67 F3d 295 Hess v. Director Office of Workers' Compensation Programs United States Department of Labor
67 F.3d 295
Samuel C. HESS, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Respondent.
No. 94-1466.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 29, 1995.
Decided Oct. 5, 1995.
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Samuel C. Hess, Petitioner Pro Se. Christian P. Barber, Kathleen Mary Bole, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent.
Before WILKINSON, NIEMEYER, and HAMILTON, Circuit Judges.
PER CURIAM:
Petitioner seeks review of the Benefits Review Board's decision and order affirming the administrative law judge's denial of black lung benefits pursuant to 30 U.S.C.A. Secs. 901-945 (West 1986 & Supp.1995). Our review of the record discloses that the Board's decision is based upon substantial evidence and is without reversible error. Accordingly, we affirm substantially on the reasoning of the Board. To the extent that it was error to rely on two medical opinions of record of questionable value in rebutting the presumption of total disability pursuant to 20 C.F.R. Sec. 727.203(a)(1) (1995), such error was harmless. The remaining medical report expressed the doctor's opinion that Petitioner suffered no pulmonary impairment. As the report was unopposed by evidence to the contrary, it was sufficient to establish rebuttal of the presumption under 20 C.F.R. Sec. 727.203(b)(3) by a preponderance of the evidence. See Grigg v. Director, Officer of Workers' Compensation Programs, 28 F.3d 416 (4th Cir.1994). To the extent that the Director urges remand is appropriate for the administrative law judge to consider Petitioner's claim under 20 C.F.R. Sec. 718 (1994), we note that a remand for that purpose would be futile as there is no medical evidence of record establishing Petitioner's total respiratory or pulmonary disability. See 20 C.F.R. Sec. 718.204(c). 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