sideration connection with case.” 43 Moreover, simple it is not a matter for us Fed. at 36826. judi- to divine the Director’s from decisions, agency cial or and the briefs in Finally, we are unpersuaded by parties the cases relied on to show dictions in terrorem impact about the position” the Director’s “consistent are not our decision. Under our holding, and un- However, readily accessible to us. der plain regulation, newly supplied suggest citations do the weighing of evidence that does not agency recently has not reversed its occur before invoking the presumption sim- position. agency Our discussion of defer- ply occurs at the rebuttal All rele- ence, predicated part which was on a vant evidence must be considered at that agency position, reversal of may therefore point, and the operators may rebut on have been off the mark. grounds basis of all provided agency if consistently 727.203(b).2 Even inter- preted in the manner advo- event, Supreme Court has by Respondents cated still find we —and granted certiorari in Stapleton and will square view difficult to with the com- proper interpretation determine the regulation. ments of promulgating when see regulation, Fed.Reg. reject petition continue to The rehearing will be denied. —we appellee’s 12. While contend that Dr. holding actually provides Bhatt’s re- 2. Our a coal mine credible, port they appear was not operator do not rebutting more non-qualifying contend that it recognized interpretation under the tion than under the Secretary’s regulations. Director, through Judge Phillips’ advocated Stapleton. burden our in- panel opinion, 1. In the supra at terpretation imposes relied operator on the coal mine on the BRB’s decision in persuasion Stiner v. Bethlehem is the burden of once the miner has *9 Corp., 3 B.L.R. 1-487 as indicat- qualifying introduced evidence under 727.- ing a contrary 203(a). strict, view of 28 C.F.R. light § 727.203 stan- that advocated the Director here. satisfy dards evidence must MICHELSON, Appellant, L. William RESEARCH AND ENGINEER

EXXON COMPANY, Corporation,

ING A.W.

Hanggeli, International Re Columbia Corporation, Corporation,

sources

and Gustavo Arias.

No. 86-3274. Appeals,

United States Court of

Third Circuit.

Argued Nov. 1986.

Decided Jan. sumption, repre- shifting such principle plays of the burdens important and that role shifting a rational of error. As sents the the risk claims determinations both under the interim reg- promulgating stated when presumption and Fed.Reg. otherwise.” 43 principle “The ulations: Act embodies the claimant, doubt to be resolved in favor of