BRB No. 93-2267 BLA
                 
                                              

CHARLES K. TENNANT            )
                              )
          Claimant-Petitioner )
                              )
     v.                       )
                              )   DATE ISSUED:06/30/1994                  
   )
DIRECTOR, OFFICE OF WORKERS'  )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR    )
                              )    DECISION and ORDER
          Respondent          )    on RECONSIDERATION

     Appeal of the Decision and Order on Remand of Reno E. Bonfanti,
     Administrative Law Judge, United States Department of Labor.

     James Hook, Waynesburg, Pennsylvania, for claimant.          
     
     Before: BROWN, DOLDER and McGRANERY, Administrative Appeals      Judges.  

     PER CURIAM:

     Claimant has timely filed a Motion for Reconsideration requesting the Board
to reconsider its Decision and Order of June 30, 1994 in the above-captioned case
which affirmed the Decision and Order on Remand (86-BLA-2604) of Administrative Law
Judge Reno E. Bonfanti denying benefits on a claim filed pursuant to the provisions
of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30
U.S.C. §901 et seq. (the Act).  In that decision, the Board affirmed
the administrative law judge's finding that employer established rebuttal of the
interim presumption pursuant to 20 C.F.R. §727.203(b)(3) and the denial of
benefits.  See Tennant v. Director, OWCP, BRB No. 93-2267 BLA (Jun. 30,
1994)(unpub.).

  On reconsideration, claimant contends, in its brief and supplemental
brief, that Dr. Bellotte's opinion is not sufficient to rule out pneumoconiosis as
a cause of the miner's disability pursuant to Section 727.203(b)(3).  Claimant's
Supplemental Brief at 1-3.  Because this claim arose within the jurisdiction of the
United States Court of Appeals for the Fourth Circuit, the party opposing
entitlement must "rule out" any connection between total respiratory disability and
coal mine employment in order to establish rebuttal pursuant to subsection (b)(3). 
Cox v. Shannon-Pocahontas Mining Co., 6 F.3d 190, 193 18 BLR 2-31, 2-94 (4th
Cir. 1993); Bethlehem Mines Corp. v. Massey, 736 F.2d 120, 7 BLR 2-72 (4th
Cir. 1984); see Borgeson v. Kaiser Steel Corp., 12 BLR 1-169 (1989)(en
banc).  The Massey court stated that where "the combined effects of
several diseases disable the miner," rebuttal cannot be established "by focusing
solely on the disabling potential of the miner's pneumoconiosis."  Rather, it must
be shown "that the miner's primary condition, whether it be emphysema or some other
pulmonary disease, was not aggravated to the point of total disability by prolonged
exposure to coal dust."  Massey, 736 F.2d at 124, 7 BLR 2-81.  The court
further held, in Grigg v. Director, OWCP, 28 F.3d 416, 18 BLR 2-299 (4th
Cir. 1994), that the party opposing entitlement may establish subsection (b)(3)
rebuttal if medical opinion evidence states without equivocation that the miner
suffers no respiratory or pulmonary impairment of any kind.  The court further
stated that an opinion which states that the miner has "no respiratory or pulmonary
impairment" is not "worthy of much, if any, weight" if invocation of the interim
presumption was established pursuant to 20 C.F.R. §727.203(a)(1) and the
physician rendering the opinion premised it on an erroneous finding that claimant
does not suffer from pneumoconiosis.  Id.  The court added that such an
opinion "does not have enough force to satisfy Massey."  Id.
     In this case, invocation was established pursuant to Section
727.203(a)(1).  In finding rebuttal established pursuant Section 727.203(b)(3), the
administrative law judge relied on the opinion of Dr. Bellotte, who opined that
claimant has "copd- asthma-chronic bronchitis" and stated:  
     I can state with a reasonable degree of medical certainty, that I don't
     feel that any pulmonary impairment which may be present, is related to
     exposure to dust, resulting from his coal mine employment.

     I have no diagnosed condition, which I can relate to his coal dust
     exposure.  The chest x-ray does not show any coal worker's
     pneumoconiosis definitely.  The patient has multiple non-respiratory
     conditions which can produce pulmonary symptoms.

     It is my impression that he is totally and permanently disabled to
     perform his last coal mine employment, however, this disability is
     related to his cardiac condition...

Director's Exhibit 28.  

     Because Dr. Bellotte did not believe that claimant had pneumoconiosis when
invocation was established pursuant to subsection (a)(1), the administrative law
judge erred in holding that the physician's opinion, that claimant has no
respiratory impairment related to his coal mine employment, is sufficient to
support subsection (b)(3) rebuttal.  See Grigg, supra.  Further, Dr.
Bellotte's statement that "I don't feel that any pulmonary impairment which may be
present, is related to exposure to dust, resulting from his coal mine employment"
is not a statement, without equivocation, that the miner has no respiratory or
pulmonary impairment of any kind.  Director's Exhibit 28.  
     Also, because several physicians diagnosed chronic bronchitis and/or asthma,
the administrative law judge erred in failing to weigh this evidence and determine
whether the miner had chronic bronchitis and/or asthma, whether these conditions
arose from the miner's coal mine employment, and whether they caused total
respiratory disability.  Director's Exhibits 10-12, 20, 33; see Massey,
supra; Cox, supra.  Thus, we vacate the administrative law
judge's finding pursuant to Section 727.203(b)(3) and remand the case to the
administrative law judge for further consideration pursuant to that section.













     Accordingly, we grant claimant's for reconsideration, vacate the
administrative law judge's finding pursuant to Section 727.203(b)(3) and remand the
case to the administrative law judge for further findings consistent with this
opinion.
     SO ORDERED.

                                                      
                         JAMES F. BROWN
                         Administrative Appeals Judge




                                                      
                         NANCY S. DOLDER
                         Administrative Appeals Judge




                                                      
                         REGINA C. McGRANERY
                         Administrative Appeals Judge

To Top of Document