Ernest Hampton v. United States Department of Labor Benefits Review Board, Beatrice Pocahontas Coal Company, Old Republic Companies

PER CURIAM:

Ernest Hampton appeals a decision of the Benefits Review Board denying his claim for black lung benefits under the Federal Coal Mine Health and Safety Act of 1969, as amended. We reverse and remand for an award of benefits.

Hampton worked in coal mines for twenty-four years. In December, 1975, he suffered an occlusion of the left coronary artery which required bypass surgery. Upon returning to work approximately one year later, Hampton was assigned to a tipple as a heater dryer operator, a position which required him to climb six floors several times a day and to clean up spilled coal. This exertion brought on breathlessness and chest tightness. On the advice of his doctor, Hampton retired in June, 1979, and has not worked since.

An administrative hearing was held on Hampton’s claim for black lung benefits. To substantiate his claim, Hampton submitted an x-ray which revealed simple pneumoconiosis. This evidence together with Hampton’s years in the mines raised the interim presumption of total disability from pneumoconiosis. 20 C.F.R. § 727.-203(a)(1).

In rebuttal, the employer submitted medical records and the report of a medical expert to show that Hampton’s disability was the result of his heart condition rather than pneumoconiosis. The medical records, aside from documenting the seriousness of the claimant’s cardiac problems, revealed that Hampton first experienced breathlessness and chest pains in the months immediately preceding the diagnosis of his coronary occlusion. In his report, the doctor opined “[i]t would appear that the patient’s primary problem is cardiac . . . . ” Significantly, this opinion was based upon not only an examination of the claimant and a review of his medical history, but also upon the negative results of ventilatory and blood gas studies. The doctor, however, conceded that Hampton’s breathlessness was consistent with both cardiac and pulmonary disease.

The administrative law judge concluded that Hampton’s disability was caused by his heart condition rather than pneumoconiosis and therefore did not arise from his coal mine employment. 20 C.F.R. § 727.-203(b)(3). The Benefits Review Board affirmed, specifically upholding the AU’s consideration of the ventilatory function tests and blood gas studies relied upon by the employer’s doctor.

On appeal, Hampton argues that the results of his ventilatory and blood gas studies were erroneously used to rebut the presumption of disability. We agree.

The interim presumption utilizes x-rays, ventilatory studies and blood gas studies to determine the presence of pneumoconiosis. 20 C.F.R. § 727.203(a). A miner with the requisite years of employment is entitled to the presumption if he demonstrates a qualifying diagnosis from any one of these three tests, id Once the presumption arises, the miner’s failure to satisfy the remaining tests does not rebut the presumption. Whitman v. Califano, 617 F.2d 1055,1057 (4th Cir. 1980); cf. Hubbard v. Califano, 596 F.2d 623 (4th Cir. 1979).

The opinion of the doctor was improper rebuttal evidence because it was partly based upon the nonqualifying tests. As a result, the ALJ’s unconditional reliance upon the opinion was erroneous.

Viewed in proper perspective, the evidence reveals little more than two possible causes of Hampton’s disability. In light of the interim presumption, this showing falls far short of the employer’s burden to effectively rule out the causal relationship between Hampton’s disability and his coal mine employment. Rose v. Clinchfield Coal Co., 614 F.2d 936 (4th Cir. 1980). We therefore reverse the decision of the Benefits Review Board and remand this case for the payment of benefits to Hampton.