Unpublished Dispositionmario Defelice, Petitioner v. Consolidation Coal Company, Employer-respondent,benefits Review Board; Director, Office of Workers'compensation Programs, Respondents, 803 F.2d 718 (6th Cir. 1986)

Claimant Mario DeFelice petitions for a review of a decision of the Benefits Review Board affirming an administrative law judge's decision 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. On appeal claimant contends that the Benefits Review Board erred in concluding that there was substantial evidence to support the administrative law judge's decision that the interim presumption of disability had been rebutted under 20 C.F.R. Sec. 727.203(b).

Mario DeFelice was born on October 25, 1916, and was sixty-five years old at the time of his hearing. He has an eighth grade education. DeFelice has worked in coal mine employment for at least twenty-three years, and he last worked at this occupation in January of 1980.

DeFelice filed his claim for benefits under the Black Lung Benefits Act on October 27, 1978. The claim was originally denied and a hearing was held on August 20, 1980, before an administrative law judge. On January 20, 1981, the administrative law judge issued a decision and order awarding benefits. The employer, Consolidation Coal Company, then filed a notice of appeal with the Benefits Review Board on February 16, 1981, contesting the ALJ's determination of disability. The Benefits Review Board, by order dated September 27, 1982, remanded the case for consideration of rebuttal pursuant to 20 C.F.R. Sec. 727.203(b) (2) and (b) (4). On reconsideration, the ALJ issued a revised decision and order denying benefits on March 29, 1983. DeFelice thereupon appealed the decision to the Benefits Review Board on April 7, 1983. On August 28, 1985, the Benefits Review Board affirmed the ALJ's decision and order, finding that the decision was supported by substantial evidence. Thereafter DeFelice filed a timely petition for review in this court on September 17, 1985.

On appeal, DeFelice contends only that the ALJ's determination that the employer had rebutted the interim presumption of disability pursuant to 20 C.F.R. Sec. 727.203(b) (2) and (b) (4) is not supported by substantial evidence. He insists that the Benefits Review Board erred in concluding otherwise and that he is therefore entitled to benefits under the Act.

Upon consideration, the court is of the opinion that substantial evidence supports the decision of the Benefits Review Board and that it did not err in concluding that any interim presumption of disability arising from the cited regulation had been adequately rebutted by other evidence in the case.

Accordingly, the decision of the Benefits Review Board is upheld and the petition for review is DENIED.