BRB No. 90-0894 BLA 
                         

STEVE LABODA                  )                        
                              )
          Claimant-Petitioner )
                              )
     v.                       )
                              )
DIRECTOR, OFFICE OF WORKERS'  )   DATE ISSUED:06/26/1991 
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR    )
                              )
          Respondent          )    DECISION and ORDER

     Appeal of the Decision and Order of Frank J. Marcellino, Administrative Law
     Judge, United States Department of Labor.

     Frank C. Mascara, Fairmont, West Virginia, for claimant.                    
       
     Cathryn Celeste Helm (Robert P. Davis, Solicitor of Labor; Donald S. Shire,
     Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor;
     Richard A. Seid and Michael J. Rutledge, Counsel for Administrative
     Litigation and Legal Advice), Washington, D.C., for the Director, Office of
     Workers' Compensation Programs, the United States Department of Labor.

     Before:  STAGE, Chief Administrative Appeals Judge, BROWN, Administrative
     Appeals Judge, and FEIRTAG, Administrative Law Judge.*

     STAGE, Chief Administrative Appeals Judge:
     Claimant appeals the Decision and Order (89-BLO-0079) of Administrative Law
Judge Frank J. Marcellino denying waiver of recovery of overpayment of interim
benefits on a claim filed pursuant to the provisions of Title IV of the Federal
Coal Mine *Sitting as a temporary Board member by designation pursuant to the
Longshore and Harbor Workers' Compensation Act as amended in 1984, 33 U.S.C.
§921(b)(5) (Supp. V 1987).
Health and Safety Act of 1969, as amended, 30 U.S.C. §901 et
seq. (the Act).  The record reflects an overpayment of $36,951.19,
and the administrative law judge accepted the concession of the Director, Office
of Workers' Compensation Programs (the Director), that claimant was without fault
in creating the overpayment.  The administrative law judge also found that the
evidence of record failed to demonstrate that recovery of the overpayment would
either defeat the purpose of Title IV of the Act or be against equity or good
conscience, and thus found that waiver of recovery of the overpayment was not
proper.  See 20 C.F.R. §410.561 et
seq.  Claimant appeals, contending that the administrative law judge
erred in denying waiver of recovery of the overpayment.  The Director responds,
urging affirmance.
     The Board's scope of review is defined by statute.  If the administrative law
judge's findings of fact and conclusions of law are supported by substantial
evidence, are rational, and are consistent with applicable law, they are binding
upon this Board and may not be disturbed.  33 U.S.C. §921(b)(3), as
incorporated by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965).
     Claimant's sole argument on appeal is that recovery of the overpayment would
be against equity and good conscience pursuant to Section 410.561f, as the
overpayment resulted from claimant's reliance upon "erroneous information" from the
deputy commissioner's office, i.e., the deputy commissioner's initial
determination of entitlement to benefits.  See Director's Exhibits
1, 2.  We disagree.  An initial determination of entitlement does not qualify as
the type of "erroneous information" to which Section 410.561f refers. 
See Knope v. Director, OWCP,    BLR   , BRB No. 88-3313
(Dec. 27, 1990); Nelson v. Director, OWCP, 14 BLR 1-159 (1990);
Weis v. Director, OWCP,   BLR   , BRB No. 88-2827 BLA (Nov. 28,
1990); Potisek v. Director, OWCP, 14 BLR 1-87 (1990)(en
banc)(Brown, J., dissenting).  As claimant does not challenge the
administrative law judge's finding that the evidence of record is insufficient to
establish that recovery would either defeat the purpose of Title IV of the Act or
be against equity and good conscience, we hereby affirm this finding as
unchallenged on appeal.  20 C.F.R. §410.561a et
seq.  See Skrack v. Island Creek Coal
Co., 6 BLR 1-710 (1983).  
     Accordingly, the administrative law judge's Decision and Order denying waiver
of recovery of overpayment of interim benefits is affirmed.
     SO ORDERED.

                                                 
                    BETTY J. STAGE, Chief
                    Administrative Appeals Judge

     

     I concur:                                                  
                    ERIC FEIRTAG
                    Administrative Law Judge











BROWN, Administrative Appeals Judge, dissenting:

     I must respectfully dissent, for the reasons expressed in my dissenting
opinion in Potisek v. Director, OWCP, 14 BLR 1-87 (1990)(en
banc)(Brown, J., dissenting), i.e., that the Benefits Review
Board does not have subject matter jurisdiction over the issues of waiver and
recovery of overpayments in instances such as this.



                                                 
                    JAMES F. BROWN
                    Administrative Appeals Judge

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