BLD-295                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 11-2050
                                     ___________

                  MARIAN L. HAND (Widow of DALLAS HAND),
                                         Petitioner

                                           v.

  DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED
                   STATES DEPARTMENT OF LABOR,
                                       Respondent
                 ____________________________________

                         On Appeal from a Decision and Order
                            of the Benefits Review Board
                              (BRB No. 10-0389 BLA)
                      ____________________________________

                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                 September 22, 2011

        Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                            (Opinion filed: October 5, 2011)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Marian Hand, proceeding pro se, petitions for review of a decision of the Benefits

Review Board (“BRB”) affirming the denial of her claim for survivor’s benefits under the
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Black Lung Benefits Act, 30 U.S.C. §§ 901-944. For the reasons that follow, we will

deny the petition for review.

       Hand is the widow of Dallas Hand, who passed away in 1982. Shortly after her

husband’s death, Hand filed a claim for survivor’s benefits under the Black Lung

Benefits Act. In 1987, the BRB affirmed the Administrative Law Judge’s denial of

benefits because the evidence did not show, among other things, that Dallas Hand’s death

was due to pneumoconiosis. Hand filed another claim, which was treated as a request for

modification of the denial of benefits. In 1990, the BRB affirmed the Administrative

Law Judge’s denial of Hand’s request for modification.

       In 1992 and 1999, Hand filed two more claims for benefits. In both instances, an

Administrative Law Judge denied Hand’s claims pursuant to 20 C.F.R. § 725.309(d)

(2000), which provided that, absent a material change in conditions, a new claim for

benefits shall be denied where an earlier claim has been finally denied, unless the later

claim meets the requirements for a request for modification. Because Hand’s new claims

were filed more than one year after her initial claim was finally denied in 1990, her

claims did not meet those requirements. The BRB affirmed these decisions and Hand

unsuccessfully filed petitions for review in our Court. See C.A. Nos. 97-3529; 00-4303.

       Hand filed another claim for benefits in 2003. The applicable regulations had

been amended and, effective January 2001, provided that a new claim filed more than one

year after the denial of a previous claim shall be denied unless the claimant showed that

one of the “applicable conditions of entitlement” had changed. 20 C.F.R. § 725.309(d)
                                             2
(2010). After a hearing, an Administrative Law Judge denied Hand’s claim. In 2005, the

BRB affirmed and denied Hand’s motions for reconsideration. Hand then wrote a letter

to the district director, which was treated as a request for modification of the denial. In

2008, the BNB affirmed the Administrative Law Judge’s denial of the request and denied

Hand’s request for reconsideration.

       Hand again requested modification of the denial of benefits and the matter was

referred for a hearing. The Director of the Office of Workers’ Compensation Programs

(the “Director”) filed a motion to dismiss Hand’s claim, asserting that her claim was

precluded by § 725.309(d). The Administrative Law Judge granted the Director’s motion

and ruled that Hand was not entitled to a hearing. In February 2011, the BNB affirmed.

This petition for review followed. The Director has moved for summary affirmance of

the BRB’s decision, which we construe as a motion for summary denial of the petition for

review.

       Under the Black Lung Benefits Act, coal miners who are totally disabled due to

pneumoconiosis arising out of coal mine employment, and surviving dependents of

miners whose deaths were due to this disease, are entitled to benefits. 30 U.S.C.

§ 901(a). Because pneumoconiosis is a latent disease, a coal miner whose initial claim

for benefits is denied may bring a new claim at a later time if he subsequently becomes

totally disabled. Labelle Processing Co. v. Swarrow, 72 F.3d 308, 314 (3d Cir. 1995).

       Effective January 2001, a claim filed more than one year after a final order

denying a previous claim is considered a “subsequent claim for benefits.” 20 C.F.R.
                                              3
§ 725.309(d) (2010). As noted above, such a claim shall be denied unless the claimant

shows that one of the “applicable conditions of entitlement” has changed since the prior

order became final. Id. The conditions of entitlement for a surviving spouse are that the

spouse is not married and was dependent on the miner and that the deceased miner was

receiving benefits or his death was due to pneumoconiosis. Id. § 725.212. For purposes

of § 725.309(d), the applicable conditions of entitlement are limited to those conditions

upon which the prior denial was based. Id. § 725.309(d)(2). In addition, “[a] subsequent

claim filed by a surviving spouse . . . shall be denied unless the applicable conditions of

entitlement in such claim include at least one condition unrelated to the miner’s physical

condition at the time of his death.” Id. § 725.309(d)(3).

       Here, the BRB affirmed the denial of Hand’s initial claim for benefits in 1987 and

her related request for modification in 1990. The present claim was filed more than one

year later and is thus a “subsequent claim for benefits.” Applying the regulations noted

above, Hand’s claim can only succeed if she asserts a change in an applicable condition

of entitlement unrelated to her husband’s physical condition at the time of his death. As

explained in the Director’s motion, no change in a deceased miner’s physical condition is

possible after a survivor’s initial claim for benefits is denied.

       The BNB correctly recognized that the only applicable condition of entitlement

that Hand did not initially establish was that her husband’s death was due to

pneumoconiosis. Thus, there is no condition of entitlement unrelated to her husband’s

physical condition upon which the prior denial of benefits was based. Because Hand is
                                               4
unable to satisfy the exception to the denial of a subsequent claim for survivor’s benefits

contained in § 725.309(d)(3), the BRB did not err in concluding that her claim fails as a

matter of law. 1

       We also find no error in the BRB’s affirmance of the Administrative Law Judge’s

decision not to conduct a hearing. The BRB acknowledged that, absent waiver by the

parties or a motion for summary judgment, the regulations require a hearing on a claim

for benefits. We agree with the BRB that the Director’s motion to dismiss was equivalent

to a request for summary judgment because Hand’s claim is precluded as a matter of law.

       Accordingly, the Director’s motion for summary denial of the petition for review

is granted and the petition for review will be denied.




1
 In her filings in this Court, Hand appears to contend that § 725.309(d)(3) does not apply
because she has continuously and timely asserted her rights. We agree with the Director
that the regulation applies because Hand filed her current claim more than one year after
her initial claim was denied.
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