                                     PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 14-3976
                  _____________

       EIGHTY FOUR MINING COMPANY,
                      Petitioner

                         v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
  PROGRAMS, UNITED STATES DEPARTMENT OF
                   LABOR;
            CHARLES E. MORRIS,
                          Respondents
                _____________

             On Petition for Review of a
  Decision of the United States Department of Labor
                Benefits Review Board
               (BRB No. 13-0518 BLA)
                   ______________

             Argued September 9, 2015
                 ______________

  Before: VANASKIE, NYGAARD and RENDELL,
                Circuit Judges
             (Opinion Filed: February 9, 2016)


Norman A. Coliane, Esq. [ARGUED]
Paul E. Sutter, Esq.
Thompson, Calkins & Sutter
850 Ridge Avenue
Suite 300
Pittsburgh, PA 15212
       Counsel for Petitioner, Eighty Four Mining Company

Heath M. Long, Esq.      [ARGUED]
Pawlowski, Bilonick & Long
603 North Julian Street
P.O. Box 658
Ebensburg, PA 15931
      Counsel for Respondent, Charles E. Morris

Helen H. Cox, Esq.        [ARGUED]
Gary K. Stearman, Esq.
United States Department of Labor
Office of the Solicitor
Suite N-2119
200 Constitution Avenue, N.W.
Washington, DC 20210
       Counsel for Respondent, Director, Office of Workers’
Compensation Programs
                   ________________

                       OPINION
                   ________________

VANASKIE, Circuit Judge.




                             2
       Eighty Four Mining Company petitions this Court to
review the United States Department of Labor Benefits
Review Board’s decision affirming an award of disability
benefits to Charles Morris under the Black Lung Benefits Act
(BLBA), 30 U.S.C. §§ 901–944. At issue is whether a state
workers’ compensation board’s denial of pneumoconiosis
benefits due to the repudiation of the claimant’s black lung
diagnosis resets the BLBA three-year statute of limitations
period. Eighty Four Mining argues that it does not and that
the Administrative Law Judge and the Benefits Review Board
erred as a matter of law by granting benefits to Morris. We
disagree. Accordingly, we will deny Eighty Four Mining’s
petition for review.

                              I.

       The relevant facts are not in dispute. Morris worked as
a coal miner for nearly thirty-five years, nineteen of which
were spent working underground. His last position involved
heavy labor, and Morris’s breathing difficulties eventually
caused him to leave work. In 2006, Dr. Robert Cohen
examined Morris and diagnosed him with pneumoconiosis
(black lung disease). This diagnosis formed the basis of
Morris’s state workers’ compensation claim for occupational
disease benefits. Eighty Four Mining’s physician, Dr.
Gregory Fino, also examined Morris, but he determined that
Morris’s breathing difficulties were caused by smoking. In
this regard, Dr. Fino found that there was no radiographic
evidence of pneumoconiosis, but there was evidence of
emphysema, a condition caused by prolonged cigarette




                              3
smoking.1 In a decision dated March 31, 2008, a state
Workers’ Compensation Judge concluded that Dr. Fino’s
opinion was more credible than Dr. Cohen’s and that Morris
“did not sustain an injury . . . in the nature of coal workers’
pneumoconiosis or any other pulmonary injury.” (App. 139.)
Accordingly, Morris’s claim for workers’ compensation
based upon pneumoconiosis was denied. Morris did not
appeal that decision to the Pennsylvania Workers’
Compensation Appeal Board.

       Morris’s breathing problems subsequently worsened
and a doctor put him on oxygen nearly full-time. On January
6, 2011, Morris filed a claim for BLBA benefits. He did not
rely upon the 2006 report of Dr. Cohen that had been
discredited in the state workers’ compensation proceedings.
Nor did he rely upon radiographic proof of pneumoconiosis.
Instead, he relied upon a 2011 arterial blood gas study as well
as pulmonary function testing that supported a finding of
black lung disease. Eighty Four Mining opposed the
application for benefits, contesting that it was barred by the
statute of limitations because it was not filed within three
years of receipt of Dr. Cohen’s 2006 report.. Alternatively, it
renewed the argument it had advanced in the state workers’
compensation proceedings that Morris’s pulmonary
impairment was attributable to cigarette smoking and not due
to coal dust exposure.

      On July 9, 2013, an Administrative Law Judge
(“ALJ”) granted benefits under the BLBA. The ALJ rejected
the challenge to the timeliness of Morris’s BLBA claim on

      1
       Morris had been a heavy cigarette smoker, smoking a
pack and a half of cigarettes per day for approximately 40
years.




                              4
the basis of our decision in Helen Mining Co. v. Director,
Office of Workers’ Compensation Programs, 650 F.3d 248
(3d Cir. 2011) [hereinafter Obush]. In Obush, we held that a
denial of federal black lung benefits due to the repudiation of
the claimant’s pneumoconiosis diagnosis renders that
diagnosis a “misdiagnosis” and resets the three-year statute of
limitations for subsequent claims. Id. at 253-54. Under
Obush, the ALJ determined that the state workers’
compensation board’s denial of Morris’s claim rendered Dr.
Cohen’s 2006 diagnosis a “misdiagnosis” that did not trigger
the statute of limitations under the BLBA. As to the merits of
the claim, the ALJ determined that Morris sufficiently
established the existence of pneumoconiosis through medical
evidence obtained after 2010. The burden then shifted to
Eighty Four Mining to rebut a presumption that Morris was
totally disabled due to pneumoconiosis, either by showing
that Morris does not have pneumoconiosis or that his
breathing difficulties “did not arise out of, or in connection
with, employment in a coal mine.” 30 U.S.C. § 921(c)(4)(B).
The ALJ concluded that Eighty Four Mining failed to
adequately explain why Morris’s years of coal dust exposure
were not a substantial cause of his pulmonary impairment.
Accordingly, the ALJ found that Morris was entitled to an
award of BLBA benefits.

       Eighty Four Mining appealed to the Benefits Review
Board. On July 25, 2014, the Board affirmed the award of
benefits to Morris, but it did so based on a theory of judicial
estoppel.2 The Board determined that because Eighty Four


      2
         Administrative Appeals Judge Roy Smith dissented
from the Board’s decision, stating that he would have denied
benefits because Morris’s claim was untimely and that it was




                              5
Mining had previously argued that Morris’s 2006
pneumoconiosis diagnosis was incorrect, it was inconsistent
for Eighty Four Mining to rely now on that diagnosis as
triggering the federal statute of limitations.. Because judicial
estoppel precluded Eighty Four Mining’s timeliness
argument, the Board held that Morris’s claim was timely.
The Board also concluded that the ALJ correctly rejected the
opinions of Eighty Four Mining’s physicians that Morris’s
pulmonary impairment was attributable only to smoking.
Accordingly, the Board affirmed the benefits award. Eighty
Four Mining timely petitioned this Court for review of the
Board’s decision, challenging only the ruling that Morris’s
BLBA claim is timely.

                              II.

       We have jurisdiction over final orders from the
Benefits Review Board under 33 U.S.C. § 921(c), as
incorporated by 30 U.S.C. § 932(a). Obush, 650 F.3d at 251
n.4 (quoting Labelle Processing Co. v. Swarrow, 72 F.3d 308,
310 (3d Cir. 1995)). We exercise plenary review over
questions of law. Id. (citing Swarrow, 72 F.3d at 313).

                              III.

       Congress enacted the BLBA to “provide benefits . . . to
coal miners who are totally disabled due to pneumoconiosis.”
30 U.S.C. § 901(a). Under the BLBA, “‘pneumoconiosis’
means a chronic dust disease of the lung and its sequelae,
including respiratory and pulmonary impairments, arising out
of coal mine employment.” 30 U.S.C. § 902(b). The

inappropriate to rely on judicial estoppel or Obush to
determine otherwise.




                               6
legislation and implementing regulations explicitly
acknowledge that pneumoconiosis is both a latent and a
progressive disease. See Consolidation Coal Co. v. Williams,
453 F.3d 609, 616 (4th Cir. 2006) (citing 20 C.F.R. §
718.201(c)). In this respect, the legislation does not “bar
claimants from filing claims seriatim, and the regulations
recognize that many will.” Id. (quoting Lisa Lee Mines v.
Dir., Office of Workers’ Comp. Programs, 86 F.3d 1358,
1362 (4th Cir. 1996)).

        While allowing for serial claims in light of the
progressive nature of the disease, the legislation does impose
a limitations period for filing a claim. To maintain a timely
BLBA claim, a miner must file a claim within three years of
receiving a “medical determination” of pneumoconiosis. See
30 U.S.C. § 932(f). This “medical determination” must be
“communicated to the miner” before the statute of limitations
will begin to run. See 20 C.F.R. § 725.308(a). Neither the
legislation nor the implementing regulations, however, define
the term “medical determination.” See Arch of Ky., Inc. v.
Dir., Office of Workers’ Comp. Programs, 556 F.3d 472, 481
(6th Cir. 2009). The question that arises is whether a
diagnosis of pneumoconiosis that is rejected in an adjudicated
proceeding nonetheless constitutes a “medical determination”
that triggers the statute of limitations for bringing a claim for
BLBA benefits.

        In Obush, we answered that question in the negative,
holding that the denial of an initial BLBA claim renders a
prior pneumoconiosis diagnosis a “misdiagnosis” that will
“reset the limitations clock as to subsequent claims.” 650
F.3d at 253. Specifically, we concluded as a matter of law
that a medical diagnosis of pneumoconiosis rejected by an
ALJ in a BLBA proceeding “cannot be a ‘medical




                               7
determination’ of pneumoconiosis, as set out in section 932.”
Id. We reasoned that res judicata required us to accept a prior
ALJ’s denial of black lung benefits as a determination that the
claimant’s pneumoconiosis diagnosis was a “misdiagnosis.”
Id. at 252 (discussing Swarrow, 72 F.3d at 314). In so doing,
we emphasized that “courts have repeatedly recognized that
the remedial nature of the statute requires a liberal
construction of the Black Lung entitlement program to ensure
widespread benefits to miners and their dependents.” Id.
(quoting Keating v. Dir., Office of Workers’ Comp.
Programs, 71 F.3d 1118, 1122 (3d Cir. 1995)); see also
Pavesi v. Dir., Office of Workers’ Comp. Programs, 758 F.2d
956, 965 (3d Cir. 1985) (“[T]he Act must be applied in a
manner which assures compensation to every miner who
suffers from any of the several lung impairments covered by
the Black Lung Benefits Act.”). We also explained that the
progressive nature of pneumoconiosis favors “reading the
statute of limitations in an expansive manner to ensure that
any miner . . . afflicted with the disease, including its
progressive form, is given every opportunity to prove he is
entitled to benefits.” See Obush, 650 F.3d at 253. Lastly, we
opined that “a restrictive interpretation of the statute of
limitations . . . would be in tension with the regulation that
enables miners to file subsequent claims.” Id. “The very fact
that successive claims are permitted—on evidence of material
changes to the health of a miner—makes an interpretation of
the statute of limitations that effectively precludes such
claims untenable.” Id.

       Eighty Four Mining argues that Obush does not
control the present case because Obush involved a subsequent
federal claim after the initial diagnosis was repudiated in a
federal proceeding, whereas the present case involves an




                              8
initial federal claim after the diagnosis of pneumoconiosis
was repudiated by a workers’ compensation judge in a state
proceeding. This argument seizes upon Obush’s discussion
of res judicata and ignores our statute of limitations analysis,
which focuses on what constitutes a “medical determination”
of pneumoconiosis. We necessarily held in Obush that a
rejected diagnosis is not a “medical determination.” Thus,
under Obush, a denial of BLBA benefits as a result of an
adjudicator’s repudiation of the pneumoconiosis diagnosis
resets the statute of limitations for subsequent claims, which
begins to run again from a later diagnosis.

        The opinion of our dissenting colleague also overplays
the role of res judicata in Obush. The central holding of
Obush is that a misdiagnosis does not start the limitations
period—or, to put it another way, the statute of limitations
resets upon discovery that an earlier diagnosis was a
misdiagnosis, and the limitations period does not start again
until a later diagnosis has been made. Although the principles
of res judicata were applied to hold that the rejection of the
original diagnosis was final, the ultimate holding that the
original diagnosis was not a “medical determination” for
purposes of triggering the statute of limitations did not spring
from the conclusive effect of the ALJ’s decision in the first
proceeding. Rather, Obush relied upon (a) the fundamental
understanding that “the remedial nature of the statute requires
a liberal construction of the Black Lung entitlement program
to ensure widespread benefits to miners and their
dependents,” see id. at 252 (quoting Keating, 71 F.3d at
1122); (b) the recognition that “‘pneumoconiosis’ is . . . a
latent and progressive disease which may first become
detectable only after the cessation of coal mine dust
exposure,” see id. at 253 (quoting 20 C.F.R. § 718.201); and




                               9
(c) the fact that successive claims are permitted – “mak[ing]
an interpretation of the statute of limitations that effectively
precludes such claims untenable.” See id. As the Sixth
Circuit Court of Appeals put it:

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

Arch of Ky., 556 F.3d at 482 (emphasis in original) (quotation
marks and citation omitted).

      The question here is how to apply the central holding
in Obush that a misdiagnosis does not constitute a “medical




                              10
determination” sufficient to trigger the statute of limitations—
that is, we must determine whether there has been a
misdiagnosis that resets that statute of limitations. The core
concept behind the holding that a misdiagnosis resets the
statute of limitations is that a miner presumably cannot self-
diagnose black lung disease—he must instead rely upon the
expertise of those “presumably far more skilled and educated
than the miner.” See id. (quoting Peabody Coal Co. v. Dir.,
Office of Workers’ Comp. Programs, 48 F. App’x 140, 146
(6th Cir. 2002)). When a state adjudicator repudiates a
diagnosis of black lung disease, a miner cannot himself
determine the correctness of that conclusion. To hold that the
state adjudicator’s determination does not reset the statute of
limitations would be to hold the miner responsible for
determining not just whether his doctor made a correct
diagnosis, but for determining whether the state adjudicator
correctly determined that that diagnosis was incorrect. This
“trap for the unwary or unsophisticated miner” is precisely
the reason why a diagnosis repudiated in a contested
adjudication does not trigger the statute of limitations. See id.

      Here, Morris’s state workers’ compensation claim was
denied because the adjudicator repudiated his doctor’s
diagnosis of pneumoconiosis. Indeed, the state Workers’
Compensation Judge specifically concluded that Morris “did
not sustain an injury . . . in the nature of coal workers’
pneumoconiosis or any other pulmonary injury.” (App. 139.)
The rejection of Dr. Cohen’s diagnosis is indistinguishable
from the denial of the initial black lung benefits claim in
Obush.

       Thus, we hold that the rejection of a claim in which the
adjudicator repudiates a medical determination of
pneumoconiosis means that a subsequent claim filed within




                               11
three years of receipt of a new medical determination
establishing the existence of pneumoconiosis will not be
barred as untimely, regardless of whether the first claim was
filed under a state workers’ compensation law or under the
BLBA.3 Our dissenting colleague is correct in pointing out
that our decision today rests primarily on the liberal
interpretation to be accorded the BLBA. But so too did
Obush rely upon that fundamental principle in holding that a
“medical determination” of pneumoconiosis is not a “medical
determination” for purposes of the statute of limitations when
it is repudiated in an adjudicated BLBA proceeding. To hold
otherwise in this case would mean that Morris’s second claim
would be timely if he had initially unsuccessfully sought
BLBA benefits but is untimely because he first elected to
pursue state workers’ compensation benefits.           Such a
difference in result is untenable. Indeed, given the latent and
progressive nature of pneumoconiosis, an early diagnosis of
the disease will often be deemed a misdiagnosis. See 20
C.F.R. § 718.201(c) (recognizing pneumoconiosis “as a latent
and progressive disease which may first become detectable
only after the cessation of coal mine dust exposure.”). As we
reasoned in Obush, this consideration supports “reading the

      3
         Because we are not relying on res judicata for our
decision today, we need not address the state workers’
compensation board’s process and standards. What matters is
that the diagnosis of pneumoconiosis was repudiated, as our
holding is merely that a workers' compensation judge's
repudiation of a diagnosis of pneumoconiosis will reset the
statute of limitations. For this reason, our dissenting
colleague’s fear that a ruling in favor of a miner in a state
workers’ compensation proceeding would mandate a finding
in favor of that miner in a BLBA proceeding is unfounded.




                              12
statute of limitations in an expansive manner to ensure that
any miner who has been afflicted with the disease, including
its progressive form, is given every opportunity to prove he is
entitled to benefits.” See 650 F.3d at 253.

        In light of these considerations, it is immaterial that
Morris’s first claim was filed under a state workers’
compensation law. Rather, what matters is that Morris’s
initial claim was denied on the basis that he did not have
pneumoconiosis. See Peabody Coal Co. v. Dir., Office of
Workers’ Comp. Programs, 718 F.3d 590, 595 (6th Cir. 2013)
[hereinafter Brigance] (“The misdiagnosis rule applies only
‘if a miner’s claim is ultimately rejected on the basis that he
does not have the disease.’”). As a result, when Morris’s
condition worsened and he filed a BLBA claim within three
years of receiving a new medical determination of
pneumoconiosis, his BLBA claim was timely. Thus, we will
affirm the Board’s award of benefits to Morris and deny
Eighty Four Mining’s petition for review.4



       4
          As noted above, the Board did not rely upon Obush,
but instead applied judicial estoppel to find that Morris’s
claim was timely. We reject the Board’s judicial estoppel
rationale. For judicial estoppel to apply, a litigant must have
advanced irreconcilably inconsistent positions. It is not
irreconcilably inconsistent to argue both that a diagnosis was
incorrect and that the diagnosis nevertheless starts the statute
of limitations clock. Cf. Brigance, 718 F.3d at 594 (“The
limitations period begins to run when a medical determination
of total disability due to pneumoconiosis is communicated to
the miner. Whether the diagnosis is well-reasoned or
otherwise accurate (whether the miner is in fact totally




                              13
                             IV.

      For the foregoing reasons, we will deny the petition for
review and affirm the Department of Labor Benefits Review
Board’s Decision and Order of July 25, 2014.




disabled due to pneumoconiosis) is irrelevant for purposes of
the statute of limitations.”).




                             14
Eighty Four Mining v. Director, OWCP, No. 14-3976.
Nygaard, J., Dissenting.

                               I.

       I respectfully dissent. The majority relies heavily on
one aspect of the Obush opinion: the courts’ long history of
giving a liberal interpretation to the Black Lung Benefits Act
(30 U.S.C. §§901-945) to fulfill the remedial nature of the
law. As the one who wrote the Obush opinion for the Court, I
obviously have no problem with this general approach to
interpreting the statute. However, I part ways with the
majority because it fails to account for the entire holding in
Obush, and, because of that, it misapplies it here.

       Obush does not support the majority’s holding that a
Pennsylvania Workers’ Compensation Administrative Law
Judge (ALJ) is competent to rule that a diagnosis of black
lung disease is a misdiagnosis under the federal Black Lung
Benefits Act. Helen Mining v. Director OWCP (Obush), 650
F.3d 248 (3d Cir. 2011). Moreover, I can find no statutory or
legal basis to give such authority to a Pennsylvania Workers’
Compensation ALJ.1 To the contrary, although section 421 of

1
  The majority’s reference to an opinion from the Court of
Appeals for the Sixth Circuit is misplaced. Peabody Coal Co.
v. Director, Office of Wokers’ Compensation Programs, U.S.
Dept. of Labor, (Brigance) 718 F.3d 590 (6th Cir. 2013). The
court in Peabody granted the petition for review of the mining
company, reversing the grant of benefits, because the miner
sat on his federal rights while adjudicating his state claim. Id.
at 595. Nothing in the court’s holding can be construed as
concluding that the state adjudication of a claim is dispositive




                               1
the Black Lung Benefits Act (codified at 30 U.S.C. § 931)
requires miners to file state workers’ compensation claims,
the requirement applies only to miners in states where the
Secretary of Labor has determined that it provides adequate
coverage for disability or death due to pneumoconiosis. To
date, the Secretary has determined that no state program
meets such requirements. 20 C.F.R. Part 722. For these
reasons, I must conclude that Charles Morris’ claim for black
lung benefits, filed almost five years after he received a
diagnosis of black lung disease, is time barred. Accordingly,
I would grant 84 Mining’s Petition and instruct the Board of
Review to reverse the decision of the federal Administrative
Law Judge who granted benefits to Charles Morris.

                             II.

       A federal ALJ’s decision on a miner’s claim for
benefits under the federal Black Lung Benefits Act—if made
pursuant to 20 C.F.R. § 725.421(a) and § 725.451-464—is
res judicata. 20 C.F.R. §479(a); see also Labelle Processing
Co. v. Swarrow, 72 F.3d 308 (3d Cir. 1995).2 Therefore,
claimants are estopped from re-litigating any factual findings


for purposes of a federal claim. To the contrary, as I discuss
infra, the court made clear that the communication of a
diagnosis alone is sufficient to trigger the statute of
limitations. Id. at 594.
2
  Of course, such a decision is subject to appeal to the
Benefits Review Board (20 C.F.R. § 481), and following that,
a judicial review by a federal Court of Appeals (20 C.F.R. §
482(a)).




                              2
or legal determinations made in the adjudication of the claim.
Swarrow, 72 F.3d at 314. But, in cases where the ALJ
discredits the underlying diagnosis and denies the claim for
benefits under the Black Lung Benefits Act, this decision is
tantamount to a ruling that the diagnosis supporting the claim
is a misdiagnosis.       Obush, 650 F.3d at 252.          Such
misdiagnoses are legally insufficient to trigger the statute of
limitations for subsequent claims. Id. As a result, the
limitations clock is reset and claimants are able to bring a
subsequent claim, pursuant to 20 C.F.R. § 725.309(c),
without running afoul of the three-year statute of limitations
that applies to “any” claim. Swarrow, 72 F.3d at 314.3

       At issue here is whether the denial of a claim for
benefits under Pennsylvania’s Workers’ Compensation
program is res judicata such that—except as provided in 20
C.F.R. §725.309—a claim filed under the Black Lung
Benefits Act would be precluded. I frame the question in this
manner because in Obush we said “because we are required
to respect the factual findings and legal conclusions in earlier
adjudicated claims, we must accept an ALJ’s conclusion that
a medical opinion offered in support of that claim is
discredited.” Obush, 650 F.3d at 252. Our reasoning was
necessarily rooted in our precedent analyzing Congress’
provision for subsequent claims. Labelle Processing Co. v.
Swarrow, 72 F.3d 308 (3d Cir. 1995).


3
  Subsequent claims are regarded as such only if they are
based on new evidence showing a material change in
conditions. Id.; 30 U.S.C.A. § 932; see also 20 C.F.R. §
725.309(c).




                               3
        In Swarrow, the mining company argued that a miner’s
subsequent claim was barred by the doctrine of res judicata
because it was the same cause of action involving the same
parties in which a final judgment had been made. Id. at 313.
We determined that Congress’ provision for a second claim
did not violate res judicata because the second claim was not
constituted merely of “more doctors” saying the same things
and finding a “sympathetic ALJ.” Id. Instead, the second
claim was premised on “a material change in conditions”
from the first claim that asserted new facts giving rise to a
new claim. Id. In Obush, we had no difficulty in determining
that the subsequent claim was a material change in conditions
because both the first and second claims were ruled upon by
an ALJ of the U.S. Department of Labor, who ruled in both
cases pursuant to 20 C.F.R. § 725.451-464. Moreover, there
was no question that the ALJ’s decision to discredit the first
diagnosis and deny that claim was made in accord with the
regulations governing the evaluation of claims for black lung
benefits (20 C.F.R §718, §725) and with the precedent of the
Board of Review. Because of this, we had certainty that the
second claim brought by Obush was, indeed, a new claim,
premised on a material change in conditions from the first
diagnosis. Here, however, we have no such assurance.

       We will presume, for purposes of this analysis, that the
2008 Pennsylvania ALJ’s decision at issue here was
consistent with the regulations and precedents controlling the
Pennsylvania Workers’ Compensation program, but the
record is devoid of any evidence to assess whether relevant
Pennsylvania regulations and precedent are in any way
compatible with those governing claims for benefits under the
Black Lung Act. Although the ALJ admitted the state
decision into the record, there is no evidence that the ALJ




                              4
engaged in any analysis of relevant Pennsylvania law or the
decision itself. Therefore, we cannot say with any certainty
that the claim before us is, indeed, a new claim based on new
facts. The majority never addresses this lacuna in the record.
It simply declares, by fiat, that the decision by the
Pennsylvania Workers’ Compensation ALJ is the same as a
federal black lung ALJ’s decision, rendering the underlying
diagnosis a misdiagnosis. This assumption is particularly
troubling in light of the Secretary of Labor’s own recent
assessment that no state workers’ compensation program—
Pennsylvania included—is comparable to the federal black
lung program. 20 C.F.R. Part 722. However, even if such
evidence were in the record, the majority would still have a
fundamental problem that simply cannot be brushed aside by
pointing to the remedial nature of the statute: I see no way
that the state adjudication could be res judicata as to the claim
for federal Black Lung Act benefits.

       The Pennsylvania ALJ decision is not a final decision
on the merits of “the same cause of action, involving the same
parties or their privies” as to any claim for benefits under the
Black Lung Act. Swarrow, 72 F.3d at 313. This is by design.
Because these are distinct claims, a miner—based on the
same black lung diagnosis—is able to file, both, a claim for
Pennsylvania Workers’ Compensation benefits and a claim
for federal black lung benefits: proceeding with both even if
one of them is ultimately denied.4 Although a denial of a
Pennsylvania Workers’ Compensation claim might be

4
 The statute anticipates the circumstance of a miner receiving
both workers’ compensation benefits and black lung benefits,
providing for an offset. 30 U.S.C. § 932(g).




                               5
relevant to a federal black lung claim that is based on the
same diagnosis, the disposition of the Pennsylvania claim
does not prevent or resolve the federal claim. See Schegan v.
Waste Mgmt & Processors, Inc., 18 BLR 1-41 (1994); Clark
v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc). 5

       Precisely because the denial of a claim for
Pennsylvania benefits that is based on a black lung diagnosis
does not prevent or resolve a contemporaneous claim for
federal black lung benefits based on the same diagnosis, there
is no way that the Pennsylvania ALJ’s determination can
serve as a conclusive ruling as to any other federal black lung
claim that may be filed later. This is the logical consequence
of our ruling in Swarrow and Obush. Therefore, I disagree
with the majority.       The decision of the Pennsylvania
Workers’ Compensation ALJ to deny Morris’ claim for
workers’ compensation benefits is not tantamount to a ruling
that the underlying diagnosis of black lung disease is a
misdiagnosis.

        The implications of my conclusion are clear and direct.
“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.” 30 U.S.C.A. § 932;

5
  It is not a “trap” for unsophisticated miners to hold that
claiming eligibility for benefits under a Pennsylvania
Workers’ Compensation program is fundamentally different,
by definition, from claiming eligibility for benefits under the
Black Lung Benefits Act. Indeed, this is precisely what the
Board of Review’s own precedent declares, a conclusion that
is reaffirmed by the Secretary of Labor’s continuous
conclusion that the benefits are not synonymous.




                              6
see also 20 C.F.R. § 725.308. Therefore, any diagnosis of
black lung that is “communicated to a miner or a person
responsible for the care of the miner” (20 C.F.R. 725.308)
triggers the statute of limitation for a claim of benefits to be
filed under the Black Lung Benefits Act. Peabody Coal Co.
(Brigance), 718 F.3d at 594 (“Construing the text of the
statute as written, we hold that when a diagnosis of total
disability due to pneumoconiosis by a physician trained in
internal and pulmonary medicine is communicated to the
miner, a “medical determination” sufficient to trigger the
running of the limitations period has been made. No more is
required.”). The statute makes no provision for a miner to file
a distinct claim after the expiration of that statute of limitation
unless the merits of a timely filed claim for benefits under the
Black Lung Benefits Act have been conclusively,
affirmatively ruled upon. See 20 C.F.R. § 725.309. The
statute of limitation clock is reset only after such a federal
claim has been denied, rendering the underlying diagnosis a
misdiagnosis. Obush, 650 F.3d at 253.6 Since the state ALJ’s
decision does not have any conclusive effect upon subsequent
federal claims, and it is not tantamount to a ruling (for
purposes of a federal claim) that the underlying diagnosis is a
misdiagnosis, the state ALJ’s decision does not reset the
statute of limitations clock under the federal Black Lung
Benefits Act for purposes of a subsequent federal black lung
claim.

     In this case, a diagnosis of black lung disease was
communicated to Charles Morris in 2006. Because he did not

6
 See supra discussion of section 421 of the Black Lung
Benefits Act.




                                7
file any federal claim under the Black Lung Benefits Claims
Act within the following three-year window, he is now time
barred from raising any other claim.

        As I stated above, I have no issue with the general
orientation of the courts to interpret the statute liberally in
order to give effect to the statute’s remedial nature.
However, we have an obligation to make such interpretations
in a manner that respects the structure provided by Congress
and the United States Department of Labor. In Obush, our
liberal interpretation of the statute served not only to extend
remediation to Obush, but also to preserve the claim structure
established by Congress and the Secretary of Labor. We
noted that a strict interpretation of the statute of limitations of
the Black Lung Benefits Act would have eviscerated the
statute’s provision for subsequent claims, since any claim
would have to have been filed within three years of the initial
diagnosis. Id.

        In this case, the majority’s interpretation of Obush
would actually impair the claim structure established by
statute and regulation, and potentially render meaningless
years of precedent established by the Review Board on the
determination of disability under the Act. This is so because,
if the majority’s interpretation is taken to its logical
conclusion, a Pennsylvania Workers’ Compensation ALJ
decision to award benefits would also have conclusive effect,
mandating an award of black lung benefits regardless of the
federal requirements set out at law. The majority’s over-
reliance on the remedial nature of the statute in this case
produces a result that is not only unsupported by the statute,
by our precedent, or by the record of this case; it is a holding
that could potentially unravel the statutory and regulatory




                                8
scheme for black lung claims. Therefore, as I stated above, I
must disagree with the majority and conclude that a decision
of a state workers’ compensation ALJ cannot be sufficient to
reset the statute of limitation for a federal black lung claim.

       It is clear that the Benefits Review Board also had
some issue with the ALJ’s reasoning, because it chose to
uphold the award of benefits on alternative grounds. (App. at
A11). It did not state its reasons for doing so, but it is fair to
assume that the Board was aware of the conflict the ALJ’s
interpretation of Obush created with its own precedent in
Schegan and Clark v. Karst-Robbins Coal Co., which
explicitly provides that state findings are not binding upon
these federal proceedings. Beyond that, however, I will not
speculate on why the Board took a different path to affirm the
award of benefits.         Nonetheless, consistent with the
conclusion of the majority,7 I, too, disagree with the Board’s
alternative reasoning that grounded its denial of 84 Mining’s
appeal on the basis of judicial estoppel.

                               III.

       The Board ruled that 84 Mining was estopped from
relying upon the 2006 black lung diagnosis to argue that
Morris was time barred here. The rationale for their decision
was that, in the Pennsylvania claim, 84 Mining argued the
2006 diagnosis of totally disabling pneumoconiosis was
wrong, and that it is now inconsistent for it to assert “that this
same report . . . which employer previously claimed, and
established, was incorrect, supports a claim for work-related
injury and should have been acted upon my claimant.” (App.

7
    See supra, majority opinion footnote 4.




                                9
at A11). 84 Mining makes no such assertion. Judicial
estoppel “generally prevents a party from prevailing in one
phase of a case on an argument and then relying on a
contradictory argument to prevail in another phase.” MD
Mall Associates, LLC v. CSX Transp., Inc., 715 F.3d 479, 487
(3d Cir. 2013), as amended (May 30, 2013) (quoting New
Hampshire v. Maine, 532 U.S. 742, 749 (2001). 84 Mining
claimed in the Pennsylvania case what it claims now: that the
2006 diagnosis is incorrect. 84 Mining is not making an
argument that contradicts an earlier position. Rather, it
argues precisely the same point that I raise above: a
Pennsylvania Workers’ Compensation ALJ is not competent
to rule, for purposes of the Black Lung Benefits Act, that the
2006 diagnosis is a misdiagnosis. Such a determination is
only within the competence of those authorized by the Black
Lung Benefits Act. It was up to Morris to obtain such a
ruling and he did not do so. There is no inconsistency here.

        Finally, I disagree with the Review Board that a
miscarriage of justice was avoided by the grant of benefits
here. (App. at A11). After Morris received the denial of his
Pennsylvania Workers’ Compensation claim in 2008, he still
had roughly one year left before the federal statute of
limitation expired on his black lung claim. I sympathize with
the sentiment, alleged by Morris in his briefs, that—
essentially—it would have been a waste of time to pursue a
second claim based on a diagnosis that already had been
discredited by a Pennsylvania adjudication. However, it is
undeniable that the federal statute and regulations gave
Morris a second opportunity for relief after Pennsylvania
denied his claim. It is certainly unfortunate, but hardly a
miscarriage of justice, that Morris chose to sit on his rights
and refrain from filing a claim for federal black lung benefits.




                              10
                              IV.

       For all of these reasons, I respectfully dissent from the
majority. I would conclude that Morris’ claim is time barred.
Accordingly, I would have granted the Petition for Review
and instructed the Review Board to reverse the grant of
benefits ordered by the Administrative Law Judge.




                              11
