                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


EASTERN ASSOCIATED COAL                 
CORPORATION,
                          Petitioner,
                 v.
DIRECTOR, OFFICE OF WORKERS’                    No. 03-1604
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
JAMES H. DUELLEY,
                      Respondents.
                                        
               On Petition for Review of an Order
                 of the Benefits Review Board.
                          (01-957-BLA)

                      Argued: January 20, 2004

                       Decided: July 29, 2004

   Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Mark Elliott Solomons, GREENBERG TRAURIG,
L.L.P., Washington, D.C., for Petitioner. Helen Hart Cox, Office of
Workers’ Compensation Programs, UNITED STATES DEPART-
MENT OF LABOR, Washington, D.C., for Director; James Hook,
Waynesburg, Pennsylvania, for Respondent Duelley. ON BRIEF:
2           EASTERN ASSOCIATED COAL v. DIRECTOR, OWCP
Laura Metcoff Klaus, GREENBERG TRAURIG, L.L.P., Washing-
ton, D.C., for Petitioner. Howard M. Radzely, Acting Solicitor of
Labor, Donald S. Shire, Associate Solicitor, Patricia M. Nece, Coun-
sel for Appellate Litigation, Office of the Solicitor, UNITED
STATES DEPARTMENT OF LABOR, for Director.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Eastern Associated Coal Corporation (EACC) petitions for review
of an order of the Benefits Review Board (Board) affirming the deci-
sion of the administrative law judge (ALJ), denying EACC’s motion
for modification of the grant of benefits to James H. Duelley. For the
reasons that follow, we affirm the Board’s decision.

   We previously affirmed the grant of benefits to Duelley based on
EACC’s failure to respond to the Department of Labor’s (DOL)
Notice of Initial Findings within the required time. E. Associated Coal
Corp. v. Dir., Office of Workers’ Compensation Programs, 1998 WL
957453 (4th Cir. 1998) (unpublished per curiam opinion). The Notice
of Initial Findings, issued March 7, 1990, stated that the DOL had
found that Duelley was totally disabled due to pneumoconiosis and
thus, entitled to benefits. Id. at **1. EACC conceded that it did not
file its response within the required time but argued that it had good
cause for the late filing. Id. We held that, under the relevant statute
and regulations, a failure to file a timely controversion of a Notice of
Initial Findings barred EACC from contesting any issues covered by
that notice in any further proceeding:

    We note that, pursuant to statutory authority, the Secretary
    of Labor has established a regulatory framework governing
    the filing and adjudication of black lung claims. See 30
           EASTERN ASSOCIATED COAL v. DIRECTOR, OWCP                 3
    U.S.C.A. §§ 932(a), 936(a) (West 1986 & Supp. 1998). The
    district director of the Office of Workers’ Compensation
    Programs of the Department of Labor has authority to pro-
    cess the claim, determine the responsible operator and make
    an initial determination regarding entitlement. See 20 C.F.R.
    §§ 725.401, 725.412 (1997). If an initial determination is
    made finding the coal miner is entitled to benefits, the
    responsible operator has thirty days from the date of the
    notice to contest the determination. An operator who fails to
    file a timely response shall be deemed to have accepted the
    initial findings of the deputy commissioner and shall not be
    permitted to raise issues or present evidence with respect to
    issues inconsistent with the initial findings in any further
    proceeding conducted with respect to the claim. Good cause
    may excuse an operator’s failure to submit a timely
    response. See 20 C.F.R. §§ 725.413(b)(3), 725.414(b)
    (1997).

Id. at **3. We also held that the ALJ did not abuse its discretion in
finding that EACC had not demonstrated good cause for its late filing.
Id. at **4.

    After our decision, on June 23, 1999, EACC filed a motion for
modification based on a mistake of fact, arguing that the decision con-
tained a mistake of fact because Duelley was not totally disabled due
to pneumoconiosis. The ALJ denied the motion, finding that EACC
had not demonstrated that the relevant finding — i.e., the finding that
EACC did not have good cause for its late filing — was a mistake in
a determination of fact. EACC appealed the ALJ’s denial to the
Board. EACC argued that the ALJ erred by confining its review to the
determination that EACC had not demonstrated good cause for its late
filing. Instead, EACC contended, the ALJ should have considered
whether the medical evidence supported the conclusion that Duelley
was totally disabled by pneumoconiosis. The Board affirmed the
ALJ’s decision, holding that

    [A]n employer may file a motion for modification of an
    administrative law judge’s finding that good cause for an
    untimely controversion has not been established pursuant to
    Section 725.413(b)(3) (2000). If an employer does not
4              EASTERN ASSOCIATED COAL v. DIRECTOR, OWCP
        establish good cause for its untimely controversion, how-
        ever, an administrative law judge does not have the author-
        ity to consider the case on the merits, see 20 C.F.R.
        § 725.413(b)(3) (2000). Thus, we reject the employer’s con-
        tention that a motion for modification of a finding that good
        cause has not been established entitles employer to seek
        modification on the merits. To accept employer’s contention
        would render any finding as to whether employer had good
        cause for its untimely controversion irrelevant, unnecessary
        or moot and render the regulatory consequence of employ-
        er’s failure to establish good cause for an untimely con-
        troversion meaningless.

(J.A. at 18.)

   We review de novo the legal question of whether EACC can con-
test the merits of Duelley’s claim in a motion for modification when
benefits were granted based on a failure to demonstrate good cause
for an untimely response to the DOL’s Notice of Initial Findings. See
Island Creek Coal Co. v. Compton, 211 F.3d 203, 208 (4th Cir. 2000).
Under the plain language of 20 C.F.R. § 725.413(b)(3), by failing to
file a timely controversion of the Notice of Initial Findings, EACC
waived its right to contest the claim "in any further proceeding con-
ducted with respect to the claim." 20 C.F.R. § 725.413(b)(3) (2000).1
A motion for modification is plainly a further proceeding conducted
with respect to the claim. The Director of the Office of Workers’
Compensation Programs agrees with this interpretation of
§ 725.413(b)(3). "The Director’s interpretation of [a regulation] is
entitled to substantial deference unless it is plainly erroneous or
inconsistent with the regulation." Jessee v. Dir., Office of Workers’
    1
    As the Board noted, "[t]his case involves a motion for modification
filed pursuant to 20 C.F.R. § 725.310 (2000), but not pursuant to the
revised regulation at 20 C.F.R. § 725.310, which is only applicable to
claims filed after January 19, 2000, see 20 C.F.R. § 725.2(c)." (J.A. at
18.) "In addition, a relevant issue in this case is whether employer estab-
lished good cause for its untimely controversion pursuant to 20 C.F.R.
§ 725.413 (2000), but not pursuant to the revised regulation at 20 C.F.R.
§ 725.412, which is only applicable to claims filed after January 19,
2000, see 20 C.F.R. § 725.2(c)." (J.A. at 18.)
            EASTERN ASSOCIATED COAL v. DIRECTOR, OWCP                     5
Compensation Programs, 5 F.3d 723, 725 (4th Cir. 1993) (internal
quotation marks omitted). Here, the Director’s interpretation of the
regulation is neither plainly erroneous nor inconsistent with the regu-
lation. In fact, it is the only reading that is consistent with the regula-
tion. Accordingly, EACC may not use a motion for modification to
circumvent the consequences of its failure to file a timely controversion.2
   The modification statute, 33 U.S.C.A. § 922 (West 2001), does not
require a different result. EACC is not precluded from filing for modi-
fication. To the contrary, if EACC could demonstrate a mistake of
material fact in the ALJ’s decision, then EACC would be entitled to
modification. The basis for the modification, however, must relate to
the prior underlying decision, which in this case was the ALJ’s find-
ing that EACC failed to establish good cause for its untimely con-
troversion pursuant to § 725.413(b)(3). In its motion for modification,
EACC merely reiterated the reasons for its late filing that were
rejected in the prior appeal. It failed to present any evidence that there
was a mistake of fact in the determination that it lacked good cause.
Accordingly, substantial evidence supports the ALJ’s finding that
EACC did not show that there was a mistake of fact in the prior order.
See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998)
(holding that we review findings of fact to determine if they are sup-
ported by substantial evidence).
   We agree with the Board that to accept EACC’s position would
render the good cause determination irrelevant and meaningless, and
this we decline to do. Accordingly, for the reasons articulated by the
Board, we affirm the denial of EACC’s motion for modification.
                                                              AFFIRMED
  2
   EACC points to National Mines Corp. v. Carroll, 64 F.3d 135 (3d
Cir. 1995), to support its argument that its late filing did not result in a
waiver of its ability to contest Duelley’s claim. Carroll is inapposite for
two reasons. First, Carroll involved a different regulation that provides
that "all right to further proceedings shall be considered waived, except
as provided in [the modification regulation]." Carroll, 64 F.3d at 139
(quoting 20 C.F.R. § 725.419(d)). Second, in Carroll, the ALJ essentially
found that the employer’s insurance company had established good cause
for its late filing by finding that "the responsible operator’s insurance
company was not notified of [the initial findings] and, therefore, did not
have the opportunity to controvert the claim." Id. at 137.
