840 F.2d 18
Aubrilla WATTS, Administratrix of the Estate of Floyd Watts,
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR, Respondent.
United States Court of Appeals, Sixth Circuit.
Feb. 29, 1988.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before BOYCE F. MARTIN, Jr., and ALAN E. NORRIS, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.
The petitioner seeks review of a Benefits Review Board (Board) order denying his claim for black lung benefits. The Director now moves to vacate that order and remand this action for reconsideration in light of this Court's decision in Kyle v. Director, OWCP, 819 F.2d 139 (6th Cir.1987), petition for cert. filed December 21, 1987. Kyle provides that certain black lung claims filed before March 31, 1980 in which less than ten (10) years coal mine employment is established must be considered pursuant to the criteria set forth in 20 C.F.R. Sec. 410.490(b). The petitioner is in agreement that remand is necessary and proper.
In this case, the petitioner's claim was not considered employing the criteria established in 20 C.F.R. Sec. 410.490(b). The decision of Kyle is applicable and controlling under these circumstances. Therefore,
It is ORDERED that the motion to vacate and remand is granted. The Board's order of July 31, 1987 is vacated and this action is remanded to the Board with instructions for reconsideration in light of Kyle v. Director, OWCP, supra, and 20 C.F.R. Sec. 410.490(b).