UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHANNON-POCAHONTAS MINING

COMPANY,

Petitioner,

v.

No. 98-2390

WILLIAM C. THOMAS; DIRECTOR,

OFFICE OF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(97-1738-BLA)

Submitted: March 16, 1999

Decided: April 13, 1999

Before HAMILTON and LUTTIG, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

William T. Brotherton, III, SPILMAN, THOMAS & BATTLE,

P.L.L.C., Charleston, West Virginia, for Petitioner. Frederick K.

Muth, HENSLEY, MUTH, GARTON & HAYES, Bluefield, West

Virginia, for Respondent Thomas; Henry L. Solano, Solicitor of
Labor, Donald S. Shire, Associate Solicitor for Black Lung Benefits,

Patricia M. Nece, Counsel for Appellate Litigation, Rita A. Roppolo,

Office of the Solicitor, UNITED STATES DEPARTMENT OF

LABOR, Washington, D.C., for Respondent Director.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Shannon-Pocahontas Mining Company ("employer") petitions for

review of a decision of the Benefits Review Board ("Board") affirming the administrative law judge's ("ALJ") award of black lung benefits to William Thomas, a former coal miner. This case has a lengthy

procedural history. Thomas filed a claim for benefits in September

1982. ALJ Robert Shea issued a decision in 1988 finding that Thomas

established pneumoconiosis but failed to establish the presence of a

totally disabling pulmonary impairment, a critical element to his

claim. Accordingly, benefits were denied.

Thomas appealed to the Board, which remanded for ALJ Shea to

reconsider the issue of total disability in light of conflicting evidence

relating to the exertional requirements of Thomas' job. ALJ Shea's

opinion had relied on medical opinions that assumed that the miner's

usual coal mine employment involved only light and sedentary work.

On remand, ALJ Shea found, in a decision dated May 8, 1991, that

Thomas' duties as a section foreman and evening shift mine foreman

involved only light and sedentary work. The ALJ rejected Thomas'

testimony that his job frequently required him to perform the moderate to heavy work of the classified employees he supervised. Thomas

stated that absences were almost a daily occurrence and that if he did

not assume the responsibilities of absentees production levels would

drop, a result for which he would face responsibility. But ALJ Shea

rejected this claim, as the vocational expert did in reaching her opin-

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ion, on the ground that there was no dispute that Thomas' union contract did not require him to perform the work of classified employees.

Hence, the ALJ again credited the medical opinions of record that

found that Thomas was not totally disabled because he retained the

respiratory capacity to perform light work, and rejected the reports of

record that found that Thomas was totally disabled based on the

assumption that his job required him to perform heavy work.

In December 1991, Thomas filed a timely petition for modification

of ALJ Shea's decision on remand. He received a hearing before ALJ

Sheldon Lipson, who issued a decision in September 1993, which

concluded that ALJ Shea's finding that Thomas' last usual coal mine

employment required only light labor was unchallenged on the modification hearing. ALJ Lipson therefore found that because the medical

opinion evidence established that Thomas could perform light work,

he was not totally disabled.

On October 25, 1993, Thomas filed a second petition for modification, this time with supporting affidavits from three section foremen

who had worked with him stating that the vocational expert ALJ Shea

relied upon erroneously concluded that the job of section foreman

required only light to sedentary work. These affidavits corroborated

Thomas' testimony that a section foreman risked dismissal if he did

not perform the moderate to heavy work of absent classified miners,

and that such absenteeism occurred virtually every day. ALJ Lipson

found that he was without jurisdiction to consider the petition, on the

grounds that it was both untimely and barred by res judicata.

ALJ Lipson found that 20 C.F.R. § 725.310 (1998), which requires

the filing of a petition for modification within one year of a prior

denial, permitted Thomas to challenge ALJ Shea's findings concerning the exertional requirements of his employment only within one

year of ALJ Shea's determination regarding that issue. Because

Thomas' second petition for modification was not filed within one

year of ALJ Shea's determination, ALJ Lipson found the claim to be

time-barred. Moreover, ALJ Lipson reasoned, Thomas' failure to

challenge the exertional requirement finding in his first petition precluded consideration of the issue under res judicata principles.

Thomas appealed again to the Board, which vacated and remanded

based on its reasoning that a timely petition for modification permits

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reconsideration of all issues, and that the doctrine of res judicata does

not apply to modification petitions. Employer petitioned for review of

the Board's decision, but the petition was dismissed by this court as

interlocutory in April 1996.

On remand, the claim was assigned to ALJ Edith Barnett because

ALJ Lipson was no longer available. ALJ Barnett credited Thomas'

testimony and the affidavits of his co-workers stating that even

though they were not contractually required to perform classified

work, as a practical matter it was necessary to do so in order to maintain production and keep their jobs. She therefore concluded that the

prior determinations that Thomas' usual coal mine employment

involved only light or sedentary work were erroneous. And, because

ALJ Barnett rejected the report of the only one of the several physicians of record who had opined that Thomas could perform moderate

to heavy work, she found that the ultimate issue of fact in dispute --

Thomas' total disability -- was wrongly determined. Accordingly,

she found total disability established and awarded benefits.

Employer appealed to the Board, arguing that Thomas' modification request was barred by res judicata, that it was denied the right

to submit evidence to rebut the affidavits submitted by Thomas, and

that ALJ Barnett erred by finding Thomas' usual coal mine employment to be that of a section foreman, when his testimony established

that his last job was as an assistant mine foreman. In a split panel

decision, the Board reiterated its prior conclusion that res judicata

was inapplicable, found that employer had ample rebuttal opportunities, and concluded that, while ALJ Barnett had erred by finding

Thomas' usual coal mine employment was as a section foreman rather

than as an assistant mine foreman, the error was harmless, inasmuch

as Thomas testified that as an assistant foreman he sometimes had to

substitute for section foremen, rendering the exertional requirements

of both jobs essentially identical.

Administrative Appeals Judge Roy Smith filed a separate opinion,

concurring in part and dissenting in part. He concurred in the majority's holdings except with respect to the determination that the ALJ's

error regarding Thomas' precise position was harmless. Judge Smith

thought that an ALJ should determine, in the first instance, whether

the jobs of section foreman and assistant mine foreman are identical.

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He thought it was unclear whether an assistant mine foreman

frequently performed the duties of classified employees, partly

because it was unknown how often an assistant mine foreman had to

substitute for absent section foremen, and partly because it was

unclear how often section foremen, in turn, had to substitute for

absent classified employees.

Employer then filed the instant petition for review of the Board's

decision. We review that decision only for errors of law and to verify

that the Board applied the proper standard in reviewing the ALJ's factual determinations. See Doss v. Director, OWCP , 53 F.3d 654, 658

(4th Cir. 1995).

Before us, employer argues that ALJ Lipson properly found that

Thomas' attempts to challenge ALJ Shea's prior findings of fact concerning the exertional requirement of his employment were both timebarred and barred by the doctrine of res judicata. Employer further

contends that, even if Thomas could pursue these issues, he could not

do so by presenting affidavits that were reasonably ascertainable and

could have been produced at the initial hearing or first modification

proceeding. Finally, employer contends that ALJ Barnett's erroneous

finding concerning Thomas' last usual coal mine employment position was not harmless.

We first consider the employer's res judicata contention, which

requires that we start with the modification procedures applicable to

black lung claims that are found in 33 U.S.C. § 922 (1994) and 20

C.F.R. § 725.310 (1998). These permit the deputy commissioner to,

based upon a change in conditions or mistake in a determination of

fact, reconsider an award or denial of benefits at any time within one

year of the last payment of compensation or rejection of the claim.

See id. Concerning the scope of § 922, the Supreme Court has held:

"There is no limitation to particular factual errors, or to cases involving new evidence or changed circumstances." O'Keefe v. AerojetGeneral Shipyards, 404 U.S. 254, 255 (1971). Rather, the Court

found, the "plain import" of § 922 is"to vest a deputy commissioner

with broad discretion to correct mistakes of fact, whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted." Id. at 256. Citing

this language, we previously have recognized that the Supreme Court

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views the fact finder's authority in modification proceedings to be

"almost limitless," Jessee v. Director, OWCP, 5 F.3d 723, 724 (4th

Cir. 1993), and that an ALJ has the authority and duty "to review any

and all prior findings of fact under the modification procedure." Id.

Relying on these principles, we have therefore held that "`principle[s]

of finality just do[ ] not apply to . . . black lung claims as [they] do

in ordinary lawsuits. Id. at 725 (citing Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 459, 461-65 (1968) (holding that modification

provision displaces res judicata)). We have stated:

As the Court held emphatically in O'Keefe, the statute and

regulations give the deputy commissioner the authority, for

one year after the final order on the claim, to simply rethink

a prior finding of fact. Thus, to the extent the"principle of

finality" ever applies to black lung claims, it[is] not triggered . . . [where the claimant] requested modification

before a year passed.

Id.

Accordingly, we reject employer's contention that Thomas' modification petition was barred by res judicata. Moreover, because it

would be contrary to the principles stated above to hold that an ALJ

may reconsider any previously determined fact, but may not reconsider the evidence bearing on such facts, we also reject employer's

contention that the ALJ could not consider the affidavits of Thomas'

co-workers. In any event, we note that employer waived this argument by failing to raise it before the Board. See Curry v. Beatrice

Pocahontas Coal Co., 67 F.3d 517, 521 (4th Cir. 1995).

We also reject employer's contention that Thomas' second modification petition was not timely filed. That petition was filed within one

year of ALJ Lipson's September 1993 decision and was therefore

timely. See 20 C.F.R. § 725.310(a) ("upon the request of any party . . .

the deputy commissioner may . . . at any time before one year after

the denial of a claim, reconsider the . . . denial"); see also Lisa Lee

Mines v. Director, OWCP, 86 F.3d 1358, 1364 (4th Cir. 1996) (noting

that "[a]ny claimant who wants to be a perpetual litigator can . . . be

a perpetual litigator" by filing successive petitions for modification);

cert. denied, 519 U.S. 1090 (1997).

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Finally, concerning the dispute over the exertional requirements of

Thomas' job, we note that both ALJ Barnett's decision and some of

the prior decisions of record erroneously refer to Thomas' usual coal

mine work as that of a section foreman. The confusion stems from the

fact that Thomas worked as a section foreman for many years until

the last year of his employment, when he worked as an assistant mine

foreman, and from the fact that the affidavits Thomas submitted relate

specifically to the job of section foreman. Thomas testified, however,

that both jobs required him to engage in moderate to heavy exertion

because of the need to substitute for classified employees when they

were absent. ALJ Shea discredited that testimony because it was

undisputed that foremen were not contractually required to perform

such work.

ALJ Shea, of course, did not have before him the affidavits of the

three former section foremen stating that section foremen were

required, as a practical matter, to perform the work of classified

employees despite the language of their contracts. And, relying on

these affidavits, ALJ Barnett found that the prior factual determination that Thomas' section foreman job required only light work was

mistaken. As the Board noted, however, Thomas' last position was

one of assistant mine foreman, not section foreman. The Board went

on to find ALJ Barnett's error in this regard harmless, noting that

Thomas testified that as an assistant mine foreman, his responsibilities

included working in the place of absent section foreman. The Board

concluded: "Inasmuch as claimant's duties as an assistant mine foreman also included the duties of a section foreman, the exertional

requirements of the two positions are essentially identical." (J.A. 212)

We find no error in this conclusion.

Accordingly, the decision of the Board is affirmed. 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.

AFFIRMED

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