The Devil With Duplicate Claims

Decisions on duplicate claims under 20 C.F.R. § 725.309 and requests for modification under 20 C.F.R. § 725.310 continue to be the most noteworthy case law developments. This newsletter is devoted to a discussion of the most recent cases arising under these two regulations.

Unfortunately, the common theme running through the cases discussed below is that ordinary principles of finality and res judicata do not apply to most decisions under the Federal Black Lung Benefits Act (BLBA). Almost every claim, whether approved or denied, is now subject to seemingly perpetual relitigation. Absent correction of this trend by either the United States Supreme Court or Congress, the Black Lung Program is doomed to become the jurisprudent equivalent of the movie “Groundhog Day.”


The Department of Labor’s regulations provide two specific mechanisms for reopening and relitigating claims under the BLBA. Section 725.310 of the regulations, consistent with the statutory authority provided by 33 U.S.C. § 922, allows claims to be reopened within one year from the date of denial of benefits or within one year from the date of the last payment of benefits following an award. Section 725.309 of the regulations has no statutory authority, but allows miners to file a new claim at any time after the expiration of the one year period required by Section 725.310 and 33 U.S.C. § 922.

On their face, both Section 725.310 and Section 725.309 contain limitations which could provide a mechanism for limiting relitigation. Section 725.310 of the regulations and 33 U.S.C. § 922 allow reopening only to modify a decision on the basis of a “change in conditions or because of a mistake in a determination of fact.” Section 725.309 allows reopening only on the basis of a “material change in conditions.” These provisions have been construed so broadly by the Benefits Review Board and the courts as to render them completely ineffective as a means for holding relitigation in check.


The only true application of finality and res judicata remaining in claims under the BLBA applies to denied widows’ claims, where no action is taken within one year to reopen the denial. Thus, where a widow seeks benefits based on a deceased miner’s condition and files a “duplicate” claim under Section 725.309, such duplicate claim will be disallowed as a matter of law.

The Sixth Circuit in Ranie White (widow of Vernis White) v. Arch On The North Fork, No. 95-4062 (6th Cir. April 11, 1996) (unpublished) affirmed the dismissal of the widow’s “duplicate” claim reasoning:

White’s most recent claim was a “duplicate” claim, because White’s subsequent claim was filed beyond the one year limit after the final denial of her first claim. 20 C.F.R. § 725.309(d); Sharondale Corp. v. Ross, 42 F.3d 993, 996 (6th Cir. 1994). When filing a duplicate claim, the claimant must show a “material change” in the miner’s condition before the claimant is entitled to further adjudication. Id. The purpose of § 725.309(d), in accordance with congressional intent, is to provide relief from the ordinary principles of finality and res judicata to any miner whose physical condition deteriorates due to the progressive nature of black lung disease. Lukman v. Director, OWCP, 896 F.2d 1248, 1253 (10th Cir. 1990). This congressional purpose is not applicable to this claim based on a deceased miner’s condition.


In contrast to denied widows’ claims, denied living miners’ claims are freely open to relitigation under two recent circuit court decisions, one from the Third Circuit and one from the Fourth Circuit.

In LaBelle Processing Company v. Swarrow, 72 F.3d 308 (3d Cir. 1995) (sur petition for rehearing February 12, 1996), the Third Circuit adopted the Director’s “one element” standard for establishing a “material change in conditions” under Section 725.309. Where the miner’s first claim was denied and he submitted new evidence with his duplicate claim, the court reasoned that res judicata did not apply. In the court’s view, the second claim was a new cause of action and the denial of the first claim merely showed that the claimant was not then totally disabled due to pneumoconiosis. The court’s reasoning was based, at least in part, upon the theory that pneumoconiosis is a latent and progressive disease which may develop even after exposure has ceased, thereby justifying relitigation based upon a “new claim.”

In my last newsletter (June 1995) I discussed the favorable decision issued by the Fourth Circuit in Lisa Lee Mines v. Director, OWCP, 57 F.3d 402 (4th Cir. 1995), in which a panel of the Fourth Circuit adopted a fairly stringent standard for establishing a “material change in conditions.” The panel would have required the claimant to affirmatively establish that his pneumoconiosis had become totally disabling since the prior denial and would have precluded correcting mistakes made in the prior decision. Subsequent to my newsletter, the claimant filed a petition for rehearing en banc with the Fourth Circuit. On June 19, 1996, a majority of the court, in an opinion written by Judge Hall, rejected the reasoning of the original panel and affirmed the award of benefits. Judge Luttig, writing for the five dissenting judges, criticized the liberal standard adopted by the majority.

The majority, in the June 19, 1996 decision in Lisa Lee Mines, rejected the standard adopted by the Seventh Circuit in Sahara Coal Company v. Director, OWCP, 946 F.2d 554 (7th Cir. 1991), and disagreed with the standard adopted by the Sixth Circuit in Sharondale Corporation v. Ross, 42 F.3d 993 (6th Cir. 1994). The majority found fault with the approaches adopted by both the Seventh Circuit and the Sixth Circuit, in that these circuits required an analysis of the evidence behind the earlier denial to ensure an actual change in conditions. Under the standard now adopted by the Fourth Circuit, as long as new evidence establishes entitlement after the prior denial, it is irrelevant whether claimant’s condition differs qualitatively from his condition at the time of the prior denial.

The dissent criticized the majority’s “tortured interpretation of the duplicate claims regulation,” stating:

[T]he majority’s standard allows recovery of benefits merely upon a showing that the claimant is today eligible for benefits, without any evidence whatever of a change of his condition .... The majority, thus, adopts for this circuit the very rule that even the Sixth Circuit recognized was manifestly untenable under the regulation, that the claimant may recover benefits if “the ALJ merely disagree[s] with the previous characterization of the strength of the evidence.” Sharondale, 42 F.3d at 999.

When all is said and done, therefore, the majority holds that a claimant is entitled to benefits if he comes forward with any additional evidence of his condition “after” the denial of the original claim and shows that he is now entitled to benefits, ante at 8, whether or not the claimant proves a material change (or a change at all) in his conditions from what they were at the time he was earlier denied benefits .... Not only is such a holding irreconcilable with the plain language of section 725.309(d), it “makes mincemeat” of the doctrine of res judicata underlying section 725.309(d) by permitting the previous decision to be reevaluated, as the majority itself says, ad infinitum. Cf. Sahara, 946 F.2d at 556 (similar criticism of the Spese standard).

The Fourth Circuit’s opinion in Lisa Lee Mines has created a three way split in the circuit court case law as to the proper standard to apply to Section 725.309. This split ultimately will have to be resolved by the United States Supreme Court.


The liberal construction of the modification regulation at Section 725.310, implementing 33 U.S.C. § 922, continues to evolve. The liberal attitude adopted by the circuit courts in Jessee v. Director, OWCP, 5 F.3d 723 (4th Cir. 1993) and Consolidation Coal Company v. Worrell, 27 F.3d 227 (6th Cir. 1994), has not abated. Reopening of claims utilizing the modification regulation remains available in “almost limitless terms.” Jessee, 5 F.3d at 724.

In Keating v. Director, OWCP, 71 F.3d 1118 (3d Cir. 1995), the Third Circuit expanded the availability of modification to submit evidence which was available and could have been submitted during the first hearing. In Keating the administrative law judge rejected the submission of evidence in a widow’s claim on the basis that the evidence should have been submitted to support the claim during the first hearing. The Third Circuit reversed the denial of benefits, citing Jessee and Worrell as requiring the administrative law judge to consider the prior evidence and any new evidence for “mistakes.” Whether or not the new evidence could have been submitted earlier, the court required the administrative law judge to make de novo factual findings.

In my last newsletter (June 1995) I noted that the Board had heard oral argument in Branham v. Bethenergy Mines, Inc., BRB No. 94 149 BLA (argued June 6, 1995), concerning the issue of an operator’s right to seek modification. The Board issued its decision in Branham on May 14, 1996. The Board held that operators, like claimants, are entitled to pursue modification.

The administrative law judge in Branham refused to allow an operator’s request for modification, finding an operator’s request to be “both inconsistent with the purposes of the BLBA as well as an attempt to bypass, render meaningless and, in effect relitigate the claimant’s entitlement status, a status which is now binding by virtue of res judicata and collateral estoppel.” The administrative law judge believed that an operator’s sole avenue of relief was by way of an appeal.

The Board disagreed and applied the standards of Jessee and Worrell, among others, to reject the administrative law judge’s application of res judicata as a reason to foreclose an operator’s modification petition. The Board also rejected the administrative law judge’s conclusion that reopening of an award of benefits would not “render justice under the Act.” The Board emphasized that an administrative law judge may not invoke the remedial nature of the BLBA to conclude, as a matter of law, that modification on behalf of a party opposing entitlement could never “render justice under the Act.” As such, under the Board’s decision in Branham, operators have the same right to reopen a black lung award on the basis of a mistake in a determination of fact as claimants have to seek to reopen a black lung denial. “[T]he trier of fact may conclude that the ultimate determination of claimant‘s entitlement was mistaken after consideration of wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted,’ which calls into question the correctness of the initial award.”

For the time being, it is safe to say that we must be prepared to relitigate virtually any claim decided under the BLBA. With only very limited exceptions, the door, or perhaps more accurately the revolving door, is open to rehearing ad infinitum.

I hope you have found the discussion in this issue to be enlightening. Any comments, or suggestions, are always welcomed. If you have any specific questions regarding any problems you are encountering with claims arising under the BLBA, please feel free to call.

Ronald E. Gilbertson

Copyright © 1996 Kilcullen, Wilson & Kilcullen. All rights reserved.