Eastern Associated v. Walls ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EASTERN ASSOCIATED COAL
CORPORATION,
Petitioner,
v.
No. 96-2856
THOMAS G. WALLS; DIRECTOR,
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(92-569-BLA)
Submitted: September 23, 1997
Decided: October 14, 1997
Before MURNAGHAN, HAMILTON, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Mark E. Solomons, Laura Metcoff Klaus, ARTER & HADDEN,
Washington, D.C., for Petitioner. S.F. Raymond Smith, RUNDLE &
RUNDLE, L.C., Pineville, West Virginia; J. Davitt McAteer, Acting
Solicitor of Labor, Donald S. Shire, Associate Solicitor, Patricia M.
Nece, Counsel for Appellate Litigation, Jill M. Otte, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Eastern Associated Coal Corp. (Eastern) appeals the decision of the
Benefits Review Board (Board) affirming the administrative law
judge's (ALJ) order awarding Thomas Walls (Walls) black lung bene-
fits under 30 U.S.C.A. §§ 901-945 (West 1986 & Supp. 1997).
Walls filed his first application for black lung benefits in June
1973. The claim was denied in June 1980, and Walls did not appeal.
Walls filed two more pro se applications for black lung benefits that
were denied before he filed this claim for benefits, his fourth applica-
tion for black lung benefits, in September 1989. After hearing Walls'
claim, an ALJ awarded Walls benefits. Eastern appealed the ALJ's
decision to the Board; however, the Board affirmed the ALJ's order.
Eastern moved for reconsideration, and the Board again affirmed the
award of benefits.
After this court issued its opinion in Lisa Lee Mines v. Director,
Office of Workers' Compensation Programs,1 Eastern again sought
reconsideration from the Board. The Board granted Eastern's motion
to reconsider the ALJ's decision in light of Lisa Lee Mines; however,
the Board found that the ALJ correctly found a material change of
condition, and for the third time affirmed the ALJ's decision award-
ing black lung benefits to Walls. Now, Eastern petitions for review of
the Board's order affirming the ALJ's award of benefits.
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1 86 F.3d 1358 (4th Cir. 1996) (en banc), cert. denied, ___ U.S. ___,
65 U.S.L.W. 3505 (Jan. 21, 1997) (No. 96-402).
2
On appeal, Eastern asserts that this case must be remanded to the
ALJ to be determined in accordance with the "one-element" standard
this court adopted in Lisa Lee Mines for determining whether a claim-
ant establishes a material change in condition in duplicate claims cases.2
That standard merely requires the claimant to prove, by means of evi-
dence of his medical condition subsequent to the prior denial, at least
one element previously adjudicated against him. 3 Therefore, Eastern's
claim is without merit because the Board reviewed the ALJ's findings
in light of Lisa Lee Mines, and determined that the ALJ's decision to
award black lung benefits correctly relied upon the medical evidence
submitted subsequent to the denial of Walls' third application for
black lung benefits.
Moreover, the Board did not err by failing to remand the case to
the ALJ. Instead, the Board followed the same path as this court in
Lisa Lee Mines. Rather than remanding, the Board applied the stan-
dard articulated in Lisa Lee Mines, and found that although the ALJ
did not make a separate and distinct finding under 20 C.F.R.
§ 725.309 (1997), the ALJ implicitly found that Walls had demon-
strated a material change in conditions based on medical evidence
compiled after the previous denial.4
Because the Board applied the standard set forth in Lisa Lee Mines
and substantial evidence supports the ALJ's award of benefits, we
affirm the Board's order. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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2 See Lisa Lee Mines, 86 F.3d at 1363.
3 Id.4 Id. at 1365.
3