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ROSEBUD COAL SALES CO. v. WEIGAND

No. 86-1442.

831 F.2d 926 (1987)

ROSEBUD COAL SALES COMPANY, Employer-Petitioner, v. Harvey E. WEIGAND, Deceased, Claimant, and Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Party-In-Interest Respondents.

United States Court of Appeals, Tenth Circuit.

September 28, 1987.

Attorney(s) appearing for the Case

Clifford M. Levy (Phillip J. Myles with him, on the brief), of Scott, Myles & Hanauer, San Diego, Cal., for claimant.

John S. Lopatto, III, of Freedman, Levy, Kroll & Simonds, Washington, D.C., for employer-petitioner.

Michael J. Rutledge, (George R. Salem, Sol. of Labor, Donald S. Shire, Asst. Sol., J. Michael O'Neill, Counsel for Appellate Litigation, Thomas L. Holzman, Assistant Counsel for Appellate Litigation, and Donald Feith, on the brief), U.S. Dept. of Labor, Workers' Compensation Programs, Washington, D.C., for party-in-interest respondents.

Before MOORE and BALDOCK, Circuit Judges, and BOHANON, District Judge.

BOHANON, District Judge.

The petitioner, Rosebud Coal Sales Co. ("Rosebud") appeals from a Benefits Review Board ("BRB") decision affirming an award of benefits to the claimant, Harvey E. Weigand by a U.S. Department of Labor Administrative Law Judge ("ALJ"). Rosebud argues that the ALJ and BRB: (1) incorrectly interpreted the "negative X-ray" rule set out in 30 U.S.C. § 923(b), and (2) failed to apply the correct rebuttal standard under 20 C.F.R. § 727...

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