* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The 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 judge’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 petitioner’s third claim

for benefits. His two prior claims, filed on September 23, 1974 and April 12,

1983, were denied on August 16, 1979 and March 7, 1984, respectively. The

present claim was filed on November 5, 1986. The claim was denied after a

hearing, and, following a remand for another hearing, the ALJ again denied

benefits. Petitioner appealed the decision, but did 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 Board then affirmed the ALJ’s

decision to deny benefits. 

I. JURISDICTION

Appellees challenge our jurisdiction over this appeal 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 appeal. The motion was filed
-3-

sixty days later, and therefore, according to appellees, the Board was without

jurisdiction to consider it.

20 C.F.R. § 802.407(a) provides that a party-in-interest may request

reconsideration of a decision by the Board within thirty days from the decision. 

Appellees argue that a motion to reconsider filed later than thirty days divests the

Board of jurisdiction. The rules and regulations governing 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.). The 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 dismissed 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 the Board determines an

enlargement of time is warranted. Motions are included in the “papers” governed

by § 802.217. 20 C.F.R. § 802.216. A procedure for the Board to consider a late

motion is provided by § 802.217(e), permitting “any paper” 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 notice of appeal, may be waived. 

It is clear that where a time limit is jurisdictional, the applicable

regulations expressly so state. The time specified for filing a motion for
-4-

reconsideration has not been defined as jurisdictional, in contrast to the time limit

for filing a notice of appeal. Moreover, the regulations anticipate and provide for

the Board to consider motions filed beyond the time specified. 

One other circuit has addressed this question, concluding that it is within

the Board’s discretion to consider an untimely motion for reconsideration. See

Dailey v. Director, OWCP, 936 F.2d 241, 244 (6th Cir. 1991). Two additional

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 because it was untimely. Id. at 165.

We hold that it was within the Board’s discretion to entertain the motion

for reconsideration filed later than thirty days after petitioner’s appeal was

dismissed. Therefore, the Board had jurisdiction to consider the merits of

petitioner’s appeal, and we have jurisdiction to review the Board’s order. 

II. MERITS 

The ALJ concluded that petitioner established the presence of the disease

pneumoconiosis, caused at least in part by coal mine 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 properly evaluated the medical

evidence, but found it unnecessary to review the determination that petitioner had

not established a material change in his condition. 

On appeal, petitioner asserts that the Board’s determination is contrary to

the medical evidence, specifically Dr. White’s opinion 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 claim was denied. 

We review the Board’s decision for errors of law, and to determine whether

it is supported by substantial evidence, but we cannot 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 case, 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 matter that ‘there has been a

material change in conditions’ since the time of the previous denial.” Id. at 1508

(quoting 20 C.F.R. § 725.309(d)). The required showing applies to “each element

that actually was decided adversely to the claimant in 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 the threshold showing. The

previous denial order held that petitioner had not established any of the three

criteria for benefits (the existence of pneumoconiosis, caused by coal mine work,

resulting in total disability). In the current proceeding, however, the ALJ

concluded that petitioner established the existence of pneumoconiosis caused at

least in part by coal mine work. Furthermore, petitioner submitted medical

evidence that his condition had worsened since the previous denial of benefits. 

Therefore, because petitioner has made the threshold showing, we proceed to

consider petitioner’s claim that the medical evidence established that he is totally

disabled. 

The ALJ meticulously reviewed the medical evidence, summarizing the

opinions of eight physicians, and stating reasons for discounting the opinions of

all but two of them. The ALJ then determined that because those two medical

opinions were equally probative but conflicting, petitioner had failed to meet his

burden of proof under Director, OWCP v. Greenwich Collieries, 512 U.S. 267,

114 S. Ct. 2251 (1994). Petitioner apparently argues that the Board misapplied

Greenwich Collieries in weighing the medical evidence. 
-7-

“[T]he task of weighing conflicting medical evidence 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, the 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 found no reversible error in

the Board’s decision to affirm the ALJ’s order denying benefits under the Act. 

The Decision and Order of the Benefits Review Board is AFFIRMED. 

Entered for the Court

Robert H. Henry 

Circuit Judge