917 F2d 558 Wess v. Clinchfield Coal Company

917 F.2d 558
Unpublished Disposition

James G. WESS, Petitioner,
CLINCHFIELD COAL COMPANY, Director, Office of Workers'
Compensation Programs, United States Department of
Labor, Respondents.

No. 90-2069.

United States Court of Appeals, Fourth Circuit.

Submitted Oct. 1, 1990.
Decided Oct. 31, 1990.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

On Petition for Review of an Order of the Benefits Review Board. (BRB No. 88-2546-BLA)

James G. Wess, petitioner pro se.

Harry Ashby Dickerson, Penn, Stuart, Eskridge & Jones, Abingdon, Va., Priscilla Anne Schwab, Barbara J. Johnson, United States Department of Labor, Washington, D.C., for respondents.



Before DONALD RUSSELL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.


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James G. Wess seeks review of the Benefits Review Board's decision and order affirming the administrative law judge's denial of black lung benefits pursuant to 30 U.S.C. Secs. 901 et seq. Our review of the record and the Board's decision and order discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the Board.* Wess v. Clinchfield Coal Co., BRB No. 88-2546-BLA (Ben.Rev.Bd. Mar. 28, 1990). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.




Although we believe that the Board erred in affirming the administrative law judge's weighing of the x-ray evidence in this case, we find the error to be harmless in light of the administrative law judge's proper finding of no total disability. Essentially, we agree with the views expressed by the Director in his brief