                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 11-1654


MARY LOUISE LUSK,

                Petitioner,

          v.

SLAB FORK COAL COMPANY; WEST VIRGINIA COAL WORKERS’
PNEUMOCONIOSIS   FUND;  DIRECTOR,   OFFICE   OF   WORKERS’
COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR;
DEPARTMENT OF LABOR,

                Respondents.



On Petition for Review of an Order of the Benefits Review Board.
(10-0480-BLA)


Submitted:   February 28, 2012               Decided:    March 12, 2012


Before MOTZ and     DAVIS,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Petition granted; vacated and remanded by unpublished per curiam
opinion.


S. F. Raymond Smith, DAVID HUFFMAN LAW SERVICES, Parkersburg,
West Virginia, for Petitioner.     Ashley M. Harman, Tiffany B.
Davis, JACKSON KELLY PLLC, Morgantown, West Virginia, for
Respondents Slab Fork Coal Company and West Virginia CWP Fund.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Mary Louise Lusk, widow of Roy Daniel Lusk, sought

survivor’s benefits under the Black Lung Benefits Act, 30 U.S.C.

§§ 901-945 (2006).              Following the award of survivor’s benefits

by the Administrative Law Judge (“ALJ”), the Benefits Review

Board    (“BRB”)      found      that     the   West   Virginia         Coal    Workers’

Pneumoconiosis Fund (“Fund”) — the insurance carrier for Mr.

Lusk’s former employer — was deprived of due process during the

proceedings before the ALJ, vacated the award, and remanded the

case    to   the    ALJ    to   reopen    the   record.       On    remand,      the    ALJ

reopened the record, permitted the Fund to submit additional

evidence, and denied survivor’s benefits.                   The BRB affirmed the

ALJ’s decision.           Mrs. Lusk now petitions for review of the BRB’s

order to reopen the record.

             We review for abuse of discretion the BRB’s decision

ordering the ALJ to reopen the record.                      Betty B Coal Co. v.

Dir., Office of Workers’ Comp. Programs, 194 F.3d 491, 501 (4th

Cir. 1999).        The denial of due process during the course of the

proceedings        before    the    ALJ   certainly    is     a    proper      reason    to

reopen the record; however, “if this happens, it will be on

account of some prejudicial, fundamentally unfair element.                              If

the [employer’s] ‘day in court’ was fair (albeit imperfect) and

the    outcome     reliable,       then   due   process     was     achieved.”          Id.

Applying     this    standard,       we    conclude    that       the   Fund    was     not

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deprived of due process in the proceedings leading to the ALJ’s

award   of    survivor’s   benefits.    Thus,   the   BRB   abused   its

discretion in ordering the record to be reopened for additional

evidence.

             Accordingly, we grant Mrs. Lusk’s petition for review,

vacate the BRB’s order to reopen the record and its subsequent

decision affirming the ALJ’s denial of benefits, and remand to

the BRB for further proceedings.       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.

                                                    PETITION GRANTED;
                                                 VACATED AND REMANDED




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