UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HUBERT J. WARD,

Petitioner,

v.

No. 95-2888

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR,

Respondent.

On Petition for Review of an Order

of the Benefits Review Board.

(90-1115-BLA)

Submitted: September 17, 1996

Decided: November 21, 1996

Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Lawrence L. Moise, III, VINYARD & MOISE, Abingdon, Virginia,

for Appellant. Donald S. Shire, Associate Solicitor, Patricia May

Nece, Counsel for Appellate Litigation, Eileen M. McCarthy, Office

of the Solicitor, UNITED STATES DEPARTMENT OF LABOR,

Washington, D.C., for Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Hubert Ward seeks review of the Benefits Review Board's (Board)

decision and order affirming the administrative law judge's (ALJ)

denial of his application for black lung benefits pursuant to 30 U.S.C.

§§ 901-45 (1994). The issue on appeal is whether Dr. Daniel's medical opinion is sufficient to rebut, pursuant to 20 C.F.R.

§ 727.203(b)(3) (1996), the interim presumption invoked in this case

under 20 C.F.R. § 410.490(b) (1996).

Because Dr. Daniel made clear in his deposition testimony that he

believed Ward to have no respiratory or pulmonary impairment at all,

we agree with the Director, Office of Workers' Compensation Programs (Director), that Dr. Daniel's opinion is legally sufficient to support subsection (b)(3) rebuttal. See Grigg v. Director, Office of

Workers' Compensation Programs, 28 F.3d 416, 419 (4th Cir. 1994).

Moreover, we reject Ward's contention that Dr. Daniel's finding of

no pneumoconiosis dooms his report because such finding was contrary to the ALJ's finding that Ward established the disease. First, the

ALJ's finding of pneumoconiosis, based on X-rays, is not necessarily

inconsistent with a finding of no impairment, which is made on the

basis of different data. See Koppenhaver v. Director, Office of Workers' Compensation Programs, 864 F.2d 287, 288 (3d Cir. 1988). Second, Dr. Daniel's finding of no impairment is not problematic unless

it was actually predicated on the erroneous assumption that pneumoconiosis was absent. See Dehue Coal Co. v. Ballard, 65 F.3d 1189,

1193-95 (4th Cir. 1995). Because Dr. Daniel explicitly stated in his

deposition that his opinion would be the same even assuming that the

miner had pneumoconiosis, it is clear that his finding of no impairment was made independently of his findings regarding the presence

of pneumoconiosis.

Finally, Ward contends that Dr. Daniel improperly found no connection between Ward's chronic obstructive pulmonary disease and

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his coal dust exposure based on his erroneous view that pneumoconiosis or coal dust exposure does not cause obstructive impairment.

Assuming Ward's claim to be true, however, this fact would not

undercut the validity of Dr. Daniel's finding of no impairment, which

effectively rules out any connection between the miner's presumed

disability and his coal mine employment, and therefore establishes

rebuttal under subsection (b)(3). See Grigg, 28 F.3d at 419.

Accordingly, the decision of the Board is affirmed. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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