Jarvis v. Carbon Fuel Co.

• Decision Date: 12 April 1994
• Docket Number: No. 93-1698,93-1698
• Citation: 23 F.3d 401
• Parties: NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Bude JARVIS, Petitioner, v. CARBON FUEL COMPANY; Director, Office Of Workers' Compensation Programs, United States Department Of Labor, Respondents
• Court: U.S. Court of Appeals — Fourth Circuit

Page 401

23 F.3d 401

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Bude JARVIS, Petitioner, v. CARBON FUEL COMPANY; Director, Office Of Workers'

Compensation Programs, United States Department Of

Labor, Respondents.

No. 93-1698.

United States Court of Appeals, Fourth Circuit

Submitted Feb. 25, 1994.

April 12, 1994.

On Petition for Review of an Order of the Benefits Review Board. (91-1843-BLA)

H. John Taylor, Rand, West Virginia, for Petitioner.

Thomas S. Williamson, Jr., Solicitor of Labor, Donald S. Shire, Associate Solicitor, Barbara J. Johnson, Counsel for Appellate Litigation.

Helen H. Cox, United States Department of Labor, Washington, D.C., for Respondents.

Ben.Rev.Bd.

AFFIRMED.

Before PHILLIPS, WILKINS, and HAMILTON, Circuit Judges.

OPINION

PER CURIAM:

Bude Jarvis, a former coal miner, appeals from a decision of the Benefits Review Board (Board) affirming the administrative law judge's (ALJ) decision to deny his application for black lung benefits under 30 U.S.C. Secs. 901-45 (1988), and denying his request for a waiver of his obligation to repay an overpayment of benefits he received from the Black Lung Disability Trust Fund (Trust Fund). We must affirm the findings of the Board unless they are not supported by substantial evidence or are contrary to law. See Wilson v. Benefits Review Bd., 748 F.2d 198 (4th Cir.1984).

On appeal, Jarvis no longer contests the findings of the Board and the ALJ that he is not entitled to black lung benefits. Thus, the only issue remaining for consideration is whether the Board and ALJ correctly decided that Jarvis did not meet the conditions for waiver of repayment of the $47,778.60 overpayment he received from the Trust Fund. Jarvis bears the burden of establishing his entitlement to a waiver. See McConnell v. Director, Office of Workers' Compensation Programs, 993 F.2d 1454, 1457 (10th Cir.1993). Where, as in this case, a claimant is without fault in the creation of the overpayment, he is entitled to a waiver if recovery of the overpayment would (1) defeat the purpose of the Black Lung Benefits Act (Act), or (2) be against equity and good conscience. See 20 C.F.R. Sec. 725.542 (1993).

Recoupment defeats the purpose of the Act if it "deprive[s] a person of income required for ordinary and necessary living expenses." See 20 C.F.R. Sec. 410.561c (1993). In this case, the ALJ calculated the monthly income of Jarvis and his wife to be $1506, and found that their ordinary and necessary living expenses totalled $1094. ^* Finding a monthly surplus of over $200, the ALJ determined that Jarvis could be required to repay $200 a month without defeating the purpose of the Act.

Jarvis does not dispute the ALJ's mathematical computations on appeal, but argues that the ALJ should have included among his ordinary and necessary living expenses his regular support payments for his married children, ages 40 and 29. We disagree. Under the regulations, support payments to others for whom the claimant is "legally responsible" may be included within the claimant's ordinary and necessary living expenses. See 20 C.F.R. Sec. 410.561c(a)(3) (1993). Since it is undisputed that Jarvis is not legally responsible for the support of his married children, we find that the ALJ properly did not include these payments among Jarvis's expenses. See McConnell, 993 F.2d at 1459. Moreover, we find that substantial evidence supports the ALJ's determination that a $200 monthly payment would not defeat the purpose of the Act in this case since, taking into consideration Jarvis's income and ordinary living expenses, Jarvis still retains a $200 monthly cushion after making his monthly payment towards the...