Elmo L. Stepp v. Westmoreland Coal Company, Incorporated Director, Office of Workers' Compensation Programs, United States Department of Labor

36 F.3d 1094, 1994 U.S. App. LEXIS 33985, 1994 WL 510459

Opinion

36 F.3d 1094

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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

No. 93-2208.

United States Court of Appeals, Fourth Circuit.

Submitted: May 17, 1994.
Decided: September 20, 1994.

On Petition for Review of an Order of the Benefits Review Board. (92-2010-BLA)

Elmo L. Stepp, Petitioner Pro Se.

Ann Brannon Rembrandt, Jackson & Kelly, Charleston, West Virginia; Alan G. Paez, Martha Kusic, Staff Attorney, United States Department of Labor, Washington, D.C., for Respondents.

Ben. Rev. Bd.

REMANDED.

Before HALL and NIEMEYER, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

OPINION

PER CURIAM:

Elmo L. Stepp appeals from a decision of the Benefits Review Board ("the Board") affirming the decision of the administrative law judge ("ALJ") to deny his application for black lung benefits. While his case was pending on appeal in this Court, Stepp filed through counsel a petition for modification with the Deputy Commissioner. He filed a "Motion for Remand" in this Court, which the Respondents do not oppose. We grant the motion.

Under 33 U.S.C. Sec. 922 (1988) and 20 C.F.R.Sec. 725.310 (1992), a party may seek modification of an award or denial of black lung benefits by filing a motion for modification with the Deputy Commissioner. Lee v. Consolidation Coal Co., 843 F.2d 159, 162 (4th Cir.1988). The modification process remains available throughout all appellate proceedings. See O'Keeffe v. Aerojet-Gen. Shipyards, Inc., 404 U.S. 254 (1971); Director, Office of Workers' Compensation Programs v. Drummond Coal Co., 831 F.2d 240 (11th Cir.1987). Modification may be sought even while an appeal is pending. Lee, 843 F.2d at 162 n. 4. We therefore remand this case to the Board with instructions to further remand to the Deputy Commissioner for consideration of Stepp's modification petition. 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.

REMANDED