Unpublished Dispositiongibraltar Coal Corporation and Old Republic Companies, Petitioners, v. Earl Pleasant; Director, Office of Workers' Compensationprograms, United States Department of Labor, Respondents, 856 F.2d 193 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 856 F.2d 193 (6th Cir. 1988) Aug. 24, 1988

Before MERRITT, KRUPANSKY and BOGGS, Circuit Judges.

ORDER

Petitioner, Gibraltar Coal Corp., (Gibraltar) petitioned this court for review of the decision of the Benefits Review Board of the U.S. Department of Labor (Board). The Board upheld a February 27, 1985 decision and order of an administrative law judge who had awarded claimant-respondent, Earl Pleasant, black lung benefits under 30 U.S.C. § 901, et seq. and prejudgment interest under 20 C.F.R. Sec. 725.608(a). Gibraltar does not contest the award of black lung benefits and only appeals from the award of prejudgment interest. Gibraltar argues that under Youghiogheny and Ohio Coal Co. v. Warren, 841 F.2d 134 (6th Cir. 1987), and the decisions of other circuits that have considered the issue,1  the Board erred in upholding the grant of prejudgment interest because 20 C.F.R. Sec. 725.608(a) only permits interest to be awarded as of thirty days after the initial determination that claimant is entitled to benefits. The respondents--the Director and the claimant--agree with Gibraltar's position.

This court concludes that Warren is dispositive. Accordingly, it is ordered that the Board's decision, only insofar as it upheld the administrative law judge's award of prejudgment interest, be reversed and remanded to the Benefits Review Board for the entry of an order in accordance with this opinion.

 1

Stapleton v. Westmoreland Coal Co., 785 F.2d 424, 437 (4th Cir. 1986), rev'd on other grounds sub nom. Mullins Coal Co. v. Director, --- U.S. ----, 108 S. Ct. 427 (1987); Bethlehem Mines Corp. v. Director, 766 F.2d 128 (3d Cir. 1985); Peabody Coal Co. v. Blankenship, 773 F.2d 173 (7th Cir. 1985)

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