NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       ____________

                            No. 12-4075
                           ____________

             SKYTOP CONTRACTING COMPANY;
            LACKAWANNA CASUALTY COMPANY,

                             Petitioners
                                  v.

 DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS;
         UNITED STATES DEPARTMENT OF LABOR;
CHARLOTTE J. DiCASIMIRRO (Widow of BERNARD J. DiCASIMIRRO),

                            Respondents
                           ____________

                  On Petition for Review from an
                Order of the Benefits Review Board,
                 United States Department of Labor
             (Benefits Review Board No. 11-0867 BLA)
                           ____________

           Submitted Pursuant to Third Circuit LAR 34.1(a)
                           June 26, 2013

     Before: FUENTES, FISHER and CHAGARES, Circuit Judges.

                      (Filed: August 15, 2013)
                           ____________

                    OPINION OF THE COURT
                         ____________
FISHER, Circuit Judge.

       Skytop Contracting Company and Lackawanna Casualty Company (collectively,

“Skytop”) petition for review of a decision by the Benefits Review Board of the U.S.

Department of Labor (the “Board”), which confirmed an award of survivors’ benefits to

Charlotte DiCasimirro under the Black Lung Benefits Act (“BLBA”), 30 U.S.C. § 901 et

seq., as amended by the Patient Protection and Affordable Care Act (“ACA”), Pub. L.

No. 111-148, § 1556, 124 Stat. 119, 260 (2010). For the reasons that follow, we will

deny the petition for review.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       DiCasimirro’s husband, a former coal miner, was awarded black lung benefits in

1989. Following her husband’s death, DiCasimirro filed a claim for survivors’ benefits

in 1996. That claim was denied under the pre-ACA version of the BLBA because

DiCasimirro failed to establish that her husband’s death was caused by pneumoconiosis

(i.e., black lung disease). In 2002, DiCasimirro filed a subsequent claim for survivors’

benefits, see 20 C.F.R. § 725.309(d) (“If a claimant files a claim under this part more

than one year after the effective date of a final order denying a claim previously filed by

the claimant under this part . . . , the later claim shall be considered a subsequent claim


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for benefits.”) (emphasis added). This subsequent claim was also denied and became

final in March 2003. Then, on March 23, 2010, Congress enacted the ACA, which

amended the BLBA, as codified at 30 U.S.C. § 932(l), and provided automatic

entitlement to benefits for surviving dependents of individuals who had been eligible for

benefits at the time of their deaths. B&G Constr. Co. v. Dir., OWCP, 

, 238-

53 (3d Cir. 2011) (citing ACA § 1556). Section 1556(c) of the ACA specifies the

applicability and scope of the amendment to § 932(l):

       “The amendments made by this Section shall apply with respect to claims
       filed under part B or part C of the Black Lung Benefits Act (30 U.S.C. 921
       et seq., 931 et seq.) after January 1, 2005, that are pending on or after the
       date of the enactment of this Act [March 23, 2010].”1

(emphasis added).

       DiCasimirro then filed a second subsequent claim for survivors’ benefits on

April 22, 2011, which was granted by the DOL district director and confirmed by both an

administrative law judge (“ALJ”) and the Board. The Board found no error in the ALJ’s

conclusion that, based on the award of her husband’s lifetime claim and the filing date of

DiCasimirro’s subsequent claim, she was entitled to survivors’ benefits under the

amended BLBA. App. at 5a-7a. Also, the Board confirmed the ALJ’s award of benefits

as of April 2003, the month after the order denying DiCasimirro’s prior claim became

final. 

20 C.F.R. § 725.309(d)(5) (“In any case in which a subsequent


       1
         Skytop misquotes ACA § 1556(c) in its brief by excluding the words “or after.”
Petitioner’s Br. at 8.

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claim is awarded, no benefits may be paid for any period prior to the date upon which the

order denying the prior claim became final.”)).

                                            II.

       We have jurisdiction over a petition for review of a final order from the Board

under 33 U.S.C. § 921(c). The Board’s decisions on matters of law are subject to plenary

review. Lombardy v. Dir., OWCP, 

, 213 (3d Cir. 2004).

                                            III.

       Skytop now argues (1) that the BLBA’s automatic entitlement provision does not

apply to a subsequent claim for benefits where a prior claim was denied due to the

claimant’s failure to show that pneumoconiosis caused the miner’s death and (2) that the

Board erred in confirming that benefits should be awarded as of April 2003, the month

after the order denying DiCasimirro’s prior claim became final.

       We recently addressed (and found unpersuasive) Skytop’s first argument in

Marmon Coal Co. v. Dir., OWCP, C.A. 12-3388, --- F.3d ---, 

(3d Cir.

Aug. 8, 2013), where we specifically held that the BLBA’s automatic entitlement

provision applies to a subsequent claim for benefits (filed after January 1, 2005 and

pending on or after March 23, 2010) in situations where a prior claim was denied due to

the claimant’s failure to show that pneumoconiosis caused the miner’s death. 

DiCasimirro’s subsequent claim was filed on April 22, 2011, it was filed after




                                             4
January 1, 2005 and was pending on or after March 23, 2010, and thus, her claim falls

within the temporal thresholds of ACA § 1556(c).

       Skytop’s second argument, which pertains to the commencement date for benefits,

is also unpersuasive. The DOL regulation at issue specifically states that where “a

subsequent claim is awarded, no benefits may be paid for any period prior to the date

upon which the order denying the prior claim became final.” 20 C.F.R. § 725.309(d)(5)

(emphasis added). And, although the ACA created a new cause of action for survivors’

benefits, Marmon Coal, 

at *6, and abrogated certain DOL comments

pertaining to subsequent claims, see, e.g., 65 Fed. Reg. 79973 (addressing the pre-ACA

treatment of subsequent claims for survivors’ benefits under 20 C.F.R. § 725.309), it did

not alter or contradict the regulation concerning the commencement date for the payment

of benefits, § 725.309(d)(5). See ACA § 1556; Marmon Coal, 

at *3,

*6 (finding no error where the Board confirmed an award of benefits on a survivor’s

subsequent claim as of the month after the survivor’s prior claim became final). Because

the Board did not confirm an award of benefits for any period prior to the date upon

which the order denying the prior claim became final, it did not err with respect to the

commencement date for the payment of benefits.

                                            IV.

       The Board did not err in confirming the award of survivors’ benefits to

DiCasimirro. Thus, we will deny Skytop’s petition for review.


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