Keen Slone, Petitioner, v. Tuscaloosa Energy Corporation; Director, Office of Workers'compensation Programs, United States Department Oflabor, Respondents, 968 F.2d 1216 (6th Cir. 1992)

Before KENNEDY and SILER, Circuit Judges, and JOINER, Senior District Judge.^* 

ORDER

Keen Slone, through counsel, petitions for review of the Benefits Review Board's (BRB) decision denying him benefits under the Black Lung Benefits Act. 30 U.S.C. §§ 901-945. This case has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not necessary. Fed. R. App. P. 34(a). In addition, counsel for all parties have waived oral argument in this case.

The claimant filed an initial claim for benefits on December 2, 1985. That claim was denied administratively, and the claimant did not appeal from this denial. Slone then submitted new evidence to the deputy commissioner, along with a request to reopen his claim, on May 31, 1988. The request was treated as one for modification pursuant to 20 C.F.R. § 725.310 and was finally denied on July 26, 1988. Slone timely appealed from this denial and the case was referred to the Office of Administrative Law Judges for a hearing, which hearing was held on November 29, 1988. On February 26, 1990, the ALJ issued a Decision and Order Denying Benefits, which decision was affirmed by the BRB by Decision and Order dated March 27, 1991.

Section 725.310(a) states that, in order to establish grounds for modification of a prior decision under this section, the claimant must establish either a change in conditions or a mistake in determination of fact. In this case, the ALJ analyzed the relevant medical evidence and determined that there had not been a material change in conditions. He also reviewed the evidence that was in existence at the time of the original denial to decide whether a mistake in determination of fact had been made in the initial decision by the Deputy Commission, and again ruled against the claimant.

Accordingly, the BRB's decision is hereby AFFIRMED.