Terry Bryant, Petitioner, v. Betty "b" Coal Company; Director, Office of Workerscompensation Programs, United States Department Oflabor, Respondents, 979 F.2d 847 (4th Cir. 1992)

OPINION

Terry Bryant, a former coal miner, appeals from a decision of the Benefits Review Board ("Board") affirming the decision of the administrative law judge ("ALJ") to deny his application for black lung benefits. The record discloses that while Bryant's appeal was pending before the Board, Bryant's attorney filed a petition for modification in the Office of the Deputy Commissioner. Ordinarily, under 20 C.F.R. § 802.301 (1991), upon the filing of a petition for modification, the Board would dismiss the appeal and remand the case to the deputy commissioner for the institution of modification proceedings. See Ashworth v. Blue Diamond Coal Co., 11 BLR 1-167 (1988). In this case, however, Bryant apparently did not notify the Board that he had filed the petition, so the Board issued its decision, which Bryant appealed to this Court.

Thus, it did not become apparent until after Bryant's appeal to this Court that Bryant had filed a petition for modification. We note, however, that the modification process remains available throughout all appellate proceedings. See O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254 (1971); Director, Office of Workers' Compensation Programs v. Drummond Coal Co., 831 F.2d 240 (11th Cir. 1987). Although it appears that Bryant did not serve the Board with notice of his petition, the respondent, Betty "B" Coal Company, is in agreement with Bryant that this Court should remand this action for the initiation of modification proceedings.

Accordingly, we remand this case to the Board with instructions to further remand to the deputy commissioner for consideration of Bryant'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