MAE ANN SHARPE, Widow of William A. Sharpe v.  Director, Office of Workers’ Compensation Programs

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MAE ANN SHARPE, Widow of
William A. Sharpe,
Petitioner,
v.
No. 05-1896  DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS;
WESTMORELAND COAL COMPANY,
INCORPORATED,
Respondents. 
On Petition for Review of an Order
of the Benefits Review Board.
(04-723-BLA; 02-810-BLA)
Argued: January 30, 2007
Decided: July 17, 2007
Before TRAXLER and KING, Circuit Judges, and
James R. SPENCER, Chief United States District Judge
for the Eastern District of Virginia, sitting by designation.
Petition for review granted; order vacated and remanded by published
opinion. Judge King wrote the opinion, in which Judge Traxler and
Judge Spencer joined.
COUNSEL
ARGUED: John A. Bednarz, Jr., Wilkes-Barre, Pennsylvania, for
Petitioner. William Steele Mattingly, JACKSON & KELLY,

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P.L.L.C., Morgantown, West Virginia, for Respondents. ON BRIEF:
Woodrow E. Turner, JACKSON & KELLY, P.L.L.C., Morgantown,
West Virginia, for Respondent Westmoreland Coal Company; Jona-
than L. Snare, Acting Solicitor of Labor, Patricia M. Nece, Counsel
for Appellate Litigation, Barry H. Joyner, Attorney, Office of the
Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washing-
ton, D.C., for Respondent Director, Office of Workers’ Compensation
Programs.
OPINION
KING, Circuit Judge:
Mae Ann Sharpe, the widow of deceased coal miner William A.
Sharpe, petitions for review of the adverse 2005 Decision and Order
of the Benefits Review Board (the "2005 BRB Decision"), affirming
the 2004 Decision and Order of an administrative law judge (the
"2004 ALJ Decision").1 In the 2004 ALJ Decision, the ALJ retroac-
tively denied Mr. Sharpe’s 1989 claim for black lung lifetime disabil-
ity benefits (the "living miner’s claim"), which had been approved
eleven years earlier. Benefits had been paid to Mr. Sharpe, however,
until his death in April 2000. The ALJ also denied Mrs. Sharpe’s
related survivor’s claim for black lung benefits (the "survivor’s
claim"), filed on April 26, 2000, a week after Mr. Sharpe’s death. The
ALJ’s denial of those claims resulted from a modification request
filed by Westmoreland Coal Company on June 15, 2000, seeking to
reopen and alter Mr. Sharpe’s 1993 award of benefits (the "Modifica-
tion Request"). In her petition for review, Mrs. Sharpe contends, inter
alia, that the adjudicators erred in granting the Modification Request
on Mr. Sharpe’s living miner’s claim.2
1The Director of the Office of Workers’ Compensation Programs and
Westmoreland Coal Company are the respondents in this proceeding.
2As explained below, a modification under the Longshoreman’s Act,
made applicable to the Black Lung Benefits Act by 30 U.S.C. § 932(a),
should only be granted where doing so would "render justice under the
act." See Banks v. Chi. Grain Trimmers Ass’n., 390 U.S. 459, 464
(1968).
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As explained below, we agree that the ALJ erred in granting the
Modification Request (and that the BRB consequently erred in affirm-
ing it), in that he failed to exercise the discretion accorded to him with
respect to such proceedings.3 In so ruling, the ALJ failed to assess
whether reopening the case would render justice under the Act, in
light of the various factors pertinent to a proper modification request
ruling, including accuracy, the requesting party’s diligence and
motive, and the potential futility of a favorable modification award.
We therefore vacate and remand for such further proceedings as may
be appropriate.
I.
William Sharpe worked for thirty-nine years in the coal mines of
southern West Virginia and western Virginia, and was employed by
Westmoreland Coal Company for at least eight of those years. Mr.
Sharpe last worked for Westmoreland as a manager in and around
underground coal mines, and he retired in 1988. Mr. Sharpe had pre-
viously worked in various mining operations as a general superinten-
dent, a foreman, a section foreman, a rock driller, and a coal loader.
In March 1989, Mr. Sharpe filed his claim for living miner’s benefits,
maintaining that he suffered from black lung disease, or pneumoconio-
sis.4 An ALJ denied Mr. Sharpe’s living miner’s claim on May 20,
1991, concluding that he had failed to establish total disability due to
pneumoconiosis. Mr. Sharpe appealed that decision to the BRB,
which, on March 29, 1993, affirmed the ALJ in part, but vacated the
finding that Mr. Sharpe did not suffer from complicated coal workers’
pneumoconiosis. The living miner’s claim was then remanded to a
different ALJ, who, after finding that Mr. Sharpe suffered from com-
plicated pneumoconiosis, approved the claim and awarded black lung
3The parties agree that an ALJ’s decision to modify an award under 20
C.F.R. § 725.310 is a discretionary one. See Betty B Coal Co. v. Dir.,
OWCP, 194 F.3d 491, 501 (4th Cir. 1999) ("[W]e have no quarrel with
encouraging ALJs to exercise their discretion to reopen when doing this
would promote justice (and we would not hesitate to correct abuses of
that discretion).").
4Living miner’s benefits are authorized under the Black Lung Benefits
Act for coal miners totally disabled due to pneumoconiosis. See 30
U.S.C. § 922(a)(1).
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benefits to him on August 26, 1993 (the "1993 ALJ Decision").5
Westmoreland appealed the 1993 ALJ Decision to the BRB, which
affirmed the award of benefits on September 28, 1994 (the "1994
BRB Decision"). Significantly, Westmoreland did not pursue its right
to seek judicial review of the 1994 BRB Decision.6 Mr. Sharpe thus
received black lung benefits under his living miner’s claim from 1989
until his death on April 18, 2000.
After her husband died, Mrs. Sharpe promptly filed, on April 26,
2000, her survivor’s benefits claim with the Director of the Office of
Workers’ Compensation Programs (the "Director").7 On June 15,
2000, nearly two months after Mr. Sharpe died — and nearly seven
years after the 1994 BRB Decision — Westmoreland filed its Modifi-
cation Request on Mr. Sharpe’s living miner’s claim, pursuant to 20
C.F.R. § 725.310. In the Modification Request, Westmoreland alleged
that Mr. Sharpe had never suffered from complicated pneumoconiosis
and that a mistake of fact had been made in that regard in the 1993
ALJ Decision.8 On November 13, 2000, the Director determined, after
conducting an informal conference on the Modification Request, that
no such mistake of fact had been made in the 1993 ALJ Decision, and
thus denied modification (the "2000 Director’s Decision"). See J.A.
33.9 On November 30, 2000, Westmoreland rejected the 2000 Direc-
tor’s Decision, and the Modification Request was referred to the
5The 1993 ALJ Decision awarded Mr. Sharpe black lung benefits
retroactive to the initial filing of his living miner’s claim in 1989.
6Westmoreland had the right to seek judicial review of the 1994 BRB
Decision in this Court. See 33 U.S.C. § 921(c) ("Any person adversely
affected or aggrieved by a final order of the Board may obtain a review
of that order in the United States court of appeals for the circuit in which
the injury occurred . . . .").
7Black lung benefits are authorized for eligible survivors upon the
death of a coal miner due to pneumoconiosis. See 30 U.S.C. § 922(a)(2)
(providing that coal miner’s widow may receive benefits if husband’s
death was due to pneumoconiosis).
8The Modification Request is not contained in the administrative
record filed with Mrs. Sharpe’s petition for review. We derive its allega-
tions from the references made in the various administrative decisions.
9Citations to "J.A. ___" refer to the Joint Appendix filed by the parties
in this proceeding.
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Office of Administrative Law Judges. See id. at 39. By decision dated
July 23, 2002, the ALJ also ruled against Westmoreland, concluding
that it had failed to present sufficient new evidence to establish that
the 1993 ALJ Decision — which found that Mr. Sharpe suffered from
complicated pneumoconiosis — was in error (the "2002 ALJ Deci-
sion"). The ALJ thus denied the Modification Request and awarded
benefits to Mrs. Sharpe on her survivor’s claim. Neither the 2000
Director’s Decision nor the 2002 ALJ Decision assessed the factors,
other than factual accuracy, that are pertinent to such a ruling, and
both decisions concluded that no mistake of fact had been made in
1993. Westmoreland appealed the 2002 ALJ Decision to the BRB,
which, by decision of August 22, 2003 (the "2003 BRB Decision"),
vacated the 2002 ALJ Decision. The 2003 BRB Decision ruled that
the ALJ could not rely on any findings of fact made in the 1993 ALJ
Decision, and directed that, on remand, he assess de novo the previ-
ously submitted evidence as well as the newly submitted evidence.
On remand, the ALJ, by decision of April 30, 2004 (the "2004 ALJ
Decision"), reversed himself and concluded that a mistake of fact had
been made when the 1993 ALJ Decision ruled that Mr. Sharpe suf-
fered from complicated pneumoconiosis.10 The ALJ thus modified
Mr. Sharpe’s living miner’s claim (more than four years after his
death) and denied both that claim and Mrs. Sharpe’s survivor’s claim.
The ALJ again only assessed the factual accuracy of the complicated
pneumoconiosis finding and failed to evaluate the other pertinent fac-
tors. In so doing, he failed to adhere to the regulatory mandate, found
in 20 C.F.R. § 725.310, that a proper assessment of a modification
request is committed to the sound discretion of the adjudicator. The
BRB affirmed the 2004 ALJ Decision by its decision of June 13, 2005
(the "2005 BRB Decision"), likewise assuming that Westmoreland
had a right to modification of the living miner’s claim upon simply
10The alleged mistake of fact relating to the living miner’s claim was
highly disputed, and essentially involved a determination by the ALJ as
to which doctors to credit. The 1993 ALJ Decision had credited the opin-
ions of three doctors who had diagnosed Mr. Sharpe with complicated
pneumoconiosis. After first affirming this finding by his 2002 ALJ Deci-
sion, the ALJ determined, in his 2004 ALJ Decision, that a mistake of
fact had been made, and he then credited the opinion of a single doctor
(Dr. Fino) who had diagnosed Mr. Sharpe with simple pneumoconiosis.
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establishing a mistake of fact. Thus, none of the decisions on the
Modification Request addressed the fact that Westmoreland waited
nearly seven years to file the Request, none questioned Westmore-
land’s motive in filing it in apparent response to the survivor’s claim,
and none otherwise addressed whether a reopening of the matter
would render justice.11
Mrs. Sharpe now seeks our review of the 2005 BRB Decision, con-
tending, inter alia, that the 2004 ALJ Decision erred in granting the
Modification Request on Mr. Sharpe’s living miner’s claim, and that
the BRB erred in affirming it. We possess jurisdiction over this matter
pursuant to 33 U.S.C. § 921(c).
On January 30, 2007, we heard oral argument on Mrs. Sharpe’s
petition. By Order of January 31, 2007, we directed the parties to file
supplemental briefs addressing, inter alia, what relief (if any) West-
moreland could secure from its Modification Request.12 In their sup-
plemental briefs, the Director and Mrs. Sharpe maintain that the
Modification Request is futile, in that Westmoreland cannot recover
any overpayments made to Mr. Sharpe because no estate ever existed
for him, and, in any event, any collection action against such an estate
would be time barred. See Fed. Resp’t Supp. Br. 7-8 ("Absent an
estate, there is no opposing party on the miner’s claim from which
[Westmoreland] could seek repayment of benefits. Thus, it is not
apparent that the employer has established its modification petition is
not moot."). Westmoreland also conceded that it has never sought to
collect any overpayment from Mr. Sharpe’s estate.
11The administrative decisions most pertinent to this proceeding are, in
summary, (1) the 1993 BRB Decision, which found that Mr. Sharpe suf-
fered from complicated pneumoconiosis and awarded benefits on the liv-
ing miner’s claim; (2) the 2004 ALJ Decision, which granted the
Modification Request on the living miner’s claim, and which denied both
the living miner’s and survivor’s claims; and (3) the 2005 BRB Decision
(of which Mrs. Sharpe seeks review) affirming the 2004 ALJ Decision.
12Specifically, we asked the parties to address the following: "(1) [t]he
applicability and impact of Collins v. Pond Creek Mining Co., 468 F.3d
213 (4th Cir. 2006) in this appeal; and (2) [t]he relief (if any) Westmore-
land might secure against the deceased miner, William Sharpe, or bene-
fits previously paid to him, from a modification of his 1994 award."
Sharpe v. Dir., OWCP, No. 05-1896 (4th Cir. Jan. 31, 2007).
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II.
We review for abuse of discretion a decision to grant a modifica-
tion request on a living miner’s claim. See O’Loughlin v. Parker, 163
F.2d 1011, 1013 (4th Cir. 1947); see also Betty B Coal Co. v. Dir.,
OWCP, 194 F.3d 491, 501 (4th Cir. 1999) ("[W]e have no quarrel
with encouraging ALJs to exercise their discretion to reopen when
doing this would promote justice (and we would not hesitate to cor-
rect abuses of that discretion)."). Such an exercise of discretion by an
ALJ, however, "is not boundless and subject to automatic affir-
mance." See Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261
(4th Cir. 1999). In reviewing a discretionary administrative decision,
we are obliged to assess the full record and the reasons assigned, and
we will reverse if the decision was "guided by erroneous legal princi-
ples," or if the adjudicator "committed a clear error of judgment in the
conclusion it reached upon a weighing of the relevant factors." See id.
(internal quotation marks omitted). An abuse of discretion can flow
from "a failure or refusal, either express or implicit, actually to exer-
cise discretion, deciding instead as if by general rule, or even arbitrar-
ily, as if neither by rule nor discretion." James v. Jacobson, 6 F.3d
233, 239 (4th Cir. 1993).
III.
A.
Before assessing Mrs. Sharpe’s primary contention on the Modifi-
cation Request, it is appropriate to briefly review the applicable legal
principles governing efforts to seek modification of black lung bene-
fits awards. The modification of such awards under the Black Lung
Benefits Act (the "BLBA") is governed by § 22 of the Longshore-
men’s Act. See 30 U.S.C. § 932(a) (making Longshoremen’s Act,
with exceptions not relevant here, applicable to black lung benefits
determinations). At the heart of Mrs. Sharpe’s petition for review is
20 C.F.R. § 725.310, the regulation upon which Westmoreland relied
in June 2000 in submitting its Modification Request on Mr. Sharpe’s
1993 living miner’s award. That provision specifies, in pertinent part,
that
[u]pon the request of any party on grounds of a change in
conditions or because of a mistake in a determination of
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fact, the district director may . . . reconsider the terms of an
award or denial of benefits.
20 C.F.R. § 725.310(a) (2000) (emphasis added).13 Under the regula-
tions, a modification proceeding must be initiated before the Director.
See id. § 725.310(b) (2000) ("Modification proceedings shall not be
initiated before an administrative law judge or the Benefits Review
Board."); Lee v. Consol. Coal Co., 843 F.2d 159, 162-63 (4th Cir.
1988) (holding that petitions for modification under BLBA must be
filed with Director rather than ALJ). When a modification request is
made, the Director is obliged to review it on the basis of all evidence
submitted, and he is entitled to schedule a conference, issue a pro-
posed decision and order, forward the request to an ALJ for a hearing,
or take other appropriate action. See 20 C.F.R. § 725.415 (2000). If
a conference is held, the Director, at its conclusion, must prepare and
send to the parties a summary of the conference, along with his rec-
ommendation. Id. § 725.417(c) (2000). Any party may reject, in
whole or in part, the Director’s recommendation, id. § 725.417(d)
(2000), and then request that the Director refer the claim to the Office
of Administrative Law Judges, id. § 725.419(a).
Importantly, the modification of a black lung claim does not neces-
sarily flow from a finding that a mistake was made on an earlier
determination of fact. See Banks v. Chi. Grain Trimmers Ass’n, 390
U.S. 459, 464 (1968) (observing purpose of modification under Long-
shoreman’s Act, applicable to BLBA, is to "render justice under the
act" (internal quotation marks omitted)); Jessee v. Dir., OWCP, 5
F.3d 723, 725 (4th Cir. 1993) (observing that Director "may, if he so
chooses, modify the final order on the claim" upon finding mistake
of fact) (emphasis added)); see also Old Ben Coal Co. v. Dir., OWCP,
292 F.3d 533, 547 (7th Cir. 2002) (recognizing that modification
should not be automatic); McCord v. Cephas, 532 F.2d 1377, 1380
(D.C. Cir. 1976) ("[T]here is no reason to think that there should be
13The most recent version of § 725.310, as well as §§ 725.415 and
.417, effective January 19, 2001, apply prospectively only, and are thus
inapplicable to this case, as Mr. Sharpe applied for benefits in 1989 and
was awarded benefits in 1993. See 20 C.F.R. § 725.2(c) (limiting appli-
cation of those sections (among others) as amended to claims initiated on
or after January 19, 2001).
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an automatic reopening simply because the [Director or ALJ] found
a mistake in a determination of fact.").
If a modification request is granted by either the Director or an
ALJ, an order may be issued terminating, continuing, reinstating,
increasing, or decreasing benefit payments. See 20 C.F.R.
§ 725.310(d) (2000).14 The regulations also provide that, if an over-
paid beneficiary dies before an appropriate adjustment is completed,
the overpayment can be recovered from the estate of the beneficiary
or by withholding amounts due the estate. See id. § 725.540(d). Thus,
under the circumstances here, Westmoreland is unable to seek recov-
ery from Mrs. Sharpe for any overpayments made under Mr. Sharpe’s
living miner’s claim. Consequently, Westmoreland is only entitled to
seek recovery of overpayments of benefits from 1989 until Mr. Shar-
pe’s death in 2000, if any is to be had, from Mr. Sharpe’s estate.
B.
1.
Mrs. Sharpe contends that the ALJ erred in the 2004 ALJ Decision
when he granted the Modification Request. As we have pointed out,
the modification of a black lung award or denial does not automati-
cally flow from a mistake in an earlier determination of fact. See
Banks, 390 U.S. at 464 (holding that modification should be made
only where doing so will "render justice under the act"); accord Old
Ben Coal Co., 292 F.3d at 547; Jessee, 5 F.3d at 725; McCord, 532
F.2d at 1380. Of importance in this proceeding, none of the adminis-
trative decisions rendered in connection with the Modification
Request assessed all the factors relevant to an exercise of sound dis-
cretion. Instead, they addressed only one — whether a mistake of fact
had been made in the 1993 ALJ Decision. Because the 2004 ALJ
14The statutory authority for an effort to recover overpayments made
prior to a modification ruling is set forth at 30 U.S.C. § 923(b). Section
923 incorporates the overpayment provision in the Social Security Act,
found at 42 U.S.C. § 404. Section 404 provides that overpayments must
be recouped from an overpaid individual or his estate, unless the recipi-
ent was without fault and recovery would defeat the purpose of the Act.
See 42 U.S.C. § 404(a)(1)(A), (b).
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Decision (affirmed by the 2005 BRB Decision) found that a mistake
of fact had been made, the adjudicators were obliged to exercise their
sound discretion, pursuant to § 725.310(a) of the regulations, by eval-
uating the Modification Request in light of whether reopening the
case would render justice under the Act. Mrs. Sharpe contends that
they erred in failing to do so, and in concluding that a mistake of fact
had been made in the 1993 ALJ Decision.
As explained below, it is apparent, in the context of their handling
of the Modification Request, that the ALJ and BRB were "guided by
erroneous legal principles," see Westberry v. Gislaved Gummi AB,
178 F.3d 257, 261 (4th Cir. 1999), and failed "actually to exercise dis-
cretion, deciding instead as if by general rule," see James v. Jacobson,
6 F.3d 233, 239 (4th Cir. 1993). That is, they erroneously assumed
that Westmoreland was entitled to modification of the 1993 living
miner’s award upon merely establishing that a mistake of fact was
made seven years earlier. We are thus obliged to vacate and remand
for a proper assessment of the Modification Request.
2.
In exercising his discretion on a modification request, an ALJ
should weigh any factors that are pertinent in the circumstances as
well as the accuracy of the prior decision. Our sister circuits have pro-
vided some guidance in this regard, articulating several considerations
that may be relevant to the adjudication of a modification request.
These include not only accuracy, but also the requesting party’s dili-
gence and motive, and whether a favorable ruling would nonetheless
be futile. See, e.g., Old Ben Coal Co. v. Dir., OWCP, 292 F.3d at 547
(7th Cir. 2002).
For example, the Seventh Circuit has recognized that the diligence
of the party seeking modification should be considered in a modifica-
tion determination. See Old Ben Coal Co., 292 F.3d at 547 ("[T]he
ALJ will no doubt need to take into consideration many factors
including the diligence of the parties."); see also McCord v. Cephas,
532 F.2d 1377, 1378 (D.C. Cir. 1976) (remanding for assessment of
whether reopening would "render justice under the act" in light of
employer’s four-plus years delay in pursuing modification). The
requesting party’s motive may be an appropriate consideration in
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adjudicating a modification request, in that "if the party’s purpose in
filing a modification is to thwart a claimant’s good faith claim or an
employer’s good faith defense, the remedial purpose of the statute is
no longer served." See Old Ben Coal Co., 292 F.3d at 546. Finally,
although administrative adjudications do not constitute Article III pro-
ceedings to which the case or controversy mandate applies, see Ecee,
Inc. v. FERC, 645 F.2d 339, 349 (5th Cir. 1981), a showing of futility
may be pertinent to the proper handling of a modification request. Cf.
Old Ben Coal Co., 292 F.3d at 550 (Wood, J., dissenting) (observing
that possibility employer might be permitted to recoup overpayment
from estate notwithstanding state probate law was "enough — barely
— to save the case from nonjusticiability").
We see the foregoing factors — diligence, motive, and futility —
as potentially relevant to whether a modification request should be grant-
ed.15 And in this situation, an objective adjudicator could readily iden-
tify significant factual issues that are pertinent to a proper evaluation
of Westmoreland’s Modification Request. For example:
• Why did Westmoreland wait to seek modification under
§ 725.310(a) until June 2000, two months after Mr. Shar-
pe’s death, and nearly seven years after the BRB had
affirmed his living miner’s award (a decision that West-
moreland never appealed)?
• Should Westmoreland’s motive in seeking modification
be deemed suspect?
• Was the Modification Request part and parcel of West-
moreland’s defense to Mrs. Sharpe’s claim for survivor’s
benefits, which had been filed less than two months ear-
lier?
15In addition to the factors spelled out above, finality interests may
sometimes be relevant to a proper modification request ruling. We have
recognized, however, that "the ‘principle of finality’ just does not apply
to Longshore Act and black lung claims as it does in ordinary lawsuits."
Jessee v. Dir., OWCP, 5 F.3d 723, 725 (4th Cir. 1993) (citing Banks v.
Chi. Grain Trimmers Ass’n, 390 U.S. 459, 461-65 (1968)). We have
never definitively decided, however, that an ALJ should not weigh final-
ity interests when ruling on a modification request. See id.
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• Is the Modification Request futile or moot, in that no
overpayments made to Mr. Sharpe could be recovered?
• Is the Modification Request akin to a request for an advi-
sory opinion, in that a favorable resolution thereof will
have no impact on the living miner’s claim?
Of course, Westmoreland may be able to satisfactorily respond to
these issues, and make a compelling showing that they should be
resolved in its favor. If Westmoreland is able to do so, such a showing
would be entitled to appropriate consideration by the adjudicators.
3.
Put simply, the ALJ and the BRB, in treating the Modification
Request as a matter of right upon establishing a mistake of fact, and
in failing to exercise the discretion accorded to them under 20 C.F.R.
§ 725.310(a), were guided by "erroneous legal principles" in ruling
thereon. See Westberry, 178 F.3d at 261. Such a misapprehension of
the applicable legal standard is, by definition, an abuse of discretion.
See id. On remand, a proper exercise of discretion should lead the
adjudicators to assess, in addition to the need for accuracy, the dili-
gence and motive of Westmoreland in seeking modification of Mr.
Sharpe’s living miner’s award, the possible futility of any such modi-
fication, and other factors that may bear on whether approval of the
Modification Request will "render justice under the Act."16
16Mrs. Sharpe also contends, inter alia, that the 2004 ALJ Decision
erred in determining that the 1994 ALJ Decision was premised on a mis-
take of fact. In that regard,we note that the ALJ’s conclusion in the 2004
ALJ Decision that Mr. Sharpe did not suffer from complicated pneumo-
coniosis may, in part, have been the product of head counting. That is,
the ALJ concluded that Mr. Sharpe did not have complicated pneumoco-
niosis because more experts reading the various x-rays rejected a diagno-
sis of complicated pneumoconiosis than made such a diagnosis. We have
held that it is error for determinations about the existence of pneumoco-
niosis to be based on a numerical counting of expert opinions. See Ster-
ling Smokeless Coal Co. v. Akers, 131 F.3d 438, 440-41 (4th Cir. 1997).
On remand, the ALJ should determine whether the initial finding of com-
plicated pneumoconiosis was mistaken without resort to a tallying of the
expert opinions. On remand, the ALJ should also more thoroughly
explain why he found the opinion of Dr. Fino to be credible and entitled
to great weight, given that the ALJ in his 2002 ALJ Decision had con-
cluded that Dr. Fino’s opinion should be given no weight.
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IV.
Pursuant to the foregoing, we grant Mrs. Sharpe’s petition for
review, vacate the 2005 BRB Decision, and remand for further con-
sideration of the Modification Request and for such additional pro-
ceedings as may be appropriate.17
PETITION FOR REVIEW GRANTED;
ORDER VACATED AND REMANDED
17In view of our disposition of this matter, we need not reach and
address the other contentions raised by Mrs. Sharpe in her petition for
review.
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