Frank Bozick, Petitioner, v. Consolidation Coal Company, Respondent,director, Office Workers' Compensation Programs, Party in Interest, 735 F.2d 1017 (6th Cir. 1984)

ORDER DENYING PETITION FOR REHEARING EN BANC AND GRANTING

RECONSIDERATION BY PANEL

On April 16, 1984, we issued a decision upholding the Benefit Review Board's ruling that Stiner v. Bethlehem Mines Corp., 3 BLR 1-193 (1981), required invocation of the interim presumption of disability in this black lung case, but reversing the Board's ruling that the presumption had been rebutted, 732 F.2d 64. Respondent Consolidated Coal Company now petitions this Court to rehear that earlier decision for reasons not presented to us during the original briefing and argument in this case. Specifically, the respondent now argues (1) that the Stiner rule earlier relied upon by this Court and the Board has been reversed by the Court of Appeals for the Fourth Circuit in Consolidation Coal Co. v. Sanati, 713 F.2d 480 (4th Cir. 1983), and by the Board itself in Meadows v. Westmoreland Coal Co., BRB No. 81-1460 BLA (BRB Jan. 12, 1984); and (2) that we incorrectly applied to the instant case arising under Part C of the Black Lung Benefit Reform Act of 1977 rules for rebuttal applying to cases arising under Part B of that Act.

In light of the significant change in the law governing the invocation of the interim presumption in a Part C Black Lung case, we find it appropriate to remand the instant case to the Benefits Review Board to consider the question of what now is required for the petitioner to raise the interim presumption in his case. The Board may also want to consider the question of the propriety of applying the rules for rebutting the interim presumption in a Part B case to a Part C case.

Accordingly, the petition to rehear is granted by the panel, although after consideration the full Court did not grant the suggestion for en banc rehearing; and the case remanded to the Board for reconsideration.