Beckner v. DOWCP ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BELVIA G. BECKNER, Widow of
Robert Beckner,
Petitioner,
v.
HAWLEY COAL MINING CORPORATION;
No. 99-1667
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; WEST
VIRGINIA COAL WORKERS'
PNEUMOCONIOSIS FUND,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(98-222-BLA)
Submitted: October 20, 1999
Decided: November 16, 1999
Before HAMILTON and WILLIAMS, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Belvia G. Beckner, Petitioner Pro Se. Konstantine Keian Weld,
OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA,
Charleston, West Virginia; Patricia May Nece, Dorothy L. Page,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Belvia Beckner, the widow of Robert Beckner, a former coal
miner, petitions for review of a decision of the Benefits Review Board
("Board") affirming an administrative law judge's ("ALJ") decision to
deny her application for black lung survivor's benefits. The insurance
carrier for Hawley Coal Mining Corporation ("Hawley") is the West
Virginia Coal Workers' Pneumoconiosis Fund ("West Virginia
Fund"). The West Virginia Fund no longer contests Ms. Beckner's
entitlement to benefits. While we grant Ms. Beckner in forma
pauperis status, we dismiss this appeal as moot insofar as it relates to
entitlement. We note that either party may seek modification of the
Board's denial of benefits within one year of the date of dismissal.
See 20 C.F.R. § 725.310 (1998). The West Virginia Fund, however,
avers that the Black Lung Disability Trust Fund should be held liable
for the payment of Ms. Beckner's benefits.
We agree, however, with the Director, Office of Workers' Com-
pensation Programs ("Director"), that Hawley waived this position by
forgoing numerous opportunities to raise it below. See 20 C.F.R.
§ 725.413(b), (c) (1998). See also Lane Hollow Coal Co. v. Director,
Office of Workers' Compensation Programs, 137 F.3d 799, 806-07
(4th Cir. 1998). Moreover, we disagree with Hawley's contention that
this case involves extraordinary circumstances that necessitate our
consideration of the responsible operator issue in spite of its waiver.
Hawley alleges that the Director improperly placed it in the position
of defending this claim by failing to enforce provisions of the Black
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Lung Benefits Act requiring coal mine operators to carry insurance
against the last coal company to employ the miner, H & S Coal Com-
pany. Hawley, however, was designated the responsible operator not
because H & S was uninsured but because H & S ceased operations,
according to the Director, approximately eight years before this claim
was filed. As Hawley offers no evidence to the contrary, there is no
apparent connection between the Director's alleged actions or inac-
tions and Hawley's responsibility for payment of any benefits due to
Ms. Beckner.
Accordingly, we dismiss this appeal. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
DISMISSED
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