UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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") affirm-
ing the administrative law judge's ("ALJ") award of black lung bene-
fits 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 moder-
ate 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 con-
tract 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 modi-
fication 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 modifica-
tion, 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 concern-
ing 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 pre-
cluded 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 main-
tain 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 physi-
cians 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' modifica-
tion 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 employ-
ment 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 opportuni-
ties, 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 majori-
ty'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.

                     4
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 fac-
tual 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 con-
cerning the exertional requirement of his employment were both time-
barred 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 posi-
tion 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 involv-
ing new evidence or changed circumstances." O'Keefe v. Aerojet-
General 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 demon-
strated by wholly new evidence, cumulative evidence, or merely fur-
ther reflection on the evidence initially submitted." Id. at 256. Citing
this language, we previously have recognized that the Supreme Court

                     5
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 Trim-
mers 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 trig-
          gered . . . [where the claimant] requested modification
          before a year passed.

Id.

Accordingly, we reject employer's contention that Thomas' modi-
fication 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 recon-
sider 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 argu-
ment 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 modifi-
cation 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).

                    6
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 determina-
tion 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 fore-
man 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 ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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