the court my name is lawyer mattingly and i represent helen mining company in this federal black long climb i've asked the crowd to reserve five minutes for a bottle granted there are two issues that i'd like to discuss with the court this morning during th black lung program in the early one nine hundred seventy s or about ten fold or claims or if ten for more claims in the government but were going to be filed so fifty thousand claims there were five hundred thousand claims liability was shifted from the social security administration to coal mine operators interim regulations were put into place the so called part seven twenty seven regulations the permanent criteria under which this claim is of value weighted the part seventy thousand claims went into place in  eighty so there was a window provided if people had had prior claims that were heard they could refile that claim that's what the purpose of that statute was back in one nine hundred seventy seven the regulations interpret in the statute say it's not it's not tol'able we need to apply there's a whole series of circuit cases and i do want to talk about some of those but the first case i want to talk about the supreme court case u s versus cooperage it's not a black lung case it's a v a veterans case interestingly enough arose out of the third circuit its a statute of limitations case the veteran went in he had treatment to a leg they used an antibiotic file a claim under the federal tort claims act it was more than two years after he had knowledge that he might have had this reaction to the end of the third circuit affirmed the district court's decision that said now we're not going to to apply the two year statute of limitations in that case the cooperage decision makes it very clear the congress put statutes of limitations in and they often make water or otherwise that's important in this case because when you look back at the record here this film is just three of smoking has changed it was a pack and a half per day back when he told the physicians his first line what he told some of the physicians in the second claim about sixteen or seventeen years later but the administrative law judge the second time said i don't think he smoked more than a package a day those facts have changed we also have lost the opportunity to examine him through the years if he had followed the correct procedure why is that when this seemed to be a classic battle of the experts each side had two experts it is not as if you were deprived of proving up your case well incorporated by negative reference by the black lung act the regulation that implements it is at seven twenty five three ten and that regulation mirrors what the longshore act says says if you have a claim it's not right you have a one year window instance you could have medical disagreement about that but at another point in time clearly if you look that it may have progressed shouldn't shouldn't our actions  rule and that's one of the problems with the el jason decision here he makes these large rules that are may be or could be or can be but makes them in forced as in every case if a retired miner has oppressive lung disease it must be what that would if if we followed what you're suggesting let me make sure i understand within a year of denial if there were no manifestation of  this ball was not put into a process by anyone other than the client they selected the physicians they want to see if they got a physician that offered an overly compliant opinion that really the evidence didn't s x purpose is to compensate those miners who have a chronic dust as a disease of the lungs that has caused total pulmonary disability it's a find as you can't go back and do your work and so if i understand you correctly if they complied as you say with you don't try these cases all the time that's proper process takes an awful long time if you ask for modification before the district director it takes anywhere from six months to eighteen months it takes another six months to an eighteen month period if you ask for a hearing before the office of the ministry of law judges to get that hearing another six to twelve months to get the decision from the judge if you appeal that decision of it to the benefit review board another twelve to eighteen months so if a minor really thinks he has a ignores the statue or that the director does not want to apply the statute limits for subsequent clients to what's the standard that we should apply in reviewing the director's new if we're not too well exercise than appropriate that the director get chevron deference if it's a reasonable interpretation of the statute or the application of the regulations it's my position it's not a reasonable interpretation of the statute congress said but they said three years after a medical determination of disability the fourth circuit's decision and consolidation call could be versus williams which which i argued is wrong because one of the justifications to apply or not to apply the the courts are stuck to dealing with stale claims in the context of the black on benefits that congress term in that it would be a three year period from when the minor when there was a medical determination that the minor was dude  so the act allows for a minor who has filed a claim too early and then deny benefits to file a subsequent claim because his condition has changed and he has subsequently found to be totally disabled earlier determination from the medical professional is in fact wrong therefore that medical germination which cannot be used is not as legally sufficient to support a subject but because it's mr mattingly proposal the miner would be forced to repeatedly file those requests for modifications which are based on either a mistake in the determination of fact or a change in condition whether or not he believes he had there is himself possibly entitled to benefits and having a legitimate claim to go forward and if we rule against you in this case it would seem that every time a minor is denied counsel will be suggesting to the burden and needlessly clog the system when there are i mean there are miners who do feel that the decision is wrong and they have the right a lot of patients but they do should not be put in the position where they buy a lot of haitian when they don't in fact disagree with the decision finding that they are not at this point in time when they disable it in their macone houses and they're willing to accept that as correct as long as they have the opportunity down the line well let me just briefly note in the ten thirty cases of randall you know in oliver as well the six circuit case of sharon dale the director cited those for support of their argument they don't apply in that situation all three of those cases the individual minor went back to work in the mines and that clearly resets the time because with more exposure you can develop disease i seem just to make sense those those cases really don't help all right but let's go back to the statutory language for a minute it's my sense mr mattingly that you're asking us to read the statute to say that the three years begins to run from the first medical diagnosis but he uses the word a instead of the first if it's said the first you've got a slam dunk right it be easier for my kids like i did you didn't look at it but it but it is the word eight it seems speaking only for myself seems to one of perhaps many wow how do you get us to read a to mean the first and only you can't you can't read a the way the director of suggesting which means it's a medical diagnosis unless a legal determination means that it's not correct so in the context of the statute i don't think there's any interpretation that's possible because it's a statute of limitation it talks about when you discover and the language of the statute was changed it used to be a discovery of total disability duty of a cardio says that could incorporate legal decisions but it was changed by congress to a medical determination brought the claim too early to attempt to continue to litigate it once again the responsibility is on the minor to only bring meritorious claims but he doesn't know he's not clairvoyant well he thinks he's got one body he does why should we why should we put this claimant who waited fifteen years or so in a worse position than the claimant who loses and is super descried told in just files one and it says explicitly that that's your only avenue of relief if you lose your claim yes it's a one shot deal if that language i divorce and it's says within three years of a medical determination of total disability due to no makarios no the law i thought the language to which you were referring is is the regulatory language that says that your only option if you lose your claim is the file the one year extension that that we you look at section seven twenty five three ten that is the option that's given to you under the longshore act that section thirty three rising on twenty two i know that's there's an option does it say that it's the exclusive on no and that's the other problem the statute doesn't say nothing about late in progressive latent print and progressive was added in through court decisions and through the regulatory definition and it's just a possibility physicians can't rule out that a coal miner who is disabled has lung with a new doctor with a misdiagnosis i had the same concern because if we have to give full faith in credit that prior decision and that medical pinion is a mistake gnosis and they come in with another letter from that doctor i think it has to be thrown out because the doctor was judged to have missed diagnosed before we have to give full faith and credit to that decision is second chance without any new evidence has to be missed i guess it's also and that's the convoluted logic that we get here well just because he's wrong the first