Unpublished Dispositionsammie Amburgey, Petitioner, v. Director, Office of Workers' Compensation Programs, Unitedstates Department of Labor, Respondent, 875 F.2d 861 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 875 F.2d 861 (6th Cir. 1989) May 31, 1989

Before DAVID A. NELSON and BOGGS, Circuit Judges and ANN ALDRICH, District Judge* .

ORDER

The petitioner seeks review of a decision and order of the Benefits Review Board (Board) denying his claim for black lung benefits. The respondent moves for remand to the Board with instructions to vacate its prior affirmance of the administrative law judge's denial of benefits. Further, the respondent requests the Board be instructed to remand the case to the deputy commissioner for immediate entry of an award and payment of benefits. The petitioner concurs in the motion.

This case was held in abeyance pending a decision by the Supreme Court in Pittston Coal Group v. Sebben, 109 S. Ct. 414 (1988). The respondent now concedes that pursuant to Pittston the petitioner is entitled to the presumption of total disability due to pneumoconiosis and that there is not sufficient evidence to rebut that presumption.

It is therefore ORDERED that this case is remanded to the Benefits Review Board, which is instructed to vacate its order of May 20, 1988, and to reverse the decision of the administrative law judge. It is further ORDERED that the Board remand the case to the deputy commissioner for immediate entry of an award and payment of benefits.

 *

The Honorable Ann Aldrich, U.S. District Judge for the Northern District of Ohio, sitting by designation

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