UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EASTERN ASSOCIATED COAL

CORPORATION,

Petitioner,

v.

No. 98-2812

DIRECTOR, OFFICE OF WORKERS'

COMPENSATION PROGRAMS, UNITED

STATES DEPARTMENT OF LABOR;

RALPH M. HANNAH,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(91-1978-BLA)

Submitted: June 15, 1999

Decided: September 27, 1999

Before LUTTIG and KING, Circuit Judges,

and PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Mark E. Solomons, Laura Metcoff Klaus, ARTER & HADDEN,

L.L.P., Washington, D.C., for Petitioner. Henry L. Solano, Solicitor

of Labor, Donald S. Shire, Associate Solicitor, Christian P. Barber,

Richard A. Seid, Office of the Solicitor, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C.; S. F. Raymond

Smith, RUNDLE & RUNDLE, L.C., Pineville, West Virginia, for

Respondents.

_________________________________________________________________

OPINION

PER CURIAM:

Eastern Associated Coal Corporation ("employer") petitions for

review of a decision of the Benefits Review Board ("Board") reversing the administrative law judge's ("ALJ") decision to deny the application of Ralph Hannah, a former coal miner, for black lung benefits.

This case appears before us for the second time. Previously, we found

that the evidence of record was insufficient to support the ALJ's finding of rebuttal under 20 C.F.R. § 727.203(b)(3) (1998), and remanded

to the Board for consideration of the propriety of the ALJ's alternative finding of rebuttal pursuant to 20 C.F.R. § 727.203(b)(2) (1998).

We instructed the Board that if it found the evidence insufficient to

support subsection (b)(2) rebuttal, it should award benefits. See

Hannah v. Eastern Associated Coal Co., No. 94-2017 (4th Cir. Apr.

11, 1997) (unpublished).

On remand, the Board held that because none of the medical opinions offered in support of subsection (b)(2) rebuttal addressed total

disability without regard to cause, they were insufficient to establish

rebuttal under our decision in Sykes v. Director, Office of Workers'

Compensation Programs, 812 F.2d 890 (4th Cir. 1987). Employer

avers on appeal that in so finding, the Board exceeded the scope of

its review by effectively making a de novo finding concerning rebuttal

rather than accepting the ALJ's determination that because the

reports, which addressed only pulmonary disability, did not mention

any other kind of disability, the absence of any other disability could

be inferred. We rejected a similar argument in Bethlehem Mines Corp.

v. Henderson, 939 F.2d 143 (4th Cir. 1991). In that case, we upheld

the Board's finding that three medical opinions that addressed only

respiratory impairment, but did not directly address the miner's ability

to perform his usual work or comparable work, were insufficient to

establish subsection (b)(2) rebuttal through the negative inference that

 2
if the physicians failed to mention a non-respiratory impairment, there

must not be any. See id. at 150. We therefore affirm the Board's finding that the evidence of record in this case fails to support subsection

(b)(2) rebuttal.

Employer contends that if the evidence does not support rebuttal

under subsections (b)(2) or (3), due process considerations dictate

either that the record be reopened so that it may submit new evidence,

or that liability be transferred to the Black Lung Disability Trust

Fund. Employer believes that our decisions in Sykes and Grigg v.

Director, Office of Workers' Compensation Programs , 28 F.3d 416

(4th Cir. 1994), altered the legal standards applicable to subsection

(b)(2) and (b)(3) rebuttal, respectively, and that it should be permitted

an opportunity to tailor its evidence to the holdings in those cases.

Even if we agreed with the dubious assertion that Sykes "changed" the

law applicable to subsection (b)(2) rebuttal, it would be of no avail

to employer in this case, because that decision issued seven months

prior to the first hearing before the ALJ. Consequently, employer cannot reasonably argue that it had no opportunity to develop evidence

in light of Sykes.

As for Grigg, that case clearly did not change the law. Rather, that

decision merely upheld existing Board precedent holding that a finding of no respiratory or pulmonary impairment of any kind may support a finding of subsection (b)(3) rebuttal. See Grigg, 28 F.3d at 419

(upholding but outlining parameters of Board's decision in Marcum

v. Director, Office of Workers' Compensation Programs, 11 BLR 1-

23 (1987)). Accordingly, we reject employer's due process arguments.

The decision of the Board is therefore 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

 3