On Petition for Review of the Final Decision of the Benefits Review Board (No. 93-1491 BLA)
BEFORE: SLOVITER, Chief Judge, COWEN and GARTH, Circuit Judges
Argued Tuesday, October 24, 1995
Petitioner Labelle Processing Company ("Labelle") appeals an adverse decision of the Benefits Review Board ("BRB") of the United States Department of Labor ("DOL"). The BRB affirmed the decision of an administrative law judge ("ALJ") awarding black-lung benefits to John Swarrow, a former employee of Labelle. The BRB had jurisdiction to review the final decision of the ALJ pursuant to 33 U.S.C. Section(s) 921(b)(3), as incorporated into the Black Lung Benefits Act ("BLBA"), 30 U.S.C. 901 et seq., by 30 U.S.C. Section(s) 932(a). We have jurisdiction over the BRB's final order pursuant to 33 U.S.C. Section(s) 921(c), as incorporated by 30 U.S.C. Section(s) 932(a).
Labelle advances alternative arguments for reversal: (1) the ALJ's determination that Labelle's former employee was entitled to benefits under the BLBA violated principles of res judicata; and (2) the ALJ applied the wrong standard in finding that the employee had established "a material change in conditions," a necessary prerequisite to the filing of a duplicate claim under the BLBA. We hold that res judicata is inapplicable in the present context, but we agree that the ALJ did not apply the correct standard. We will therefore vacate the award of benefits and remand for further proceedings consistent with this opinion.
John Swarrow, Jr., the claimant-respondent, worked as a coal miner for over thirty-four years, retiring in June 1985, at the age of sixty-three. Swarrow worked for Labelle from May 1976 to June 1985. In his last position, as a barge loader, he worked in a small, very dusty control room, operating the controls to load coal from the preparation plant onto a barge. Other than when he was employed as a barge loader (a position that he held for three or four years), Swarrow worked in underground mines until he retired.
Swarrow testified that he retired because of respiratory problems, including chronic wheezing and difficulty climbing ninety-four stair-steps and a thirteen-step ladder to reach his work station. Swarrow also testified that he had smoked one pack of cigarettes every three to four days for about forty years but stopped smoking upon retirement. Swarrow uses a Proventil *fn1 inhaler and also takes other medication for his breathing problems.
On September 16, 1985, Swarrow filed a claim for benefits under the Black Lung Benefits Act of 1977, 30 U.S.C. Section(s) 901 et seq. The District Director denied Swarrow's claim on February 21, 1986, informing Swarrow that he had a right to submit additional medical evidence or request a hearing before an ALJ. Swarrow subsequently obtained counsel and submitted additional medical evidence in support of his claim. Labelle also submitted medical evidence. After considering the new evidence, the District Director reaffirmed the denial of Swarrow's claim on May 28, 1986.
Swarrow submitted the following medical evidence in support of his claim: chest x-rays; six pulmonary function tests; and three blood gas studies. The results from the pulmonary function tests (PFTs) and the blood gas studies, standing alone, did not establish total disability. *fn2
Swarrow also submitted physicians' readings of the chest x-rays. Two doctors, one of whom was a "B reader," *fn3 found that the x-rays showed the presence of pneumoconiosis. Four other doctors, three of whom were "B readers," determined that the x-rays were negative for pneumoconiosis.
In addition, Swarrow submitted the evaluations of several physicians who had examined him. Dr. George Riegel, at the request of the DOL, examined Swarrow on November 26, 1985 and determined that Swarrow did not suffer from coal workers' pneumoconiosis. In a report dated February 28, 1986, Dr. Thomas Morgan, Swarrow's treating physician since May 18, 1983, diagnosed chronic obstructive pulmonary disease (i.e. pneumoconiosis) and concluded that Swarrow was totally disabled due to exposure to coal dust. Dr. Peter Kaplan examined Swarrow on March 21, 1986 and found no evidence of pneumoconiosis, opining that Swarrow was capable of performing the duties of his last job.
On May 18, 1987, Swarrow, through counsel, attempted to submit additional evidence. *fn4 The DOL, however, returned the material, advising Swarrow that the new evidence was untimely and therefore would not be considered. Specifically, the DOL wrote, in a letter, that the evidence should have been submitted within one year from the initial decision denying Swarrow's claim, that is, one year prior to February 21, 1987.
On October 2, 1989, Swarrow filed a second application, or "duplicate claim," for black-lung benefits. In support of his new application for benefits, Swarrow resubmitted the medical evidence he had previously submitted or attempted to submit in connection with his original claim. This evidence included the reports by Drs. Garson and Silverman, which had been rejected as untimely by the DOL and accordingly had not been considered by the DOL in its review of Swarrow's original application.
Swarrow also submitted new medical evidence, including chest x-rays, PFTs, and blood gas studies. The PFTs and blood gas studies did not demonstrate, under the standards set forth in the federal regulations, a totally disabling respiratory impairment.
Additional medical reports by Drs. Fino and Kaplan were also submitted. Both physicians concluded that Swarrow did not suffer from pneumoconiosis. *fn5 Another physician, Dr. Cander, based upon his review of Swarrow's medical records, initially diagnosed Swarrow as totally disabled due to pneumoconiosis but later recanted, stating that "the presence of disabling pneumoconiosis has not been established by the information available." *fn6 In addition to Drs. Morgan (Swarrow's treating physician), Garson and Silverman, two other examining physicians, Drs. Cho and Levine, concluded that Swarrow suffered from disabling pneumoconiosis. *fn7
Finding that Swarrow had not proven "a material change in conditions," *fn8 the District Director denied Swarrow's duplicate claim in an order dated February 27, 1990. On March 6, 1990, Swarrow appealed the denial to the BRB. On December 5, 1990, the BRB remanded Swarrow's claim to the Office of Administrative Law Judges, based upon the Tenth Circuit's ruling in Lukman v. Director, OWCP, 896 F.2d 1248 (1990), *fn9 for a hearing before an ALJ.
After a hearing, held on April 9, 1992, the ALJ, finding that Swarrow had established "a material change in conditions," issued its decision and order on March 31, 1993. This order awarded benefits to Swarrow.
Labelle appealed the award to the BRB. The BRB, on September 15, 1994, affirmed the award and denied Labelle's motion for reconsideration on January 4, ...