46 F. 3d 1125 - Koreski v. Director Office of Workers' Compensation Programs J Koreski

Appellant seeks review of the Benefits Review Board's (Board) decision and order affirming the administrative law judge's (ALJ) denial of black lung benefits pursuant to 30 U.S.C.A. Secs. 901-945 (West 1986 & Supp.1994). Our review of the record discloses that appeal No. 94-1533 is interlocutory, because Koreski filed a motion for reconsideration with the Board while this appeal was pending. See 20 C.F.R. Sec. 802.406 (1993); Bridger Coal Co./ Pac. Minerals v. Director, Office of Workers' Compensation Programs, 927 F.2d 1150, 1152 (10th Cir.1991); Director, Office of Workers' Compensation Programs v. Hileman, 897 F.2d 1277, 1279 (4th Cir.1990). Consolidation Coal Company's motion to dismiss No. 94-1533 is therefore granted. Koreski's subsequent appeal in No. 94-2350, however, supplies us with jurisdiction to review the merits of the Board's decision. We conclude, however, that the Board's decision is based upon substantial evidence and that this appeal is without merit. Accordingly, we affirm on the reasoning of the Board. Koreski v. Director, Office of Workers' Compensation Programs, No. 93-785-BLA (B.R.B. Nov. 30, 1988 & Sept. 6, 1994). 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.