*

The Honorable Herman J. Weber, Senior United States District Judge for the Southern District

of Ohio, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0057p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ARCH OF KENTUCKY, INC.,

 Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS, UNITED STATES;

UNITED STATES DEPARTMENT OF LABOR; and

FRED HATFIELD,

 Respondents.

X

-

-

-

-

>

,

-

-

-

-

-

-

-

N

No. 08-3311

On Petition for Review of a Final Order

of the Benefits Review Board.

No. 06-0911.

Argued: January 21, 2009

Decided and Filed: February 17, 2009 

Before: McKEAGUE and GRIFFIN, Circuit Judges; WEBER, Senior District Judge.*

_________________

COUNSEL

ARGUED: Ronald E. Gilbertson, BELL, BOYD & LLOYD, Washington, D.C., for

Petitioner. Rita Ann Roppolo, UNITED STATES DEPARTMENT OF LABOR,

Washington, D.C., Sidney B. Douglass, Harlan, Kentucky, for Respondents.

ON BRIEF: Ronald E. Gilbertson, BELL, BOYD & LLOYD, Washington, D.C., for

Petitioner. Rita Ann Roppolo, UNITED STATES DEPARTMENT OF LABOR,

Washington, D.C., Sidney B. Douglass, Harlan, Kentucky, for Respondents. 

1
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 2

_________________

OPINION

_________________

McKEAGUE, Circuit Judge. Fred Hatfield filed for benefits under the Black

Lung Benefits Act, 30 U.S.C. §§ 901-944 (“Act”). His last employer, Arch of Kentucky,

Inc. (“Arch”), raised several challenges to his claim. Adjudicators for the U.S.

Department of Labor’s Office of Workers’ Compensation Programs (“OWCP”) granted

his claim and the Department’s Benefits Review Board (“BRB”) affirmed on appeal.

Arch petitions this court to reverse. For the reasons set forth below, we affirm.

I

A. 1988 Claim

Hatfield worked as a coal miner for twenty years, ending in 1987. He filed a

claim for benefits under the Act in 1988 and identified Arch as his last employer for

which he worked at least one year (“1988 claim”). Arch, a St. Louis-based company,

owns and operates coal mines in a number of states, including Kentucky. Under the Act,

Arch is the responsible operator and is liable for any benefits awarded.

In connection with the 1988 claim, twelve physicians submitted x-ray reports.

Five of the reports indicated the presence of pneumoconiosis, while the remaining seven

did not. Giving greater weight to the more recent reports, both of which were positive,

Administrative Law Judge (“ALJ”) Kichuk found that Hatfield had pneumoconiosis.

The ALJ also found that Hatfield was totally disabled. As to whether the disability was

due to the pneumoconiosis, the ALJ relied primarily upon the medical opinion of Dr.

Bruce Broudy, whose qualifications were described as superior (including board

certification in internal and pulmonary medicine) and who had most recently examined

Hatfield. In Dr. Broudy’s opinion, Hatfield’s disability arose from the claimant’s

chronic bronchitis caused by his long history of smoking. Although one physician, Dr.
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 3

1

Dr. Myers diagnosed Hatfield with “Coal workers’ pneumoconiosis” which “would meet the

criteria for disability by Federal Black Lung Regulation 718, Appendix B.” JA 305. He further noted that

Hatfield’s “silicosis results from his entire exposure history and is permanent.” JA 307.

John Myers, Jr., had opined that Hatfield’s disability resulted from his pneumoconiosis,1

there was no indication that the physician was board certified and the physician’s

examination occurred eight months before Dr. Broudy’s. Thus, based on Dr. Broudy’s

better qualifications and his more recent examination, the ALJ concluded that Hatfield

was not totally disabled by pneumoconiosis and denied his 1988 claim. Hatfield did not

appeal the ruling.

B. 1993 Claim

1. The Initial Finding

Hatfield filed a subsequent claim for benefits in June 1993 (“1993 claim”). A

claims examiner with the OWCP notified Arch of the claim in July 1993. Arch’s

counsel responded in August 1993, indicating that the company was the responsible

operator.

On December 1, 1993, a claims examiner informed Arch that the office had made

a preliminary finding that Hatfield was entitled to benefits on the 1993 claim. The

examiner further explained that if Arch wished to contest the finding, it must file a

controversion (a merits challenge) within thirty days. If the company failed to respond

within thirty days, the company would “be deemed to have accepted the initial finding,

and this failure shall be considered a waiver of [the company’s] right to contest this

claim unless good cause is shown to excuse such failure (20 CFR 725.413).” JA 166.

The company received the examiner’s notice by certified mail on December 10, 1993.

Through its then-counsel, Arch submitted its controversion on February 22, 1994.

The company did not contest the timeliness of Hatfield’s 1993 claim, but did contest

whether (a) he had pneumoconiosis; (b) he was totally disabled; (c) any disability was

caused by the condition; and (d) the miner’s death was due to the condition (Note:

Hatfield was not deceased).
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 4

The OWCP Director informed the company that the office had not received a

timely response to its earlier notice of initial finding. The Director treated the lack of

a timely response as a default, explaining, “Arch of Kentucky, Inc. is deemed to have

accepted the Initial Finding of the District Director and shall not, except as provided in

725.463, be permitted to raise issues or present evidence with respect to issues

inconsistent with the Initial Finding in any further proceeding conducted with respect

to the claim.” JA 173.

Arch’s counsel replied on March 17, 1994. He acknowledged that the company

had not filed its controversion within the allotted time period. He sought to establish

good cause for the delay, however, explaining in full,

[D]ue [to] some person[n]el changeovers in the last two months or so in

this office, a very few things got miscal[e]ndared or not cal[e]ndared at

all. This was one. The person[n]el problem was resolved; nevertheless,

a problem in this case remains. There is no doubt that it is my

responsibility that the controversion was late, but in fairness, a clerical

error under these circumstances should not be interposed to prevent Arch

from defending this claim.

JA 180. The Director denied the request to accept the untimely controversion, but

informed the company that it could appeal the adverse good-cause finding, which the

company did.

2. Subsequent Appeals and Remands

Hatfield’s 1993 claim then went through numerous rounds of appeals and

remands spanning over a decade. Only those rulings with direct bearing on the instant

petition for review are summarized below.

ALJ Rippey awarded benefits to Hatfield based on the Director’s initial award,

finding that Arch’s controversion was untimely. The BRB affirmed.

Arch requested a modification of the award pursuant to 33 U.S.C. § 922, as

incorporated at 30 U.S.C. § 932(a) and 20 C.F.R. § 725.310. Modification permits the

fact-finder to reconsider prior decisions, whether based on previously developed or
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 5

newly developed evidence. Arch argued that the award was based on erroneous findings

of fact.

The BRB determined that the modification procedure did not provide Arch with

an alternate avenue for attacking the merits of the award. It explained that if a party fails

to contest timely an initial finding, the party cannot raise an issue or present evidence

inconsistent with that finding in a subsequent proceeding unless it first demonstrated

good cause for the untimely response. The BRB remanded the matter for further

consideration of the good-cause issue.

On remand, ALJ Wood found that Arch had failed to show good cause for its

tardy controversion. The ALJ acknowledged that Hatfield had likely not suffered any

prejudice by the delay. She noted that Arch’s counsel’s original explanation was, in

essence, that the notice of initial award got “lost-in-the-shuffle.” The ALJ, however,

placed considerable emphasis on the failure by Arch’s counsel to provide any additional

detail of that original explanation or any evidence to support it. The company also

argued that the initial award had not been sent by registered or certified mail, but the

ALJ found that assertion to be plainly rebutted by the copy of the certified-mail receipt

in the record.

On appeal, the BRB affirmed. Arch then raised a new argument before the BRB:

whether Hatfield’s 1993 claim was itself untimely under the three-year statute of

limitations applicable to any claim filed after a miner is given a positive diagnosis of

total disability due to pneumoconiosis. The Director argued before the BRB that Arch

could not raise the timeliness of Hatfield’s 1993 claim at this late stage. The BRB

reasoned, however, that under its then-interpretation of the statute of limitations in 1993-

1994, the limitations period did not apply to subsequent claims, only to initial claims.

There being no question that Hatfield timely filed his initial claim, it would have been

futile for Arch to have raised the timeliness issue in 1994. Since then, however, several

federal courts (including this one) have applied the statute of limitations to subsequent

claims. See, e.g., Tenn. Consol. Coal Co. v. Kirk, 264 F.3d 602, 607 (6th Cir. 2001). The

BRB remanded the statute-of-limitations issue for further proceedings.
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 6

On remand, ALJ Phalen found that the 1993 claim was timely. The ALJ held

that any positive diagnosis filed in support of the 1988 claim was to be deemed a

misdiagnosis because that claim was ultimately denied. Alternatively, the ALJ found

that a positive diagnosis had not been communicated to Hatfield prior to his filing the

1993 claim. On appeal, the BRB rejected the former holding of ALJ Phalen, but adopted

the latter. It affirmed the award of benefits to Hatfield.

Arch petitioned this court for review of the BRB’s rulings.

II

A. Standard of Review

On petition for review of a decision of the BRB, our “task ‘is limited to

correcting errors of law and ensuring that the [BRB] adhered to the substantial evidence

standard in its review of the ALJ’s factual findings.’” Crockett Colleries, Inc. v.

Barrett, 478 F.3d 350, 352 (6th Cir. 2007) (quoting Creek Coal Co., Inc. v. Bates, 134

F.3d 734, 737 (6th Cir. 1997)). “Substantial evidence is defined as relevant evidence

that a reasonable mind might accept as adequate to support a conclusion.” Martin v.

Ligon Preparation Co., 400 F.3d 302, 305 (6th Cir. 2005) (citing Peabody Coal Co. v.

Groves, 277 F.3d 829, 833 (6th Cir. 2002)). We review the BRB’s legal conclusions de

novo. Crockett Colleries, 478 F.3d at 352.

B. Arch’s Default

To begin, it is undisputed that Arch’s prior counsel failed to submit a timely

controversion to Hatfield’s 1993 claim. The regulation in force at the time, 20 C.F.R.

§ 725.413(b) (1993), required that any failure to contest an initial finding of entitlement

to benefits within thirty days be deemed an acceptance of that finding without further

recourse to raise issues or present evidence inconsistent with that finding, absent a

showing of good cause. Arch submitted its controversion eighty-one days after the

initial finding and did not attempt to show good cause until almost a month after

submitting its controversion.
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 7

On petition before this court, Arch first takes a wide swing at the administrativedefault rule. The company maintains that the rule violates both federal due process and

the Administrative Procedure Act (“APA”). In essence, Arch argues that there is

nothing fair about precluding it from obtaining a full hearing on the merits of the 1993

claim. This argument suffers from a couple of defects. The company’s due

process/APA argument consists of five sentences. It cites only one case in support, and

does so for the unremarkable proposition that procedural due process is applicable to the

adjudicative administrative proceeding. Richardson v. Perales, 402 U.S. 389, 401

(1971). An argument calling into question the very constitutionality of an agency’s

regulation requires more development than what Arch provides here. See Indeck Energy

Servs. v. Consumers Energy, 250 F.3d 972, 979 (6th Cir. 2000) (holding that issues only

“adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation” are waived).

More fundamentally, the administrative-default rule, akin to the default-judgment

rule in federal court, does not itself violate federal due process or the APA. The basic

elements of procedural due process are notice and opportunity to be heard. See Mullane

v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). Congress incorporated

these principles into the APA. See 5 U.S.C. § 554. The regulation at issue here provided

both notice of the initial finding and the opportunity to be heard, as well as an

opportunity to file an untimely controversion if the employer could establish good cause

for the delay. See 20 C.F.R. § 725.413(b) (1993). “[D]ue process generally does not

entitle parties to an evidentiary hearing where the [federal agency] has properly

determined that a default summary judgment is appropriate due to a party’s failure to file

a timely response.” Father & Sons Lumber & Bldg. Supplies, Inc. v. NLRB, 931 F.2d

1093, 1096 (6th Cir. 1991) (citing NLRB v. Aaron Convalescent Home, 479 F.2d 736,

738-39 (6th Cir. 1973)). Arch’s broad attack on the administrative-default rule fails.

As to the question of good cause, the ALJ started off by acknowledging that

Hatfield had not been prejudiced by the delay. However, while explaining that

personnel problems could justify a late filing under certain circumstances, the ALJ
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 8

correctly noted that counsel failed to offer any details of what exactly happened to cause

the attorney to miss the deadline. To this day, Arch has offered little to support its goodcause argument—there are no affidavits or other evidence in the record that would

provide some detail to the attorney’s vague assertion of a personnel problem. The lack

of record evidence distinguishes this case from the decision relied upon by Arch, George

Harms Construction Co., Inc. v. Chao, 371 F.3d 156, 165 (3d Cir. 2004), where the court

held that a party had established excusable neglect through, among other things,

testimony about the party’s mail-handling procedures. Here, without any evidence

explaining why or how the purported personnel problems caused the missed deadline or

any evidence of counsel’s diligence once the problem was identified, it cannot be said

that the ALJ abused her discretion in denying Arch’s request to file an untimely

controversion.

Arch continues to contend, as it did during the administrative proceedings, that

the Director did not properly serve the company with the December 1, 1993, initial

findings. This argument is contradicted by the record evidence, which includes a copy

of the return receipt of certified mail. Arch has not explained how this receipt is

erroneous or offered any evidence contradicting the clear inference to be drawn from the

receipt.

Arch next argues that because the examiner did not set forth an explicit finding

of a material change in condition from the earlier 1988 claim, the initial finding of

liability on the subsequent 1993 claim is legally insufficient. Under 20 C.F.R.

§ 725.309, a subsequent claim for benefits under the Act must show “a material change

in conditions since the prior claim’s denial.” Grundy Mining Co. v. Flynn, 353 F.3d 467,

470 (6th Cir. 2003) (internal quotation marks omitted). Because there was no materialchange finding to controvert, its tardiness should have no effect on whether it can

challenge the award based on the lack of that finding, according to Arch.

The initial finding did not include a section detailing the examiner’s analysis of

each element for liability. Instead, the correspondence simply explained, “We have

made an initial finding based upon the submitted evidence that the claimant is entitled
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 9

2

Although the BRB found that Arch had defaulted on the merits of the 1993 claim, the board did

not similarly find that the company had defaulted or otherwise waived a challenge to the claim based on

the three-year statute of limitations applicable to miners. The BRB reasoned that it would have been futile

for Arch to have raised the challenge at the outset given the then-existing rule that the statute of limitations

applied only to initial claims, not to subsequent claims. Of course, Arch failed to raise any timely

challenge to the 1993 claim and in its tardy controversion it specifically declined to challenge the

limitations issue. See JA 171. Yet, none of the respondents have challenged here the BRB’s decision to

permit Arch to make the statute of limitations argument several years after Hatfield filed his subsequent

to benefits.” Yet, the initial finding did clearly put Arch on notice that if the company

failed to respond within thirty days, then the company’s silence would be deemed an

acceptance of the initial finding—Hatfield’s entitlement to benefits beginning in

1993—and would waive its right to contest this claim. Importantly, the waiver was not

limited to the right to contest specific findings, but rather to contest the entire claim.

Thus, whether the examiner made detailed findings on all of the elements of a

subsequent claim are beside the point when considering what exactly Arch gave up by

failing to controvert within the specified time period.

Finally, Arch maintains that its request for modification should have permitted

it to attack the merits of Hatfield’s 1993 claim regardless of the timeliness of its

controversion. This argument is ill-founded, as there would be little use in having a

default provision in the first place if everything could be reopened by a subsequent

request for modification. Section 725.413(b)(3) (1993) makes clear that the default

provision does not just fade away upon a modification request—a party is prohibited

from contesting the initial award “in any further proceedings conducted with respect to

the claim.” (emphasis added). A request to modify the award of a claim is clearly a

“further proceeding conducted with respect” to that claim and is, therefore, precluded

under the default rule.

Accordingly, we reject both Arch’s challenge to the BRB ruling that the company

defaulted the 1993 claim and its argument that a request for modification required the

adjudicator to address the merits of its controversion, irrespective of the default.

C. The Timeliness of Hatfield’s Subsequent 1993 Claim

Next, Arch challenges the BRB’s ruling that Hatfield timely submitted his 1993

claim.2

 There is a rebuttable presumption that any claim made for black-lung benefits
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 10

claim, so we will not consider whether the BRB erred by permitting Arch to pursue the argument.

is timely. 20 C.F.R. § 725.308(c). Title 30 U.S.C. § 932(f)(1) provides, “Any claim for

benefits by a miner under this section shall be filed within three years after . . . a medical

determination of total disability due to pneumoconiosis . . . .” The implementing

regulations similarly provide, “A claim for benefits filed under this part by, or on behalf

of, a miner shall be filed within three years after a medical determination of total

disability due to pneumoconiosis which has been communicated to the miner or a person

responsible for the care of the miner . . . .” 20 C.F.R. § 725.308(a). The employer has

the burden to show that the miner’s claim was outside the statute of limitations period.

Id. § 725.103. The limitations period applies to both initial and subsequent claims. Kirk,

264 F.3d at 607 (applying statute of limitations to subsequent claim of a miner).

Dr. Myers diagnosed Hatfield with pneumoconiosis from mining in January

1988. If Dr. Myers’s positive diagnosis was sufficient to start the limitations period and

if that period did not get reset by the denial of Hatfield’s 1988 claim, then the subsequent

1993 claim was untimely.

The parties disagree on when the statute of limitations generally begins to run.

There are at least two possible starting points. One point would be when a diagnosis is

first made by a medical professional and that diagnosis is communicated to the claimant

or his caregiver, regardless of whether the diagnosis turns out to be a valid one or a

misdiagnosis. Another point would be when a diagnosis is first made by a medical

professional and it is effectively communicated, but only if that diagnosis turns out to be

a valid one. If, for example, an ALJ found that a positive diagnosis by one physician

was mistaken or otherwise outweighed by one or more negative diagnoses of other

physicians and on that basis denied the claim, the positive diagnosis would be considered

a misdiagnosis and would not start the clock for the limitations period.

The BRB rejected the latter possible starting point in favor of the former. In

doing so, it relied upon this court’s decision in Kirk and found that the denial of the 1988

claim would not by itself restart the limitations period. The BRB concluded that the
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 11

claim was timely, though, because it found substantial evidence supporting the ALJ’s

factual finding that Hatfield had not received communication of any positive diagnosis

prior to 1993.

We have serious doubts about the soundness of the factual finding by the ALJ.

Briefly, Hatfield had submitted a state claim for disability benefits around the same time

he first sought federal benefits in 1988. In that state form, Hatfield asserted that he

suffered from “occupational pneumoconiosis/silicosis” and was totally and permanently

disabled. He signed the form, swearing to the truth of the statements made, and had it

notarized. Importantly, Dr. Myers’s positive medical diagnosis was included as an

attachment to the form and was referenced therein. See supra n.1. It is a long-standing

rule of law that one is presumed to have read what he signs. See, e.g., Maier v. Fid. Mut.

Life Ass’n, 78 F. 566, 570 (6th Cir. 1897); see also Allied Steel & Conveyors, Inc. v.

Ford Motor Co., 277 F.2d 907, 913-14 (6th Cir. 1960); Langley v. Credit Suisse First

Boston Corp., 89 F. App’x 938, 946 (6th Cir. 2004) (unpublished). This presumption

would normally apply not only to the contents of the signed form but also to its

attachments, especially when those attachments are specifically referenced in the form.

We need not decide, however, whether the ALJ had substantial evidence to

support its factual finding on communication of the positive diagnosis. We can, instead,

affirm the ultimate ruling of the BRB that the 1993 claim was timely based on a ground

other than the one actually relied upon by the board. See Crockett Colleries, 478 F.3d

at 358-59 (Rogers, J., concurring) (explaining that the Chenery doctrine does not

preclude a federal court from affirming a BRB ruling on a different ground). We turn

to the legal question of when the statute of limitations begins.

In Sharondale Corp. v. Ross, 42 F.3d 993, 996 (6th Cir. 1994), this court held

that the limitations period resets if a miner returns to mining work after the denial of his

initial claim. The court stated that the three-year period begins again on each

determination of total disability due to pneumoconiosis and cannot run until the miner

finally retires. Id. This made particular sense to the court for several reasons:
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 12

The progressive nature of the disease dictates this result; a claimant must

be free to reapply for benefits if his first filing was premature.

Furthermore, the Act recognizes that sequential claims may be filed; and

for the Act to recognize serial applications on the one hand, while

limiting to three years the time in which all applications must be filed, on

the other, makes no sense.

Id. Because the miner had returned to mining work after the denial of his first claim, the

court was not faced with the present situation where a miner did not return to such work

between claims.

This court had occasion again to consider the limitations period in Kirk. There,

the court stated that absent an intervening return to mine work, the limitations period

begins to run “the first time that a miner is told by a physician that he is totally disabled

by pneumoconiosis” and “is not stopped by the resolution of the miner’s claim or

claims.” Kirk, 264 F.3d at 608 (emphasis in original). In that panel’s opinion,

“Medically supported claims, even if ultimately deemed ‘premature’ because the weight

of the evidence does not support the elements of the miner’s claim, are effective to begin

the statutory period.” Id. The court noted one benefit of this approach: “This distinction

deters finding ‘compliant physicians’ willing to give the miner an overly-favorable

diagnosis that cannot be supported by the weight of the medical evidence.” Id. n.5. It

further highlighted, however, one drawback: “[T]he chief danger with this rule, even

given the constraint of communication to the miner, could be that unscrupulous

employers could conveniently avoid all liability by purposely making premature

determinations.” Id. (internal quotation marks and brackets omitted).

In rejecting the reasoning of Kirk, subsequent decisions by this court and at least

one other sister circuit have recognized or suggested that Kirk’s discussion of when the

limitations period begins was dicta. See Consolidation Coal Co. v. Williams, 453 F.3d

609, 616-17 n.2 (4th Cir. 2006) (describing the discussion in Kirk as dicta); Ken Lick

Coal Co. v. Lacy, No. 06-4512, order at 3-4 (6th Cir. Nov. 2, 2007) (unpublished)

(describing the discussion in Kirk as dicta); Peabody Coal Co. v. Director, OWCP, 48

F. App’x 140, 144 (6th Cir. 2002) (unpublished) (“Duke”) (suggesting without deciding

that the discussion in Kirk was dicta); cf. Wyo. Fuel Co. v. Director, OWCP, 90 F.3d
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 13

1502, 1507 (10th Cir. 1996) (holding in a decision prior to Kirk that “a final finding by

an Office of Workers’ Compensation Program adjudicator that the claimant is not totally

disabled due to pneumoconiosis repudiates any earlier medical determination to the

contrary and renders prior medical advice to the contrary ineffective to trigger the

running of the statute of limitations”). The Kirk court found that there was, in fact,

nothing in the record to establish that a physician had positively diagnosed the claimant

more than three years prior to the date he filed his claim. 264 F.3d at 607. Thus, the

court’s subsequent discussion of what would happen to the clock if there had been an

earlier positive diagnosis was not necessary to the outcome of the case and is properly

considered dicta. United States v. Swanson, 341 F.3d 524, 530 (6th Cir. 2003).

Both 30 U.S.C. § 932(f) and 20 C.F.R. § 725.308(a) provide that the limitations

period begins after “a medical determination of total disability due to pneumoconiosis.”

As the Duke panel recognized, the term “medical determination” is not defined in the

statute or regulation. 48 F. App’x at 145. This court has previously concluded that the

term does not include undiagnosed cases of pneumoconiosis, Sharondale, 42 F.3d at 996

(“[A] claimant must be free to reapply for benefits if his first filing was premature.”), or

self-diagnosed cases, Kirk, 264 F.3d at 607 (“[T]he statute makes what Kirk believes

about his condition irrelevant to the initiation of the limitations clock.”). What precisely

is meant by a “medical” diagnosis is subject to some refinement. To look at an extreme

example, presumably a medical diagnosis does not include one by a dentist, an

optometrist, a pediatrician, a registered nurse, or a pharmacist, even though all of these

are medical professionals. Any diagnosis by one of these medical professionals would

be deemed a misdiagnosis, a nullity, because of their lack of training in internal and

pulmonary medicine. Thus, there seems little question that at least some otherwise

positive diagnoses should be ignored for purposes of starting the limitations clock.

As a remedial statute intended to benefit injured miners, the Act has always been

interpreted with any ambiguity weighed in favor of miners. Grundy Mining, 353 F.3d

at 476; Sharondale, 42 F.3d at 996. This court has long recognized that Congress
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 14

intended to include as many miners under the Act as possible. Grundy Mining, 353 F.3d

at 476; Sharondale, 42 F.3d at 996.

The statute of limitations “exists to promote the quick filing of worthy claims.”

Duke, 48 F. App’x at 147. It does not exist as a trap for the unwary or unsophisticated

miner. Given the recognized “latent and progressive” nature of the disease, 20 C.F.R.

§ 718.201(c), a restrictive interpretation of “medical diagnosis” is unwarranted because

it would, in effect, penalize a miner who sought a consultation too soon and received a

determination from a physician who decided to err on the side of aggressive diagnosis.

“Holding the miner responsible for a genuine misdiagnosis unjustly holds him

responsible for the principled medical judgment of a doctor, presumably far more skilled

and educated than the miner.” Duke, 48 F. App’x at 146 (emphasis in original).

Relatedly, a restrictive interpretation would create a disincentive for a miner to

seek an early diagnosis and treatment; the miner could become “overly cautious about

being screened for the disease.” Id. at 147. Indeed, a rational miner might wait to

consult a physician until the disease had progressed to the point that the diagnosis would

be obvious to any trained physician so as to ensure his claim will be granted. “If a miner

knows that a misdiagnosis will ultimately mean that he can never again seek benefits

should he eventually contract this progressive disease, he will be less likely to be

proactive in seeking medical advice during the early stages.” Id.

A restrictive interpretation would also be in tension with the Act’s provision

permitting successive claims. See Sharondale, 42 F.3d at 996. Claims for benefits often

take longer than three years to adjudicate fully (as evidenced by the present action); thus,

if any positive diagnosis starts the clock, then in a substantial number of cases, the miner

will get only one chance to file for benefits. In this circumstance, if the ALJ was to deny

the claim because the positive diagnosis was in error or otherwise outweighed by the

other evidence, then the miner would be without recourse to file another claim based on

new evidence that his condition had progressed.

It is true, as the court explained in Kirk, that resetting the clock based on the

denial of a claim could open the door for a miner to shop for a compliant doctor, willing
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 15

3

Because Arch defaulted the claim, though, the company lost its opportunity to test the 1993

claim for a material change in conditions, as explained supra.

to give a diagnosis of pneumoconiosis where the evidence does not support it. 264 F.3d

at 608 n.5. However, as evidenced by this and other black-lung cases, it is clear that the

administrative adjudicators do not rubber-stamp these claims. Thus, this concern, while

not trivial, only becomes a systemic problem if the adjudicators also become complicit.

See Duke, 48 F. App’x at 146. “Besides, if [the court were to] hold to the contrary, an

unscrupulous employer could avoid future liability by purposely making a premature

determination—a far more unchecked concern.” Id. (citing Kirk, 264 F.3d at 608 n.5).

There is another concern that could exist when a limitations period is subject to

reset—a never-ending succession of claims by the same claimant. In the context of

black-lung benefits, however, this concern has been addressed. First, Congress made the

policy choice to permit a miner to file successive claims, thereby deciding to err on the

side of too many claims than on the side of too few. Second, to offset the incentive of

filing until a compliant adjudicator is found, a miner cannot refile the same claim

supported with the same evidence over and over, but must show a material change in

condition since the previous denial. This additional evidentiary requirement for

successive claims counters the concern that resetting the period will open the floodgates

for benefits claims.3

Finally, not only does resetting the period make sense from the perspective of the

Act’s purpose and language, it has the additional salient feature of respecting the finality

of decisions of the administrative adjudicators. An earlier, unappealed decision denying

a claim for lack of medical evidence must be accepted by the federal courts as “final and

correct.” Consolidation Coal, 453 F.3d at 616. But, if a positive medical diagnosis,

though found wanting by the adjudicator, was deemed to be sufficient to start the clock,

the correctness of the adjudicator’s denial would be called into question, at least

implicitly. A legal determination that a claim should be denied on the merits

“necessarily refute[s]” the countervailing evidence submitted in support of the claim. Id.

The regulations reinforce this principle by requiring that a subsequent claim be
No. 08-3311 Arch of Kentucky v. Director, OWCP, et al. Page 16

supported by a material change in conditions—i.e., a claimant cannot simply ask for a

do-over with the same medical evidence from the first denied claim. Thus, principles

of finality and comity further counsel in favor of resetting the clock after the denial of

a claim. 

Accordingly, we apply Sharondale’s rule resetting the limitations period to the

situation where a miner has filed a claim and included with it what is purported to be a

positive diagnosis, but the diagnosis is outweighed by countervailing evidence and

denied on that basis. In this situation, the misdiagnosis is not legally distinguishable

from a nondiagnosis or self-diagnosis. 

The ALJ denied Hatfield’s 1988 claim because of insufficient medical evidence

that the miner’s disease was caused by his mining work. Although Dr. Myers did draw

that causal connection, the ALJ found that Dr. Myers’s opinion was outweighed by the

negative report of a more-experienced physician who had examined Hatfield more

recently. The ALJ’s decision served not only to deny that claim for benefits, but also to

reset the clock on any subsequent claim made by Hatfield. We affirm the BRB’s finding

that Hatfield timely submitted his 1993 claim, although on a different ground than the

one relied upon by the BRB.

III

For the reasons set forth above, we DENY Arch’s petition for review and

AFFIRM benefits in favor of Hatfield.