Mary Ratliff, Widow of Burl Ratliff, Deceased, Petitioner, v. Director, Office of Workers Compensation Program, Unitedstates Department of Labor, Respondent, 891 F.2d 287 (4th Cir. 1989)

Burl Ratliff filed a claim pursuant to Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §§ 901, et seq. The administrative law judge (ALJ) denied the claim because Ratliff failed to prove under 20 C.F.R. Part 410 that he was totally disabled or that his respiratory impairment arose out of coal mine employment. The ALJ did not apply § 410.490, as his decision and order was prior to this Court's decision in Broyles v. Director, OWCP, 824 F.2d 327 (4th Cir. 1987), aff'd, Pittston Coal Group v. Sebben, 57 U.S.L.W. 4029 (U.S. Dec. 6, 1988) (No. 87-1095), which required that § 410.490 be applied to all claims filed prior to the promulgation of the permanent regulations at 20 C.F.R. Part 718 on April 1, 1980. The Benefits Review Board (Board) affirmed the ALJ's denial of benefits, and held that since Ratliff did not establish that his pneumoconiosis arose out of coal mine employment, he was not entitled to the presumption of total disability under § 410.490. Mary Ratliff appealed from the Board's denial of a motion for reconsideration.¹ 

We initially note that we cannot consider on appeal Ratliff's argument that her husband had more than ten years of coal mine employment sufficient to qualify for the interim presumption of disability under 20 C.F.R. § 727.203. Ratliff, although represented by counsel before the Board, did not challenge the ALJ's finding of fewer than ten years of coal mine employment. It is well established that courts will consider on appeal only those issues raised in the proceeding before an administrative agency. United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952). See also Director, OWCP v. North American Coal Corp., 626 F.2d 1137 (3d Cir. 1980).

Under § 410.490, a claimant who demonstrates the existence of pneumoconiosis by X-ray, biopsy, or autopsy evidence, and who establishes that such pneumoconiosis arose out of coal mine employment, invokes a rebuttable presumption of total disability due to pneumoconiosis.²  Sebben, supra. The ALJ properly found the existence of pneumoconiosis based on the positive interpretations of the X-ray evidence by Drs. Schmidt and Cole, and the Director's concession that X-ray evidence established pneumoconiosis.

Section 410.490 refers to 20 CFR §§ 410.416 and 410.456 for standards governing the necessary causation element.³  Section 410.416 provides that where the evidence establishes fewer than ten years of coal mine employment, "a miner who is suffering or suffered from pneumoconiosis, must submit the evidence necessary to establish that the pneumoconiosis arose out of employment in the nation's coal mines." 20 C.F.R. § 410.416(b). Such a link may be proved by evidence establishing that the miner was not exposed to any other dust that could cause pneumoconiosis. See Maxey v. Califano, 598 F.2d 874, 876 n. 3 (4th Cir. 1979).

The record includes the report of Dr. Schmidt, who diagnosed coal workers' pneumoconiosis 1/1 p. Because Dr. Schmidt specifically diagnosed Ratliff as suffering from "coal workers' pneumoconiosis," his opinion is sufficient to constitute evidence that Ratliff's pneumoconiosis arose out of coal mine employment. However, there is conflicting evidence suggesting alternative sources of dust exposure. Ratliff testified at the hearing that he worked in shipbuilding, he was exposed to sandpaper dust, he helped dig up pipes, he cleaned out excursion boats, and he worked for a steel company. Because there is other conflicting evidence to suggest alternative sources of dust exposure based on Ratliff's hearing testimony that could have caused his impairment, including shipbuilding and working with sandpaper, the Board should have remanded this case to the ALJ for a resolution of this issue. Where the record establishes such an alternative source, it is the claimant's burden to prove by competent medical evidence that the miner's coal mine employment contributed to the pneumoconiosis. See Cantrell v. Califano, 578 F.2d 549, 550 (4th Cir. 1978). If a miner with fewer than ten years of coal mine employment fails to establish that his pneumoconiosis arose out of coal mining, he is not entitled to the presumption under § 410.490. Grant v. Director, OWCP, 857 F.2d 1102 (6th Cir. 1988). We decline to resolve this factual issue and therefore remand this case for analysis and weighing of the evidence pursuant to § 410.490 by the ALJ. See Zbosnik v. Badger Coal Co., 759 F.2d 1187 (4th Cir. 1985). If, on remand, the ALJ determines that there is a causal connection between the miner's pneumoconiosis and his coal mine employment so that the § 410.490 presumption is invoked, the ALJ must also determine whether the presumption has been rebutted under § 410.490(c).⁴ 

The Board's decision and order affirming the denial of benefits is vacated and remanded for further proceedings consistent with this opinion. Our review of the record and the parties' briefs discloses that oral argument would not significantly aid the decisional process.

VACATED AND REMANDED.