* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 11 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BOBBY MANN,

Petitioner,

v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR; TURNER BROTHERS, INC.; and OLD REPUBLIC INSURANCE CO.,

Respondents. No. 96-9509 (Petition for Review) (No. 95-1197-BLA)

ORDER AND JUDGMENT *

Before PORFILIO, BALDOCK, and HENRY, Circuit Judges

. After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

Petitioner Bobby Mann seeks review of the decision of the Benefits Review Board (Board) affirming the administrative law judg e’s (ALJ) denial of benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901 -45. Appellee Turner Brothers, Inc. is the responsible operator. See 20 C.F.R. §§ 725.492, 725.493. The Board declined to file a brief in this appeal. The decision presented for our review is based on p etitioner’s third claim for benefits. His two prior claims, filed on Septe mber 23, 1974 and April 12, 1983, were denied on August 16, 1979 and March 7, 1 984, respectively. The present claim was filed on November 5, 1986. The c laim was denied after a hearing, and, following a remand for another hearin g, the ALJ again denied benefits. Petitioner appealed the decision, but di d not pursue it timely. The Board dismissed the appeal on August 31, 1989, but granted petitioner’s motion for reconsideration filed October 30, 1989. The Bo ard then affirmed the ALJ’s decision to deny benefits.
I. JURISDICTION Appellees challenge our jurisdiction over this appe al on the ground that the Board was without jurisdiction because petitioner’s motion to reconsider the dismissal was untimely. Appellees assert that the motion to reconsider was due within thirty days after the Board dismissed the ap peal. The motion was filed-3-

sixty days later, and therefore, according to appel lees, the Board was without jurisdiction to consider it. 20 C.F.R. § 802.407(a) provides that a party-in-int erest may request reconsideration of a decision by the Board within thirty days from the decision. Appellees argue that a motion to reconsider filed l ater than thirty days divests the Board of jurisdiction. The rules and regulations g overning the Board, however, do not support appellees’ position. See 20 C.F.R. § 802.101(a) (Board’s operation is governed by Part 802 of 20 C.F.R.). T he thirty-day time limit for filing a notice of appeal is specified by 20 C.F.R. § 802.205, which also states that an “untimely appeal will be summarily dismisse d by the Board for lack of jurisdiction.” In contrast, 20 C.F.R. § 802.217(a) provides that the time period specified for filing “papers” may be enlarged if t he Board determines an enlargement of time is warranted. Motions are incl uded in the “papers” governed by § 802.217. 20 C.F.R. § 802.216. A procedure fo r the Board to consider a late motion is provided by § 802.217(e), permitting “anypaper” to be submitted outside the specified time period if accompanied by a motion requesting leave to file the paper out of time. In addition, 20 C.F.R. § 802.221(c) provides that the time limitations for filing a paper, other than a n otice of appeal, may be waived. It is clear that where a time limit is jurisdiction al, the applicable regulations expressly so state. The time specifiedfor filing a motion for-4-

reconsideration has not been defined as jurisdictio nal, in contrast to the time limit for filing a notice of appeal. Moreover, the regul ations anticipate and provide for the Board to consider motions filed beyond the time specified. One other circuit has addressed this question, conc luding that it is within the Board’s discretion to consider an untimely moti on for reconsideration. See Dailey v. Director, OWCP , 936 F.2d 241, 244 (6th Cir. 1991). Two additiona l courts have implicitly concluded that the Board has discretion to consider a late motion for reconsideration. See Director, OWCP v. Hileman , 897 F.2d 1277, 1279 (4th Cir. 1990); Shendock v. Director, OWCP , 893 F.2d 1458, 1467 n.10 (3d Cir. 1990). Bolling v. Director, OWCP , 823 F.2d 165 (6th Cir. 1987), is not instructive because it is unclear whether the Board denied the motion for reconsideration on the merits, or rejected it becau se it was untimely. Id. at 165. We hold that it was within the Board’s discretion t o entertain the motion for reconsideration filed later than thirty days af ter petitioner’s appeal was dismissed. Therefore, the Board had jurisdiction t o consider the merits of petitioner’s appeal, and we have jurisdiction to re view the Board’s order.
II. MERITS The ALJ concluded that petitioner established the p resence of the disease pneumoconiosis, caused at least in part by coal min e work, but he failed to show he was totally disabled due to pneumoconiosis. See 20 C.F.R. §§ 718.201-.204.-5-

In an alternative holding, the ALJ determined that petitioner failed to demonstrate a change in his condition since his prior claim was denied. The Board affirmed the ALJ’s decision, concluding that the ALJ had pro perly evaluated the medical evidence, but found it unnecessary to review the de termination that petitioner had not established a material change in his condition. On appeal, petitioner asserts that the Board’s dete rmination is contrary to the medical evidence, specifically Dr. White’s opin ion that he is totally disabled. Petitioner also alleges the ALJ erred in concluding that petitioner had not shown a material change in his condition since his prior cl aim was denied. We review the Board’s decision for errors of law, and to determine whether it is supported by substantial evidence, but we can not reweigh the evidence. Wyoming Fuel Co. v. Director, OWCP , 90 F.3d 1502,1505 (10th Cir. 1996). At the time of the administrative decisions in this ca se, neither the Board nor the ALJ had the benefit of our decision in Wyoming Fuel Co. There, we held that a claimant may bring a subsequent claim after he had been denied benefits in a prior claim if he demonstrates “as a threshold matt er that ‘there has been a material change in conditions’ since the time of th e previous denial.” Id. at 1508 (quoting 20 C.F.R. § 725.309(d)). The required sho wing applies to “each element that actually was decided adversely to the claimantin the prior denial.” Id. at 1511.-6-

Applying those principles to this case, we hold that the initial inquiry should have been whether petitioner demonstrated a material change in his condition. We conclude that petitioner satisfied t he threshold showing. The previous denial order held that petitioner had not established any of the three criteria for benefits (the existence of pneumoconio sis, caused by coal mine work, resulting in total disability). In the current pro ceeding, however, the ALJ concluded that petitioner established the existence of pneumoconiosis caused at least in part by coal mine work. Furthermore, peti tioner submitted medical evidence that his condition had worsened since the previous denial of benefits. Therefore, because petitioner has made the threshol d showing, we proceed to consider petitioner’s claim that the medical eviden ce established that he is totally disabled. The ALJ meticulously reviewed the medical evidence, summarizing the opinions of eight physicians, and stating reasons f or discounting the opinions of all but two of them. The ALJ then determined that because those two medical opinions were equally probative but conflicting, pe titioner had failed to meet his burden of proof under Director, OWCP v. Greenwich C ollieries , 512 U.S. 267, 114 S. Ct. 2251 (1994). Petitioner apparently argu es that the Board misapplied Greenwich Collieries in weighing the medical evidence.-7-

“[T]he task of weighing conflicting medical evidenc e is within the sole province of the ALJ.” Hansen v. Director, OWCP , 984 F.2d 364, 368 (10th Cir. 1993). “[W]hen the evidence is evenly balanced, th e benefits claimant must lose.” Greenwich Collieries , 114 S. Ct. at 2259. The ALJ provided a reasoned explanation for his determination that the medical evidence was evenly balanced. We have carefully reviewed the record and we have f ound no reversible error in the Board’s decision to affirm the ALJ’s order deny ing benefits under the Act. The Decision and Order of the Benefits Review Boardis AFFIRMED.

Entered for the Court

Robert H. Henry Circuit Judge