ONTHLY DIGEST # 145
Black Lung Benefits Act
December 1999 - January 2000
John M. Vittone
Chief Judge
Thomas M. Burke
Associate Chief Judge
II. Black Lung Benefits Act
Circuit courts of appeals
In Youghiogheny and Ohio Coal Co. v. Milliken , ___ F.3d ___, Case No. 98-4395 (6th Cir. Dec. 29, 1999), the Sixth Circuit held that Claimant filed a timely request for modification on February 5, 1990, where the circuit court issued its decision on January 23, 1989 and then denied Claimant's untimely petition for rehearing on March 23, 1989. The circuit court held that its affirmance of the denial of benefits was not "final" until it issued the March 1989 mandate denying Claimant's petition for rehearing. The court further concluded that a letter, wherein Claimant stated that she intended to file a petition for modification, was sufficient to constitute a modification request at 20 C.F.R. § 725.310. It noted that the standard for opening the record on modification is "very low." The court cited to the Fourth Circuit's decision in Jessee v. Director, OWCP , 5 F.3D 723, 725 (4th Cir. 1993), that a modification petition may be based merely on an allegation that the ultimate fact total disability due to pneumoconiosis was wrongly decided.
[ modification ]