Sullenberger v. Director, Office of Workers' Compensation Programs, BRB 99-0449 BLA

• Decision Date: 08 March 2000
• Docket Number: BRB 99-0449 BLA
• Court: Court of Appeals of Black Lung Complaints
• Parties: JAMES N. SULLENBERGER Claimant-Petitioner v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent

JAMES N. SULLENBERGER Claimant-Petitioner
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Respondent

BRB No. 99-0449 BLA

Court of Appeals of Black Lung

March 8, 2000

UNPUBLISHED OPINION

Appeal of the Decision and Order of George P. Morin, Administrative Law Judge, United States Department of Labor.

I. John Rossi, West Des Moines, Iowa, for claimant.

Jill M. Otte (Henry L. Solano, 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: HALL, Chief Administrative Appeals Judge, BROWN, Administrative Appeals Judge, and NELSON, Acting Administrative Appeals Judge.

DECISION AND ORDER

PER CURIAM:

Claimant appeals the Decision and Order (97-BLA-0425) of Administrative Law Judge George P. Morin denying claimant's request to reinstate the payment of benefits on a claim filed pursuant to the provisions of 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 is James N. Sullenberger, the son of the miner James K. Sullenberger, who died on November 13, 1970. Director's Exhibit 1. Claimant is disabled and has been receiving Social Security child benefits since his father's death. Director's Exhibit 5.

On November 17, 1980, claimant's mother, Margaret L. Sullenberger, filed a claim for benefits as the miner's surviving divorced spouse. Director's Exhibit 1. The district director found that the miner died due to pneumoconiosis arising out of coal mine employment pursuant to 20 C.F.R. §§718.202(a), 718.203(b), 718.205(c) and therefore, awarded survivor's benefits. Director's Exhibit 7. Mrs. Sullenberger died on March 16, 1982. Director's Exhibit 8. Shortly after his mother's death, claimant applied for benefits on his own behalf as the disabled adult child of Margaret Sullenberger. Director's Exhibit 9. The district director awarded benefits to claimant as a disabled adult child on April 5, 1982. Director's Exhibit 10.

On August 18, 1990, claimant married Naomi Sullenberger, who is also disabled. Director's Exhibit 11; Hearing Transcript at 15-21. When claimant informed the Department of Labor of his marriage, the district director immediately suspended payment of benefits. Director's Exhibits 11, 12. Eventually, six years after the suspension, claimant requested in writing that benefits be reinstated and that a decision be issued regarding his entitlement to benefits. Director's Exhibit 15. The district director treated claimant's filing as a request for modification pursuant to 20 C.F.R. §725.310 and denied it as untimely filed because the request came more than one year after the suspension of benefits. Director's Exhibit 16; see 33 U.S.C. §922, as incorporated...