Penn Allegheny Coal Company and Old Republic Coal Companies (companies) petition this court for review of an order of the Benefits Review Board (BRB) dated October 31, 1988, which denied their motion for reconsideration of a decision and order of the BRB of May 27, 1988, in this case under the Black Lung Benefits Act (Act), 30 U.S.C. Secs. 901-945. The May 27, 1988, decision and order affirmed a decision and order of an Administrative Law Judge (ALJ) awarding all benefits to an appropriate party, as authorized by 20 C.F.R. Sec. 725.504, to which James Mercatell was entitled, and awarding survivorship benefits to Dorothy Mercatell, to which she was entitled as the widow of James Mercatell.1 See Rochester & Pittsburgh Coal Co. v. Krecota, 868 F.2d 600, 601 (3d Cir.1989).

The principal issue on the appeal is whether the ALJ properly discredited evidence which may have rebutted the interim presumption under 20 C.F.R. Sec. 727.203(b)(3).2 It is uncontested that the ALJ properly relied on the only pulmonary function study of record to invoke the interim presumption of 20 C.F.R. Sec. 727.203(a)(2) that the miner, James Mercatell, was totally disabled by pneumoconiosis, as the result of his thirty-four years of coal mine employment.3

At the first administrative hearing, the ALJ credited the medical report of James Mercatell's physician, Dr. Jay Paul, who had stated that the miner's presumed disability and his May 26, 1980, death were attributable to lung cancer as the result of cigarette smoking, not pneumoconiosis from his coal mine employment. On the basis of this report the ALJ found in a decision and order dated September 23, 1983, that the interim presumption had been rebutted and, consequently, he did not award benefits.

The Director of the Office of Worker's Compensation Programs appealed the denial of benefits to the BRB. In the first administrative appeal on January 24, 1986, the BRB vacated the ALJ's decision and order and remanded the matter for reconsideration in light of Hoffman v. B & G Construction Co., 8 Black Lung Rep. (MB) 1-65 (Ben.Rev.Bd.1985).4 As summarized in the Director's brief on this appeal,

[i]n Hoffman, the [BRB] held that Congress had recognized that simple pneumoconiosis could be totally disabling and that x-ray evidence of simple pneumoconiosis is categorized as 1, 2, or 3 according to the classification system required by the U.S. Department of Labor's quality standards. 20 C.F.R. Sec. 718.102. However, some physicians believe that, without x-ray readings of 3/3 or greater or evidence of progressive massive pulmonary fibrosis, a miner cannot demonstrate that his pulmonary disease is due to coal mine employment. The [BRB] held that an ALJ cannot rely on such physicians to establish the cause of a miner's disability. The [BRB] added that such a physician's opinion may, nevertheless, establish the existence or absence of a breathing impairment.

Brief at 5 n. 4.

Dr. Paul's testimony was not consistent with Congress's recognition of what respiratory conditions could be related to coal mine employment, as noted in Hoffman, as he believed that when the x-ray opacities are lower than 2/2 there cannot be totally disabling pneumoconiosis.5

On remand, the ALJ, relying on Hoffman, consequently discredited Dr. Paul's testimony as to the cause of the miner's impairment.6 The ALJ then determined that the remaining medical evidence was insufficient to rebut the interim presumption.7

In the second administrative appeal to the BRB, the companies argued that the ALJ improperly considered the Director's argument that Dr. Paul's testimony should be discredited premised on his evidenced hostility to the Act. Under the BRB's ruling in Lyon v. Pittsburgh & Midway Coal Co., 7 Black Lung Rep. (MB) 1-199, 1-201 (Ben.Rev.Bd.1984), the issue of hostility to the Act must be raised before the ALJ for the BRB to consider the issue on appeal. Thus, arguably the BRB improperly considered this issue on the first administrative appeal and the ALJ's initial denial of benefits should have been upheld.

The BRB on the second appeal observed, however, that the companies failed to object in the first administrative appeal to consideration of the issue regarding Dr. Paul's hostility to the Act which was accordingly considered on the merits. Relying on the law of the case, the BRB thus held that it would not consider the companies' argument that it should not have considered the issue of Dr. Paul's hostility on the first appeal. Inasmuch as it found no error in the ALJ's decision and order on the remand, it affirmed.

The companies then moved for reconsideration, contending that at the time they had submitted their briefs on the first administrative appeal, the BRB had not issued its opinion in Lyon. The BRB answered this objection by noting that Lyon was published on July 25, 1984, and that the BRB rendered its decision on the first appeal on January 24, 1986. Inasmuch as there was clearly sufficient time for the companies to file a supplemental brief with the BRB raising Lyon on the first appeal, and since the burden was on the companies to file such a brief raising the issue, the BRB denied the motion to reconsider.

On this petition for review the companies argue that the ALJ erred in not concluding that the medical evidence indicating that the decedent did not have pneumoconiosis rebutted the interim presumption established by the pulmonary function study. They further contend that the BRB erred in departing from its past practice of applying subsequent decisional law, even though that subsequent law was not argued in briefs.

We are persuaded by the reasoning of the BRB's Hoffman decision, which, we observe, follows earlier BRB precedent, see, e.g., Nagle v. Barnes & Tucker Co., 1 Black Lung Rep. (MB) 1-961 (Ben.Rev.Bd.1978), represents a position the BRB continues to apply, see, e.g., Stephens v. Bethlehem Mines Corp., 8 Black Lung Rep. (MB) 1-350, 1-352 (Ben.Rev.Bd.1985), and states a rule accepted by four other Courts of Appeals. See Adams v. Peabody Coal Co., 816 F.2d 1116, 1119 (6th Cir.1987); Wetherill v. Director, OWCP, 812 F.2d 376, 382-83 (7th Cir.1987) (dicta); Black Diamond Coal Mining Co. v. Benefits Review Board, 758 F.2d 1532, 1534 (11th Cir.1985); Kaiser Steel Corp. v. Director, OWCP, 748 F.2d 1426, 1430-31 (10th Cir.1984). It is perfectly reasonable to discredit an expert's conclusion with regard to whether a condition defined by statute and regulation does or does not exist when that expert bases his conclusion on a premise fundamentally at odds with the statutory and regulatory scheme.

The interim presumption may be invoked if any one of several forms of evidence are presented, thus demonstrating the premise that one form could manifest itself in the absence of the others. Consequently, when Dr. Paul insisted that in the absence of x-ray evidence none of the other forms of evidence were sufficient to raise a presumption of disability attributable to pneumoconiosis,8 it was within the proper scope of the ALJ's discretion to discredit his testimony.9

The interim presumption may be rebutted under 20 C.F.R. Sec. 727.203(b)(3) if a preponderance of the evidence establishes that the miner's total disability is not caused "in whole or in part" by his coal mine employment. Excluding Dr. Paul's testimony, none of the medical reports in the record ruled out a causal connection between James Mercatell's respiratory disability and his coal mine employment. Thus, the companies failed to carry their burden of proof to rebut the interim presumption. Accordingly, we must conclude that there is substantial evidence in the record as a whole supporting the ALJ's award of benefits. Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 162 (3d Cir.1986).

In reaching our result, we have not overlooked Endrizzi v. Bethlehem Mines Corp., 8 Black Lung Rep. (MB) 1-11 (1985), cited by the companies, which holds that an ALJ's acceptance of a medical expert's opinion implicitly finds that the medical expert is not hostile to the Act. Rather, we do not see how that case helps them. In Endrizzi the BRB remanded the matter to the ALJ for consideration of whether a medical expert's opinion should be discredited as hostile to the Act. The ALJ, on remand, accepted the expert's opinion. Like in Endrizzi, the ALJ in this case accepted the expert's opinion at the first hearing but, unlike in Endrizzi, the ALJ discredited that opinion on remand.

Nor have we overlooked the companies' reliance on Burton v. Drummond Coal Co., 7 Black Lung Rep. (MB) 1-194 (Ben.Rev.Bd.1984), in which the BRB said it was irrational and inconsistent for the Director to contend that physicians whom he had employed himself to make examinations were hostile to the Act. The companies cite Burton as they contend the Director has employed Dr. Paul "on dozens, if not over a hundred cases." While there may be substance to this argument, inasmuch as it was not presented to the BRB on the first administrative appeal we view it as waived.10

In view of the aforesaid we will affirm the order of October 31, 1988, denying the companies' motion for reconsideration.