BRB No. 93-1346 BLA
                                         


CONRAD PRICHARD                  )
                       )
        Claimant-Petitioner      )
                       )
    v.                           )
                       )         DATE ISSUED:10/28/1994  DIRECTOR,
OFFICE OF WORKERS'          )
COMPENSATION PROGRAMS, UNITED         )
STATES DEPARTMENT OF LABOR       )
                       )         
        Party-in-Interest/       )
        Respondent               )      DECISION and ORDER

   Appeal of the Decision and Order on Reconsideration of Robert G. Mahony,
   Administrative Law Judge, United States Department of Labor.

   Charles W. Ellis, Esq. (Robinson and Rice, L.C.), Huntington, West
   Virginia, for claimant.

   Barry H. Joyner (Thomas S. Williamson, Jr., 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, United States
   Department of Labor.

   Before: DOLDER, Acting Chief Administrative Appeals Judge, SMITH and BROWN,
   Administrative Appeals Judges.

   PER CURIAM:

   Claimant, Conrad Prichard, appeals from the Decision and Order on
Reconsideration of Administrative Law Judge Robert G. Mahony denying claimant's
Petitions for Waiver of Overpayment and for fees arising from a claim filed
pursuant to Title IV of the 
Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §901
et seq. (the Act).  

   Claimant filed a claim for benefits under the Act on April 14, 1980. 
See Director's Exhibit 4.  He was found to be entitled to benefits by the
district director,[1]  and the Black Lung Disability Trust Fund was ruled liable for the payment of benefits.  Id. 
Claimant also was the recipient of an award from the West Virginia Workers'
Compensation Fund for a 20% permanent partial disability award, and received a
Second Injury Life Award (SILA) from the state on January 24, 1984.  This SILA
award was based on claimant's total disability due to the "combined effect" of
various preexisting injuries and hearing loss.  See Director's Exhibits
5, 9, 21, 22, 31, 31A.  

   This case involves an overpayment of benefits due to claimant's receipt of
concurrent state and federal awards.  The district director determined that
claimant's federal benefits should be offset by the percentage of his West
Virginia award that was due to claimant's pneumoconiosis.  Director's Exhibit
29.  As a result, an overpayment of benefits resulted, and reimbursement was
requested.  Id.; see Director's Exhibit 23.

   Claimant requested a hearing before the Office of Administrative Law
Judges.  Director's Exhibit 31.  In his initial Decision and Order, the
administrative law judge ruled that claimant was not obligated to repay the
overpaid benefits,  because the administrative law judge had found that the
Director failed to establish what percentage of claimant's West Virginia Second
Injury Life Award was due to claimant's pneumoconiosis award.  As a result, the
administrative law judge ruled that the Director had demonstrated no basis for
an offset of federal benefits or the resulting overpayment.  Decision and Order
at 6.

   On the Director's Motion for Reconsideration, the administrative law judge
reversed his initial ruling, and decided that the record established that a
percentage certain of claimant's state Second Injury award was attributable to
pneumoconiosis, and could thus serve as the basis for an offset.  Accordingly,
claimant was overpaid, and was thus liable to the Director for its recovery. 
Decision and Order on Reconsideration at 2-3.  This appeal followed.

   On appeal, claimant initially asserts that his 20% permanent partial
disability pneumoconiosis award is not concurrent with his federal black lung
award, and thus may not offset his federal benefits.  Claimant's Brief at 11.[2]   Claimant also contests the administrative law
judge's determination as to the offset in this case.

   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 into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith,
Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

   Upon consideration of the arguments of counsel, the Decisions and Orders of
the administrative law judge, and of the record as a whole, we hold that the
administrative law judge's determination of the nature and amount of the offset
and overpayment in this case is supported by substantial evidence and accords
with applicable law.  Accordingly, we will affirm the Decision and Order on
Reconsideration.

   Initially, we reject claimant's assertion that his 20% permanent partial
disability pneumoconiosis award is not concurrent with his federal black lung
award, and thus may not offset his federal benefits.  Claimant's Brief at 11. 
Section 422(g) of the Act provides that Federal Black Lung Benefits shall be
reduced "by the amount of any compensation received under or pursuant to any
Federal or State workmen's compensation law because of death or disability due
to pneumoconiosis."  30 U.S.C. §932(g).  Section 725.535(b) states that the
offset of only those state payments received concurrently with federal payments. 
20 C.F.R. §725.535(b); Stewart v. Harman Mining Corp., 5 BLR 1-854,
1-859-61 (1983), aff'd sub nom. Harman Mining Co. v. Director, OWCP, 826
F.2d 1388, 10 BLR 2-291 (4th Cir. 1987).  Contrary to claimant's contention, the
offset which is the subject of this appeal is based on the receipt of claimant's
Second Injury Life Award (SILA), which constitutes a payment of benefits
concurrent to the receipt of his federal award and which is premised in part on
claimant's permanent partial disability due to pneumoconiosis.  See
Director's Exhibits 5, 14, 22.  

   We also hold that there is sufficient evidence of record to support the
administrative law judge's determination that the federal benefits should be
offset in this case in the amount corresponding to the 20% permanent partial
disability award due to pneumoconiosis upon which claimant's life award is in
part based.[3] 

   Under West Virginia law, a claimant will be entitled to a compensation
award for permanent total disability where he or she suffers from
   
   definitely ascertainable physical impairment caused by a previous injury,
   irrespective of its compensability, [and] sustains a subsequent injury ...
   the combined effect of which renders him totally and permanently disabled
   ...

Smith v. Workers' Compensation Commissioner, 179 W.Va. 782, ___, 373
S.E.2d 495, 498 (1988); Cline v. State Workmen's Compensation
Commissioner, 156 W.Va. 647, 196 S.E.2d 296 (1973); see W.Va. Code
§23-3-1 (1990).[4]   Pursuant to the West
Virginia Second Injury Fund Statute, W.Va. Code §23-3-1 (1990), the
employer would be responsible only for compensation for the employee's second
injury, with the balance of the permanent total disability award to be paid out
of a Second Injury Reserve.  Id.; Linville, supra; Gillespie,
supra; see generally 2 Larson, Workmen's Compensation Law
§59.34(a)(1) at 10-528 and n. 33 (1992).  

   The Board, in Lucas v. Director, OWCP, 14 BLR 1-112, 1-114
(1990)(en banc) (McGranery, J., dissenting), held that when a state
compensation award is premised upon a finding that a specific percentage of
claimant's total disability is due to pneumoconiosis, that percentage determines
the amount of the overpayment.  Accord Burnette v. Director, OWCP, 14 BLR
1-151 (1990).

   Because claimant received a 20% permanent partial disability award for
pneumoconiosis, and the record shows that the pre-existing permanent partial
disability was raised before the workmen's compensation Commissioner in
conjunction with the permanent total disability SILA proceedings, see
Director's Exhibit 14, the administrative law judge could rationally have
ascertained from this record that claimant's current Second Injury Life Award
was premised in part upon a specific percentage of permanent disability due to
pneumoconiosis, and that his federal black lung benefits were thus subject to an
offset equal to the benefits attributable thereto.  Director's Exhibits 5, 14,
22; see 30 U.S.C. § 932(g); 20 C.F.R. §725.535(b);
Bennett, slip op. at 2; Lucas; Burnette.
   
   Inasmuch as the administrative law judge's inference regarding the
percentage of claimant's total disability award that is due to pneumoconiosis is
not patently unreasonable, see Cordero v. Triple A Machine Shop, 580 F.2d
1335, 8 BRBS 744 (9th Cir. 1978), cert. denied 440 U.S. 911 (1979), and
is supported by substantial evidence, we must affirm the administrative law
judge's finding that the payment of claimant's federal black lung benefits is
subject to an offset due to claimant's receipt of a state award based in part on
his 20% permanent partial disability due to pneumoconiosis, and that claimant
accordingly received an overpayment.   Accordingly, the Decision and Order on Reconsideration denying waiver of
recovery of overpayment and fees is affirmed.

   SO ORDERED



                                                    
                       NANCY S. DOLDER, Acting Chief
                       Administrative Appeals Judge

                  

                                                    
                       ROY P. SMITH
                       Administrative Appeals Judge



                                                           
                       JAMES F. BROWN
                       Administrative Appeals Judge

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Footnotes.
 1)Formerly titled "deputy commissioner," see 20 C.F.R.
§725.101(a)(11); 55 Fed. Reg. 28606 (July 12, 1990).
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 2)Claimant does not challenge the administrative law judge's
recovery of overpayment finding.  This finding can thus be affirmed.  See
Coen v. Director, OWCP, 7 BLR 1-30 (1984); Skrack v. Island Creek Coal
Co., 6 BLR 1-710 (1983).
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 3)To the extent claimant urges the Board to rule that a SILA
award may never support an offset, his argument is without merit.  The permanent
total disability SILA award constitutes a compensation award cognizable under
Section 725.535(a), because it is premised in part upon a finding that a
percentage of claimant's total disability is due to pneumoconiosis.  See
Bennett v. Director, OWCP, __ BLR ____, BRB No. 92-0705 BLA, slip op. 2-3
(Feb. 28, 1994).  The SILA is not dissimilar to a permanent total disability
award subject to Special Fund relief under Section 8(f) of the Longshore and
Harbor Workers' Compensation Act, 33 U.S.C.
§908(f).  See generally Abbott v. Louisiana Insurance Guaranty
Association, 27 BRBS 192, 206-07 (1993).

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 4)The West Virginia Supreme Court of Appeals, in interpreting
the disability statute, has held that 

   "awards for permanent total disability are to be ascertained by utilizing
   and aggregating all prior ascertainable impairments to determine [whether a
   claimant has met a threshold disability level to be considered totally
   disabled]."  

Linville v. State Workmen's Compensation Commissioner, 160 W.Va. 549,
___, 236 S.E.2d 41, 46 (1977); Gillespie v. Workman's Compensation
Commission, 157 W.Va. 829, ___, 205 S.E.2d 164, 169 (1974).
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