875 F.2d 861
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Sammie AMBURGEY, Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Respondent.
No. 88-3559.
United States Court of Appeals, Sixth Circuit.
May 31, 1989.
Before DAVID A. NELSON and BOGGS, Circuit Judges and ANN ALDRICH, District Judge*.
ORDER
The petitioner seeks review of a decision and order of the Benefits Review Board (Board) denying his claim for black lung benefits. The respondent moves for remand to the Board with instructions to vacate its prior affirmance of the administrative law judge's denial of benefits. Further, the respondent requests the Board be instructed to remand the case to the deputy commissioner for immediate entry of an award and payment of benefits. The petitioner concurs in the motion.
This case was held in abeyance pending a decision by the Supreme Court in Pittston Coal Group v. Sebben, 109 S.Ct. 414 (1988). The respondent now concedes that pursuant to Pittston the petitioner is entitled to the presumption of total disability due to pneumoconiosis and that there is not sufficient evidence to rebut that presumption.
It is therefore ORDERED that this case is remanded to the Benefits Review Board, which is instructed to vacate its order of May 20, 1988, and to reverse the decision of the administrative law judge. It is further ORDERED that the Board remand the case to the deputy commissioner for immediate entry of an award and payment of benefits.
The Honorable Ann Aldrich, U.S. District Judge for the Northern District of Ohio, sitting by designation