                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


NORA L. COLLINS, widow of Johnnie     
J. Collins,
                        Petitioner,
                 v.
POND CREEK MINING COMPANY;                       No. 05-1832
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
                      Respondents.
                                      
                On Petition for Review of an Order
                  of the Benefits Review Board.
                           (04-899-BLA)

                        Argued: May 24, 2006

                      Decided: November 8, 2006

          Before KING and SHEDD, Circuit Judges, and
    Joseph R. GOODWIN, United States District Judge for the
     Southern District of West Virginia, sitting by designation.



Petition for review granted; order vacated and remanded by published
opinion. Judge King wrote the majority opinion, in which Judge
Goodwin joined. Judge Shedd wrote a dissenting opinion.


                             COUNSEL

ARGUED: Leonard Joseph Stayton, Inez, Kentucky, for Petitioner.
Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C., Charleston,
2                 COLLINS v. POND CREEK MINING CO.
West Virginia, for Respondent Pond Creek Mining Company; Rita A.
Roppolo, UNITED STATES DEPARTMENT OF LABOR, Office of
the Solicitor, Washington, D.C., for Respondent Director, Office of
Workers’ Compensation Programs. ON BRIEF: Kathy L. Snyder,
JACKSON & KELLY, P.L.L.C., Charleston, West Virginia, for
Respondent Pond Creek Mining Company; Howard M. Radzely,
Solicitor of Labor, Patricia M. Nece, Counsel for Appellate Litiga-
tion, UNITED STATES DEPARTMENT OF LABOR, Office of the
Solicitor, Washington, D.C., for Respondent Director, Office of
Workers’ Compensation Programs.


                              OPINION

KING, Circuit Judge:

   Nora Collins ("Mrs. Collins") petitions for review of the 2005
Decision and Order of the Benefits Review Board (the "BRB") deny-
ing her claim for survivor’s benefits under the Black Lung Benefits
Act, 30 U.S.C. §§ 901-945 (the "Black Lung Act" or the "Act"). In
so doing, Mrs. Collins contends, inter alia, that the BRB and the
Administrative Law Judge (the "ALJ") erroneously failed to accord
collateral estoppel effect to an earlier ALJ’s 1988 ruling that her late
husband suffered from pneumoconiosis as a result of his work in the
coal mines of southern Appalachia. As explained below, we agree
with Mrs. Collins that the BRB erred in 2005 by not according preclu-
sive effect to the 1988 ALJ ruling. We grant her petition for review,
vacate the 2005 BRB Decision and Order, and remand.

                                   I.

   Mrs. Collins’s late husband, Johnny Collins ("Mr. Collins"),
worked underground in the coal mines of southern West Virginia and
eastern Kentucky for over thirty-six years. During his extensive min-
ing career, Mr. Collins, inter alia, operated a cutting machine, a
motor, and a loading machine; worked on "the belt"; laid track;
loaded coal; and worked as a belt repairman. On February 25, 1988,
Mr. Collins was awarded benefits under the Black Lung Act by Deci-
sion and Order of an ALJ. Collins v. Pond Creek Coal Co., No. 85-
                  COLLINS v. POND CREEK MINING CO.                     3
BLA-5349 (Feb. 25, 1988) (the "1988 ALJ Decision"). In that pro-
ceeding, the Pond Creek Coal Company ("Pond Creek") was named
as the responsible operator.1 The 1988 ALJ Decision was premised on
the ALJ’s findings that Mr. Collins had established, by a preponder-
ance of the evidence, that (1) he had pneumoconiosis (commonly
known as "black lung disease"); (2) he was totally disabled; and (3)
his total disability was due to pneumoconiosis. As a result of the 1988
ALJ Decision — from which Pond Creek did not appeal — Mr. Col-
lins received black lung benefits until his death on September 16, 1997.2

   On September 29, 1997, Mr. Collins’s widow filed a claim for sur-
vivor’s benefits under 30 U.S.C. § 922(a)(2), naming Pond Creek as
the responsible operator. In order to be entitled to benefits, Mrs. Col-
lins was obliged to show that (1) she was Mr. Collins’s widow, (2)
Mr. Collins suffered from pneumoconiosis as a result of his coal mine
employment, and (3) pneumoconiosis hastened his death. See
§ 922(a)(2) (providing that coal miner’s widow can receive benefits
if miner’s death was "due to pneumoconiosis"); 20 C.F.R.
§ 718.205(c)(2) & (5) (providing that miner’s death is "due to pneu-
moconiosis" if pneumoconiosis "hastens the miner’s death"). And, in
establishing that Mr. Collins had developed pneumoconiosis as a
result of working in the coal mines for thirty-six years, Mrs. Collins
asserted that she was entitled to rely on the collateral estoppel effect
of the 1988 ALJ Decision.

  By Decision and Order of December 21, 2001, the ALJ denied
  1
     Although the responsible operator in the 1988 ALJ proceeding was
referred to as "Pond Creek Coal Company," the responsible operator in
this proceeding is "Pond Creek Mining Company." There is no conten-
tion that the two companies are in any way distinct, and we treat them
as one entity, which we simply call "Pond Creek."
   2
     Pursuant to the Black Lung Act, a coal miner who is totally disabled
by pneumoconiosis "shall be paid benefits during the disability at a rate
equal to 37 1/2 per centum of the monthly pay rate for Federal employ-
ees in grade GS-2, step 1." 30 U.S.C. § 922(a)(1). Under the applicable
2006 Salary Table, a Federal employee in grade GS-2, step 1, receives
a base salary of $18,385 per year, and a miner totally disabled by pneu-
moconiosis therefore receives approximately $575 per month in black
lung benefits.
4                 COLLINS v. POND CREEK MINING CO.
Mrs. Collins’s claim for survivor’s benefits. Collins v. Pond Creek
Mining Co., No. 1998-BLA-1295 (Dec. 21, 2001) (the "2001 ALJ
Decision"). In so doing, the ALJ ruled the 1988 ALJ Decision was not
entitled to collateral estoppel effect because of our 2000 decision in
Island Creek Coal Co. v. Compton, 211 F.3d 203 (4th Cir. 2000). See
2001 ALJ Decision at 14. In Compton, we ruled that an ALJ must
consider all of the relevant evidence in assessing whether a coal miner
suffers from pneumoconiosis. Pursuant to 20 C.F.R. § 718.202(a)’s
four subsections, a miner’s pneumoconiosis may be established in
four ways: (1) chest X-rays; (2) biopsy or autopsy results; (3) certain
regulatory presumptions (not relevant here); and (4) a physician’s
opinion based on medical evidence. Our Compton decision invali-
dated the BRB’s practice of allowing an ALJ to find that a coal miner
suffers from pneumoconiosis by relying on evidence falling under one
of the four subsections of § 718.202(a) (such as chest X-rays), while
ignoring contrary evidence belonging to one of the other three subsec-
tions (such as physicians’ opinions). See 211 F.3d at 211. That prac-
tice, as Judge Wilkins explained in Compton, contradicted 30 U.S.C.
§ 923(b)’s statutory mandate that an ALJ must consider "all relevant
evidence" in making a pneumoconiosis finding. Id.

   In this case, the ALJ concluded, in December 2001, that the pre-
Compton 1988 ALJ Decision was not entitled to any collateral estop-
pel effect, and that Mrs. Collins therefore could not rely on it in estab-
lishing Mr. Collins’s pneumoconiosis. The ALJ then considered anew
the evidence concerning Mr. Collins’s respiratory condition, and he
ruled, contrary to the 1988 ALJ Decision, that Mr. Collins had never
suffered from pneumoconiosis (and thus that his death had not been
hastened by the disease).

   Mrs. Collins then appealed the 2001 ALJ Decision to the BRB. By
its Decision and Order of January 28, 2003, the BRB affirmed the
2001 ALJ Decision’s collateral estoppel ruling, but it vacated the
ALJ’s no-pneumoconiosis finding and remanded for the ALJ to re-
weigh the evidence. Collins v. Pond Creek Mining Co., 22 Black
Lung Rep. (MB) 1-229 (BRB 2003) (the "2003 BRB Decision"). On
remand, the ALJ again found that Mr. Collins had never suffered
from pneumoconiosis. Collins v. Pond Creek Mining Co., No. 1998-
BLA-1295 (Aug. 16, 2004) (the "2004 ALJ Decision"). Additionally,
the ALJ determined that, even assuming the existence of pneumoconi-
                  COLLINS v. POND CREEK MINING CO.                    5
osis, there was insufficient evidence that the disease hastened Mr.
Collins’s death. On Mrs. Collins’s appeal from the 2004 ALJ Deci-
sion, the BRB reiterated its earlier position that Mrs. Collins was not
entitled to rely on the doctrine of collateral estoppel, and it affirmed
the ALJ’s findings of no pneumoconiosis and lack of causation. Col-
lins v. Pond Creek Mining Co., BRB No. 04-0899 BLA (June 15,
2005) (the "2005 BRB Decision"). Mrs. Collins has now petitioned
for review of the 2005 BRB Decision, and we possess jurisdiction
pursuant to 33 U.S.C. § 921(c).

                                  II.

   We review an ALJ decision that has been affirmed by the BRB to
determine whether it is in accordance with the law and supported by
substantial evidence. Island Creek Coal Co. v. Compton, 211 F.3d
203, 207-08 (4th Cir. 2000); Piney Mountain Coal Co. v. Mays, 176
F.3d 753, 756 (4th Cir. 1999). In so doing, we confine our review to
the grounds upon which the BRB based its decision. See Grigg v.
Dir., OWCP, 28 F.3d 416, 418 (4th Cir. 1994). As always, we review
de novo the BRB’s conclusions of law. Milburn Colliery Co. v. Hicks,
138 F.3d 524, 528 (4th Cir. 1998).

                                  III.

   Mrs. Collins’s principal contention in this proceeding is that the
BRB erred in failing to accord collateral estoppel effect to the ruling,
made in the 1988 ALJ Decision, that Mr. Collins had developed pneu-
moconiosis through his coal mine employment.3 "Under collateral
estoppel, once an issue is actually and necessarily determined by a
court of competent jurisdiction, that determination is conclusive in
subsequent suits based on a different cause of action involving a party
to the prior litigation." Montana v. United States, 440 U.S. 147, 153
(1979). And, as we have observed, findings of fact made during
administrative adjudications are to be accorded the same collateral
  3
   The Director of the Office of Workers’ Compensation Programs, as
a Respondent in this proceeding, supports Mrs. Collins’s position the
1988 ALJ Decision precludes Pond Creek from relitigating whether Mr.
Collins had developed pneumoconiosis. It has filed a brief in this pro-
ceeding supporting that proposition.
6                 COLLINS v. POND CREEK MINING CO.
estoppel effect they would receive if made by a court. See Jones v.
SEC, 115 F.3d 1173, 1178 (4th Cir. 1997). Because Mrs. Collins is
in the position of a plaintiff who was not a party to the 1988 ALJ pro-
ceeding, we must assess not only whether the general requirements
for collateral estoppel have been established, but also whether appli-
cation of the doctrine of "offensive nonmutual collateral estoppel"
might be unfair to Pond Creek in this case.4

                                    A.

   A party seeking to rely on the doctrine of collateral estoppel is
obliged to establish five elements: (1) that "the issue sought to be pre-
cluded is identical to one previously litigated" ("element one"); (2)
that the issue was actually determined in the prior proceeding
("element two"); (3) that the issue’s determination was "a critical and
necessary part of the decision in the prior proceeding" ("element
three"); (4) that the prior judgment is final and valid ("element four");
and (5) that the party against whom collateral estoppel is asserted
"had a full and fair opportunity to litigate the issue in the previous
forum" ("element five"). Sedlack v. Braswell Servs. Group, Inc., 134
F.3d 219, 224 (4th Cir. 1998). The doctrine of collateral estoppel does
not bar the relitigation of factual issues "where the party against
whom the doctrine is invoked had a heavier burden of persuasion on
that issue in the first action than he does in the second, or where his
adversary has a heavier burden in the second action than he did in the
first." Newport News Shipbldg. & Dry Dock Co. v. Dir., OWCP, 583
F.2d 1273, 1279 (4th Cir. 1978). Additionally, the doctrine of collat-
eral estoppel does not apply to a legal ruling if there has been a
"major" change in the governing law since the prior adjudication that
"could render [the] previous determination inconsistent with prevail-
ing doctrine." See Montana v. United States, 440 U.S. at 161 (citing
Comm’r v. Sunnen, 333 U.S. 591, 599 (1948)).
    4
   Collateral estoppel is "offensive" when a plaintiff seeks to "foreclose
the defendant from litigating an issue the defendant has previously liti-
gated unsuccessfully," and it is "nonmutual" when the party seeking to
rely on the earlier ruling was not a party to the earlier proceeding and is
not in privity with a party. See In re: Microsoft Corp. Antitrust Litig.,
355 F.3d 322, 326 (4th Cir. 2004) (internal quotation marks omitted).
                  COLLINS v. POND CREEK MINING CO.                      7
   In this proceeding, Mrs. Collins seeks to rely on the 1988 ALJ
Decision to establish that Mr. Collins developed pneumoconiosis as
a result of his thirty-six years in the coal mines. Without question, the
issue of whether Mr. Collins developed and suffered from pneumoco-
niosis as a result of his work in the mines was actually determined in
the 1988 proceeding (element two), and that determination was criti-
cal and necessary to the 1988 ALJ Decision (element three). Absent
a finding of pneumoconiosis, Mr. Collins could not have been
awarded black lung benefits under the Act in 1988. Moreover, there
is no suggestion that the 1988 ALJ Decision is invalid (element four),
or that Pond Creek did not have a full and fair opportunity to litigate
the issue (element five). Accordingly, Mrs. Collins has plainly estab-
lished four of the five essential elements for asserting collateral estop-
pel with respect to the 1988 ALJ Decision’s pneumoconiosis finding.
We must further assess, however, whether our Compton decision in
2000 created a difference in burdens such that "the issue sought to be
precluded is [not] identical to the one previously litigated" and ele-
ment one is not met. See Sedlack, 134 F.3d at 224; see also Newport
News Shipbldg., 583 F.2d at 1279. Moreover, if the five essential ele-
ments of collateral estoppel have been established by Mrs. Collins, we
must determine whether the 1988 ALJ Decision’s pneumoconiosis
finding has been rendered obsolete by a "major" change in the con-
trolling legal principles, as a result of Compton. See Montana v.
United States, 440 U.S. at 161.

                                    1.

   The BRB concluded that the 1988 ALJ Decision’s pneumoconiosis
ruling was not entitled to preclusive effect under the doctrine of col-
lateral estoppel "because the change in the law in [Island Creek Coal
Co. v. Compton, 211 F.3d 203 (4th Cir. 2000),] affects the fact-
finder’s weighing of the evidence," and the issue of whether Mr. Col-
lins had pneumoconiosis was therefore "not identical to the one previ-
ously litigated." 2003 BRB Decision, 22 Black Lung Rep. (MB) at 1-
233. As spelled out above, in Compton we invalidated the BRB’s
practice of allowing ALJs to find the existence of pneumoconiosis by
looking exclusively at evidence within one of 20 C.F.R.
§ 718.202(a)’s four subsections, while ignoring contrary evidence
belonging to one of the other three subsections. See 211 F.3d at 211.
In so ruling, however, we left unaltered the legal definition of pneumoco-
8                 COLLINS v. POND CREEK MINING CO.
        5
niosis, the methods by which a claimant may establish the existence
of pneumoconiosis, and the statutory requirement that a claimant must
prove that the coal miner developed pneumoconiosis by a preponder-
ance of the evidence. See id. at 209-10.

   This case, then, is unlike those in which a difference in burdens has
rendered the doctrine of collateral estoppel inapplicable. In Newport
News Shipbuilding, for example, we declined to give preclusive effect
to a prior administrative ruling that the claimant’s injury was not
work-related. See 583 F.2d at 1278-79. We observed that, in the ear-
lier proceeding, the claimant was obliged to establish "by ‘a prepon-
derance of evidence’ that his injury arose out of and in the course of
his employment," while, in the later proceeding, uncertainty concern-
ing work-relatedness was to be resolved in the claimant’s favor. See
id. (citing cases); see also Freeman United Coal Mining Co. v.
OWCP, 20 F.3d 289, 294-95 (7th Cir. 1994) (declining to accord col-
lateral estoppel effect to determination in state proceedings that
claimant was not permanently disabled; where claimant bore burden
of establishing disability in state proceedings, but was entitled to pre-
sumption of disability in federal proceedings).

   The Compton decision, however, left the burden of proof in black
lung proceedings unchanged. Prior to Compton, a black lung claimant
was obliged to establish, by a preponderance of the evidence and
through one of the four methods spelled out in § 718.202(a)’s subsec-
tions, that the coal miner had developed pneumoconiosis as a result
of his work in the mines. See Beatty v. Danri Corp. & Triangle
Enters., 16 Black Lung Rep. (MB) 1-11, 1-13 (BRB 1991). And, in
assessing whether that burden had been carried, the ALJ was permit-
ted to consider whether evidence of pneumoconiosis relating to one
of the four § 718.202(a) subsections (such as positive chest x-rays)
was discredited by contrary evidence of a different sort (such as nega-
tive physicians’ reports). See Mabe v. Bishop Coal Co., 9 Black Lung
Rep. (MB) 1-67, 1-68 (BRB 1986). That burden-of-proof regime was
    5
   As we have recognized, "the term ‘pneumoconiosis’ has both a medi-
cal and a legal definition." Compton, 211 F.3d at 210. "Legal pneumoco-
niosis is a much broader category of disease" than medical
pneumoconiosis, which is "a particular disease of the lung generally
characterized by certain opacities appearing on a chest x-ray." Id.
                 COLLINS v. POND CREEK MINING CO.                    9
left in place by Compton, but an ALJ is now obliged (rather than sim-
ply permitted) to consider any relevant countervailing evidence,
regardless of its form. Mrs. Collins thus bears the same burden (a pre-
ponderance of the evidence) to establish the same fact (that Mr. Col-
lins suffered from pneumoconiosis as a result of his thirty-six years
working in the coal mines) in the same manner (through one of the
four methods prescribed by the § 718.202(a) subsections) as Mr. Col-
lins bore in the 1988 ALJ proceeding. In these circumstances, the
issue Mrs. Collins seeks to establish though collateral estoppel — that
Mr. Collins suffered from pneumoconiosis as a result of his work in
the mines — is identical to the issue determined in the 1988 ALJ
Decision. And the BRB, in its 2005 Decision, erred in reaching a con-
trary conclusion.

                                  2.

   In declining to accord preclusive collateral estoppel effect to the
1988 ALJ Decision, the BRB also relied on its unpublished 2001
decision in Howard v. Valley Camp Coal Co., BRB No. 00-1034
(Aug. 22, 2001) (unpublished), which we affirmed by unpublished
decision in 2004, Howard v. Valley Camp Coal Co., 94 F. App’x 170
(4th Cir. 2004) (per curiam). Pursuant to our Local Rule 36(c), of
course, we ordinarily do not accord precedential value to our unpub-
lished decisions. Indeed, those decisions have no precedential value,
and they are "entitled only to the weight they generate by the persua-
siveness of their reasoning." Hupman v. Cook, 640 F.2d 497, 501 &
n.7 (4th Cir. 1981). Thus, we must consider whether the reasoning of
our unpublished decision in Howard persuades us that the 2005 BRB
Decision’s collateral estoppel ruling should be affirmed.

   In Howard, a coal miner’s widow seeking survivor’s benefits under
the Black Lung Act sought to rely on the preclusive effect of a pre-
Compton award of black lung benefits made to her late husband, and
establish that he had developed pneumoconiosis as a result of his
work in the coal mines. See 94 F. App’x at 172. Her claim as a widow
was denied by the ALJ, and that denial was affirmed by the BRB. Id.
We denied Mrs. Howard’s petition for review, concluding, inter alia,
that the BRB was correct in not according preclusive effect to the pre-
Compton pneumoconiosis determination. Id. at 173. The analysis of
that point in Howard is confined to a single conclusory sentence,
10                COLLINS v. POND CREEK MINING CO.
however, and relies on Sunnen. See id. (citing Sunnen and concluding
that "the Board . . . correctly determined that the change in interpreta-
tion of the regulations for proving pneumoconiosis, which was
effected by this court’s decision in Compton, was sufficiently signifi-
cant to warrant refusal to apply issue preclusion based on a determi-
nation of pneumoconiosis made under the pre-Compton regime").

   By its Sunnen decision, the Supreme Court concluded that a tax-
payer was not entitled to rely on the collateral estoppel effect of a
prior Tax Court judgment to establish, for all time, that certain types
of assignments were not taxable to him, notwithstanding that the sub-
stantive law had changed since the prior judgment had been rendered.
See 333 U.S. at 596-97. In so ruling, the Court observed that "collat-
eral estoppel is a doctrine capable of being applied so as to avoid an
undue disparity in the impact of income tax liability." Id. at 599. And
the Court explained that the purpose of collateral estoppel — prevent-
ing "repetitious lawsuits over matters which have once been decided
and which have remained substantially static, factually and legally"
— did not justify creating "vested rights in decisions that have
become obsolete or erroneous with time, thereby causing inequities
among taxpayers." Id. Accordingly, the Court held that "a judicial
declaration intervening between . . . two proceedings may so change
the legal atmosphere as to render the rule of collateral estoppel inap-
plicable." Id. at 600. The Court explained, however, that "where a
question of fact essential to the judgment is actually litigated and
determined in the first . . . proceeding, the parties are bound by that
determination in a subsequent proceeding." Id. at 601.

   Sunnen thus holds that a party is not entitled to rely on the doctrine
of collateral estoppel to establish a legal conclusion when the underly-
ing substantive law has materially changed; it does not, however,
authorize a party to revisit a question of fact that has been previously
determined. See 333 U.S. at 599-601; see also Montana v. United
States, 440 U.S. at 161 (explaining that, where there have been no
"major changes" in underlying substantive law, "reliance on [Sunnen]
is misplaced"); cf. Morgan v. Dep’t of Energy, 424 F.3d 1271, 1276
(Fed. Cir. 2005) ("Extending the [Sunnen] exception to collateral
estoppel to the instant case, where a party is seeking relitigation of the
legal consequence of the very same set of facts as were previously
adjudicated, would effectively gut the doctrine of collateral estop-
                  COLLINS v. POND CREEK MINING CO.                   11
pel."). Rather, a party seeking to avoid the collateral estoppel effect
of an earlier factual determination is obliged to make one of two
showings: that "the party against whom the doctrine is invoked had
a heavier burden of persuasion on that issue in the first action than he
does in the second, or [that] his adversary has a heavier burden in the
second action." See Newport News Shipbldg., 583 F.2d at 1279. And,
as explained above, Mr. Collins, in the 1988 ALJ proceeding, bore the
same burden of proof (preponderance of the evidence) to establish the
same fact (that he had developed pneumoconiosis, as defined in the
Act, through his work in the coal mines) in the same manner (through
one of the four methods described in § 718.202(a)) as Mrs. Collins
bears in the current proceeding. In these circumstances, our unpub-
lished decision in Howard is not persuasive, and we will not accord
it precedential value.

   Mrs. Collins has thus satisfied the general requirements for collat-
eral estoppel, and the ALJ and the BRB erred in ruling to the con-
trary.

                                  B.

   Additionally, because Mrs. Collins is in the position of a plaintiff
who was a non-party to the 1988 ALJ proceeding, we are obliged to
assess whether allowing her to rely on the doctrine of offensive non-
mutual collateral estoppel might be unfair to Pond Creek. Pursuant to
the Supreme Court’s explanation of that doctrine in Parklane Hosiery
Co. v. Shore, 439 U.S. 322 (1979), we are to analyze four nonexclu-
sive factors in that regard: (1) whether Mrs. Collins could easily have
joined in the earlier proceeding, (2) whether Pond Creek "had an
incentive in the prior action to have defended the action fully and vig-
orously"; (3) whether Pond Creek has ever obtained a ruling that Mr.
Collins did not suffer from pneumoconiosis; and (4) whether proce-
dural opportunities are available to Pond Creek in the present pro-
ceeding that were unavailable to it in the 1988 proceeding. See In re:
Microsoft Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir. 2004)
(citing Parklane Hosiery, 439 U.S. at 331-32).
12                COLLINS v. POND CREEK MINING CO.
                                    1.

   An assessment of each of the four Parklane Hosiery factors dis-
closes that no unfairness will result to Pond Creek from allowing Mrs.
Collins to rely on the 1988 ALJ Decision. Mrs. Collins was unable
to join Mr. Collins’s 1988 claim for black lung benefits, as spouses
of living miners with pneumoconiosis are not entitled to seek benefits
under the Act. Moreover, Pond Creek had a strong incentive to fully
and vigorously defend the 1988 ALJ proceeding. The Black Lung Act
provides that a qualifying widow shall receive benefits "at the rate the
deceased miner would have received such benefits if he were totally
disabled," see 30 U.S.C. § 922(a)(2), and Pond Creek had the same
incentive to defend Mr. Collins’s claim for living miner benefits as
it does to defend Mrs. Collins’s claim for survivor’s benefits. Addi-
tionally, there has been no finding since the 1988 ALJ Decision that
Mr. Collins did not have pneumoconiosis.6 Finally, there are no pro-
cedural opportunities currently available to Pond Creek that were
unavailable to it during the 1988 ALJ proceedings (which Pond Creek
chose not to appeal).

                                    2.

   Without specifically mentioning the Parklane Hosiery decision or
its factors, Pond Creek offers us two reasons why, in its view, a
widow seeking survivor’s benefits may not, as a general matter, rely
on the collateral estoppel effect of an earlier pneumoconiosis finding
in favor of a living miner. First, seeking to rely on our decision in
Lisa Lee Mines v. Director, OWPC, 86 F.3d 1358 (4th Cir. 1995) (en
banc), Pond Creek asserts that "the traditional principles of finality,
  6
   Although Mr. Collins filed a claim for black lung benefits under the
Act which was denied in 1981, that denial is immaterial to the present
proceeding because it occurred prior to his 1988 award of benefits. As
we have observed, a miner may develop pneumoconiosis, or his existing
pneumoconiosis might progress to the point of causing a total disability,
after he has been initially denied black lung benefits. See Lisa Lee Mines
v. Dir., OWPC, 86 F.3d 1358, 1362 (4th Cir. 1996) (en banc). Accord-
ingly, the fact that Mr. Collins was denied black lung benefits in 1981
in no way suggests that it would be unfair to Pond Creek for Mrs. Collins
to rely on the collateral estoppel effect of the 1988 ALJ Decision.
                  COLLINS v. POND CREEK MINING CO.                     13
res judicata, collateral estoppel, and ‘law of the case’ are not applica-
ble to an issue which is an element of entitlement in black lung
cases." Respondent Pond Creek’s Br. at 14. In Lisa Lee Mines, we
concluded that, because a miner’s condition may worsen after he has
been denied black lung benefits, a prior denial of benefits does not
preclude him from initiating a subsequent claim for benefits under the
Act. See 86 F.3d at 1362. Pond Creek, however, has not pointed us
to any evidence that a miner who has developed pneumoconiosis may
somehow be cured of or recover from that disease, and Lisa Lee
Mines is therefore inapplicable. Furthermore, we did not hold in Lisa
Lee Mines that principles of finality have no place in black lung pro-
ceedings, and we decline Pond Creek’s invitation to transform the
already burdensome process of black lung litigation into a Sisyphean
endeavor.7

   Second, Pond Creek contends that, due to the potential availability
of some post-mortem pathology, a widow should not be permitted to
rely on the collateral estoppel effect of a prior pneumoconiosis deter-
mination. We should not pause over the absence of post-mortem
pathology in the present case, Pond Creek maintains, because, the
"[c]laimant alone makes the decision to obtain or not obtain an
autopsy." Respondent Pond Creek’s Br. at 15 n.4. In Pond Creek’s
view, allowing a coal miner’s widow to rely on the collateral estoppel
effect of a living miner’s benefits award would "work a manifest
injustice," by permitting the widow to "decline an autopsy and urge
the application of ‘collateral estoppel,’ [thereby depriving] the liable
party of the due process opportunity to conclusively confirm the pres-
ence or absence of pneumoconiosis." Id.

   Pond Creek’s concern that a coal miner’s widow might "decline an
autopsy and urge the application of ‘collateral estoppel’" ignores the
fact that a widow cannot succeed in her claim for survivor’s benefits
without further establishing that pneumoconiosis hastened her hus-
band’s death. See 20 C.F.R. § 718.205(c)(2) & (5). In so doing, she
may desire or need an autopsy. And, of course, if that autopsy conclu-
  7
   In Greek mythology, Sisyphus was compelled to spend his afterlife
eternally pushing a giant boulder to the top of a steep hill, only to have
the boulder escape and roll back to the bottom.
14                COLLINS v. POND CREEK MINING CO.
sively confirmed the absence of pneumoconiosis, it would also show
that pneumoconiosis did not hasten the miner’s death.8

   In these circumstances, we agree with the Seventh Circuit that a
coal miner’s widow seeking survivor’s benefits under the Black Lung
Act may generally rely on the doctrine of offensive nonmutual collat-
eral estoppel to establish that, as a result of his work in the mines, her
deceased husband had developed pneumoconiosis. See Ziegler Coal
Co. v. Dir., OWCP, 312 F.3d 332, 334 (7th Cir. 2002). And, having
carefully examined the four Parklane Hosiery factors and Pond
Creek’s contentions, allowing Mrs. Collins to rely on offensive non-
mutual collateral estoppel would not be unfair to Pond Creek.
Accordingly, the ALJ and the BRB erred in permitting Pond Creek
to relitigate, in the widow’s proceedings for benefits, the issue of
whether Mr. Collins suffered from pneumoconiosis as a result of his
thirty-six years of coal mine employment.9

                                   IV.

   Finally, in order to succeed in her claim for survivor’s benefits,
Mrs. Collins is obliged to show that Mr. Collins’s death was hastened
by pneumoconiosis. See 20 C.F.R. § 718.205(c)(2) & (5). Notably,
the ALJ has determined — in a causation ruling affirmed by the BRB
— that even assuming Mrs. Collins proved the existence of pneumo-
coniosis, she failed to establish that the disease hastened her hus-
band’s death. If it were supported by substantial evidence, this
causation ruling would be a sufficient alternative ground on which to
  8
     Pond Creek further suggests that operators have a due process right
to "confirm the presence or absence of pneumoconiosis" through an
autopsy. Respondent Pond Creek’s Br. at 15 n.4. In the same breath,
however, Pond Creek acknowledges that responsible operators have no
right to require such autopsies to be performed. See id. Pond Creek has
not asserted that the current black lung claim procedures are constitution-
ally infirm because they do not mandate that autopsies be performed in
all survivor’s benefits proceedings.
   9
     Because the 1988 ALJ Decision precludes relitigation of whether Mr.
Collins developed pneumoconiosis, we need not reach and address the
question of whether the finding of no pneumoconiosis, as made in the
2004 ALJ Decision, is supported by substantial evidence.
                    COLLINS v. POND CREEK MINING CO.                    15
deny Mrs. Collins’s petition for review. In view of the reason on
which the BRB affirmed the ALJ’s ruling, however, we cannot
uphold the BRB’s decision.

   In rendering his causation ruling, the ALJ rejected the opinions of
two physicians for Mrs. Collins as unreasoned and undocumented,
and instead relied on the views of seven physicians for Pond Creek
— each of whom had opined that Mr. Collins did not suffer from
pneumoconiosis at all (much less die due to such disease).10 After crit-
icizing the opinions of Mrs. Collins’s physicians as "cursory," the
ALJ himself cursorily explained his reliance on Pond Creek’s physi-
cians, as follows:

          In contrast to the cursory opinions of [Mrs. Collins’s phy-
       sicians], [Pond Creek’s physicians] provided better reasoned
       and documented opinions regarding the "death due to pneu-
       moconiosis" issue. Moreover, many of the foregoing physi-
       cians explained why their opinions regarding the absence of
       a role of pneumoconiosis in the miner’s death would not
       change, even assuming the presence of radiological evi-
       dence of the disease.

2004 ALJ Decision at 14. On appeal to the BRB, Mrs. Collins
invoked our decision in Scott v. Mason Coal Co., 289 F.3d 263 (4th
Cir. 2002), for the proposition that, since she had established the exis-
tence of pneumoconiosis, it was improper for the ALJ to rely as he
did on the causation opinions of physicians who had failed to diag-
nose the disease. See Scott, 289 F.3d at 269 (holding that, in wake of
finding of pneumoconiosis, ALJ must "provide[ ] specific and persua-
sive reasons for" relying on causation opinions of physicians who
have not diagnosed pneumoconiosis and, even then, can give such
opinions "little weight, at the most"). The BRB deemed Scott inappo-
site and affirmed the ALJ’s causation ruling, concluding that "because
the [ALJ] did not find the existence of pneumoconiosis established in
this case, he could properly rely on the causation opinions of physi-
  10
   Pond Creek’s physicians each rejected a diagnosis of medical pneu-
moconiosis, as well as the existence of the more broadly defined legal
pneumoconiosis. See supra note 5.
16                COLLINS v. POND CREEK MINING CO.
cians who did not diagnose pneumoconiosis." 2005 BRB Decision at
6.

   Of course, the BRB’s decision rested squarely on the ALJ’s finding
of no pneumoconiosis — a finding that we have rejected herein on the
ground that Mrs. Collins established the presence of pneumoconiosis
by collateral estoppel. Upon the proper finding of pneumoconiosis,
the BRB should have assessed the ALJ’s causation ruling under the
standards outlined by our decision in Scott. In that case, the ALJ
found that although Scott (a living miner) suffered from pneumoconi-
osis, he had failed to show that any total disability was caused at least
in part by that disease. See Scott, 289 F.3d at 268. For that ruling, the
ALJ rejected the causation analysis of a physician who had also
opined that Scott was disabled by pneumoconiosis, and instead relied
on the contrary opinions of two physicians who had not diagnosed
Scott with pneumoconiosis at all. See id. at 267-68. The BRB
approved the ALJ’s reliance on the latter physicians, "because both
doctors stated that their [causation] opinion would not change if Scott
had pneumoconiosis and because both doctors’ opinions were clearly
stated, fully documented, and highly persuasive." Id. at 268.

   We, however, reversed the BRB’s decision affirming the ALJ’s
causation ruling as not supported by substantial evidence. Writing for
the Court, Judge Widener explained that the ALJ could only give
weight to the causation opinions of the physicians who had not diag-
nosed pneumoconiosis "if he provided specific and persuasive reasons
for doing so, and those opinions could carry little weight, at the
most." Scott, 289 F.3d at 269 (citing Toler v. E. Associated Coal Co.,
43 F.3d 109 (4th Cir. 1995)). In the circumstances of Scott’s case —
which seem to compare closely to those presented here — the ALJ’s
reasons for crediting the causation opinions of the non-diagnosing
physicians were regarded to be insufficient, and the ALJ’s exclusive
reliance on those opinions was deemed to be erroneous. See id. We
were particularly concerned with the ALJ’s wholesale rejection of the
diagnosing physician’s causation opinion and corresponding over-
reliance on the non-diagnosing physicians’ contrary views. In the
compelling words of Judge Widener:

     Two opinions that may hold no weight, or at most may hold
     the little weight allowed by Toler, cannot suffice as substan-
                  COLLINS v. POND CREEK MINING CO.                    17
    tial evidence to support the ALJ determination that Scott’s
    [disability] was not caused at least in part by pneumoconio-
    sis. This is especially true when one causation opinion based
    on the proper diagnosis, even a poorly documented one,
    links the disability to pneumoconiosis.

Id. at 270. Although we remanded with directions to award benefits
in Scott, we see the appropriate course here as a remand for further
consideration of the causation issue. In that regard, the BRB will have
the first opportunity to assess whether the ALJ’s causation ruling
meets the rigorous standards outlined in Scott.

                                   V.

   Pursuant to the foregoing, we grant Mrs. Collins’s petition for
review, vacate the 2005 BRB Decision, and remand for such other
and further proceedings as may be appropriate.

                               PETITION FOR REVIEW GRANTED;
                               ORDER VACATED AND REMANDED

SHEDD, Circuit Judge, dissenting:

   The Administrative Law Judge ("ALJ"), affirmed by the Benefits
Review Board ("BRB"), denied Mrs. Collins’ claim for black lung
survivor’s benefits based on two alternative, independent factual find-
ings. First, the ALJ found that Mrs. Collins failed to prove that Mr.
Collins suffered from pneumoconiosis. In making this finding, the
ALJ rejected Mrs. Collins’ assertion that Pond Creek Mining Com-
pany should be collaterally estopped by Mr. Collins’ black lung living
miner determination from relitigating the question of whether Mr.
Collins suffered from pneumoconiosis. Second, the ALJ found that
even assuming that Mr. Collins suffered from pneumoconiosis, Mrs.
Collins nonetheless failed to prove that his death was due to pneumo-
coniosis. In my view, both of the ALJ’s factual findings are supported
by substantial evidence, and either is independently dispositive of
Mrs. Collins’ claim. Moreover, the ALJ’s decision not to apply collat-
eral estoppel — an issue that relates only to the first of the two alter-
native factual findings — is correct under the circumstances of this
18                COLLINS v. POND CREEK MINING CO.
case. Accordingly, I dissent from the majority’s decision to grant the
petition for review.

                                   I

   We review Mrs. Collins’ claim to determine whether substantial
evidence supports the ALJ’s factual findings and whether the legal
conclusions of the BRB and the ALJ are rational and consistent with
applicable law. Bill Branch Coal Corp. v. Sparks, 213 F.3d 186, 190
(4th Cir. 2000). To succeed on her claim, Mrs. Collins bears the bur-
den of proving by a preponderance of the evidence that (1) Mr. Col-
lins suffered from pneumoconiosis; (2) the pneumoconiosis arose at
least in part out of coal mine employment; and (3) Mr. Collins’ death
was due to pneumoconiosis. Id. Generally, pursuant to 20 C.F.R.
§ 718.202(a), Mrs. Collins may establish the existence of pneumoco-
niosis by means of (1) chest x-rays, (2) biopsy or autopsy evidence,
(3) invocation of the presumptions at 20 C.F.R. §§ 718.304-718.306,
or (4) medical opinion evidence. She may establish that Mr. Collins’
death was due to pneumoconiosis by proving that pneumoconiosis
actually hastened his death. Sparks, 213 F.3d at 190 (citations omit-
ted).

                                   II

   Evidence in the record indicates that Mr. Collins was a coal miner,
as well as a pack-a-day cigarette smoker, for over 40 years. Approxi-
mately one year before his death in 1997, Mr. Collins’ heart began to
fail. In September 1997, Mr. Collins went into full cardiopulmonary
arrest; he was resuscitated and transported to the hospital, where he
was placed on a ventilator. Mr. Collins remained in the hospital two
weeks after his cardiac arrest. A day after being discharged from the
hospital, Mr. Collins again suffered an acute cardiac arrest and died
at home. No autopsy was performed.

   Shortly thereafter, Mrs. Collins filed her claim for survivor’s bene-
fits. Proper consideration of the issues involved in Mrs. Collins’ claim
requires us to examine Mr. Collins’ claim for living miner benefits as
well as our decision in Island Creek Coal Company v. Compton, 211
F.3d 203 (4th Cir. 2000).
                 COLLINS v. POND CREEK MINING CO.                   19
                                  A.

   In 1988, an ALJ awarded living miner benefits to Mr. Collins, find-
ing that he suffered from pneumoconiosis. Considering the four meth-
ods by which a claimant may establish the existence of
pneumoconiosis, the ALJ concluded that Mr. Collins’ proof failed
with respect to each of the first three methods. Specifically, although
the ALJ recognized that there were differing opinions concerning the
chest x-rays, he accorded greater weight to the opinions of two B-
readers who read Mr. Collins’ x-rays and found no evidence of pneu-
moconiosis. The ALJ then found that there was no biopsy or autopsy
evidence in the record and that the presumptions were not applicable.

   The ALJ further found, however, that Mr. Collins established the
presence of pneumoconiosis under the fourth method. Although one
physician had opined that Mr. Collins did not suffer from pneumoco-
niosis, the ALJ accorded greater weight to the opinions of two other
physicians who had reached contrary conclusions. The ALJ’s stated
analysis for finding pneumoconiosis — i.e., "through physician’s
reports as provided in Section 718.202(a)(4)," J.A. 19 — suggests that
he considered each method of proof individually without regard for
the others. This decision was not appealed.

                                  B.

   In 2000, before Mrs. Collins’ claim for survivor’s benefits was
decided, we decided Compton, which involved a claim for living
miner’s benefits. The ALJ in Compton awarded benefits, finding (in
pertinent part) that although the miner had not established pneumoco-
niosis by chest x-rays, he did establish pneumoconiosis by physician
opinion evidence. There was no biopsy or autopsy evidence, and the
presumptions described in § 718.202(a)(3) were not applicable.

   The BRB affirmed the ALJ decision, and the company petitioned
for review, arguing in part that the ALJ "erred in his method of
weighing the evidence" concerning the issue of whether the miner
suffered from pneumoconiosis. 211 F.3d at 208. Elaborating on this
argument, the company contended that the ALJ "merely weighed the
evidence within each subsection [of § 718.202(a)] . . . to determine
whether a preponderance of that type of evidence established pneu-
20                COLLINS v. POND CREEK MINING CO.
moconiosis." 211 F.3d at 208. Instead of this analysis, the company
argued that "the proper method is to weigh the different types of evi-
dence together to determine whether a preponderance of all of the
evidence establishes the existence of pneumoconiosis." Id.

   We noted that the ALJ "did in fact evaluate the evidence within
subsections (a)(1) and (a)(4) of § 718.202 to determine whether either
type of evidence established pneumoconiosis, but did not weigh the
X-ray evidence with the medical opinion evidence." 211 F.3d at 208.
We further noted that the BRB "approved of this practice," ruling
"that as long as the evidence relevant to one subsection of
§ 718.202(a) supports a finding of pneumoconiosis, the rest of the
evidence need not be considered." 211 F.3d at 208. We then expressly
rejected the BRB’s analysis. Looking to 30 U.S.C. § 923(b), which
governs the evidence required to establish a claim for black lung ben-
efits, we held that "all relevant evidence is to be considered together
rather than merely within discrete subsections of § 718.202(a)." 211
F.3d at 208. Applying this holding, we vacated the award of benefits
and remanded the case with instructions for the ALJ to "weigh the x-
ray evidence with the physicians’ opinions to determine whether [the
miner] established the existence of pneumoconiosis by a preponder-
ance of all of the evidence." 211 F.3d at 211; see also Consolidation
Coal Co. v. Held, 314 F.3d 184 (4th Cir. 2002) (applying Compton
and vacating award of benefits based on the ALJ’s failure to properly
weigh all of the evidence together).

                                  C.

   In 2004, while Mrs. Collins’ claim was still pending, we decided
Howard v. Valley Camp Coal Company, 94 Fed. Appx. 170 (4th Cir.
2004) (unpublished), which involved a claim for survivor benefits.
Because the living miner in Howard had successfully obtained bene-
fits (in a pre-Compton claim), the miner’s surviving spouse asserted
that collateral estoppel precluded the company from relitigating the
issue of whether the miner suffered from pneumoconiosis. Although
the ALJ held that the company was collaterally estopped, the BRB
reversed based on the analytical change effected by Compton. As the
BRB explained:

     At the time of . . . the miner’s claim, evidence sufficient to
     establish pneumoconiosis under one of the four methods set
                 COLLINS v. POND CREEK MINING CO.                     21
    out at 20 C.F.R. section 718.202(a)(1)-(4) obviated the need
    to do so under any of the other methods. See Dixon v. North
    Camp Coal Co., 8 BLR 1-344 (1985). However, subsequent
    to the issuance of the award of benefits in the miner’s claim,
    the Fourth Circuit held that although Section 718.202(a)
    enumerates four distinct methods of establishing pneumoco-
    niosis, all types of relevant evidence must be weighed
    together to determine whether a miner suffers from the dis-
    ease. See Island Creek Coal Co. v. Compton, 211 F.3d 203
    (4th Cir. 2000). . . . In light of the change in law enunciated
    in Compton, which overruled the Board’s holding in Dixon,
    the issue of whether the existence of pneumoconiosis has
    been established pursuant to Section 718.202(a) . . . is not
    identical to the one previously litigated and actually deter-
    mined in the miner’s claim.

Howard, 94 Fed. Appx. at 172 (quoting the BRB).

   We affirmed the BRB. Citing C.I.R. v. Sunnen, 333 U.S. 591, 600
(1948), for the proposition that "a judicial declaration intervening
between . . . two proceedings may so change the legal atmosphere as
to render the rule of collateral estoppel inapplicable," we concluded
that the BRB "correctly determined that the change in interpretation
of the regulations for proving pneumoconiosis, which was effected by
this court’s decision in Compton, was sufficiently significant to war-
rant refusal to apply issue preclusion based on a determination of
pneumoconiosis made under the pre-Compton regime." Howard, 94
Fed. Appx. at 173.

                                  III

   Against this backdrop, the ALJ denied Mrs. Collins’ claim for sur-
vivor’s benefits based on two alternative grounds: (1) her failure to
prove that Mr. Collins suffered from pneumoconiosis and (2) her fail-
ure in any event to prove that his death was due to pneumoconiosis.
The BRB affirmed on both grounds.

                                  A.

   Concerning the pneumoconiosis finding, the ALJ and the BRB first
rejected Mrs. Collins’ contention that Pond Creek should be collater-
22                COLLINS v. POND CREEK MINING CO.
ally estopped by Mr. Collins’ living miner proceeding from relitigat-
ing whether he suffered from pneumoconiosis. Although both the ALJ
and the BRB recognized that collateral estoppel is generally applica-
ble in black lung survivor’s proceedings, they found the doctrine to
be inapplicable because of our intervening decision in Compton and
the BRB’s decision in Howard. As the BRB explained:

     [B]ecause the change in the law in Compton affects the fact-
     finder’s weighing of the evidence, the issue [of pneumoco-
     niosis] is not identical to the one previously litigated.

     ...

     [U]nder the facts of the present case the administrative law
     judge properly held that relitigation of the issue of the exis-
     tence of pneumoconiosis was appropriate, since it was not
     clear that the original administrative law judge weighed all
     types of relevant evidence together consistent with Compton
     in adjudicating the miner’s claim.

J.A. 654, 675-76.

   Having determined that collateral estoppel did not apply, the ALJ
then proceeded to consider whether Mrs. Collins proved by a prepon-
derance of the evidence that Mr. Collins suffered from pneumoconio-
sis. After analyzing the x-ray evidence and medical opinion evidence,
the ALJ found that the x-rays were inconclusive and that the better
reasoned and documented medical opinions did not establish the exis-
tence of pneumoconiosis. Pursuant to Compton, the ALJ then
weighed the inconclusive x-ray evidence together with the medical
opinion evidence and found that Mrs. Collins failed to establish that
Mr. Collins suffered from pneumoconiosis. As noted, the BRB
affirmed this finding.

                                   B.

  Apart from the foregoing, the ALJ also considered whether Mrs.
Collins proved by a preponderance of the evidence that Mr. Collins’
death was due to pneumoconiosis. In doing so, the ALJ expressly
                   COLLINS v. POND CREEK MINING CO.                      23
assumed for the purposes of the analysis that Mrs. Collins had estab-
lished that Mr. Collins suffered from pneumoconiosis as a result of
coal mine employment.1 The ALJ then rejected as "cursory" the opin-
ions of two doctors who found a causal link between Mr. Collins’
death and pneumoconiosis, finding instead that seven other doctors
"provided better reasoned and documented opinions regarding the
‘death due to pneumoconiosis’ issue." J.A. 754. The ALJ further
noted that "many of the foregoing physicians explained why their
opinions regarding the absence of a role of pneumoconiosis in [Mr.
Collins’] death would not change, even assuming the presence of
radiological evidence of the disease." J.A. 754. Again, the BRB
affirmed this finding.

                                    IV

   Mrs. Collins makes two principal arguments in support of her peti-
tion for review. First, she argues that the BRB and the ALJ erred by
declining to collaterally estop Pond Creek from contesting whether
Mr. Collins suffered from pneumoconiosis. Second, she argues that
even if collateral estoppel does not apply, the ALJ failed to give
proper consideration to the medical evidence concerning the presence
of pneumoconiosis and whether pneumoconiosis caused Mr. Collins’
death.2 Pond Creek urges us to deny the petition for review, arguing
that the BRB and ALJ properly declined to apply collateral estoppel,
and that the ALJ’s findings that Mrs. Collins failed to prove the exis-
tence of pneumoconiosis or that Mr. Collins’ death was due to pneu-
moconiosis are supported by substantial evidence.

  1
     Of course, in this posture, the ALJ effectively treated the claim as if
Pond Creek was collaterally estopped from contesting whether Mr. Col-
lins suffered from pneumoconiosis.
   2
     As the majority notes, the Director agrees with Mrs. Collins on the
collateral estoppel issue. However, the Director also points out that the
ALJ’s "alternative finding" that Mr. Collins’ death was not due to pneu-
moconiosis "raises the question whether any error involving the judge’s
pneumoconiosis finding is harmless." Brief for the Federal Respondent,
at 4 n.1. The Director expressly refrained from addressing this issue. See
id.
24                 COLLINS v. POND CREEK MINING CO.
                                     A.

   In vacating the BRB decision and remanding this case, the majority
primarily holds that Pond Creek is collaterally estopped from contest-
ing whether Mr. Collins suffered from pneumoconiosis. I disagree.

   "The collateral estoppel doctrine is a judge-made rule," Ritter v.
Mount St. Mary’s College, 814 F.2d 986, 994 (4th Cir. 1987), which
provides that "once a court has decided an issue of fact or law neces-
sary to its judgment, that decision may preclude relitigation of the
issue in a suit on a different cause of action involving a party to the
first case," San Remo Hotel, L.P. v. City and County of San Fran-
cisco, Cal., 545 U.S. 323, 125 S. Ct. 2491, 2500 n.16 (2005) (citation
and quotation marks omitted). When, as here, a litigant attempts to
use collateral estoppel offensively, the determination of whether the
doctrine should be applied is within the "broad discretion" of the trial
court, Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979), but
the court should proceed "cautiously," and "the criteria for foreclosing
a defendant from relitigating an issue or fact [should] be applied
strictly," In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 326-27
(4th Cir. 2004). "The burden is on the party asserting collateral estop-
pel to establish its predicates. . . ." Allen v. Zurich Ins. Co., 667 F.2d
1162, 1166 (4th Cir. 1982).

   "Collateral estoppel is subject to exceptions when the circum-
stances dictate." Bingaman v. Department of Treas., 127 F.3d 1431,
1437 (Fed. Cir. 1997).3 One example of this principle is that "a judi-
cial declaration intervening between . . . two proceedings may so
change the legal atmosphere as to render the rule of collateral estop-
pel inapplicable." Sunnen, 333 U.S. at 600; see also Montana v.
United States, 440 U.S. 147, 155 (1979) (noting that the "appropriate
application of collateral estoppel" may necessitate an inquiry as to
  3
    Collateral estoppel is related to res judicata. Parklane Hosiery, 439
U.S. at 326. We have held that "[r]es judicata of administrative deci-
sions is not encrusted with the rigid finality that characterizes the precept
in judicial proceedings. Application of the doctrine often serves a useful
purpose in preventing relitigation of issues administratively determined,
but practical reasons may exist for refusing to apply it." Grose v. Cohen,
406 F.2d 823, 824-25 (4th Cir. 1969) (citations omitted).
                  COLLINS v. POND CREEK MINING CO.                      25
whether "controlling facts or legal principles have changed signifi-
cantly" since the first case). Thus, collateral estoppel "will not pre-
clude relitigation of the issue when there is a substantial difference in
the procedures employed by the prior and current tribunals, [or] a
material intervening change in governing law or the burden of persua-
sion. . . ." Duvall v. Attorney Gen. of U.S., 436 F.3d 382, 391 (3d Cir.
2006); see also Stanback v. C.I.R., 271 F.2d 514, 519 (4th Cir. 1959)
("The doctrine of collateral estoppel has no place when the ground
rules have been so extensively changed that a new question is pre-
sented.").

   In my view, the BRB correctly recognized that our decision in
Compton constitutes the type of significant legal change that counsels
against the application of collateral estoppel. Although the majority
attempts to minimize Compton by stating that it "left the burden of
proof in black lung proceedings unchanged," this point misses the
mark. It is true that Compton did not change the burden of proof in
black lung proceedings, but it is equally true that Compton changed
the analytical framework to be employed by the factfinder who is
considering whether the miner suffered from pneumoconiosis. Before
Compton, ALJs were permitted to do exactly what the ALJ appears
to have done with respect to Mr. Collins’ living miner claim: i.e.,
make a finding of pneumoconiosis based only on evidence relevant
to any one of the four subsections of § 718.202(a), without consider-
ing and weighing evidence relevant to the other subsections. In
Compton, we expressly rejected this framework, holding instead that
"all relevant evidence is to be considered together rather than merely
within discrete subsections of § 718.202(a)." 211 F.3d at 208.4 For
this reason, I disagree with the majority’s decision to apply collateral
estoppel in this case.
  4
   Although Mrs. Collins and the Director assert that Compton actually
did not effect a change in the law that existed in 1988, I am not per-
suaded that they are correct in that assertion, especially in light of the
fact that it is contrary to the BRB’s interpretation of its own caselaw
(e.g., as expressed in the Howard proceedings). Moreover, the majority
implicitly appears to reject that assertion as well. See, e.g., Opinion, at
7 ("in Compton, we invalidated the BRB’s practice of allowing ALJs to
find the existence of pneumoconiosis by looking exclusively at evidence
within one of 20 C.F.R. § 718.202(a)’s four subsections, while ignoring
contrary evidence belonging to one of the other three subsections").
26                COLLINS v. POND CREEK MINING CO.
   Without the bar of collateral estoppel, the question of whether Mr.
Collins suffered from pneumoconiosis for purposes of Mrs. Collins’
case is very much at issue and is subject to our substantial evidence
review. I believe that substantial evidence supports the ALJ’s finding,
made in accord with Compton, that Mr. Collins did not suffer from
pneumoconiosis. Therefore, Mrs. Collins’ claim fails on this ground,
and her petition for review should be denied.

                                   B.

   As noted, the ALJ found alternatively, based on the express
assumption that Mr. Collins suffered from pneumoconiosis, that Mr.
Collins’ death was not due to pneumoconiosis. Because Mrs. Collins
failed in my opinion to prove that Mr. Collins suffered from pneumo-
coniosis, it is not necessary for me to reach this issue. However, I note
that the ALJ’s causation finding is supported by substantial evidence
and also warrants denial of Mrs. Collins’ petition for review.5

                                    V

  Based on the foregoing, I dissent from the majority’s decision. I
would deny the petition for review.

  5
    The majority, relying on Scott v. Mason Coal Company, 289 F.3d 263
(4th Cir. 2002), which did not involve collateral estoppel, deems it
appropriate to remand this case to the BRB for further consideration of
causation. Regardless of whether the majority is correct that Scott is
applicable in a case such as this where a pneumoconiosis finding is
premised solely on collateral estoppel rather than on an ALJ’s factual
finding, Scott does not affect my analysis. I believe that Mrs. Collins
failed to prove the presence of pneumoconiosis by either collateral estop-
pel or the evidence in this case. Accordingly, in my view, there is no
inconsistency in the ALJ’s alternate finding that Mrs. Collins failed to
establish causation.
