Burnis McConnell v. Clinchfield Coal Company, Director, Office of Workers Compensation Programs, United States Department of Labor

911 F.2d 723, 1990 U.S. App. LEXIS 14327, 1990 WL 118746

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 17, 1990
• Docket: 89-3301
• Status: Unpublished

Opinion

911 F.2d 723
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Burnis McCONNELL, Petitioner,
v.
CLINCHFIELD COAL COMPANY, Director, Office of Workers
Compensation Programs, United States Department of
Labor, Respondents.

No. 89-3301.

United States Court of Appeals, Fourth Circuit.

Submitted June 12, 1990.
Decided Aug. 17, 1990.

On Petition for Review of an Order of the Benefits Review Board. (87-3593-BLA; 84-6635-BLA)

Burnis McConnell, appellant pro se.

Suzan Elaine Moore, Penn, Stuart, Eskridge & Jones, Abingdon, Va., Harry Steinfeld, Donald Steven Shire, United States Department of Labor, Washington, D.C., for respondents.

Ben.Rev.Bd.

VACATED AND REMANDED.

Before SPROUSE, CHAPMAN and WILKINS, Circuit Judges.

PER CURIAM:

Burnis McConnell seeks review of the Benefits Review Board's (Board) decision and order affirming the administrative law judge's (ALJ) denial of black lung benefits pursuant to 30 U.S.C. Secs. 901 et seq. In his informal brief on appeal McConnell requests that the Court remand his case to be considered under 20 C.F.R. Sec. 410.490. Because McConnell filed his claim before April 1, 1980, the provisions of Sec. 410.490 apply to the extent that they are less restrictive than the provisions of 20 C.F.R. Sec. 727.203 which were applied by the ALJ.

After invoking the presumption, the ALJ found that it was rebutted under Secs. 727.203(b)(3) and (b)(4). Again, McConnell's claim was filed prior to April 1, 1980; therefore rebuttal under these subsections is not allowed. See Taylor v. Clinchfield Coal Co., 895 F.2d 178 (4th Cir.1990); Dayton v. Consolidation Coal Co., 895 F.2d 173 (4th Cir.1990).

Accordingly, we remand this case to the Board for further remand to an ALJ for proceedings consistent with this opinion. 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.