Kessell G. Estep v. Southern Ohio Coal Company Director, Office of Workers Compensation Programs Benefits Review Board , 774 F.2d 1162 ( 1985 )

774 F.2d 1162

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Kessell G. Estep, Petitioner,
v.
Southern Ohio Coal Company; Director, Office of Workers
Compensation Programs; Benefits Review Board, Respondents.

No. 84-3822

United States Court of Appeals, Sixth Circuit.

9/13/85

Ben.Rev.Bd.

AFFIRMED

ON APPEAL FROM THE BENEFITS REVIEW BOARD

Before: ENGEL and MERRITT, Circuit Judges; GIBBONS,* District Judge.

PER CURIAM.

1

In this appeal counsel for petitioner failed to appear for oral argument without notice or explanation. Double costs of this appeal are therefore taxed against Sanford A. Meizlish, counsel for petitioner.

2

This is an appeal from the decision of the Benefits Review Board, United States Department of Labor. The Board affirmed the Administrative Law Judge's finding that the interim presumption, invoked pursuant to 20 C.F.R. Sec. 727.203(a)(1) and (2), had been properly rebutted under Sec. 727.203(b)(3). Thus, the Benefits Review Board determined that petitioner was not entitled to black lung disability benefits. Petitioner argues in his brief on appeal that the decision of the Board and the ALJ are contrary to law and lacking in substantial evidence. Upon review of the record, the Court concludes that the ALJ's decision, finding rebuttal pursuant to 20 C.F.R. Sec. 727.203(b)(3), is supported by the reports of Drs. Hand, Prendergast and Prior which reports constitute substantial evidence for the decision below. Accordingly, the decision of the Benefits Review Board is affirmed.

*

The Honorable Julia S. Gibbons, Judge of the United States District Court for the Western District of Tennessee, sitting by designation