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Office of Administrative Law Judges
 

Supplement to the 2008 Edition of the
Judges’ Benchbook: 
Black Lung Benefits Act

Seena Foster, Editor
October 28, 2011

Chapter 1
Introduction to the Claims Process and Research Tools

I.      Filing the claim and adjudication by the district director        
         B.     Development of the record                 
                 Sufficiency of the Department-sponsored examination under 20 C.F.R. § 725.406

        By published Order of Dismissal in Miller v. Associated Electric Cooperative, Inc., BRB No. 11-0360 BLA (Aug. 17, 2011), the Board dismissed Employer’s appeal of an Administrative Law Judge’s order remanding a black lung claim for a new Department of Labor-sponsored pulmonary evaluation of Claimant.  In the remand order, the Administrative Law Judge determined that the 20 C.F.R. § 725.406 examination report “failed to address the issues of total disability and disability causation.” 

In dismissing Employer’s appeal of this order, the Board concluded that the Administrative Law Judge had not “made a final determination on the merits of this case” and, as a result, Employer’s “appeal is interlocutory.”  The Board distinguished its holding in R.G.B. [Blackburn] v. Southern Ohio Coal Co., 24 B.L.R. 1-129 (en banc), appeal dismissed, Case No. 09-4294 (6th Cir. Feb. 22, 2010), where the Administrative Law Judge remanded five black lung claims for complete pulmonary evaluations.  The Board explained:

In Blackburn, the Board accepted the employers’ interlocutory appeals of a series of remand orders, issued in five cases by (the Administrative Law Judge), in order to resolve the important procedural issue of whether an administrative law judge may properly exercise his or her remand authority, pursuant to 20 C.F.R. § 725.456(e), without notice to the parties and prior to the assembly of the evidentiary record at the hearing.

Slip op. at 3.  In Miller, however, the Administrative Law Judge issued an order to show cause why the claim should not be remanded for a new pulmonary evaluation prior to issuing the order of remand.

        By published en banc decision, R.G.B. [Blackburn] v. Southern Ohio Co., 24 B.L.R. 1-129 (2009) (en banc), the Board addressed the Administrative Law Judge’s authority to remand a black lung claim for further evidentiary development.  On appeal were five orders of remand issued by the Administrative Law Judge in five different claims on grounds that Department-sponsored pulmonary evaluations conducted pursuant to 20 C.F.R. § 725.406 were deficient.

        Employer maintained that the Administrative Law Judge exceeded his authority under 20 C.F.R. § 725.456(e) in remanding the claims prior to admission of all of the evidence at the formal hearing and without notice to the parties.  The Director, Office of Workers’ Compensation Programs (Director), on the other hand, argued that the Administrative Law Judge has authority to remand a claim “at any time prior to the termination of the hearing” if s/he determines that the Department-sponsored examination is either incomplete or not credible.  Notably, however, the Director asserted that, with regard to two out of the five claims at issue, the Administrative Law Judge erred in finding the pulmonary evaluations incomplete.

        According deference to the Director’s position, the Board held the following:

[T]he administrative law judge has discretion to exercise his or her remand authority, pursuant to Section 725.456(e), at any time in the adjudicatory process, beginning when the administrative law judge assumes jurisdiction of the claim and ending with the termination of the hearing.

Slip op. at 10.  The Board did not define “termination” of a hearing.  Under the procedural history that it provides for these claims, the Board notes that the Administrative Law Judge remanded the claims “prior to a hearing.”  Moreover, the Board held that the Administrative Law Judge may review the “DOL-sponsored pulmonary evaluation sua sponte” and, without prior notice to the parties, s/he may remand the claim for supplementation of the evaluation.

        In determining whether the Department-sponsored evaluations were sufficient under § 725.406, the Board concluded that the Administrative Law Judge correctly found deficiencies in examinations underlying three of the claims and remanded them for further evidentiary development, whereas two other claims should not have been remanded. 

In one properly remanded claim, the physician failed to address an element of entitlement, i.e. whether the miner was totally disabled due to a respiratory condition.  In a second claim, the physician failed to address “two requisite elements of entitlement in claimant’s case, the existence of legal pneumoconiosis and total respiratory disability.”  In a third claim, the Department-sponsored physician offered “contradictory” statements in his report and deposition testimony regarding whether the miner suffered from legal pneumoconiosis.  For these three claims, the Board agreed with the Director that the pulmonary evaluations did not satisfy the requirements of 20 C.F.R. § 725.406 and remand was proper.
 
        In two other claims, however, the Board vacated the Administrative Law Judge’s remand orders upon concluding that the requirements of 20 C.F.R. § 725.406 were met.  In the first of these claims, the Administrative Law Judge found that the physician did not “provide any rationale for why he determined that tobacco smoking was the sole cause of Claimant’s pulmonary emphysema.”  The Director maintained that the Administrative Law Judge’s “desire for a more detailed explanation of the doctor’s conclusion” does not constitute a valid basis to remand the claim.  The Board agreed and concluded that, because the physician “performed all of the necessary tests and his report addressed the requisite elements of entitlement, the administrative law judge erred in concluding that claimant did not receive a complete pulmonary evaluation.”  For similar reasons, the Board vacated the Administrative Law Judge’s remand order in a second claim.

        In Greene v. King James Coal Mining, Inc., 575 F.3d 628 (6th Cir. 2009), the administrative law judge’s denial of benefits was affirmed and the court concluded that the Department of Labor-sponsored examination conducted pursuant to 20 C.F.R. § 725.406 was sufficiently reasoned and documented to meet the Department’s obligations. At issue was the administrative law judge’s rejection of Dr. Baker’s diagnosis of coal workers’ pneumoconiosis on grounds that it was “lacking adequate support.”  Notably, the physician’s opinion was compromised, in part, by reliance on erroneous smoking and coal mine employment histories.  Moreover, the opinion was based on a positive x-ray interpretation underlying the report, whereas the administrative law judge concluded that the x-ray evidence on the record as a whole did not support a finding of the disease.  Consequently, it was determined that Dr. Baker did not adequately explain how he reached his medical conclusions in light of the miner’s symptoms and testing.

        The Director, OWCP and Claimant argued that, “if Dr. Baker’s opinion was so poorly reasoned and documented as to justify the ALJ’s refusal to rely upon it, then the case must be remanded so the DOL can provide (Claimant) with a proper evaluation.”  The court disagreed and stated:

In the end, DOL’s duty to supply a ‘complete pulmonary evaluation’ does not amount to a duty to meet the claimant’s burden of proof for him.  In some cases, that evaluation will do the trick.  In other cases, it will not.  But the test of ‘complete[ness]’ is not whether the evaluation presents a winning case.  The DOL meets its statutory obligation . . . when it pays for an examining physician who (1) performs all of the medical tests required by 20 C.F.R. §§ 718.101(a) and 725.406(a), and (2) specifically links each conclusion in his or her medical opinion to those medical tests.  Together, the completion of these tasks will result in a medical opinion under 20 C.F.R. § 718.202(a)(4) that is both documented, i.e., based on objective medical evidence, and reasoned.

Slip op. at 19.

          F.      Party qualified to pursue claim

        In Spangler v. Donna Kay Coal Co., 24 B.L.R. 1-183 (2010), where the miner died during pendency of the claim, the Board held that it was not proper to substitute the miner’s daughter-in-law as a party to the claim without adequate consideration of the factors at 20 C.F.R. § 725.545(e).  Under the facts of the case, the Administrative Law Judge held that Employer failed to present “any evidence that claimant was not acting on behalf of the miner’s estate” such that the daughter-in-law was permitted to proceed with the miner’s claim for benefits.  The Board cited to 20 C.F.R. §§ 725.360 and 725.545 to hold:

Because the administrative law judge did not properly consider whether claimant qualified as a legal representative under 20 C.F.R. § 725.545(e), we must vacate the administrative law judge’s determination that claimant is a proper party to these proceedings.

. . .

Whether claimant is a proper party is a question of fact for the administrative law judge to resolve based upon the application of the regulations.

Slip op. at 7.  The Board noted that, on remand, the “administrative law judge may reopen the record for the submission of evidence relevant to this issue, or entertain motions from any other person who claims the right to proceed on behalf of the miner or his estate.”

        In F.L. v. Zeigler Coal Co., BRB No. 08-0302 BLA (Jan. 29, 2009) (unpub.), Employer moved to dismiss the black lung claim on grounds that there was no “proper party-in-interest to proceed with its adjudication.”   Counsel for Claimant maintained that the “miner’s grandson ha[d] an interest in protecting the award of benefits because there were costs incurred by the miner in pursuing the claim, there could be outstanding benefits due the miner’s estate, and there could be a claim against the miner’s estate for the overpayment of benefits.”  Counsel also asserted that Illinois law did not require probate of the miner’s estate such that the grandson “did not have letters of administration to submit to the administrative law judge.” 

        Nonetheless, the judge subsequently “advised claimant’s counsel to provide her with a copy of the death certificate and the letters of administration that authorized the miner’s grandson to represent the miner’s estate.” In response, the administrative law judge noted receipt of the death certificate, obituary, and “a letter from a law firm that referenced a trust agreement that was not in the record.”  In particular, the law firm’s letter provided that there “was no probate administration of the miner’s estate because all of the miner’s assets at the time of his death were held by his grandson as the trustee of a revocable living trust agreement.” 

        The Board noted that “[a]lthough the administrative law judge determined that this documentation was lacking in some respects regarding the authority of the miner’s grandson to represent the miner’s estate, she found that the miner’s estate would remain the named party in the case.”  The Board upheld the judge’s finding and concluded that, under 20 C.F.R. § 725.360, “it was not unreasonable for the administrative law judge to find that the miner’s estate qualified as a party to the claim . . ..”

II.     The request for a formal hearing

     Under the facts of W.L. v. Director, OWCP, 24 B.L.R. 1-99 (2008), the district director's service sheet stated that his proposed decision and order denying benefits was mailed to the parties on October 14, 2005. However, the envelope containing the proposed decision was postmarked October 19, 2005 and Claimant filed a hearing request on November 18, 2005. Before the administrative law judge, counsel for the Director, OWCP argued that Claimant's hearing request was untimely. However, the Board noted that the Director changed positions on appeal:

The Director notes that he took a contrary position before the administrative law judge as to the timeliness of the hearing request ‘without fully considering the ramifications of the district director's late service of the proposed decision and order . . . which renders the hearing request timely.

Slip op. at 4.

     Citing to 20 C.F.R. § 725.419(a), the Board noted that a hearing must be requested within 30 days of the "date of issuance of a proposed decision and order . . .."  20 C.F.R. § 725.419(a) (2008).  Here, although the service sheet of the Proposed Decision and Order indicated that it was mailed on October 14, 2005, the postmark date on the envelope was October 19, 2005. The Board concluded that the postmark date was controlling and, therefore, Claimant's November 18, 2005 hearing request was timely.

V.  Use of claimants’ initials in final orders and decisions

       In National Assoc. of Waterfront Employers v. Solis, 665 F.Supp.2d 10 (D.D.C. 2009), the district judge held that the “Rule requiring the use of claimants’ initials in ALJ decisions and orders under the Longshore Act and the Black Lung Act will be set aside and its enforcement will be enjoined.”


Chapter 2
Introduction to the Medical Evidence

In Gurule v. Director, OWCP, 2 B.L.R. 1-772 (1979), the Board cited to 20 C.F.R. § 410.426(a), which provides that a miner may be found totally disabled pursuant to blood gas testing notwithstanding negative x-ray evidence and non-qualifying pulmonary function testing:

. . . an impairment in the transfer of oxygen from the lung alveoli to cellular level can exist in an individual even though his chest roentgenogram (X-ray) or ventilatory function tests are normal.

Id. at 1-778.  The Board held:

[P]ulmonary function studies measure an entirely separate pulmonary function than do blood gas studies.  Pulmonary function studies only measure the lungs’ ability to take in and expire air.  A blood gas study is a more exacting test which measures gas exchange between the lung alveoli and the blood thus reflecting the lungs’ ability to take oxygen from the air and get it into the bloodstream in utilizable form.  (citation omitted).  Results from these two tests may consistently have no correlation since coal workers’ pneumoconiosis may manifest itself in different types of impairment.

Id. at 1-777 to 1-778.


Chapter 3
General Principles of Weighing Medical Evidence

CITATION UPDATES:
K.J.M. v. Clinchfield Coal Co., 24 B.L.R. 1-40 (2008).

II.    Rules of general application
         C.     The “hostile-to-the-Act” rule

        In Greene v. King James Coal Mining, Inc., 575 F.3d 628 (6th Cir. 2009), the administrative law judge’s weighing of the medical evidence was affirmed.  With regard to reports by Employer’s experts, Drs. Westerfield and Broudy, the administrative law judge found that the reports were inadequately reasoned in concluding that the miner did not suffer from legal pneumoconiosis.  In particular, it was determined that Dr. Westerfield’s opinion was based on views that were hostile-to-the-Act.  He concluded that the miner’s respiratory impairment did not arise from coal dust exposure because the impairment “arose after (Claimant) stopped working as a coal miner.”  The court agreed with the administrative law judge that this premise is “clearly contrary to the regulations recognizing that pneumoconiosis is ‘a latent and progressive disease which may first become detectable only after the cessation of coal dust exposure.”

        Moreover, the court noted that, both Drs. Westerfield and Broudy “indicated their belief that pneumoconiosis generally causes a restrictive lung pattern, whereas (Claimant) exhibited chronic obstructive lung disease.”  (emphasis in original).  The court concluded that “[t]his, too, is contrary to the regulations which define pneumoconiosis to include “any chronic restrictive or obstructive pulmonary disease arising out of coal mine employment.”  Consequently, the court held that it was proper for the administrative law judge to discredit the opinions of Drs. Westerfield and Broudy.  Nonetheless, based on other evidence in the record, the court concluded that “there was substantial evidence to support the ALJ’s decision to deny (the miner’s) claim for benefits because he failed to establish that he had pneumoconiosis.”

        D.     Numerical superiority
                1.      Chest x-rays
                        d.      Seventh Circuit

        Case summary correction:  In a claim arising under Part 727, Zeigler Coal Co. v. Director, OWCP, 23 F.3d 1235, reh’g. en banc denied (7th Cir. 1994), the court noted that the record contained a 1980 chest x-ray that was read as negative by two B-readers.  There were no positive interpretations of the study.  A study conducted in 1981 produced three negative B-reader interpretations and two positive B-reader interpretations.  On balance, the court concluded that “[w]hile our opinions have been critical of decisions based entirely on ‘head counts’ of experts, . . . we also have held that ‘a single positively interpreted x-ray does not trump any number of negative readings.’” 

        The court emphasized that “the age of the readings, the qualifications of the experts, the persuasiveness of their reports and any other relevant evidence” should be considered by the fact-finder in weighing x-ray evidence.  In this claim, the court determined that, because of the “paucity” of the evidence, the judge’s award of benefits was reversed and the claim was remanded for the miner to “pursue further testing, i.e., ventilatory studies, blood gas studies and other diagnostic and pulmonary testing, so that he might be given an opportunity to establish the required standard of proof (substantial evidence) of his alleged pneumoconiosis.  See 20 C.F.R. § 727.203(a).”

        3.      Medical opinions

        In Gunderson v. U.S. Dep’t. of Labor, 601 F.3d 1013 (10th Cir. 2010)(J. O’Brien, dissenting), the panel majority concluded that, where “equally qualified experts give conflicting testimony” regarding the presence of legal coal workers’ pneumoconiosis under 20 C.F.R. § 718.202(a)(4), the Administrative Law Judge cannot “avoid the scientific controversy by declaring a tie.”  The court explained:

This is a task that is routinely assigned to judges and to juries and that may be accomplished by careful consideration of many factors, including ‘the qualifications of the respective physicians, the explanation of their medical opinions, the documentation underlying their medical judgments and the sophistication and bases of their diagnosis.

        Moreover, the court noted that, with regard “to disputes concerning the existence and causes of pneumoconiosis, an ALJ has the benefit of a substantial inquiry by the Department of Labor.”  The court noted that the Administrative Law Judge may rely on regulations, which provide that pneumoconiosis is progressive, irreversible, and may be latent, in assessing scientific testimony.  As a result, the court remanded the claim for re-evaluation of conflicting medical opinions under § 718.202(a)(4).

III.     Chest roentgenogram evidence
         B.      Format of the x-ray report
                  2.      Use of the official ILO form, generally

        The Board affirmed the Administrative Law Judge’s weighing of medical evidence two unpublished decisions arising in the Fourth Circuit, Reed v. Triple S Energy, Inc., BRB No. 09-0819 BLA (Sept. 29, 2010) and Shrewsberry v. Itmann Coal Co., BRB Nos. 09-0864 BLA and 09-0865 BLA (Sept. 29, 2010).  In both cases, the Administrative Law Judge properly accorded greater weight to positive x-ray interpretations of pneumoconiosis on grounds that physicians offering negative interpretations of the studies “applied criteria not included in the regulations.”  In Reed, some experts found Category 1 pneumoconiosis, whereas other physicians did not mark a category reading and commented that the miner suffered from “asbestosis.”  The Administrative Law Judge found that “asbestosis” is a form of clinical pneumoconiosis and, citing to a dictionary definition that asbestosis is “a form of pneumoconiosis (silicatosis) caused by inhaling fibers of asbestos,” the Board affirmed this finding.  As a result, the Board held it was proper to accord less weight to certain chest x-ray interpretations on this basis.  In Shrewsberry, the Administrative Law Judge accorded little probative weight to a medical opinion regarding the existence of complicated pneumoconiosis where the physician testified that he preferred to rely on x-ray interpretations of radiologists who “require that any opacities found be representative of coal workers’ pneumoconiosis.”  The Administrative Law Judge stated:

[T]he selective reliance by (the medical opinion expert) upon the interpretations by (expert radiologists) because they required that any opacities found be representative of coal workers’ pneumoconiosis (as opposed to pneumoconiosis in general, as envisioned by the statutory and regulatory scheme) reflected bias and affected (the medical opinion expert’s) credibility and the amount of weight to which his opinion is entitled.

The Board noted that the ILO classification form “requires the reviewing radiologist to indicate whether the patient has any parenchymal or pleural abnormalities ‘consistent with pneumoconiosis,’ regardless of whether pneumoconiosis is caused by coal dust exposure.”

                 3.     Treatment record and use of ILO form [new]

        By unpublished decision in Reed v. Markfork Coal Co., BRB No. 10-0170 BLA (Feb. 22, 2011)(unpub.), the Board affirmed the award of benefits on grounds that Claimant suffered from complicated coal workers’ pneumoconiosis.  On appeal, Employer challenged the judge’s designation of certain ILO x-ray interpretations, which were generated at a black lung clinic, as “treatment” records.  The Board upheld the judge’s characterization of the ILO interpretations as “treatment” records and stated:

Because the regulations do not specifically define what evidence may constitute a treatment record, such a determination is a matter of discretion for the administrative law judge, based on his review of the facts and evidence in a particular case.  (citation omitted).  As an initial matter, we hold that the administrative law judge acted within his discretion in rejecting employer’s general contention that the classification of an x-ray under the ILO system establishes, per se, that the x-ray reading is not a treatment record under 20 C.F.R. § 725.414(a)(4).  The administrative law judge rationally determined that employer did not provide any evidence establishing that ILO classified x-rays are obtained, or used, solely for the purpose of litigation.  (citations omitted).

Slip op. at 7.   

         F.     Digital x-rays and CT-scans considered separately from chest x-ray evidence               
                 Digital x-ray in treatment records must meet criteria at 20 C.F.R. § 718.107(b)  [new]

        In B.S. v. Itmann Coal Co., BRB No. 08-0309 BLA (Jan. 29, 2009) (unpub.), the Board reiterated that, prior to considering digital x-rays as evidence of the presence or absence of pneumoconiosis, the administrative law judge must determine whether “the proponent of the evidence has established that digital x-rays are ‘medically acceptable and relevant to establishing or refuting a claimant’s entitlement to benefits’ as provided in 20 C.F.R. § 718.107(b).”  From this, the Board held that it was error for the judge to “determine[] that because the digital x-ray readings in the treatment records were performed for diagnostic purposes, they are implicitly medically acceptable,” while discrediting the digital x-ray readings developed for purposes of litigation based on a party’s failure to “satisfy the requirements of 20 C.F.R. § 718.107(b).”  The Board reasoned:

. . . the relevant inquiry concerns the medical acceptability and relevance of digital x-ray technology as it pertains to the diagnosis of pneumoconiosis.  It does not concern the identity of the reader or the purpose for which the digital x-ray reading was performed.

Slip op. at 6

     G.   "Rebuttal" of affirmative interpretation [new]

     In J.V.S. v. Arch of West Virginia/Apogee Coal Co., 24 B.L.R. 1-78 (2008), the Board reiterated earlier holdings that "each party may submit one rebuttal x-ray interpretation for each x-ray interpretation that the opposing party submits in support of its affirmative case, even if the two affirmative-case interpretations are of the same x-ray."  See also Ward v. Consolidation Coal Co., 23 B.L.R. 1-151 (2006).

IV.      Pulmonary function (ventilatory) studies
      D.    Miners over 71 years of age

     By unpublished decision in Wilson v. Peabody Coal Co., BRB No. 09-0770 BLA (Aug. 11, 2010)(unpub.), a case arising in the Sixth Circuit, the Board cited to K.L.M. [Meade] v. Clinchfield Coal Co., 24 B.L.R. 1-40 (2008) andheld that “[g]iven claimant’s advanced age (over 71 years old), the administrative law judge permissibly utilized the qualifying values for a 71 year old miner.” 

VI.      Medical reports
     A.   Well-documented, well-reasoned opinion defined
          1.    Use of preamble to amended regulations in weighing conflicting opinions upheld  [new]

      In Helen Mining Co. v. Director, OWCP [Obush], 650 F.3d 248 (3rd Cir. 2011), the circuit court affirmed the Administrative Law Judge’s weighing of the medical opinion evidence.  Notably, the court found it proper to accord less weight to the opinion of Dr. Renn, who concluded that the miner did not suffer from legal pneumoconiosis, in part, because there was no x-ray evidence of the disease.  The Administrative Law Judge found that Dr. Renn’s opinion was inconsistent with the plain language of the regulations at § 718.202(a)(4), which allows for a finding of pneumoconiosis “notwithstanding a negative X-ray”, and it was inconsistent with the Department’s position in the preamble.  The court noted that “[t]he ALJ’s reference to the preamble to the regulations, 65 Fed. Reg. 79941 (Dec. 20, 2000), unquestionably supports the reasonableness of his decision to assign less weight to Dr. Renn’s opinion.”

        By unpublished decision in Taylor v. Manalapan Mining Co., BRB No. 10-0403 BLA (Mar. 11, 2011)(unpub.), the Board declined to affirm the Administrative Law Judge’s weighing of certain medical opinion evidence on grounds that he did not consider whether such evidence was inconsistent with the Department’s position as set forth in the preamble to the amended regulations.  Specifically, the Administrative Law Judge accorded greater weight to the medical opinion of Dr. Rosenberg because “he persuasively links the objective medical data to the medical literature to show that Claimant’s reduction in FEV1/FVC ratio is more consistent with a smoking-induced impairment than with a coal-dust-induced impairment.” 

        The Director, OWCP argued that Dr. Rosenberg’s opinion appeared to be inconsistent with statements n the regulatory preamble “indicating that a reduction in the FEV1/FVC ratio is a marker for obstructive lung disease including that cause[d] by coal mine employment” at 65 Fed. Reg. 79943 (Dec. 20, 2000).  The Board agreed and stated:

The administrative law judge’s role encompasses a determination of whether medical opinions are supported by the medical literature they cite, and whether they are consistent with the DOL’s comments to the regulations.  See Jericol Mining, Inc. v. Napier, 301 F.3d 703, 22 BLR 2-537 (6th Cir. 2002); Peabody Coal Co. v. Groves, 227 F.3d 829, 22 BLR 2-230 (6th Cir. 2002).  Significantly, the administrative law judge found that Dr. Rosenberg’s medical opinion was supported by the ‘medical literature’ he referenced in his report.  Therefore, while we are mindful that an administrative law judge may validly credit a medical opinion despite its flaws, . . . his role as fact-finder requires him to recognize and evaluate the strengths and weaknesses of a medical opinion in order to rationally assess credibility and assign probative weight.  (citation omitted).  Because the regulations recognize that coal dust can cause clinically significant obstructive lung disease in the absence of clinical pneumoconiosis, as shown by a reduced FEV1/FVC ratio, we conclude that the administrative law judge must reconsider Dr. Rosenberg’s opinion.  See Roberts & Schaefer Co. v. Director, OWCP [Williams], 400 F.3d 992, 999, 23 BLR 2-302, 2-318 (7th Cir. 2005) (administrative law judge may discount a medical opinion that is influenced by the physician’s ‘subjective personal opinions about pneumoconiosis which are contrary to the congressional determinations implicit in the Act’s provisions’).

Slip op. at 7-8.

       In J.O. [Obush] v. Helen Mining Co., 24 B.L.R. 1-117 (2009), the administrative law judge accorded less weight to a physician who concluded that the miner’s emphysema was not coal dust related based on a lack of radiographic findings of pneumoconiosis.  The Board agreed and concluded that the premise of the physician’s opinion “is inconsistent with both the definition of legal pneumoconiosis and the preamble to the revised regulations.” 

        The Board concluded that the judge “permissibly evaluated (the physician’s) opinion in conjunction with the Department’s discussion of prevailing medical science in the preamble to the revised regulations.”  Notably, the Board stated that “[t]he preamble sets forth how the Department of Labor has chosen to resolve questions of scientific fact.”  Thus, it concluded that “[a] determination of whether a medical opinion is supported by accepted scientific evidence, as determined by the Department of Labor, is a valid criterion in deciding whether to credit the opinion.”  In this case, the judge “correctly noted that the Department of Labor, in the preamble to the revised regulations, recognizes that coal mine dust exposure can be associated with significant deficits in lung function in the absence of clinical pneumoconiosis.”

         In Westmoreland Coal Co. v. Amick, Case No. 06-2171 (4th Cir. Aug. 18, 2008) (unpub.), the administrative law judge properly awarded benefits based on a finding that the miner was totally disabled due to coal dust-induced and smoking-induced chronic obstructive pulmonary disease.  Under the facts of the case, the miner had a 33 year coal mine employment history as well as a history of smoking one pack of cigarettes per day from 1941 until 1988. A dispute arose among the medical experts regarding whether the miner's chronic obstructive pulmonary disease stemmed solely from his smoking history, or whether it was due both to smoking and coal dust exposures.  

        In resolving conflicting medical literature cited by the medical experts, the court held that the judge properly noted that "the Department of Labor already reviewed the medical and scientific literature before promulgating its revised regulations."  As a result, the court concluded:

The ALJ's decision to credit Drs. Cohen and Koenig for their thorough discussion of the medical literature was therefore valid, in that it was, as the ALJ and BRB made clear, more consistent with the Department of Labor's findings that pneumoconiosis is latent and progressive and that an obstructive impairment may be ‘legal pneumoconiosis.'

In line with this reasoning, the court held that the judge properly discredited the opinions of two of Employer's physicians who concluded that the miner's impairment could not have been caused by coal dust exposure because the miner stopped working in 1983 and his condition began to deteriorate in 1991.

     In W.C. v. Aberry Coal Co., BRB No. 07-0974 BLA (Sept. 8, 2008) (unpub.), the Board affirmed an administrative law judge's use of the preamble to the December 20, 2000 regulatory amendments in weighing the medical opinion evidence of record. Notably, in a footnote, the Board stated the following:

Employer . . . objects to the administrative law judge's citation to 65 Fed. Reg. 79937-79945, asserting that, in quoting from comment (f) to 65 Fed. Reg. 79938, she omitted comments (d) and (k) respecting claimant's affirmative burden of proof. Decision and Order at 20-21. However, employer does not assert that the administrative law judge either misquoted or misinterpreted any specific regulation or comment. Rather, the administrative law judge related the Department of Labor's position that ‘[e]ven in the absence of smoking, coal mine dust exposure is clearly associated with clinically significant airways obstruction and chronic bronchitis . . . . [t]he risk is additive with smoking,' and that medical literature ‘supports the theory that dust-related emphysema and smoke-induced emphysema occur through similar mechanisms. See Decision and Order at 20-21, citing 65 Fed. Reg. 79940, 79943 (Dec. 21, 2000). She further remarked that ‘medical opinions which are based on the premise that coal dust-related obstructive disease is completely distinct from smoking-related disease, or that it is not clinically significant, are, therefore, contrary to the premises underlying the regulations.' (citation omitted). In discussing the regulatory framework of the Act in the context of evaluating the conflicting medical evidence of record, the administrative law judge's remarks were entirely proper.

Slip op. at 7, n. 8.

     B.   Undocumented and unreasoned opinion, little or no probative value
          10.     Failure to explain why coal dust did not contribute to respiratory disease or total
                    disability, opinion not reasoned [new]

     In Westmoreland Coal Co. v. Amick, Case No. 06-2171 (4th Cir. Aug. 18, 2008) (unpub.), the court upheld the administrative law judge's award of benefits based on a finding that the miner was totally disabled due to coal dust-induced and smoking-induced chronic obstructive pulmonary disease. Under the facts of the case, the miner had a 33 year coal mine employment history as well as a history of smoking one pack of cigarettes per day from 1941 until 1988. A dispute arose among the medical experts regarding whether the miner's chronic obstructive pulmonary disease stemmed solely from his smoking history, or whether it was due both to smoking and coal dust exposure. In affirming the administrative law judge's weighing of the medical opinions, the court concluded that it was proper for the judge to accord greater weight to physicians who recognized and discussed the latent and progressive nature of pneumoconiosis.

     The court also held it was proper to accord less weight to physicians who did not take into account both cigarette smoking and coal mine dust exposure as potential causes of the miner's chronic obstructive pulmonary disease. Specifically, the judge found that Employer's experts failed to explain "why no part of (the miner's) disability was due to thirty-three of coal dust exposure." The court held that this did not improperly shift the burden to Employer as Claimant's medical experts "supported their conclusions that (the miner's) disability impairment was due, at least in part, to thirty-three years of coal mine dust exposure."

     In Island Creek Coal Co. v. Henline, Case No. 07-1850 (4th Cir. July 9, 2008) (unpub.), the court affirmed the judge's weighing of medical evidence pertaining to the issue of disability causation and stated:

. . . the ALJ reasonably determined that none of Island Creek's doctors satisfactorily explained why (Claimant's) total disability was not due to a coal-dust induced disease . . .. In employing this analysis, the ALJ did not improperly ‘shift[] the burden of proof from the claimant to the employer,' as Island Creek claims he did. (citation omitted). Rather, he merely concluded their analysis was incomplete, and therefore that their opinions were not well-reasoned.

Slip op. at 2. Consequently, the court affirmed the award of benefits.

     See also C.B. v. Bowman Coal Co., BRB No. 07-0320 BLA (July 23, 2008) (unpub.) (the Board upheld the judge's decision to accord the opinion of Employer's expert little weight on grounds that the expert "did not explain his conclusion that claimant's pulmonary condition is entirely attributable to smoking").

          11.     Physician's acknowledgement of latent and progressive nature of pneumoconiosis
                    probative [new]

     In Westmoreland Coal Co. v. Amick, Case No. 06-2171 (4th Cir. Aug. 18, 2008) (unpub.), the court upheld the administrative law judge's award of benefits based on a finding that the miner was totally disabled due to coal dust-induced and smoking-induced chronic obstructive pulmonary disease. Under the facts of the case, the miner had a 33 year coal mine employment history as well as a history of smoking one pack of cigarettes per day from 1941 until 1988. A dispute arose among the medical experts regarding whether the miner's chronic obstructive pulmonary disease stemmed solely from his smoking history, or whether it was due both to smoking and coal dust exposure. In affirming the administrative law judge's weighing of the medical opinions, the court concluded that it was proper for the judge to accord greater weight to physicians who recognized and discussed the latent and progressive nature of pneumoconiosis.

     The court held that, while the regulations do not require that a physician discuss the latent and progressive nature of pneumoconiosis:

. . . considering that both the black lung regulations as well as numerous, long-standing decisions of the courts of appeals recognize the progressivity of pneumoconiosis, the ALJ was not precluded from considering as more persuasive the opinions of those doctors who took that characteristic of pneumoconiosis into account. This is especially true in this case, given that the worsening of (the miner's) symptoms did not occur until eight years after he retired from his coal mining employment.

     In resolving conflicting medical literature cited by the medical experts, the court held that the judge properly noted that "the Department of Labor already reviewed the medical and scientific literature before promulgating its revised regulations." As a result, the court concluded:

The ALJ's decision to credit Drs. Cohen and Koenig for their thorough discussion of the medical literature was therefore valid, in that it was, as the ALJ and BRB made clear, more consistent with the Department of Labor's findings that pneumoconiosis is latent and progressive and that an obstructive impairment may be ‘legal pneumoconiosis.'

In line with this reasoning, the court held that the judge properly discredited the opinions of two of Employer's physicians who concluded that the miner's impairment could not have been caused by coal dust exposure because the miner stopped working in 1983 and his condition began to deteriorate in 1991.

     C.     Physicians’ qualifications
            1.     Treating physician
                       b.     After applicability of 20 C.F.R. Part 718 (2008)
       
        In Greene v. King James Coal Mining, Inc., 575 F.3d 628 (6th Cir. 2009), the administrative law judge’s denial of benefits was affirmed.  The administrative law judge discredited a diagnosis of coal workers’ pneumoconiosis by Dr. Brown, who was Claimant’s treating physician.  Here, Claimant maintained that Dr. Brown’s opinion was entitled to greater weight by virtue of his status as a treating physician.  The court rejected this argument and stated, “A medical opinion is not entitled to any additional weight simply because it was rendered by the claimant’s treating physician”; rather, “the weight to be accorded a treating physician’s opinion is based on its power to persuade.”  The administrative law judge concluded that Dr. Brown’s opinion was entitled to little weight because it was “poorly” reasoned and documented stemming, in part, from Dr. Brown’s reliance on an erroneous coal mine employment history, i.e. Dr. Brown relied on 18 years of coal mine employment and the administrative law judge found only 11 years of such employment.

          By unpublished decision in Maynard v. Eastern Coal Co., Case No. 08-3909 (6th Cir. May 26, 2009)(unpub.), the court upheld a denial of benefits based on Claimant’s failure to demonstrate the presence of complicated coal workers’ pneumoconiosis, or that he was totally disabled due to simple coal workers’ pneumoconiosis.  With regard to weighing treating physicians’ opinions, the court held that “[t]reating physicians are not entitled to automatic deference in black lung cases but may be given greater deference if their extended relationship with the patient makes their opinions more persuasive in the context of a given case.”  In affirming the administrative law judge’s decision to discount the treating physicians’ opinions, the court stated:

Judge Levin noted that Dr. Nadorra, who diagnosed (Claimant) with complicated CWP in 2000, offered no basis for that diagnosis, presented no specialty credentials, and may have relied on an inaccurate smoking history.  These are valid reasons for discounting Dr. Nadorra’s opinion.  Judge Levin’s only explanation for discounting Dr. Younes’s opinion was his reliance on an inaccurate smoking history.  Although a history of smoking apparently has no direct relation to the diagnosis of CWP, a mistake as to such a basic historical fact by a physician treating a pulmonary ailment may cast doubt on the level of Dr. Younes’s familiarity with (Claimant) and may be cause to undermine the reliability of his diagnosis.

Slip op. at 11.

     G.     Inconsistent reports

        In J.L.S. v. Eastern Associated Coal Co., BRB No. 08-0146 BLA (Oct. 24, 2008) (unpub.), the judge properly concluded that the evidence of record did not demonstrate the presence of a totally disabling respiratory impairment.  Notably, the judge accorded little probative value to Dr. Rasmussen’s finding of total disability on grounds that the physician failed to adequately explain his finding in light of the non-qualifying blood gas testing underlying his report.  On the other hand, the Board upheld the judge’s conclusion that Dr. Zaldivar’s finding of no total disability was reasoned and documented in that it “integrates all aspects of the medical and work requirement evidence,” including the non-qualifying ventilatory and blood gas testing of record.

        N.     Medical literature and studies
                1.      Medical opinion supported by literature may be probative

In RAG American Coal Co. v. Director, OWCP [Buchanan], 576 F.3d 418 (7th Cir. 2009), the administrative law judge awarded benefits in the miner’s second claim under 20 C.F.R. § 725.309 based on a finding of total disability due to legal coal workers’ pneumoconiosis, i.e. obstructive lung disease, emphysema, and chronic bronchitis stemming, in part, from the miner’s coal dust exposure.  The court affirmed the administrative law judge’s disagreement with the premises of Drs. Fino, Tuteur, and Renn.  The court noted that these physicians:

. . . relied on medical studies and literature which indicated that pneumoconiosis seldom arose in an obstructive disease and that in miners who were long-term smokers, any obstructive disease resulted from only tobacco smoke, not coal dust exposure.  The ALJ found that this view had been rejected by this court as contrary to the prevailing view of the medical community and substantial weight of the medical and scientific literature . . ..

As a result, the court affirmed the award of benefits in the miner’s second claim based on the administrative law judge’s finding that the miner’s respiratory condition had significantly worsened since denial of the first claim and he was now totally disabled due to coal workers’ pneumoconiosis.

          In R.D.O. v. Peabody Coal Co., BRB No. 08-0402 BLA (Feb. 24, 2009)(unpub.), one of the issues addressed by the Board was proper consideration of medical literature.  The Board stated:

With respect to the conflict among the medical opinions regarding the medical literature cited by Dr. James, the administrative law judge is permitted to review the medical literature admitted into the record for the purposes of determining whether Dr. James has accurately characterized the literature and whether the criticisms that employer’s experts have raised have merit.  (citation omitted).  As the administrative law judge indicated, however, he cannot interpret the clinical data set forth in the medical literature.

Slip op. at 5-6.  In a footnote, the Board stated that, because the judge’s findings were vacated under 20 C.F.R. § 718.202(a)(4), it “need not reach claimant’s argument that the administrative law judge was required to consider the extent to which the views of the medical literature conform to the position adopted by the Department of Labor when promulgating the revised definition of pneumoconiosis set forth in 20 C.F.R. § 718.201(a).”

         In J.P. v. Peabody Coal Co., BRB No. 08-0256 BLA (Dec. 23, 2008) (unpub.), the Board upheld the judge’s award of benefits based, in part, on an opinion by Dr. Cohen that was supported by “medical and scientific studies confirming a link between occupational exposure to coal dust and obstructive lung disease and emphysema.”  In this vein, the Board noted that the judge “explained how Dr. Cohen integrated the medical and scientific studies with claimant’s medical record to conclude that coal dust exposure contributed to his obstructive lung disease.”  The judge further noted that Dr. Cohen’s diagnosis was supported by Claimant’s objective test results, i.e. pulmonary function testing revealing severe obstructive lung disease and blood gas testing revealing abnormal gas exchange, and the premises for his diagnosis was consistent with the position of the Department of Labor.  Dr. Cohen attributed the miner’s COPD to coal dust exposure based partly on the “fact that claimant’s lung function continued to decline significantly after he stopped smoking.” 

        On the other hand, the Board held that the judge properly accorded less weight to the opinions of Drs. Tuteur and Repsher on grounds that the premises of these physicians’ opinions were contrary to prevailing medical opinion and statistical data relied upon by Dr. Tuteur had “no basis in the medical literature” according to Dr. Cohen.  The Board found that the judge “properly found that Dr. Tuteur’s opinion, like that of Dr. Repsher, was based on views about the relationship between chronic obstructive pulmonary disease and coal dust exposure which ‘are not in accord with the prevailing view of the medical community or the substantial weight of the medical and scientific literature.’”


Chapter 4
Limitations on Admission of Evidence and the "Good Cause" Standard in Black Lung Claims

CITATION CORRECTION: Harris v. Old Ben Coal Co., 24 B.L.R. 1-13 (2007) (en banc on recon.) (J. McGranery and J. Hall, concurring and dissenting), aff'g., 23 B.L.R. 1-98 (2006) (en banc).
CITATION CLARIFICATION:  Dempsey v. Sewell Coal Co., 23 B.L.R. 1-47 (2004) (en banc).  See also  Dempsey v. Sewell Coal Co., BRB No. 05-0614 BLA, slip op. at 6-10 (Mar. 31, 2006) (unpub.) (Boggs, J., concurring in part and dissenting in part), vacated in part and remanded sub. nom., 523 F.3d 257 (4th Cir. 2008) (contrary to the majority holding of the Board, the Fourth Circuit held that the statute of limitations at 20 C.F.R. § 725.308 applies to subsequent claims).

I.     Limitation of documentary medical evidence
     A.     Limitations are mandatory
          3.     Failure to object to evidence irrelevant [new]

   In J.V.S. v. Arch of West Virginia/Apogee Coal Co., 24 B.L.R. 1-78 (2008), the Board held that failure to object to admission of evidence in excess of the limitations at 20 C.F.R. § 725.414 is irrelevant. Rather, such medical evidence in excess of the limitations must be excluded absent a finding of "good cause."

        4.      Evidentiary rulings must be made prior to  issuance of the decision; parties must have
                   opportunity to object [new]

        In C.S. v. Koch Carbon Raven Division VA, BRB No. 08-0340 BLA (Feb. 27, 2009) (unpub.), the Board held that the administrative law judge must render all evidentiary rulings prior to the close of the record and issuance of a decision.  To that end, the Board reasoned that “[p]rocedural due process requires that interested parties be notified of the evidence contained in the record and that they be afforded the opportunity to present objections to that evidence.”  See 20 C.F.R. § 725.456(a)(2).  As a result, the Board vacated the judge’s sua sponte admission of Claimant’s Exhibit 9 after the close of the hearing.
 
The records at Claimant’s Exhibit 9 were originally offered by Claimant’s counsel at the hearing and then withdrawn when the exhibits could not be located in the record.  In his decision on the claim, however, the judge advised that he had located the treatment records at issue and found that they had been exchanged between the parties.  Thus, sua sponte, the judge proceeded to admit the treatment records in his decision.  The Board noted:

On remand, the administrative law judge has discretion, upon motion by claimant’s counsel, to admit Claimant’s Exhibit 9 into the record, if that evidence is properly identified and employer’s counsel is afforded the opportunity to object to its admission in accordance with 20 C.F.R. § 725.456(a)(2).

Slip op. at 5-6.

          5.    Designations on evidence summary form [new]

        By unpublished decision in Saylor v. Mullins & Sons Coal Co., BRB No. 09-0727 BLA (June 30, 2010) (unpub.), a claim involving a petition for modification of the denial of a subsequent claim, the Board held that the Administrative Law Judge “was not required to limit his consideration of evidence designated by claimant on the most recent evidence summary form only.”  To the contrary, an Administrative Law Judge is permitted to consider evidence that does not exceed the limitations, even if the evidence is not designated on a party’s evidence summary form.  The Board stated:

[T]he proper inquiry is whether the evidence considered by the administrative law judge falls within claimant’s allowable evidence pursuant to the combined evidentiary limits of 20 C.F.R. § 725.414 and 20 C.F.R. § 725.310.

Slip op. at 5. 

     B.    An original claim or a claim filed pursuant to 20 C.F.R. § 725.309 (2008) 
      3.    The Department of Labor sponsored  examination, special circumstances

     In J.V.S. v. Arch of West Virginia/Apogee Coal Co., 24 B.L.R. 1-78 (2008), with regard to the Department of Labor – sponsored pulmonary evaluation, the Board adopted the Director's position and reiterated its holding in Sprague v. Freeman United Coal Mining Co., BRB No. 05-1020 BLA (Aug. 31, 2006) (unpub.), to hold that both Claimant and Employer could submit "rebuttal" to the Department-generated x-ray interpretation which, in this case, was interpreted as positive. Thus, the Board held that it was proper for the administrative law judge to allow Claimant to submit a positive interpretation of the same study as "rebuttal" to the opposing party's case. The Board concluded that, with regard to the § 725.406 examination, a party is permitted "to respond to a particular item of evidence in order to rebut ‘the case' presented by the opposing party."  In dicta, the Board also noted that if the Department-sponsored interpretation had been negative, Employer would have been allowed to submit another negative interpretation of the study to "rebut" Claimant's case.
       
        In C.S. v. Koch Carbon Raven Division VA, BRB No. 08-0340 BLA (Feb. 27, 2009)(unpub.), the Board reiterated its holding in J.V.S. v. Arch of West Virginia/Apogee Coal Co., 24 B.L.R. 1-78 (2008) that each party is entitled to submit one interpretation of the Department-sponsored x-ray study as “rebuttal” to the opposing party’s case.  In a footnote, the Board further stated:

Because the evidentiary regulations provide for only one rebuttal reading each by claimant and employer of the Department of Labor x-ray, we reject employer’s assertion that the administrative law judge erred in not permitting employer to submit a reading in rebuttal of Dr. Alexander’s positive reading, which was submitted in rebuttal (to the Department-sponsored x-ray) by claimant.

Slip op. at 4, n. 4.

     D.     Hospitalization and treatment records unaffected
          2.     Treatment records
               a.     Rebuttal of

     In J.V.S. v. Arch of West Virginia/Apogee Coal Co., 24 B.L.R. 1-78 (2008), the Board held that biopsy evidence generated in the course of a miner's hospitalization or treatment does "not count against the claimant's affirmative and rebuttal biopsy reports under 20 C.F.R. § 724.414(a)(2)(i) and (ii)." Additionally, Employer is not entitled to submit "rebuttal" of treatment or hospitalization records, including biopsies generated as part of treatment or hospitalization. On the other hand, the Board noted that "a party can have its expert evaluate the biopsy tissue slides and submit the report as part of its affirmative evidence."
     In addition, the Board adopted the Director's position and extended its holdings pertaining to autopsy evidence in Keener v. Peerless Eagle Coal Co., 23 B.L.R. 1-229 (2007) (en banc) to biopsy evidence to conclude that "a biopsy slide review can be in substantial compliance with 20 C.F.R. § 718.106 even if it does not include a gross macroscopic description of the tissue samples."

     F.     Medical reports under 20 C.F.R. § 725.414 (2008)
             2.   Separate physical examination by same physician may be deemed two separate
                   reports

See also Rice v. Bledsoe Coal Corp., BRB No. 09-0650 BLA (July 30, 2010)(unpub.) (the Administrative Law Judge properly held that two reports from the same physician, who conducted two physical examinations of the miner over time, constituted Employer’s two affirmative reports under 20 C.F.R. § 725.414).

     G.     Autopsy and biopsy reports
           3.     Report of biopsy, defined

     In J.V.S. v. Arch of West Virginia/Apogee Coal Co., 24 B.L.R. 1-78 (2008), the Board held that biopsy evidence generated in the course of a miner's hospitalization or treatment does "not count against the claimant's affirmative and rebuttal biopsy reports under 20 C.F.R. § 724.414(a)(2)(i) and (ii)." Additionally, Employer is not entitled to submit "rebuttal" of treatment or hospitalization records, including biopsies generated as part of treatment or hospitalization. On the other hand, the Board noted that "a party can have its expert evaluate the biopsy tissue slides and submit the report as part of its affirmative evidence."

     In addition, the Board adopted the Director's position and extended its holdings pertaining to autopsy evidence in Keener v. Peerless Eagle Coal Co., 23 B.L.R. 1-229 (2007) (en banc) to biopsy evidence to conclude that "a biopsy slide review can be in substantial compliance with 20 C.F.R. § 718.106 even if it does not include a gross macroscopic description of the tissue samples."

H.     "Good cause" standard for admitting evidence  over limitations
          2.     "Good cause," interpretations of 20 C.F.R. § 725.456(b)(1) (2008)

        General burden.  By unpublished decision in Owen v. Midwest Coal Co., BRB No. 09-0326 BLA (Jan. 28, 2010) (unpub.), the Administrative Law Judge properly concluded that Employer did not demonstrate “good cause” to exceed the evidentiary limitations at 20 C.F.R. § 725.414.  Adopting the Director’s position, the Board stated that “employer must make a particularized showing that the evidence submitted in compliance with the evidence-limiting rules was insufficient for determining entitlement to benefits.”  As Employer failed to meet this standard, the Administrative Law Judge did not “abuse her discretion” in excluding the excess evidence.

                c.  Evidence generated by opposing party [new]

     In J.V.S. v. Arch of West Virginia/Apogee Coal Co., 24 B.L.R. 1-78 (2008), the Board declined to find "good cause" for Claimant to submit a positive x-ray interpretation obtained by Employer based on Claimant's argument that the "x-ray interpretation was generated by employer and the result was against employer's interest."

II.     Responsible operator designation
    B.  Evidence related to responsible operator excluded absent “extraordinary circumstances”
        2.     Case law

    By unpublished decision in J.H.B. v. Peres Processing, Inc., BRB No. 08-0625 BLA (June 30, 2009)(unpub.), the Board concluded that a carrier is bound by the same evidence-limiting rules as the employer, including the prohibition against submitting evidence pertaining to its liability for the first time before the Administrative Law Judge without demonstrating “extraordinary circumstances.”  The Board further held that the carrier was barred from utilizing modification proceedings to “circumvent the requirements of Section 725.456(b)(1) or Section 725.414(d), in order to have evidence considered on the responsible carrier issue that was not timely submitted to the district director.”

     In Marfolk Coal Co. v. Weis, 251 Fed. Appx. 229, 2007 WL 3033966 (4th Cir. 2007) (unpub.) (C.J. Williams, dissenting), medical evidence establishing that the miner contracted complicated pneumoconiosis while employed by another operator could not be presented to the Administrative Law Judge for the sole purpose of disproving liability absent a showing of “extraordinary circumstances” under 20 C.F.R. § 725.456(b)(1).  The Administrative Law Judge adopted the position of the Director, OWCP to hold that the named operator was required to present all evidence “bearing on liability to the district director.”  The court cited to the preamble to the amended regulations and found that the Director, OWCP’s position was supported by this regulatory history.  The court held that “extraordinary circumstances” was not established as the named operator failed to demonstrate that the medical evidence at issue was “hidden or could not have been located at the district director stage.” 

III.     Witness testimony
    A.  Limitations on expert medical testimony
       1.  Must provide one of two “medical reports”

     By unpublished decision in Rice v. Bledsoe Coal Corp., BRB No. 09-0650 BLA (July 30, 2010)(unpub.), the Board concluded that Employer was not permitted to proffer Dr. Repsher’s deposition testimony under 20 C.F.R. § 725.457(c) as “rebuttal of the Department-sponsored blood gas study only.”  Under the facts of the case, Employer designated “two affirmative-case medical reports, namely, Dr. Broudy’s physical examination reports from 2001 and 2004” such that Dr. Repsher’s deposition testimony was inadmissible.  

           4.     Right of cross-examination of treating physician [new]

     In L.P. v. Amherst Coal Co., 24 B.L.R. 1-55 (2008) (on recon. en banc), the Board adopted the Director's position and held that a party has the right to cross-examine a physician whose report is admissible under 20 C.F.R. § 718.104(d), regardless of whether the physician prepared one of the two affirmative "medical reports" for a party. In so holding, the Board stated that Employer's cross-examination of the miner's treating physician was necessary "to ensure the integrity and fundamental fairness of the adjudication of the survivor's claim and for a full and true disclosure of the facts." However, the Board circumscribed its decision as follows:

In rendering this holding, we have recognized only a right to cross-examine a physician whose report is admissible under Section 725.414(a)(4), if the physician's report is material and cross-examination is necessary to ensure the integrity and fundamental fairness of the adjudication of the claim and for a full and true disclosure of the facts. We decline to address the question of whether there is a general right to rebut the evidence admitted under Section 725.414(a)(4) becausethe circumstances of this case do not squarely present the issue.

Slip op. at 7-8.

     The Board further noted that "adoption of the evidentiary limitations set forth in Section 725.414 represented a shift from a system that favored the admission of all relevant evidence to a system that balanced this preference with a concern for fairness and the need for administrative efficiency." From this, the Board concluded:

Consistent with the principles of fairness and administrative efficiency that underlie the evidentiary limitations, therefore, if the administrative law judge determines that the evidentiary limitations preclude that consideration of proffered evidence, the administrative law judge should render his or her evidentiary rulings before issuing the Decision and Order. The parties should then have the opportunity to make good cause arguments under Section 725.456(b)(1), if necessary, or to otherwise resolve issues regarding the application of the evidentiary limitations that may affect the administrative law judge's consideration of the elements of entitlement in the Decision and Order.

Slip op. at 8.


Chapter 5
What is the Applicable Law?
[No updates at this time.]


Chapter 6
Definition of Coal Miner and Length of Coal Mine Employment

II.    Coal miner defined under Parts 718 and 727
          B.      The three-prong test
                   4.      Function of the miner

        By unpublished decision in Smith v. James River Coal Co., BRB No. 09-0859 BLA (Sept. 30, 2010)(unpub.), a case arising in the Sixth Circuit, the Board affirmed the Administrative Law Judge’s holding that Claimant did not qualify as a “miner” under the Act.  Based on deposition testimony of Claimant and his former supervisor, it was determined that Claimant worked as a mine engineer, licensed foreman, and administrative assistant for approximately 15 years at various surface mines.  Claimant stated that he obtained permits, surveyed property, served as a foreman on an as-needed basis, and “spent approximately fifty percent of his time on site.”  Claimant further testified that, as an assistant foreman, he performed “core drilling and time studies”, where “65% to 85% of his work was outside” with “some” underground mining.  Claimant’s supervisor confirmed that Claimant assisted in obtaining permits, met with state mining officials to “walk” the permits, designed silt dams, assisted in reclamation, and consulted with lawyers regarding property leases.  However, the supervisor also testified that “claimant’s job did not require him to visit active coal mines and . . . his offices were no closer than a thousand yards to a tipple or mine.”  The supervisor stated that he “would see claimant almost every day, sometimes spending all day with him in an air conditioned office.”  Although Claimant was required to be present at “core drilling” once a week, the supervisor stated that Claimant was “never involved in the actual drilling process.”  The Administrative Law Judge properly credited the foreman’s testimony that Claimant did not work around an active mine and, as administrative assistant, he was not involved in any coal production activity.  The Board upheld the Administrative Law Judge’s finding that he was more persuaded by the supervisor’s testimony that Claimant did not work as a foreman and that Claimant’s presence at the “coal drilling sites alone does not qualify him as a miner.”  The Administrative Law Judge properly concluded that Claimant’s job duties were incidental, or merely convenient, to the extraction, preparation, and transportation of raw coal such that Claimant did not qualify as a “miner” under the Act.

         By unpublished decision in Hansen v. The Wackenhut Corp., BRB No. 09-0179 BLA (Nov. 27, 2009) (unpub.), the Board held that a security officer working for a security company at a coal mining site may qualify as a “miner” under the Act.  The Administrative Law Judge concluded that the “situs” requirement for coverage was satisfied as the miner “worked in or around a coal mine or coal preparation facility.”  The Board affirmed this finding as unchallenged on appeal.

        However, turning to the “function” requirement, i.e. whether Claimant performed duties essential to the extraction and preparation of coal, the Administrative Law Judge found that this requirement was not met and stated:

While the job duties were very important to securing property and contributed to ensuring the safety of the employees at the mine site, the duties were not integral or essential to the actual extraction, preparation, or transportation of coal.

In so holding, the Administrative Law Judge adopted the Director’s position in the claim.

        On appeal, the Director changed his position and argued before the Board that Claimant’s duties could satisfy both the “situs” and “function” prongs to qualify him as a “miner” under the Act.  Notably, the Director cited an unpublished Sixth Circuit decision, Sammons v. EAS Coal Co., 1992 WL 348976 (6th Cir. Nov. 24, 1992), wherein the court “made a distinction between those security guards who do traditional security work, . . . and those who perform duties that are necessary to ensure the safe operation of the mine.”  The Director likened Claimant’s job duties to whose of the “mine inspector” and argued:

An individual employed by a coal mine operator to monitor the health and safety environment at its coal mines is involved in an activity founded not only on a concern for the health and safety of coal mines but also on a concern for maximizing the industrial process.  Increased industrial production is a necessary by-product of a coal mine’s safe environment.  Because of this, a mine inspector employed by a coal mine operator is engaged in a function that is necessarily related to the extraction or preparation of coal.  In the instant case, [c]laimant performed many of the duties of a mine inspector; consequently, those duties satisfy the function test.

Slip op. at 7 (quoting from the Director’s Brief at p. 4).

        The Board agreed with the Director’s position on appeal.  As a result, the Administrative Law Judge’s decision was vacated in part and the claim was remanded for further consideration of whether Claimant’s job duties satisfied the “function” requirement to qualify him as a “miner” under the Act. 


III.  Length of coal mine employment
        F.      Periods not included in computing length of  coal mine employment
                 4.     Time spent working as a state mine inspector  [new]
       
         By unpublished decision in D.R. v. Jewell Ridge Mining Corp., BRB 08-0661 BLA (May 27, 2009) (unpub.), a case arising in the Fourth Circuit, the Board held:

. . . where a claimant worked as a mine inspector for the state of Virginia, since Virginia cannot be a responsible operator, the length of claimant’s tenure with the state should be subtracted from the length of coal mine employment to be credited to him by the administrative law judge.

Slip op. at 7.


Chapter 7
Designation of Responsible Operator

V.     Requirements for responsible operator designation
     F.     Cumulative employment of one year or more and the 125-day rule
        7.  Time spent accruing workers' compensation not count towards one year of employment [new]

     In C.B. v. Bowman Coal Co., BRB No. 07-0320 BLA (July 23, 2008) (unpub.), the administrative law judge found that Employer was properly designated as the responsible operator although Claimant subsequently worked for another operator (Double B Mining Company) for six months and then received workers' compensation from Double B for nine years due to a back injury.

     The Board affirmed the judge's opinion and noted that "claimant did not receive any pay from Double B after 1985 and did not engage in coal mine employment after he ‘was retired' on January 26, 1986 as a consequence of his back injury." From this, the Board held that "the administrative law judge acted within her discretion as fact-finder in determining that because claimant was not ‘on an approved absence, such as vacation or sick leave,' employer, rather than Double B, was the operator for whom claimant had most recently worked for at least one year" under 20 C.F.R. § 725.101(a)(32).

        G.      Ability to pay
                  2.     After applicability of 20 C.F.R. Part 725 (2008)
                         b.      Employer insolvent; intervention of  surety or carrier

In Crowe v. Zeigler Coal Co., 646 F.3d 435 (7th Cir. 2011), the court addressed handling of a defunct employer’s petition for modification.  This particular legal issue resulted in a “majority” opinion, concurring opinion, and dissenting opinion by the three-member panel. 

Of relevance here, in 2001, an Administrative Law Judge issued an award of benefits and no appeal was taken.  Within one year of the award of benefits, Zeigler Coal filed a petition for modification.  In 2004, while the modification proceeding was pending before the Board, Zeigler’s counsel withdrew from the case citing to the fact that Horizon Natural Resources, a successor-in-interest to Zeigler, was liquidated in bankruptcy.  The Board ultimately remanded the claim to the Administrative Law Judge for further proceedings and, in February 2005, the Solicitor’s office notified the Administrative Law Judge, Aetna Casualty and Surety Company, and Horizon that Aetna was the surety that could be held liable for the payment of benefits.  In the letter, the Solicitor further notified Aetna that it could seek to intervene in the modification proceeding as a party in interest.  Aetna did not intervene.

In 2005, the Administrative Law Judge denied benefits on remand based on the defunct Zeigler’s petition for modification.  Further appeals and remands ensued until the denied claim, again, was appealed to the Seventh Circuit.

The majority held that the modification proceeding should have been dismissed when Zeigler was liquidated in bankruptcy and no other party intervened as a proponent of the modification petition.  The court determined that, while the regulations at 20 C.F.R. 725.360(a) and (d) do not set forth time frames for a party to intervene, the surety was on notice of its potential liability through the Solicitor’s February 2005 letter:

It is apparent to the Court that Travelers did not seek timely intervention in the modification proceeding at issue in this case.  As noted, no later than February 2005, when DOL invited Aetna, the predecessor in interest of Travelers, to intervene in the proceeding, Travelers was on notice that, by virtue of the surety bond issued to Zeigler covering Mr. Crowe’s claim, Travelers had an interest that might be impaired by the proceeding, were Travelers, as Zeigler’s surety, required to pay Mr. Crowe’s claim against Zeigler.

        In determining whether an intervention is timely, the court noted that, “mere lapse of time” is insufficient; rather, a tribunal “must weigh the lapse of time in light of all the circumstances of the case.”  In particular, it must determine whether the delay prejudices the “existing parties to the case.”  Under these criteria, the court held that Aetna’s failure to intervene in Mr. Crowe’s claim did prejudice the claimant:

For approximately three years, while the modification proceeding was artificially, and improperly, kept alive by the ALJs assigned to the matter, Mr. Crowe was obliged to defend his award of benefits against a phantom litigant.

The court concluded that it was error for the Board “to refuse to dismiss the modification proceeding” in 2004 when it was notified of Employer’s liquidation.  The court also held that it was error to permit Travelers, as successor surety to Aetna, to intervene in the proceeding on grounds that the intervention was untimely.  As a result, the claim was remanded for reinstatement of the 2001 award of benefits.

In a concurring opinion, Circuit Judge Hamilton joined in District Judge Murphy’s opinion, but wrote separately “to address a second basis for reversal that is at least as powerful as that explained by Judge Murphy.”  Circuit Judge Hamilton concluded that, after the 2001 award of benefits by the Administrative Law Judge was not appealed, it became a final order.  When Zeigler Coal refused to pay benefits pursuant to the final order, Circuit Judge Hamilton concluded that the modification petition filed by the company does not render “justice under the Act” and should have been dismissed.  He asserted that it was a mistake for the Administrative Law Judge and Board allow the modification proceeding to go forward under such circumstances:

The mistake led the ALJ and the BRB to create incentives to encourage employers to refuse to comply with final payment orders, as required by law.  Those incentives will undermine rather than ‘render justice under the Act.’

Id.

Finally, Circuit Judge Ripple wrote a dissenting opinion stating that “the ALJ and the Board acted within their discretion in denying Mr. Crowe’s motion to dismiss and in permitting delayed intervention by Travelers.”  He stated:

[G]iven the Act’s strong preference for accuracy in benefits determinations, the ALJ did not abuse his discretion in determining that justice under the Act was served by the modification.

Circuit Judge Ripple acknowledged that the Black Lung Benefits Act and its implementing regulations “create a complicated process for adjudicating benefits claims . . ..”  However, he noted that, in creating the statute, “Congress deliberately prized accuracy over finality” and “[t]he statute accomplishes this task by allowing agency reexamination of claims to a degree far exceeding the norm in our judicial system.”

        In a subsequent decision regarding payment of attorney’s fees, Crowe v. Zeigler Coal Co., 2011 WL 3678136 (7th Cir. Aug. 23, 2011)(unpub.), the court upheld an award of attorney’s fees to Claimant’s counsel against the defunct coal company’s surety, Travelers Companies, and noted:

Travelers does not dispute that Crowe prevailed, that she is entitled to fees, or that the requested fee amount is reasonable.  The most Travelers says to dispute a fee award against it is that we decided its intervention was improper.

.  .  .

A fee-shifting statute can authorize a fee award against an unsuccessful intervenor who causes the prevailing party to incur additional fees.

In the end, the court awarded $13,268.75 in attorney’s fees to be paid by the surety, Travelers Companies.

        In Lynch v. Old Ben Coal Co., BRB Nos. 10-0209 BLA and 10-0209 BLA-A (Dec. 8, 2010) (unpub.), the Board held that the Administrative Law Judge erred in dismissing Old Ben Coal Company as the responsible operator on grounds that it was not capable of assuming liability for the payment of benefits.  Adopting the position of the Director, OWCP, the Board further determined that it was error for the Administrative Law Judge to place the burden of proof on the Director to establish Employer’s financial ability to pay benefits and stated:

Contrary to the administrative law judge’s finding, once the Director has properly named a potentially liable operator, the Director no longer bears the burden of establishing that the named operator continues to be capable of paying benefits.  Rather, the regulation specifically provides that ‘[i]t shall be presumed, in the absence of evidence to the contrary, that the designated responsible operator is capable of assuming liability for the payment of benefits . . ..’

Slip op. at 15. 

Under the relevant facts of the claim, the Administrative Law Judge found that Employer declared bankruptcy and, as a result, it could not pay benefits.  Moreover, since the company qualified as a “self-insurer” under 20 C.F.R. § 725.706, the Administrative Law Judge concluded that the issue was whether “the security given by Old Ben to secure its liability, . . . was sufficient to secure the payment of benefits in the event the claim is awarded.”  While he noted that the Director asserted that a surety bond existed to pay the benefits, the Administrative Law Judge found that “the Director failed to produce the bond and, therefore, failed to prove either its existence or its validity.”

        The Board held that the Director “established that there was a surety bond posted by Old Ben when it was authorized to self-insure, pursuant to 20 C.F.R. § 726.104(b).”  The Board further stated that Employer conceded that it posted a bond, although Employer argued that “the original bond was no longer valid, or has been replaced by subsequent bonds, including the Frontier Bond.”  The Board held that these arguments were beyond the jurisdiction of the Administrative Law Judge and Board to decide.  The issue of whether a surety bond is valid must be decided in federal district court.

        J.      Due process rights of employer violated;
                   Trust Fund held liable for payment of benefits
                1.      Lost records

        In Energy West Mining Co. v. Director, OWCP [Oliver], 555 F.3d 1211 (10th Cir. 2009), the court addressed Employer’s argument that its due process rights were violated because OWCP destroyed the miner’s original 1980 claim, which compromised Employer’s ability to defend against the subsequent claim.  In considering the miner’s 2002 subsequent claim, the court noted that OWCP had, in fact, destroyed the miner’s 1980 claim “pursuant to its record-retention policy.”  As a result, the court stated that it knew “very little about the claim’s adjudication aside from the fact that it was denied”: 

The destruction of (the miner’s) 1980 claim file threw a wrench into these procedures.  Because OWCP destroyed it, the evidence associated with the prior claim was not made a part of the record as § 725.309(d)(1) requires.

.  .  .

Instead, (the miner) was forced to establish all three elements of his claim by new evidence rather than just one, while Energy West was forced to defend all three elements without the ability to counter or impeach new evidence with old.

Slip op. at 6-7 (italics in original).

        Nevertheless, the court rejected Employer’s argument that it be dismissed from the case on grounds that it “was unable to mount a meaningful defense to (the miner’s) present claim.”  The court noted that there are some circumstances where an employer should be dismissed on due process grounds, such as when “the government entirely fails to give notice of a claim, or delays so excessively in providing notice that the party’s ability to mount a defense is impaired . . ..”  However, in this case, the court concluded that OWCP did not act in bad faith when it destroyed the contents of the 1980 claim file; rather, “[t]he undisputed evidence is that OWCP destroyed the file because it thought it would no longer be useful after nineteen years gathering dust.”  The court concluded that “the 1980 claim file cannot be said to be . . . ‘critical’ to this adjudication.”  Indeed, Employer conceded in the subsequent claim that the miner had established coal workers’ pneumoconiosis in the prior claim, but had not demonstrated that he was totally disabled by the disease.


Chapter 8
Living Miner's Claims: Entitlement under Part 410
[No updates at this time.]


Chapter 9
Living Miner's Claims: Entitlement under Section 410.490
[No updates at this time.]
 


Chapter 10
Living Miner's Claims: Entitlement under Part 727
[No updates at this time.]


Chapter 11
Living Miners' Claims: Entitlement Under Part 718, Judicial Notice, Stipulations, and the Statute of Limitations at 20 C.F.R. § 725.308

CITATION CORRECTION:
Harris v. Old Ben Coal Co., 24 B.L.R. 1-13 (2007) (en banc on recon.) (J. McGranery and J. Hall, concurring and dissenting), aff'g., 23 B.L.R. 1-98 (2006) (en banc).
CITATION CLARIFICATION:  Dempsey v. Sewell Coal Co., 23 B.L.R. 1-47 (2004) (en banc).  See also  Dempsey v. Sewell Coal Co., BRB No. 05-0614 BLA, slip op. at 6-10 (Mar. 31, 2006) (unpub.) (Boggs, J., concurring in part and dissenting in part), vacated in part and remanded sub. nom., 523 F.3d 257 (4th Cir. 2008) (contrary to the majority holding of the Board, the Fourth Circuit held that the statute of limitations at 20 C.F.R. § 725.308 applies to subsequent claims).
CITATION UPDATES:
W.C. v. Whitaker Coal Corp., 24 B.L.R. 1-20 (2008).

II.     Official notice and stipulations

          In Helen Mining Co. v. Director, OWCP [Obush], 650 F.3d 248 (3rd Cir. 2011), Employer argued that, in a subsequent claim, the Administrative Law Judge is barred from “reconsidering facts (regarding the miner’s smoking history) that were already determined” by another Administrative Law Judge in the prior claim.  The court stated:

ALJ Burke did state that Obush quit smoking in 1968, while ALJ Tierney stated that he quit in 1970.  It was error for ALJ Burke to admit a different date into the record, but we regard it—and any potential impact it may have had on ALJ Burke’s finding of 25 pack years—as harmless.

Id.

     B.  Stipulations
               7.    Application of 20 C.F.R. § 725.309(d)(4) [new]

        In Harris v. Cannelton Industries, Inc., 24 B.L.R. 1-217 (2011), counsel for the Director, OWCP joined Employer in arguing that the Administrative Law Judge “erred in finding that employer’s stipulation (of coal mine employment) in the 1982 claim is binding in this (subsequent claim) pursuant to Section 725.309(d)(4) (2010).”  In support of this position, the Director states that the language regarding stipulations at § 725.309(d)(4) first appeared in the December 20, 2000 amendments to the regulations such that it was error to apply the regulatory provision “retroactively to find that employer’s 1986 stipulation is binding.”  Citing to the preamble at 65 Fed. Reg. 80054 (Dec. 20, 2000), the Board agreed and held:

The provision of Section 725.309(d)(4) (2010), making a party’s stipulations in a prior claim binding in a subsequent claim, in concert with 20 C.F.R. § 725.2, is not to be applied retroactively to stipulations made in claims filed on or before January 19, 2001.

Slip op. at 5.

By unpublished decision in D.R. v. Jewell Ridge Mining Corp., BRB 08-0661 BLA (May 27, 2009) (unpub.), a case arising in the Fourth Circuit, counsel for the Director, OWCP argued that 20 C.F.R. § 725.309(d)(4) “applies only to the prior claim that immediately precedes the pending subsequent claim.”  Slip op. at 4, n. 4 (italics added).  Thus, in the miner’s third claim, the Director maintained that, because no stipulations were made in the miner’s second claim, the administrative law judge could not incorporate stipulations made in the miner’s first claim.  However, the Board declined to rule on the merits of this position based on its finding that the administrative law judge erred in finding that Employer had stipulated to the existence of pneumoconiosis in the first claim.

II.     Judicial notice and stipulations
    C.  Concession of complicated pneumoconiosis, effect of  [new]

        In Spangler v. Donna Kay Coal Co., 24 B.L.R. 1-183 (2010), the Board denied Employer’s motion for dismissal as the operator responsible for payment of benefits.  In a letter to the Administrative Law Judge, Employer withdrew its controversion of the miner’s claim stating that “autopsy evidence establishe[d] complicated pneumoconiosis” and the “miner’s entitlement to the irrebuttable presumption” at 20 C.F.R. § 718.304.  The Board held that “employer stipulated to its own liability by conceding that the autopsy report established complicated pneumoconiosis and entitlement to the irrebuttable presumption at 20 C.F.R. § 718.304.”  

IV.     The existence of pneumoconiosis
         A.     “Pneumoconiosis” defined
                  6.    Admission against interest

CITATION UPDATE:  On appeal in Johnson v. Royal Coal Co., 326 F.3d 421 (4th Cir. 2003), rev’g., 22 B.L.R. 1-132 (2000), the court held that 29 C.F.R. § 18.20 (addressing admissions) applies to black lung proceedings and “since Royal failed to deny or otherwise respond to (Claimant’s) request for admissions, Royal has admitted that (Claimant) is entitled to benefits.”  In so holding, the court concluded that Claimant did not waive his right to rely on the “admissions” by failing to object to litigation of the entitlement issues at the hearing.  Rather, the court noted that Claimant’s failure to object to Employer’s contest of the existence of pneumoconiosis and disability causation at the hearing “occurred before the admissions were entered” but that “thereafter (Claimant) did enter the admissions, thus making them effective.”  (italics in original).  As a result, the court reversed the Board’s judgment and remanded the claim for the payment of benefits.

    C.     Presumption at 20 C.F.R. § 718.304, complicated pneumoconiosis
          1.  Chest x-ray evidence

               b.     Cause of the opacities

      By unpublished decision in Reed v. Markfork Coal Co., BRB No. 10-0170 BLA (Feb. 22, 2011)(unpub.), the Board affirmed the award of benefits on grounds that Claimant suffered from complicated coal workers’ pneumoconiosis. 
In finding that complicated pneumoconiosis was established via a preponderance of the chest x-ray evidence, the Board upheld the Administrative Law Judge’s decision to accord little weight to the “multiple negative readings” of Dr. Wheeler as well as the readings by Dr. Scatarige.  The Administrative Law Judge determined that the miner’s treatment records “did not support the alternative etiologies advanced by either Dr. Wheeler or Dr. Scatarige for claimant’s radiographic changes.”  These “alternative etiologies” included tuberculosis, histoplasmosis, or another granulomatous disease.  The Board noted that the Administrative Law Judge’s consideration of interpretations by Drs. Wheeler and Scatarige did not fun afoul of its holding in Cranor v. Peabody Coal Co., 22 B.L.R. 1-1 (1999)(en banc on recon.):

The present case is distinguishable as, in contrast to the readings at issue in Cranor, Drs. Wheeler and Scatarige did not classify the x-rays as containing a large opacity consistent with an ILO classification of complicated pneumoconiosis, which they then explained was not consistent with complicated coal workers’ pneumoconiosis.  (citation omitted).  Rather, Drs. Wheeler and Scatarige suggested that what they observed on claimant’s x-rays was not properly classified as a large opacity under the ILO system.  Because their comments were relevant to whether they accurately determined that the films contained no large opacities consistent with pneumoconiosis, we discern no error . . ..

Slip op. at 13-14.  The Administrative Law Judge also addressed non-qualifying blood gas and pulmonary function testing in light of his finding of complicated pneumoconiosis and the Board stated:

The administrative law judge acknowledged that, although it may be unusual for a miner to have complicated pneumoconiosis and no respiratory impairment, . . . he was not persuaded that the mere absence of an impairment precluded a finding of complicated pneumoconiosis, as defined in the Act and regulations, noting that even Dr. Castle admitted that there are times when a miner may have a Category A opacity on x-ray and no disability demonstrated on his pulmonary function testing.

Slip op. at 12. 

        In J.P.L. v. Shady Lane Coal Corp., BRB No. 07-0941 BLA (Aug. 28, 2008) (unpub.), the Board upheld the administrative law judge's award of benefits based on a finding of complicated pneumoconiosis. With regard to the x-ray evidence, the Board stated that Dr. Sargent noted the presence of Category A opacities on the ILO classification form, but provided additional notations on the form of the need to "rule out" granulomatous disease. Employer argued that Dr. Sargent's interpretation did not support a finding of complicated pneumoconiosis. However, the Board agreed with the administrative law judge's conclusion that, because Dr. Sargent specifically marked a box supporting the presence of a Category A opacity, his comments about "ruling out ‘associated granulomatous disease' did not indicate that he was questioning the existence of large opacities consistent with pneumoconiosis . . .."

     Moreover, under § 718.304(c), the Board upheld the judge's conclusion that Dr. Forehand's diagnosis of complicated pneumoconiosis was more probative than the contrary opinions of Drs. Castle and Hippensteel. While noting that underlying CT-scan evidence was not probative of the presence or absence of complicated pneumoconiosis, the Board affirmed Dr. Forehand's finding of complicated pneumoconiosis where his opinion was based on CT-scan evidence as well as "claimant's work history, smoking history, and negative TB test results." The Board cited, with approval, to the judge's discussion as follows:

[M]y determination to credit Dr. Forehand as the treating physician [does] not rest upon his status alone, but rather upon the unique circumstances of this case, where a number of speculative possibilities have been suggested to explain the [c]laimant's x-ray and CT-scan abnormalities. In the course of Dr. Forehand's treatment of [c]laimant, he did not find the [c]laimant to have any malignancy, tuberculosis, sarcoidosis, or other form of granulomatous disease, and he ran appropriate tests to exclude these other possibilities. I find Dr. Forehand's opinion that the [c]laimant suffers from complicated coal workers' pneumoconiosis to be entitled to significant weight.

The Board agreed with the judge's weighing of the evidence and affirmed a finding of complicated pneumoconiosis.

        In Westmoreland Coal Co. v. Director, OWCP [Cox], 602 F.3d 276 (4th Cir. 2010), the court affirmed the Administrative Law Judge’s award of benefits based on a finding of complicated coal workers’ pneumoconiosis.  The court found that the Administrative Law Judge properly weighed all of the medical evidence:

[T]here was no dispute that the x-rays showed at least one mass measuring more than three centimeters in the upper part of Cox’s right lung.  This finding was also supported by several CT scans and other medical tests.  Westmoreland’s experts did not dispute the existence of a large mass.  Instead, they asserted that the mass was likely due to one of a number of other possible diseases.  The ALJ rejected their conclusions as equivocal and speculative, and found that they did not constitute affirmative evidence sufficient to show that the opacities were not due to pneumoconiosis.

.  .  .

The ALJ also reasoned that because the 2005 biopsy showed signs of pneumoconiosis . . ., and cancer had since been ruled out, the record strongly indicated that pneumoconiosis was what caused the opacities found in Cox’s tests.  Finally, the ALJ noted that none of Westmoreland’s experts had reviewed the 2005 biopsy or questioned its results.

As Claimant demonstrated 30 years of coal mine employment, the Administrative Law Judge properly found that he was entitled to invocation of the § 718.203 presumption that his disease arose from coal mine employment.

        The court rejected Employer’s argument that the Administrative Law Judge erred in rejecting expert opinions that the opacities were likely due to tuberculosis, histoplasmosis, granulomatous disease, or sarcoidosis.  The court noted that Drs. Wheeler, Scott, Scatarige, and Hippensteel offered “speculative alternative diagnoses that were not based on evidence that Cox suffered from any of the diseases suggested.”  The court found that “[n]one of the doctors discussed whether any of the diseases could occur in conjunction with pneumoconiosis” and “none of them pointed to evidence that Cox was suffering from any of the alternative diseases mentioned or discussed” or “whether the tests showed any signs inconsistent with those diseases.”  Further, the court stated that “none of the doctors reviewed or opined upon the results of the 2005 biopsy.”  In the end, the court agreed with the Administrative Law Judge “that the experts’ opinions did not constitute affirmative evidence sufficient to weaken the claimant’s x-ray evidence showing large opacities that satisfied the statutory definition of complicated pneumoconiosis.”

     2.  Autopsy or biopsy evidence
               a.    Equivalency determination

          By unpublished decision in M.G. v. Elkay Mining Co., BRB No. 09-0117 BLA (Oct. 28, 2009) (unpub.), the Board held that lesions identified on autopsy must be “comprised solely of anthracotic or pneumoconiotic material in order to invoke the irrebuttable presumption.”  The Board affirmed the Administrative Law Judge’s award of benefits under 20 C.F.R. § 718.304 stating that he had properly “reweighed the evidence to determine whether claimant established a mass or lesion, consisting entirely of pneumoconiotic material, that would appear as an opacity greater than one centimeter if viewed on x-ray.”  In this vein, the Board noted that a lesion containing a mixture of pneumoconiosis and cancer would not satisfy the requirements at § 718.304 of the regulations.  Moreover, the Administrative Law Judge properly applied the ten year presumption at 20 C.F.R. § 718.203 to his finding of complicated pneumoconiosis on autopsy which, in turn, supported entitlement to benefits.

          In D.S. v. Westmoreland Coal Co., BRB No. 07-1000 BLA (Sept. 30, 2008) (unpub.), a case arising in the Third Circuit, the Board vacated a denial of benefits.  Citing to Clites v. J&L Steel Corp., 663 F.2d 14 (3rd Cir. 1981), the Boardheld that the Administrative Law Judge must determine whether findings on biopsy of lymph nodes ranging in size from one to two centimeters “would appear on x-ray as opacities greater than one centimeter in diameter,” thus demonstrating the presence of complicated pneumoconiosis under the regulations.

        Further, in weighing the evidence, the Administrative Law Judge must also consider statements by Drs. Naeye and Hippensteel that, because there were no lesions greater then two centimeters in diameter on biopsy, there was no evidence of complicated pneumoconiosis.  The Board noted, to the contrary, the following:

The Department of Labor has declined to adopt the view that a 2 centimeter lesion on autopsy or biopsy is a prerequisite for a diagnosis of complicated pneumoconiosis, noting that there is no consensus among physicians that this criterion is valid.  65 Fed. Reg. 79,936; Gollie v. Elkay Mining Corp., 22 B.L.R. 1-306, 1-311 (2003).

Finally, the Board held that, if complicated pneumoconiosis is present, the Administrative Law Judge “must determine whether the evidence establishes that the miner’s complicated pneumoconiosis arose out of coal mine employment pursuant to Section 718.203(c).”   

         4.  Other evidence, consideration of

        By unpublished decision in Clark v. Westmoreland Coal Co., BRB No. 10-0407 BLA (Apr. 15, 2011)(unpub.), the Board affirmed the Administrative Law Judge’s finding that a 3.4 centimeter mass observed on a CT-scan would yield an opacity of greater than one centimeter by chest x-ray.  Employer argued that the Administrative Law Judge “substituted his ‘untrained medical judgment’ for that of the physician, . . . who failed to render this equivalency determination.” 

The Board disagreed and stated that the Fourth Circuit “has consistently held that the administrative law judge must render the requisite equivalency determination, which must be supported by substantial evidence.”  Slip op. at 5 (italics in original).  The Administrative Law Judge determined that the x-ray evidence was insufficient to demonstrate complicated pneumoconiosis at 20 C.F.R. § 718.304(a), and there was no biopsy evidence such that § 718.304(b) was inapplicable.  He also found that the digital x-rays and medical opinions were insufficient to demonstrate the condition under § 718.304(c).  Therefore, the Board stated:

After addressing all of the relevant evidence pursuant to Section 718.304(a)-(c), and noting that (the physician) concluded that the changes observed on the CT scan were ‘typical of’ and ‘suggestive of’ complicated pneumoconiosis, . . . the administrative law judge acted within his discretion in finding that the pulmonary mass measuring 3.4 centimeters that (the physician) observed would be equivalent to a ‘greater than one centimeter opacity’ if seen on x-ray, and that (the physician’s) interpretation of the . . . CT scan was sufficient to establish complicated pneumoconiosis.

In further support of his equivalency finding, the Administrative Law Judge noted that some radiologists interpreting the chest x-rays diagnosed the presence of a size A mass “measuring up to 3 [centimeters]”, even though other radiologists did not identify such a mass.  As noted by the Board:

. . . the administrative law judge was particularly persuaded by the comments of a dually qualified physician, . . . that the mass seen on x-ray was ‘partially obscured by the clavicle;’ the recommendations of several radiologists that a CT scan was necessary for further evaluation; and the observation of Dr. Hippensteel that ‘when markings are obscured . . . a CT scan can provide ‘extra information.’

Slip op. at 6.  Consequently, the Board affirmed the Administrative Law Judge’s finding of complicated pneumoconiosis based on the uncontradicted CT-scan interpretation that he concluded outweighed contrary evidence.

         5.      Weighing the evidence as a whole  [new]

         By unpublished decision in Gosnell v. Eastern Associated Coal Corp., BRB No. 10-0384 BLA (Mar. 11, 2011)(unpub.), a case arising in the Fourth Circuit, the Board affirmed the Administrative Law Judge’s award of benefits under 20 C.F.R. § 725.304.  Notably, the Administrative Law Judge did not find complicated pneumoconiosis present under any of the individual prongs at § 718.304(a)-(c), which includes x-ray evidence, biopsy or autopsy data, or “other means” of diagnosing the disease.  On appeal, the Director, OWCP urged that the Board affirm the decision.  The Board noted:

While all of the physicians interpreting the x-rays identified a large mass in claimant’s right upper lung, they disagreed as to whether the mass represented a Category A large opacity or another disease process, such as tuberculosis, histoplasmosis, pneumonia, or cancer.

Slip op. at 4.

        The Administrative Law Judge found that chest x-rays produced conflicting interpretations and, standing alone, this evidence did not establish the presence of complicated pneumoconiosis under § 718.304(a).  Moreover, biopsy data of the large mass yielded some evidence of pneumoconiosis, but was insufficient, in isolation, to demonstrate complicated pneumoconiosis under § 718.304(b).  Under § 718.304(c), the Administrative Law Judge weighed available CT-scan and PET-scan evidence and associated medical opinions.  He found that this data yielded conflicting interpretations by medical experts and, therefore, was inconclusive.   

        As a last step, however, the Administrative Law Judge weighed all of the evidence together, including the series of medical opinions by the miner’s treating physician, Dr. Robinette.  It was at this juncture that “several potential causes of the large mass in claimant’s right lung were eliminated, such that the evidence that was inconclusive when viewed in isolation was no longer inconclusive, but rather, supported a finding of complicated pneumoconiosis.”  Slip op. at 7.  The Administrative Law Judge emphasized the examinations and testing of the miner’s treating physician, Dr. Robinette, over time.  As observed by the Board:

Specifically, the administrative law judge noted that both a bronchial washing and a skin test were negative for tuberculosis.  (citation omitted).  In addition, the administrative law judge noted that a serology test was negative for fungal infection.  The administrative law judge also found that the CT scan evidence did not reveal calcification associated with the large mass, a condition that Dr. Scott observed would indicate granulomatous disease.  The administrative law judge also relied upon Dr. DePonte’s opinion that the September 27, 2005 CT scan did not reveal the fine, calcified nodular opacities associated with histoplasmosis.

Slip op. at 8.  Dr. Robinette based his diagnosis of complicated pneumoconiosis on the foregoing testing as well as a needle biopsy of the lung mass, which did not demonstrate malignancy, but did produce evidence of anthracosis and associated fibrosis.

        Employer argued that, because Claimant did not sustain his burden under any one of the individual prongs at § 718.304(a)-(c), the Administrative Law Judge erred in finding the disease present based on Dr. Robinette’s medical opinions.  The Board disagreed and held that Dr. Robinette’s opinion was not based on a single test, “but rather upon a comprehensive review of all of the evidence, viewed in the context of claimant’s complete clinical presentation.”

           6.     Progressive massive fibrosis   [new]

        Progressive massive fibrosis equates to a diagnosis of “massive lesions” resulting from pneumoconiosis under 20 C.F.R. § 718.304(b). Pruett v. Chisholm Coal Co., BRB No. 09-0410 BLA, slip op. at 7 (Feb. 24, 2010) (citing Dehue Coal Co. v. Ballard, 65 F.3d 1189, 19 B.L.R. 2-304 (4th Cir. 1995). In Pruett, the Board also acknowledged that the term “progressive massive fibrosis” is generally considered to be equivalent to the term “complicated pneumoconiosis.” Slip op. at 7, n.5 (citing 65 Fed. Reg. 79,951 (Dec. 20, 2000)). The Board was discussing biopsy evidence (and the equivalency requirement) under 20 C.F.R. § 718.304.
  

     D.  Fifteen-year presumption at 20 C.F.R. § 718.305

         By published decision in Keene v. Consolidation Coal Co., 645 F.3d 844 (7th Cir. 2011), the circuit court held that revival of the 15-year presumption at 20 C.F.R. § 718.305 through Section 1556 of the PPACA is constitutional.  

                   Rebuttal of the presumption

In Morrison v. Tennessee Consolidated Coal Co., 644 F.3d 473 (6th Cir. 2011), the court vacated a denial of benefits and remanded the claim for further consideration in the wake of enactment of the Patient Protection and Affordable Care Act § 1556 (2010) (PPACA).  Although the court directed that the Administrative Law Judge reweigh evidence on the issue of total disability, it accepted the Director, OWCP’s position that the 15-year presumption revived by the PPACA would apply to Morrison’s claim:

. . . because Morrison’s February 22, 2007, claim was filed and pending within the applicable time period, Morrison worked underground for more than twenty-two years, and the ALJ found Morrison to be totally disabled . . ..

Slip op. at p. 7. 

        The chest x-ray evidence was negative for the presence of clinical pneumoconiosis, but the court held that, standing alone, negative x-ray evidence is insufficient to rebut the presumption.  The court further declined to find that the medical opinion evidence, which did not contain a diagnosis of pneumoconiosis, was sufficient to rebut the presumption:

[I]n this circuit, it is not enough to simply show that the medical evidence does not include a well documented opinion of pneumoconiosis.

Rather, the court cited to its opinion in Hatfield v. Sec’y. of Health and Human Services, 743 F.2d 1150, 1157 (6th Cir. 1984), overruled on other grounds by Mullins Coal Co. v. Director, OWCP, 484 U.S. 135 (1987), and stated:

[R]ebuttal requires an affirmative showing . . . that the claimant does not suffer from pneumoconiosis, or that the disease is not related to coal mine work.

Slip op. at p. 8 (italics in original).  The Morrison court concluded that, “[b]ecause the record . . . does not contain an affirmative showing that Morrison does not suffer from pneumoconiosis, or that the disease is not related to coal mine work, the medical opinion evidence is insufficient to rebut the § 921(c)(4) presumption.” 

        If, on remand, the Administrative Law Judge determines that total disability is established, then the 15-year presumption would apply.  Under these circumstances, the court directed that the parties be afforded an opportunity “to submit additional medical evidence” on remand that is “consistent with the evidentiary limitations imposed by 20 C.F.R. § 725.414.”

V.     Etiology of the pneumoconiosis
     A.     Applicability
          2.     Applies to complicated pneumoconiosis

        In D.S. v. Westmoreland Coal Co., BRB No. 07-1000 BLA (Sept. 30, 2008) (unpub.), a case arising in the Third Circuit, the Board held that, if complicated pneumoconiosis is present, the judge “must determine whether the evidence establishes that the miner’s complicated pneumoconiosis arose out of coal mine employment pursuant to Section 718.203(c).”  

         3.      Inapplicable to finding of “legal” Pneumoconiosis

        In Energy West Mining Co. v. Director, OWCP [Oliver], 555 F.3d 1211 (10th Cir. 2009), the court held that the ten year rebuttable presumption at 20 C.F.R. § 718.203 does not apply to a diagnosis of legal pneumoconiosis; rather, a physician must state that the miner’s chronic respiratory disease was caused, at least in part, from coal mine employment.  The court stated:

Though COPD is not one of the diseases doctors call pneumoconiosis, it can nevertheless qualify under the legal definition of the term if it arises out of coal mining employment.  A longstanding interpretation of the BLBA recognizes that Congress intended to compensate miners for ‘a broader class of lung diseases that are not pneumoconiosis as that term is used by the medical community.’  (citations omitted).

. . .

Because COPD is most frequently caused by cigarette smoking and is commonly found among the general population, we have held that a miner whose claim to black lung benefits is based on COPD is not entitled to the ordinary rebuttable presumption that his or her disease arose out of coal mine employment provided he worked in the mines for at least ten years (under 20 C.F.R. § 718.203).

Slip op. at 4. 

       D.  Differential diagnosis or apportionment; causation [new]

In Energy West Mining Co. v. Hunsinger, 2010 WL 982910, Case No. 09-9550 (10th Cir. July 29, 2010)(unpub.), the Administrative Law Judge properly determined that Claimant, who had a 25 pack year smoking history and a 24 year history of coal mine employment, was totally disabled due to legal coal workers’ pneumoconiosis.  In affirming the award, the court held that it was proper to rely on a medical expert’s “fifteen years of experience and several epidemiological studies” in crediting his opinion that “it was the significant coal dust exposure that caused Mr. Hunsinger’s lung disease despite the absence of any fibrotic changes visible via x-ray.”  Citing to the Sixth Circuit’s decision in Cornett v. Benham Coal, Inc., 227 F.3d 569 (6th Cir. 2000), the Tenth Circuit agreed that a physician is not required to apportion relative causes of the miner’s lung disease (smoking and coal dust exposure) and the miner is not required to demonstrate that coal dust exposure is the “only cause” of his respiratory condition. 

        In Stover v. Peabody Coal Co., 24 B.L.R. 1-159 (2010) (en banc on recon.), Employer argued that the Sixth Circuit’s toxic tort opinion in Best v. Lowe’s Home Centers, Inc., 563 F.3d 171 (6th Cir. 2009) is applicable to black lung claims.  Employer maintained, in claims where there are multiple (differential) diagnoses, it is incumbent on the medical expert to use “diagnostic techniques to rule out alternative causes in order to reach a conclusion as to which cause of injury is most likely.”  As a result, Employer asserts that “this test constitutes a new legal standard that is applicable to black lung claims under general standards for evaluating the credibility of medical opinion evidence.

Under the facts of Stover, Drs. Simpao and Baker diagnosed smoking-induced and coal dust-induced lung disease.  Employer argued that the Administrative Law Judge failed to apply the Best standard to evaluate the physicians’ opinions such that the decision awarding benefits must be vacated.  The Board disagreed.

        Adopting the position of the Director, the Board held that the Best standard is not applicable, and it does not “present a new standard for evaluating disability causation opinions in black lung cases.”  The Director noted that the Best decision was premised on the application of  Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  Because the Federal Rules of Evidence do not apply to administrative proceedings, the Board concluded that the Sixth Circuit’s decision in Best is not controlling in black lung claims.  The Board noted:

In cases involving the evaluation of medical opinions that attributed a miner’s disabling respiratory impairment to smoking, or to coal dust exposure, or both, where the physicians disagreed as to whether the role of each exposure could be differentiated, the Sixth Circuit has consistently upheld the administrative law judge’s credibility determinations, if supported by substantial evidence, where the adjudicator has examined ‘the validity of the reasoning of a medical opinion in light of the studies conducted and the objective indications upon which the medical opinion or conclusion is based.’

Id.  As a result, the award of benefits was affirmed.

IX.     Applicability of 20 C.F.R. § 725.308, statute of limitations for filing a miner's claim
          D.     Applicability to subsequent claim under 20 C.F.R. § 725.309; effect of findings in prior
                  claim
      
      By published decision in J.O. v. Helen Mining Co., 24 B.L.R. 1-117 (2009), the Board adopted the Director’s position and overruled its holdings in Faulk v. Peabody Coal Co., 14 B.L.R. 1-18 (1990) and Andryka v. Rochester & Pittsburgh Coal Co., 14 B.L.R. 1-34 (1990) to conclude that the three year statute of limitations implemented at 20 C.F.R. § 725.308(a) applies to original claims as well as subsequent claims under 20 C.F.R. § 725.309.  The Board further stated:

We . . . agree with the Director, and hold that a medical determination of total disability due to pneumoconiosis predating a prior, final denial of benefits is deemed a misdiagnosis and thus, cannot trigger the statute of limitations for filing a subsequent claim.

Slip op. at 4.  The Third Circuit agreed on appeal in Helen Mining Co. v. Director, OWCP [Obush], 650 F.3d 248 (3rd Cir. 2011).  Notably, the circuit court held that a medical determination of total disability due to pneumoconiosis predating a prior, final denial of benefits is deemed a “misdiagnosis” and thus, cannot trigger the statute of limitations at 20 C.F.R. § 725.308 for filing a subsequent claim under 20 C.F.R. § 725.309.  The court determined the definition of pneumoconiosis at 20 C.F.R. § 718.201 as a latent and progressive disease supports “reading the statute of limitations in an expansive manner to ensure that any miner who has been afflicted with the disease, including its progressive form, is given every opportunity to prove he is entitled to benefits.”

        In Arch of Kentucky, Inc. v. Director, OWCP [Hatfield], 556 F.3d 472 (6th Cir. 2009), the court held that the three year statute of limitations at 20 C.F.R. § 725.308 does not begin to run based on a medical opinion of total disability due to pneumoconiosis submitted in a claim that is ultimately outweighed by other medical evidence in the claim.  As a consequence, the favorable medical opinion from the miner’s first claim (filed in 1988) was deemed a “misdiagnosis” such that it did not bar the filing of a subsequent claim in 1993 under 20 C.F.R. § 725.309.  To this end, the court held that any suggestion to the contrary in Tennessee Consolidation Coal Co. v. Kirk, 264 F.3d 602, 607 (6th Cir. 2001) is dicta and is not binding.

        In Energy West Mining Co. v. Director, OWCP [Oliver], 555 F.3d 1211 (10th Cir. 2009), Employer posited that “materials in the (destroyed) 1980 claim file might reveal that (the miner) received a communication of total disability from a physician long ago, ‘thereby rendering his current application untimely’” under 20 C.F.R. § 725.308.  The court disagreed:

Because black lung is a progressive disease, miners are permitted to file successive claims; if a claimant is not found to be totally disabled at the time of their initial claim for benefits, he or she can re-file at a later time and demonstrate that the disease has advanced to the point of incapacity.  For this reason, we have previously recognized that ‘a final finding . . . that a claimant is not totally disabled due to pneumoconiosis repudiates any earlier medical determination to the contrary,’ and resets the statute of limitations for filing a black lung claim.  As our sister circuit has explained, a new limitations period begins after every denial of a black lung claim, ‘provided the miner works in the coal mines for a substantial period of time after the denial and a new medical opinion of total disability due to pneumoconiosis is communicated [to him].’  Sharondale, 42 F.3d at 996.

Slip op. at 20.  From this, the court held that, despite destruction of the 1980 claim record, the miner’s subsequent claim was timely filed as:

. . . there can be no doubt that (the miner’s) limitations period has reset.  The denial of his previous claim invalidated whatever medical opinions formed the basis of that adjudication.  More importantly, (the miner) continued to perform mining work for Energy West for thirteen years after the denial of his original claim—unquestionably a substantial period.  And it is not disputed here that his present claim was filed within three years of a new disability diagnosis being communicated to him by Dr. Morgan.  That is all the regulations require.

Slip op. at 20.

     F.     Commencement of the three-year period
             1.     Written communication not required
                      a.    Miner's testimony not probative, limitations period not commence [new]

     In Island Creek Coal Co. v. Henline, Case No. 07-1850 (4th Cir. July 9, 2008) (unpub.), the court affirmed the administrative law judge's finding that Employer failed to present evidence sufficient to rebut the presumption that Claimant timely filed his claim for benefits under 20 C.F.R. § 725.308. The judge concluded that no physician provided Claimant with a "reasoned" opinion of total disability due to pneumoconiosis more than three years prior to the filing of his claim. Additionally, the judge discredited Claimant's testimony that a physician informed him that he was totally disabled due to the disease more than three years prior to the filing of his claim on grounds that Claimant "admitted that a stroke had left him with a poor memory" as well as the fact that the miner's testimony "was inconsistent and composed primarily of ‘yes' answers."

     In concluding that the miner's claim was timely filed, the court declined to rule on whether a "reasoned" opinion is required to trigger the limitations period. Rather, the court held that the judge "discredited the only testimony that (the miner) received any medical opinion—reasoned or unreasoned—that would have triggered the limitations clock more than three years prior to the claim . . .."

          3.  Receipt of communication by miner [new]

     In W.C. v. Benham Coal, Inc., 24 B.L.R. 1-50 (2008) (Boggs, J., concurring), the Board held that issuance of an administrative law judge’s decision and order to a miner, wherein the judge described a reasoned opinion of total disability due to pneumoconiosis by a physician, is not sufficient to commence the three-year limitations period under 20 C.F.R. § 725.308(a) and Tennessee Consolidated Coal Co. v. Kirk, 264 F.3d 602 (6th Cir. 2001).  In a separate, concurring opinion, Judge Boggs noted the following:

The true holding in this case is that neither communication with claimant’s counsel, nor issuance of a judicial opinion without evidence of receipt by claimant, constitutes communication to claimant for purposes of 20 C.F.R. § 725.308(a).

Chapter 12
Introduction to Survivor's Claims
[No updates at this time.]


Chapter 13
Survivors' Claims: Entitlement Under Part 410
[No updates at this time.]


Chapter 14
Survivors' Claims: Entitlement Under § 410.490
[No updates at this time.]


Chapter 15
Survivors' Claims: Entitlement Under Part 727
[No updates at this time.]


Chapter 16
Survivors' Claims: Entitlement Under Part 718

NOTE:  For issues related to application of collateral estoppel, see Chapter 25.

          Automatic Entitlement Under the PPACA  [new]

        The Patient Protection and Affordable Care Act, enacted on March 23, 2010, provides for automatic entitlement to survivors whose claims were filed after January 1, 2005 and are pending on or after March 23, 2010 where the miner was eligible for benefits at the time of death.

          By published decision in Keene v. Consolidation Coal Co., 645 F.3d 844 (7th Cir. 2011), the circuit court held that revival of the 15-year presumption at 20 C.F.R. § 718.305 through Section 1556 of the PPACA is constitutional.   The court did not address revival of “automatic entitlement” for survivors of miners who were awarded benefits on their lifetime claims.

        However, the Third Circuit did address Section 1556’s revival of “automatic entitlement” for survivors of miners who were awarded benefits on their lifetime claims and, by published decision in B&G Construction Co. v. Director, OWCP [Campbell], ___ F.3d ___, Case No. 10-4179 (3rd Cir. 2011), the court held that the provisions are constitutional.

        In Groves v. Vision Processing, LLC, BRB Nos. 09-0780 BLA and 09-0780 BLA-A (Sept. 29, 2010)(unpub.), the Administrative Law Judge awarded benefits in the miner’s claim, but denied survivor’s benefits.  While Employer did not appeal the Administrative Law Judge’s consolidated decision, Claimant did file an appeal of the denial of her claim.  Because the survivor’s claim was filed after January 1, 2005, the Board adopted the position of the Director, OWCP and reversed the denial of survivor’s benefits on grounds that the Patient Protection and Affordable Care Act § 1556, Pub. L. No. 111-148, 124 Stat. 119 (2010) applied and the survivor was automatically entitled to benefits based on the award of benefits in the miner’s lifetime claim.  Employer maintained that it was denied due process; to wit, it did not have notice or an opportunity to be heard on the new enactment providing derivative entitlement.  The Board held, to the contrary, Employer had notice and an opportunity to be heard in conjunction with its litigation in the miner’s lifetime claim and this satisfied the due process requirement for purposes of the survivor’s claim.  The Board stated:

The fact that employer chose not to appeal the award in the miner’s claim, on which an award in the survivor’s claim now rests, does not mean that employer’s due process rights have been violated.

Slip op. at 6.

     In Fairman v. Helen Mining Co., 24 B.L.R. 1-227 (2011), the Board reaffirmed its holdings in Mathews v. United Pocahontas Coal Co., 24 B.L.R. 1-193 (2010), recon. denied, BRB No. 09-0666 BLA (Apr. 14, 2011) and Stacy v. Olga Coal Co., 24 B.L.R. 1-207 (2010), appeal docketed Case No. 11-1020 (4th Cir. Jan. 6, 2011) that the automatic entitlement provisions of Section 1556 of the Patient Protection and Affordable Care Act (PPACA) are constitutional.  The Board also reiterated that the date of filing of the survivor’s claim, not the filing date of the miner’s claim, controls applicability of Section 1556.  The Board held that no hearing is required in these claims:

Contrary to employer’s argument, the administrative law judge was not required to provide employer with a second hearing after the amendments to the Act were enacted on March 23, 2010.  The Act and regulations mandate that an administrative law judge hold a hearing on any claim whenever a party requests such a hearing, unless such hearing is waived by the parties or a party requests summary judgment pursuant to 20 C.F.R. § 725.452.  (citation omitted).  In this case, the Director moved for summary judgment, arguing that there was no genuine issue of material fact concerning claimant’s entitlement to benefits under amended Section 932(l). 

Slip op. at 5.

In Mathews v. United Pocahontas Coal Co., 24 B.L.R. 1-193 (2010), recon. denied, BRB No. 09-0666 BLA (Apr. 14, 2011), the Board adopted the Director’s position and upheld the constitutionality of § 1556(c) of the Patient Protection and Affordable Health Care Act, Pub. L. No. 111-148 (Mar. 23, 2010) providing for automatic entitlement in certain survivors’ claims.   Under the facts of that case, the miner was paid benefits until the time of his death on August 10, 2005.  The survivor filed her claim for benefits on October 3, 2005, which was “pending on or after March 23, 2010.”  The Board noted the following:

Employer agrees that amended Section 932(l) is applicable to this case, as claimant filed her claim after January 1, 2005, her claim was pending on March 23, 2010, and the miner was in payment status at the time of his death.  (citation omitted).  Thus, claimant is derivatively entitled to survivor’s benefits pursuant to 30 U.S.C. § 932(l).  Consequently, as amended Section 932(l) does not afford employer the opportunity to defend the claim once derivative entitlement has been established, . . ..

Slip op. at 7.  Thus, the Board holds it is the date of filing of the survivor’s claim, not the miner’s claim, which controls applicability of Section 932(l), as amended by the PPACA.   

        Subsequently, in Stacy v. Olga Coal Co., 24 B.L.R. 1-207 (2010), the Board reiterated its holding that the automatic entitlement provisions of the PPACA were constitutional.  Moreover, the Board held that, for purposes of applying the automatic entitlement provisions of the PPACA to a survivor’s claim, it is the date of filing the survivor’s claim, not the filing date of the miner’s claim, which controls applicability of the amendments.  In so holding, the Board adopted the Director, OWCP’s position and stated:

[G]iven that the recent amendments make derivative entitlement available to survivors who were previously required to file claims, that Section 932(l) does not prohibit filings for which there is an administrative need, and that survivors will need to file some sort of paperwork to ensure that they receive benefits, we reject employer’s assertion that it would ‘contravene the plain language of [Section 932(l)] to determine the applicability of [Section 1556] based on the date a survivor’s claim is filed.’

Slip op. at 5.

D.     Survivor’s claim filed on or after January 1, 1982 where there is no miner’s claim or miner not found entitled to benefits as a result of a claim filed prior to January 1, 1982  
        2.      “Hastening death” standard
                b.      After applicability of 20 C.F.R. Part 718 (2008)

        In the survivor’s claim, Conley v. National Mines Corp., 595 F.3d 297 (6th Cir. 2010), the miner suffered from lung cancer, which metastasized to his brain, pancreas, and liver.  The Administrative Law Judge determined that the miner suffered from both clinical coal workers’ pneumoconiosis as well as chronic obstructive pulmonary disease (COPD) due, in part, to his coal dust exposure.  A treating physician testified that, because of his COPD, the miner had “less respiratory reserve, less capacity to deal with these things, and that therefore it does make a difference.”  From this, the Administrative Law Judge concluded that coal dust-induced COPD hastened the miner’s death and benefits were awarded.

        Citing to its opinion in Eastover Mining Co. v. Williams, 338 F.3d 501 (6th Cir. 2003), the court reiterated that “[l]egal pneumoconiosis only ‘hastens’ a death if it does so through a specifically defined process that reduces the miner’s life by an estimable time.”  The court stated that unsupported statements by a physician will not meet this standard.  It declined to hold that a “precise number of days” or an estimate of months or years would be required; rather, the court concluded that “context and common sense will govern the resolution of these questions.”  However, an opinion that pneumoconiosis makes a person generally weaker or more susceptible to “other trauma” is insufficient, according to the court, to meet this standard.

 

        In Hill v. Director, OWCP, 562 F.3d 264 (3rd Cir. 2009), the court reversed an administrative law judge’s denial of benefits in a widow’s claim.  Under the facts of the case, the miner’s treating physician concluded that, although pancreatic cancer was the immediate cause of the miner’s death, the presence of chronic obstructive pulmonary disease hastened his demise because it compromised his respiratory system.  The administrative law judge concluded that this constituted insufficient evidence upon which to award survivor’s benefits because the physician did not attribute development of the miner’s COPD to his history of coal dust exposure. 

The circuit court noted that, because the miner had been awarded benefits during his lifetime, the parties stipulated to the presence of coal workers’ pneumoconiosis in the widow’s claim.  From this, the sole remaining entitlement issue in the widow’s claim, according to the court, should have been death causation, and not whether the miner’s COPD stemmed from coal dust exposure:

Rather than seizing upon a semantic technicality to reject Dr. Carey’s explanation of the causes of Hill’s death, the ALJ should have recognized that ‘pneumoconiosis,’ as defined under the Black Lung Benefits Act, was a cause of, and a hastening factor in, his death.

        Moreover, citing to Lukosevicz v. Director, OWCP, 888 F.2d 1001 (3rd Cir. 1989), the court reiterated that it was “irrelevant” that pancreatic cancer was the immediate cause of the miner’s death; rather, the court determined that benefits should have been awarded in the survivor’s claim if evidence demonstrated that “pneumoconiosis contributed to the miner’s death, albeit briefly.”  (italics in original).

        Upon review of the record, the treating physician’s opinion that COPD compromised the miner’s respiratory system and hastened his death was sufficient to award survivor’s benefits under the Act.  The court stated:

[W]e are at a loss to understand why the ALJ was so troubled by Dr. Carey’s testimony about the effect of a compromised respiratory system on the human body.  One need not be board certified in pulmonology nor have an advanced degree in anatomy to appreciate the impact that low oxygen levels in the blood can have on the human body.  Common sense suggests that if the heart and lungs do not have a sufficient supply of oxygen to function properly, the result could surely include organ failure as well as other complications.

The Third Circuit noted, “Every physician who examined Hill within a month of his death, and every medical examination and finding, confirmed his pulmonary disease, decreased breath sounds, and respiratory difficulties.”  The court added that “pneumoconiosis need only have some identifiable effect on the miner’s ability to live” in order for the widow to be entitled to benefits.  From this, it concluded:

The law simply does not require a miner with a respiratory system that has been ravaged by mine-related pneumoconiosis to hang on until a physician can document his last moment of life so that the survivor will be able to document that his impaired respiratory system hastened his death.

The court then stated, “Given the medical evidence on this record, we believe that Mrs. Hill has established her entitlement to survivor’s benefits as a matter of law, and there is nothing left to do but award the benefits she is clearly entitled to.”


   The claim was docketed in February 2009 and heard by the Administrative Law Judge in May 2009.


Chapter 17
Onset, Augmentation, Termination, and Interest
[No updates at this time.]


Chapter 18
Overpayment, Waiver, and Recovery

VI.     Recovery of the overpayment
     E.  Federal district court jurisdiction, certification of facts by the administrative law judge [new]

        In Itmann Coal Co. v. Scalf, 662 F.Supp.2d 582 (S.D.W. Va. 2009), the district court dismissed Employer’s petition, under 33 U.S.C. § 927(b), for judicial enforcement of an order directing Claimant’s repayment of an overpayment of black lung benefits.  Notably, the District Director found that Claimant received state black lung benefits and was overpaid $50,913.60 in federal benefits by Employer.  As a result, the District Director issued a “Certification of Facts”, which Employer attached to its petition for judicial enforcement. 

        The district court held that it did not have subject matter jurisdiction to order repayment of the overpaid black lung benefits.  Specifically, the court found:

Section 927(b) requires the federal agency to ‘certify the facts to the district court.’  This places responsibility of seeking enforcement of the administrative order on the relevant administrative agency, not the parties.  While Itmann certainly has a stake in the matter—it claims to be owed over $50,000—§ 927(b) appears concerned with providing a mechanism by which a federal agency can ensure that its rulings are complied with through judicial action.  In this case, the only entity with such an interest is the DOL.  The statute is silent regarding private enforcement.  There is no indication that Congress intended § 927(b) to create an army of private attorneys general to enforce administrative orders.

Id (italics in original).


Chapter 19
Medical Benefits Only (BMO) and Black Lung Part B Claims (BLB)

II.     Black Lung Part B (BLB) Claims
     C.     Disabled child [new]            
             Must be disabled before 22 years of age

     In the matter of R.L.H., ARB Case No. 08-075, 2007-BLA-5279 (ARB, July 30, 2008), the Administrative Review Board (Board) affirmed the administrative law judge's denial of an adult disabled child's claim for benefits. The Board stated, "To be eligible for survivor's benefits under Part B, claimant must establish that her SSA-adjudicated disability began before she was twenty-two" under 20 C.F.R. § 410.370. Claimant maintained that she was entitled to benefits as the surviving daughter of the deceased miner and his deceased wife because she is disabled and unmarried and "needs the benefits to sustain her livelihood." The Board rejected these arguments and noted that Claimant conceded that "she was not disabled before she was twenty-two but became disabled . . . at age forty-five." The Board further concluded that the adverse financial circumstances asserted by Claimant "do not change the regulatory requirement that she prove disability before she was twenty-two." As a result, the Board affirmed denial of the claim.

     D.     Proceedings are non-adversarial [new]

     In R.L.H., ARB Case No. 08-075, 2007-BLA-5279 (ARB, July 30, 2008), the Administrative Review Board (Board) noted that Part B proceedings are non-adversarial pursuant to 20 C.F.R. §§ 410.623(a), 410.625, and 410.632 such that it was error for the Director's counsel to enter an appearance in the claim before the administrative law judge. Nonetheless, the Board held that the Director's "mistake" was harmless in this case because Claimant did not allege any prejudice to her case as a result of the Director's entry of appearance and the Board found no prejudice.

        E.  Appellate jurisdiction lies with the Administrative Review Board [new]

     In the matter of R.L.H., ARB Case No. 08-075, 2007-BLA-5279 (ARB, July 30, 2008), the Administrative Review Board (Board) accepted jurisdiction of the appeal of a Part B survivor's claim pursuant to the provisions of the Black Lung Consolidation and Administrative Responsibility Act of 2002, 116 Stat. 1925 (2002) and "Section 4(c)(44) of the Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002)," which provides that the Board "has the authority to act for the Secretary of Labor when a statute enacted after September 24, 2002 states that the Secretary of Labor is the final decision maker on an appeal of a decision issued by an ALJ."


Chapter 20
Medical Treatment Dispute (BTD)

I.      Generally
        B.      Concession, effect of

        In Glen Coal Co. v. Director, OWCP [Seals II], 77 Fed. Appx. 878 (Oct. 15, 2003)(unpub.), the court noted that a 1984 agreement by Employer to pay Federal black lung benefits to the miner, which included “reasonable medical charges directly resulting from treatment of the miner’s coal workers’ pneumoconiosis,” was a concession of clinical and legal pneumoconiosis.  The court reasoned that Employer “did not qualify or limit its 1984 agreement to clinical pneumoconiosis,” such that it was liable for medical expenses related to treatment of the miner’s chronic obstructive pulmonary disease.

III.  Treatment related to the miner’s black lung condition
        A.      Burden of persuasion/production

        In Harris v. Shamrock Coal Co., BRB No. 09-0164 BLA (Nov. 19, 2009) (unpub.), a medical treatment dispute claim, the Administrative Law Judge properly concluded that Employer failed to rebut the presumption at 20 C.F.R. § 725.701(e).  In so holding, the Administrative Law Judge accorded Dr. Caffrey’s opinion little weight as he “addressed only whether the miner had pneumoconiosis and not whether the miner’s medical bills were related to treatment for pneumoconiosis.”  Similarly, Dr. Broudy’s opinion was of little probative value because he “improperly questioned whether the miner had pneumoconiosis and whether the miner was totally disabled due to pneumoconiosis.”  Moreover, Dr. Broudy’s report “improperly focuse[d] on whether the treatment notes and medical records diagnose[d] pneumoconiosis.”  Finally, Dr. Fino’s report was accorded little weight since it was “based on inadequate information.”  Notably, Dr. Fino “reviewed only cursory descriptions of [the] miner’s medical expenses, which included no explanations for why the tests and procedures were performed.” 


Chapter 21
Interest on Past Due Medical Bills (BMI) and Penalties
[No updates at this time.]


Chapter 22
Transfer of Liability to the Trust Fund
[No updates at this time.]


Chapter 23
Petitions for Modification Under 20 C.F.R. § 725.310

CITATIONS UPDATES:
D.S. v. Ramey Coal Co., 24 B.L.R. 1-33 (2008).

I.     Generally
     C.     Petition for modification of the denial of a subsequent claim, standard of review [new]

     In a case arising under the pre-amendment regulations, J.P.L. v. Shady Lane Coal Corp., BRB No. 07-0941 BLA (Aug. 28, 2008) (unpub.), the Board held that in "considering a request for modification of the denial of a duplicate claim, which was denied based upon a failure to establish a material change in conditions, the administrative law judge must determine whether the evidence developed in the duplicate claim, including any evidence submitted with the request for modification, establishes a material change in conditions."

      By unpublished decision in Reed v. Markfork Coal Co., BRB No. 10-0170 BLA (Feb. 22, 2011)(unpub.), the Board concluded that the Administrative Law Judge applied the proper legal standard for considering the miner’s petition for modification of the denial of a subsequent claim.  Citing to Hess v. Director, OWCP, 21 B.L.R. 1-141 (1998), the Board stated that “the (threshold) issue properly before the administrative law judge was whether the new evidence submitted with the request for modification, establishes a change in an applicable condition of entitlement.”  Here, because the original claim was denied for failure to demonstrate a totally disabling respiratory impairment, the Board held that the judge properly found this threshold issue met on grounds that newly submitted evidence established the presence of complicated pneumoconiosis. 

     D.    Circumvention of law not a proper basis for modification  [new]

        In M.A.S. v. Westmoreland Coal Co., BRB No. 08-0563 BLA (June 17, 2009) (J. Smith, dissenting) (unpub.), the Fourth Circuit had remanded the claim to the administrative law judge for a determination of (1) whether Employer’s petition for modification of the award of benefits in the miner’s claim should be denied on grounds of improper motive, lack of diligence, or futility, and (2) whether Employer was collaterally estopped from re-litigating the issue of complicated pneumoconiosis in the survivor’s claim based on a finding of the disease in the successful miner’s claim.

        On remand, the administrative law judge concluded that Employer’s petition for modification of the award of benefits in the miner’s claim could properly be considered.  Moreover, the administrative law judge held that Employer was not collaterally estopped from re-litigating the existence of complicated pneumoconiosis in the survivor’s claim.  The Board disagreed.

        In a split panel decision of the Board, the administrative law judge’s decision was reversed and the miner’s and survivor’s claims were remanded to the district director for the payment of benefits.

        Starting with the propriety of Employer’s modification petition in the miner’s claim, the Board noted that the Fourth Circuit set forth, inter alia, the following questions:

Why did Employer wait to seek modification for a period of time two months after the miner’s death and nearly seven years after the Benefits Review Board affirmed the award of benefits in the miner’s claim and no further appeal was taken?
Should Employer’s motive in seeking modification be deemed suspect?
Is the modification petition futile or moot, in that no overpayment made to the now deceased miner could be recovered?
Is the modification petition akin to a request for an advisory opinion since its favorable resolution will have no impact on the living miner’s claim?

In determining whether Employer’s modification petition was proper, the Board noted that Employer “acknowledges that its purpose in requesting modification of the miner’s claim was to preclude application of the irrebuttable presumption (of complicated pneumoconiosis) in the survivor’s claim.”  The Board further stated that Employer’s modification petition in the miner’s claim was filed less than one month after the district director applied collateral estoppel to bar re-litigation of the issue of complicated pneumoconiosis in the survivor’s claim, thus awarding benefits in that claim.  The Board concluded the following:

The timing of employer’s request for modification, and the nature of the supporting evidence it initially proffered, establish that employer’s motive in seeking to set aside the award of benefits in the miner’s claim was to evade application of the irrebuttable presumption of death due to pneumoconiosis in the survivor’s claim.

. . .

Granting modification when the moving party’s motive is to circumvent the law does not render justice under the Act.

Slip op. at 7-8. 

To this end, the Board found the administrative law judge’s analysis “fundamentally flawed” where he concluded that it “was in the interest of justice to grant modification of the decision in the miner’s claim in order to preclude claimant’s reliance on collateral estoppel in the survivor’s claim . . . when employer proffered evidence that the miner had not suffered from complicated pneumoconiosis.”  The Board held, to the contrary, that Employer on modification submitted “the same sort” of evidence that “was available during the miner’s life” and that “[u]nder these circumstances, it is proper to grant survivor’s benefits based on the finding made during the miner’s life.” 

        With regard to the issue of “futility,” the Board noted that “employer has conceded that it is not attempting to recoup any overpayment from the miner’s estate, and such recovery is precluded, as the miner had no estate when he died and the time for filing a claim had elapsed as of the date of filing of the request for modification.” 

Finally, citing to Zeigler Coal Co. v. Director, OWCP [Villain], 312 F.3d 332, 334 (7th Cir. 2002), the Board held that “there is no point in re-adjudicating the question of whether a given miner had pneumoconiosis unless it is possible to adduce highly reliable evidence—which as a practical matter means autopsy results.  Otherwise the possibility that the initial decision was incorrect is no reason to disturb it.”  Slip op. at 11.  The Board concluded, with regard to Employer’s petition for modification, the administrative law judge is required “to consider only factors relevant to a determination of whether reopening the (miner’s) claim would render justice in the (miner’s claim), not (the survivor’s) claim.”  The Board concluded that Employer’s attempt to thwart application of collateral estoppel in the survivor’s claim was not a proper purpose for filing a petition for modification in the miner’s claim.

     E.   Modification of an attorney fee award not permitted  [new]

       By unpublished decision in Crabtree v. Queen Anne Coal Co., BRB No. 10-0301 BLA (Jan. 31, 2011)(unpub.), the Board upheld the Administrative Law Judge’s order dismissing Employer’s petition for modification of an attorney fee award.  On appeal, Employer maintained that the Administrative Law Judge was obliged to determine whether the fee award contained a “mistake in a determination of fact” regarding Claimant’s counsel’s hourly rate.  The Board disagreed.  Citing to Greenhouse v. Ingalls Shipbuilding, Inc., 31 B.R.B.S. 41 (1997), the Board stated that an attorney fee award “does not concern ‘compensation’ or ‘the terms of an award or denial of benefits’ as required under Section 22 of the Longshore and Harbor Workers’ Compensation Act”, such that the award is not subject to modification.

II.    Procedural issues
        F.      Failure to timely controvert original claim; limitation on scope of modification

In Arch of Kentucky, Inc. v. Director, OWCP [Hatfield], 556 F.3d 472 (6th Cir. 2009), the court held that Employer was barred from re-litigating the issue of its untimely controversion on modification at 20 C.F.R. § 725.310.  The court reasoned that “there would be little use in having a default provision (at § 725.413(b)) in the first place if everything could be reopened by a subsequent request for modification.” 
       
        Under the facts of the case, the court noted that, in connection with the miner’s 1993 subsequent claim, Employer failed to file a controversion within the prescribed 30-day time period.  As a result, the administrative law judge awarded benefits.  The court upheld the finding that Employer failed to timely controvert the miner’s 1993 claim such that the miner was entitled to benefits.  Moreover, the court held that Employer’s explanation that “notice of the initial award got ‘lost-in-the-shuffle’” did not constitute “good cause” sufficient to waive the 30 day time deadline at 20 C.F.R. § 725.413(b) (1993).  The court stated:

To this day, Arch has offered little to support its good-cause argument—there are no affidavits or other evidence in the record that would provide some detail to the attorney’s vague assertion of a personnel problem.

. . .

Here, without any evidence explaining why or how the purported personnel problems caused the missed deadline or any evidence of the counsel’s diligence once the problem was identified, it cannot be said that the ALJ abused her discretion in denying Arch’s request to file an untimely controversion.

Id.

IV.     Review by the administrative law judge
C.     Proper review of the record
           1.     Diligence, motive, and futility, the threshold
                   Determinations

        By unpublished decision in Wilson v. Peabody Coal Co., BRB No. 09-0770 BLA (Aug. 11, 2010)(unpub.), a case arising in the Sixth Circuit, the Board affirmed the Administrative Law Judge’s denial of Employer’s petition for modification on grounds that reopening the claim would not “render justice under the Act.”  In particular, the miner was awarded benefits by an original deciding Administrative Law Judge and the award was affirmed by the Board on appeal. 

On modification, Employer asserted that the original deciding judge made a mistake in a determination of fact in weighing the chest x-ray evidence.  In the original claim, Employer did not provide the curriculum vitae of two of its physicians documenting that they were board-certified radiologists and NIOSH-certified B-readers in the original claim, but it sought to do so in conjunction with the modification proceeding.  In denying Employer’s modification petition, the Board affirmed the Administrative Law Judge’s conclusion that Employer “showed a lack of diligence from the beginning of this claim when it disregarded—either through ignorance or indifference—the well established rule that a party must prove the credentials of its experts.”  The Administrative Law Judge noted that Employer had multiple opportunities to cure this deficiency, including while the original claim was pending before the District Director and Administrative Law Judge.

Citing to Kinlaw v. Stevens Shipping and Terminal Co., 33 B.R.B.S. 68 (1999), Employer argued that its modification petition cannot be denied solely because evidence was available at an earlier stage in the proceeding.  The Board recognized, however, that “the interest in arriving at the ‘correct’ result does not always override the interest in finality.”  As a result, in Wilson, the Board concluded that Employer’s modification petition was properly denied:

The facts here – where the employer failed to submit critical evidence, then attempted to use modification to correct the oversight – are similar to those in Kinlaw, where the Board upheld the administrative law judge’s finding that reopening the claim would not render justice under the Act, because the employer there was attempting to correct its own misstate in failing to develop its expert’s testimony in the initial litigation.  Kinlaw, 33 BRBS at 73-75.  Detecting no abuse of discretion, we affirm the administrative law judge’s finding that employer exhibited a lack of diligence in establishing the radiological qualifications of its experts.

Slip op. at 10.  The Board agreed that Employer’s motive in requesting modification was improper as it sought to “remedy its own failure to timely submit the radiological qualifications of its experts, i.e. its own litigation mistake.” 

            3.     "Mistake in a determination of fact"
               j.     Application of collateral estoppel [new]

     In V.M. v. Clinchfield Coal Co., 24 B.L.R. 1-65 (2008), the Board held that it was proper to apply collateral estoppel to establish coal workers' pneumoconiosis in the survivor's claim where there was an award of benefits in the miner's claim and no autopsy evidence was offered.

     Notably, in this particular claim, the first administrative law judge to adjudicate the survivor's claim concluded that, despite the fact that there was no autopsy evidence offered in the survivor's claim, collateral estoppel could not be applied because the miner's claim was awarded prior to issuance of Island Creek Coal Co. v. Compton, 211 F.3d 203 (4th Cir. 2000) (requiring that evidence submitted under § 718.202(a)(1)-(4) be weighed together prior to finding the presence of pneumoconiosis) whereas the survivor's claim was filed after issuance of Compton. The judge denied benefits in the survivor's claim.

     The survivor subsequently filed a petition for modification. A second administrative law judge reviewed the claim to assess whether a mistake in a determination of fact had been made. The judge concluded that collateral estoppel should have been applied in the survivor's claim pursuant to Collins v. Pond Creek Mining Co., 468 F.3d 213 (4th Cir. 2006) after also determining that application of the doctrine would not be unfair to Employer under the factors set forth in Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) and Polly v. D & K Coal Co., 23 B.L.R. 1-77 (2005). Upon consideration of evidence in the claim, benefits were awarded.

     The Board adopted the Director's position and held that it was proper to find a mistake in a determination of fact in the original adjudication of benefits in the survivor's claim; namely, that coal workers' pneumoconiosis was established via application of collateral estoppel on modification. Moreover, because coal workers' pneumoconiosis was established in the survivor's claim, the Board held that it was proper for the judge to accord less weight to medical opinions of physicians who did not find the disease present.


Chapter 24
Multiple Claims Under 20 C.F.R. § 725.309

I.      Generally
        A.      Refiling more than one year after prior denial
                2.      Latency
        Subsequent claim proper even without additional exposure to coal dust

        In RAG American Coal Co. v. Director, OWCP [Buchanan], 576 F.3d 418 (7th Cir. 2009), the administrative law judge awarded benefits in the miner’s second claim under 20 C.F.R. § 725.309 based on a finding of total disability due to legal coal workers’ pneumoconiosis, i.e. obstructive lung disease, emphysema, and chronic bronchitis stemming, in part, from the miner’s coal dust exposure.  Despite arguments by Employer to the contrary, the court concluded that the “fact that pneumoconiosis may be progressive and latent justifies allowing a subsequent claim even without additional coal dust exposure since the denial of the earlier claim.” 

IV.    Proper review of the record
          A.      Prior to applicability of 20 C.F.R. Part 725 (2008)
                  e.      Seventh Circuit
        Etiology of pneumoconiosis properly considered

        In RAG American Coal Co. v. Director, OWCP [Buchanan], 576 F.3d 418 (7th Cir. 2009), the administrative law judge awarded benefits in the miner’s second claim under 20 C.F.R. § 725.309 based on a finding of total disability due to legal coal workers’ pneumoconiosis, i.e. obstructive lung disease, emphysema, and chronic bronchitis stemming, in part, from the miner’s coal dust exposure.  Employer challenged the award of benefits on grounds that (1) the miner’s second claim was barred by res judicata, (2) the miner did not demonstrate a “material change in conditions” since the denial of his prior claim, and (3) the administrative law judge’s “refusal to apply ordinary principles of finality denied (Employer) due process of law.” 

        The circuit court disagreed.  It applied the pre-amendment regulations at 20 C.F.R. § 725.309 because the miner’s second claim was filed in August 1998. Citing to Peabody Coal Co. v. Spese, 117 F.3d 1001, 1007 (7th Cir. 1997) (en banc), the court reiterated that a miner may “avoid the res judicata effect of the denial of his earlier claim if he establishes ‘that there has been a material change in conditions.’”  The court noted that the administrative law judge “found that (Claimant’s) pulmonary disease had progressively and substantially worsened since the denial of his first claim, such that he established total disability due to pneumoconiosis.”  From this, it concluded that the miner demonstrated a material change since the prior denial warranting relief from res judicata

Employer noted that the miner’s first claim was denied on grounds that his emphysema and bronchitis were due solely to a 36 pack year cigarette smoking history and not due to the miner’s 20 year coal mine employment history.  From this Employer argued that Claimant should not be allowed to relitigate the cause of these conditions in his second claim.  The court was not persuaded and concluded that this argument “leads right into RAG’s sideswipe at the conclusion (both the DOL’s and ours) that pneumoconiosis is progressive and latent.”

V.      Onset date under 20 C.F.R. § 725.309
        B.      After applicability of 20 C.F.R. § 725.309 (2008)

        By unpublished decision, N.E. v. Elk Run Coal Co., BRB No. 08-0454 BLA (Sept. 21, 2009), the Board noted that under 20 C.F.R. § 725.309(d)(5), “no benefits may be paid (in a subsequent claim) for any period prior to the date upon which the order denying the prior claim became final.”  Under the facts of the claim, the Board affirmed the denial of the miner’s prior claim on February 7, 2005.  The Director, OWCP argued that, pursuant to 20 C.F.R. § 802.406, the Board’s decision became “final” for entitlement purposes on April 8, 2005, which was the sixtieth day following issuance of the Board’s decision during which an aggrieved party may file an appeal to the circuit court. 

        The Board disagreed with the Director’s position and stated the following:

We disagree because, under 20 C.F.R. § 802.406, where no appeal is filed, the Board’s decision becomes final after sixty days, and the finality relates back to the date upon which the Board’s decision was issued and became effective.  (citation omitted).  In other words, after sixty days the Board’s decision becomes final because the time in which review could have been sought has passed.  However, where no appeal is filed, that sixty days is not part of the time period ‘encompassed by the prior claim’ for entitlement date purposes; rather, it was the time period in which claimant could have, but did not, file an appeal that would have prevented the Board’s decision denying the claim from becoming final.  Because claimant did not appeal the Board’s decision, it became final.  And since no appeal was filed, the issuance, effectiveness, and finality of the Board’s decision are one and the same for entitlement date purposes, that is, February 7, 2005.

Slip op. at 3.


Chapter 25
Principles of Finality

IV.     Collateral estoppel
G.    Miner's and survivor's claims, existence of pneumoconiosis

     See V.M. v. Clinchfield Coal Co., 24 B.L.R. 1-65 (2008) (application of collateral estoppel on modification of survivor's claim upheld).

In Mathews v. United Pocahontas Coal Co., 24 B.L.R. 1-193 BLA (2010), recon. denied, BRB No. 09-0666 BLA (Apr. 14, 2011), the Board adopted the Director’s position and upheld the constitutionality of § 1556(c) of the Patient Protection and Affordable Health Care Act, Pub. L. No. 111-148 (Mar. 23, 2010) providing for automatic entitlement in certain survivors’ claims.   Under the facts of that case, the miner was paid benefits until the time of his death on August 10, 2005.  The survivor filed her claim for benefits on October 3, 2005, which was “pending on or after March 23, 2010.”  The Board noted the following:

Employer agrees that amended Section 932(l) is applicable to this case, as claimant filed her claim after January 1, 2005, her claim was pending on March 23, 2010, and the miner was in payment status at the time of his death.  (citation omitted).  Thus, claimant is derivatively entitled to survivor’s benefits pursuant to 30 U.S.C. § 932(l).  Consequently, as amended Section 932(l) does not afford employer the opportunity to defend the claim once derivative entitlement has been established, . . ..

Slip op. at 7.  Thus, the Board holds it is the date of filing of the survivor’s claim, not the miner’s claim, which controls applicability of Section 932(l), as amended by the PPACA.   

          7.  Applies to findings of clinical and legal coal workers’ pneumoconiosis [new]

        In A.H.A. v. Eastern Coal Corp., BRB No. 08-0476 BLA (Jan. 30, 2009) (unpub.), a survivor’s claim with no autopsy evidence of record, the Board held that collateral estoppel applies to findings of clinical as well as legal coal workers’ pneumoconiosis made in support of a final award in the miner’s claim.  Here, an administrative law judge concluded that legal coal workers’ pneumoconiosis was established in the miner’s finally awarded claim, but x-ray evidence did not demonstrate the presence of clinicalpneumoconiosis.  Thus, in the survivor’s claim, Employer was collaterally estopped from re-litigating the existence of legal coal workers’ pneumoconiosis which, in turn, affected the weighing of medical opinions addressing the cause of the miner’s death.
  

          8.  Applicable to findings of complicated pneumoconiosis   [new]

        In M.A.S. v. Westmoreland Coal Co., BRB No. 08-0563 BLA (June 17, 2009) (J. Smith, dissenting) (unpub.), the Board underwent analysis of factors set forth in Parlane Hosiery Co. v. Shore, 439 U.S. 322 (1979) and Collins v. Pond Creek Mining Co., 468 F.3d 213 (4th Cir. 2006) to conclude that Employer was collaterally estopped from re-litigating the issue of the existence of complicated pneumoconiosis in the survivor’s claim where benefits were awarded in the miner’s claim under 20 C.F.R. § 718.304 and no autopsy evidence was presented in the survivor’s claim.  As a result, the Board remanded the survivor’s claim to the district director for the payment of benefits.

           9.    Withdrawal of controversion or stipulation; no basis for application of collateral estoppel [new]

        By unpublished decision in McKnight v. Island Creek Coal Co., BRB No. 09-0449 BLA (Mar. 24, 2010)(unpub.), the Board held the following with regard to applying collateral estoppel in a survivor’s claim:

A fact established by stipulation or concession may not be given collateral estoppel effect in a subsequent proceeding because the issue was not actually litigated.  Justice v. Newport News Shipbuilding and Dry Dock Co., 34 B.R.B.S. 97, 98 (2000).  Because the miner’s award of benefits was based on employer’s withdrawal of controversion, the issues of existence of pneumoconiosis and causation were not actually litigated in the miner’s claim and, thus, a required element of collateral estoppel is not established.

        The Board further concluded that it was improper to apply “equitable” estoppel barring re-litigation of the existence and cause of pneumoconiosis.  Here, the Administrative Law Judge stated that “the Miner was in pay status for fifteen years as a result of Employer’s acquiescence” such that Employer was barred from re-litigating the issue of pneumoconiosis.  The Board stated:

The ‘traditional elements required to invoke equitable estoppel are a definite misrepresentation by one party, intended to induce some action in reliance, and which does reasonably induce action in reliance by another party to his detriment.’  (citations omitted).  In this case, the administrative law judge found that employer’s request to remand the miner’s claim to the district director was a ‘representation’ upon which claimant ‘justifiably relied.’  (citation omitted).  The administrative law judge, however, nowhere found, or identified evidence, that employer made a ‘definite misrepresentation’ that, by its misleading nature, was ‘intended to induce some action in reliance by claimant.’  (citation omitted).  Moreover, the administrative law judge did not specify the manner in which claimant detrimentally relied upon any such representation.  (citations omitted).  Therefore, we reverse the administrative law judge’s finding that equitable estoppel barred relitigation of the issues of the existence of pneumoconiosis and disease causation in the survivor’s claim.

Slip op. at p. 5.

         Under the facts of M.B. v. Island Creek Coal Co., BRB No. 08-0627 BLA (May 29, 2009) (unpub.), Employer accepted liability in the miner’s claim and withdrew its request for a formal hearing by the administrative law judge.  As a result, the miner’s claim was remanded to the district director for the payment of benefits. 

Subsequently, a survivor’s claim was filed.  In adjudicating the survivor’s claim, the judge cited to Richardson v. Director, OWCP, 94 F.3d 164 (4th Cir. 1996) and found that Employer had stipulated to the presence of complicated pneumoconiosis based on its actions in the miner’s claim and it was, therefore, collaterally estopped from re-litigating the issue in the survivor’s claim.

        Citing to Hughes v. Clinchfield Coal Co., 21 B.L.R. 1-134, 1-137 (1999) (en banc), the Board noted that collateral estoppel forecloses “the relitigation of issues of fact or law that are identical to issues which may have been actually determined and necessarily decided in prior litigation in which the party against whom [issue preclusion] is asserted had a full and fair opportunity to litigate.”  Here, the Board stated:

In finding that the doctrine of collateral estoppel applied to this case, the administrative law judge found that, because employer vigorously contested the miner’s entitlement to benefits up until shortly before the scheduled hearing, employer had actually litigated the issue of complicated pneumoconiosis in the miner’s claim.

Slip op. at 6. 

The Board disagreed with the judge’s decision and noted that “Employer’s letter asking that the hearing in the miner’s claim be cancelled was short and general, and neither referenced, nor agreed with, the district director’s finding of the existence of complicated pneumoconiosis.” From this, the Board concluded that it was “impossible to determine whether employer intended any action beyond the general withdrawal of its controversion to the miner’s claim for benefits.”  Further, the Board reasoned that “because the miner’s entitlement to benefits was established by employer’s concession, no finding was rendered by the administrative law judge as to the existence of complicated pneumoconiosis” and, as a result, the requirement that an issue be “actually litigated and determined” was not satisfied.  Accordingly, the Board concluded that collateral estoppel was inapplicable in the survivor’s claim.

It is noted that counsel for the Director, OWCP argued that Employer’s actions in the miner’s claim were akin to “default,” i.e. giving up the opportunity to defend the case.  As such, the Director maintained that “if a party actively participated in prior litigation before defaulting, the default judgment may serve to preclude relitigation of the issue in a subsequent proceeding.”  The Board was not persuaded and summarily concluded that cases cited by the Director were “distinguishable.”

           10.    Concession or stipulation; no basis for application of collateral estoppel [new]

        By unpublished decision in McKnight v. Island Creek Coal Co., BRB No. 09-0449 BLA (Mar. 24, 2010)(unpub.), the Board held the following with regard to applying collateral estoppel in a survivor’s claim:

A fact established by stipulation or concession may not be given collateral estoppel effect in a subsequent proceeding because the issue was not actually litigated.  Justice v. Newport News Shipbuilding and Dry Dock Co., 34 B.R.B.S. 97, 98 (2000).  Because the miner’s award of benefits was based on employer’s withdrawal of controversion, the issues of existence of pneumoconiosis and causation were not actually litigated in the miner’s claim and, thus, a required element of collateral estoppel is not established.

        The Board further concluded that it was improper to apply “equitable” estoppel barring re-litigation of the existence and cause of pneumoconiosis.  Here, the Administrative Law Judge stated that “the Miner was in pay status for fifteen years as a result of Employer’s acquiescence” such that Employer was barred from re-litigating the issue of pneumoconiosis.  The Board stated:

The ‘traditional elements required to invoke equitable estoppel are a definite misrepresentation by one party, intended to induce some action in reliance, and which does reasonably induce action in reliance by another party to his detriment.’  (citations omitted).  In this case, the administrative law judge found that employer’s request to remand the miner’s claim to the district director was a ‘representation’ upon which claimant ‘justifiably relied.’  (citation omitted).  The administrative law judge, however, nowhere found, or identified evidence, that employer made a ‘definite misrepresentation’ that, by its misleading nature, was ‘intended to induce some action in reliance by claimant.’  (citation omitted).  Moreover, the administrative law judge did not specify the manner in which claimant detrimentally relied upon any such representation.  (citations omitted).  Therefore, we reverse the administrative law judge’s finding that equitable estoppel barred relitigation of the issues of the existence of pneumoconiosis and disease causation in the survivor’s claim.

Slip op. at p. 5.

  In the miner’s claim, the district director had found the presence of complicated pneumoconiosis established and benefits were awarded.  Employer then requested a hearing.


Chapter 26
Motions

CITATION UPDATES:
W.C. v. Whitaker Coal Corp., 24 B.L.R. 1-20 (2008).

II.    Remand to the district director
        A.      District Director’s obligation to provide  complete evaluation
               7.  Authority to remand for defective evaluation [new]

        By published en banc decision, R.G.B. v. Southern Ohio Co., 24 B.L.R. 1-129 (2009) (en banc), the Board addressed the Administrative Law Judge’s authority to remand a black lung claim for further evidentiary development.  On appeal were five orders of remand issued by the Administrative Law Judge in five different claims on grounds that Department-sponsored pulmonary evaluations conducted pursuant to 20 C.F.R. § 725.406 were deficient.

        Employer maintained that the Administrative Law Judge exceeded his authority under 20 C.F.R. § 725.456(e) in remanding the claims prior to admission of all of the evidence at the formal hearing and without notice to the parties.  The Director, Office of Workers’ Compensation Programs (Director), on the other hand, argued that the Administrative Law Judge has authority to remand a claim “at any time prior to the termination of the hearing” if s/he determines that the Department-sponsored examination is either incomplete or not credible.  Notably, however, the Director asserted that, with regard to two out of the five claims at issue, the Administrative Law Judge erred in finding the pulmonary evaluations incomplete.

        According deference to the Director’s position, the Board held the following:

[T]he administrative law judge has discretion to exercise his or her remand authority, pursuant to Section 725.456(e), at any time in the adjudicatory process, beginning when the administrative law judge assumes jurisdiction of the claim and ending with the termination of the hearing.

Slip op. at 10.  The Board did not define “termination” of a hearing.  Under the procedural history that it provides for these claims, the Board notes that the Administrative Law Judge remanded the claims “prior to a hearing.”  Moreover, the Board held that the Administrative Law Judge may review the “DOL-sponsored pulmonary evaluation sua sponte” and, without prior notice to the parties, s/he may remand the claim for supplementation of the evaluation.

        In determining whether the Department-sponsored evaluations were sufficient under § 725.406, the Board concluded that the Administrative Law Judge correctly found deficiencies in examinations underlying three of the claims and remanded them for further evidentiary development, whereas two other claims should not have been remanded. 

In one properly remanded claim, the physician failed to address an element of entitlement, i.e. whether the miner was totally disabled due to a respiratory condition.  In a second claim, the physician failed to address “two requisite elements of entitlement in claimant’s case, the existence of legal pneumoconiosis and total respiratory disability.”  In a third claim, the Department-sponsored physician offered “contradictory” statements in his report and deposition testimony regarding whether the miner suffered from legal pneumoconiosis.  For these three claims, the Board agreed with the Director that the pulmonary evaluations did not satisfy the requirements of 20 C.F.R. § 725.406 and remand was proper.
 
        In two other claims, however, the Board vacated the Administrative Law Judge’s remand orders upon concluding that the requirements of 20 C.F.R. § 725.406 were met.  In the first of these claims, the Administrative Law Judge found that the physician did not “provide any rationale for why he determined that tobacco smoking was the sole cause of Claimant’s pulmonary emphysema.”  The Director maintained that the Administrative Law Judge’s “desire for a more detailed explanation of the doctor’s conclusion” does not constitute a valid basis to remand the claim.  The Board agreed and concluded that, because the physician “performed all of the necessary tests and his report addressed the requisite elements of entitlement, the administrative law judge erred in concluding that claimant did not receive a complete pulmonary evaluation.”  For similar reasons, the Board vacated the Administrative Law Judge’s remand order in a second claim.

        In Greene v. King James Coal Mining, Inc., 576 F.3d 418 (6th Cir. 2009), the administrative law judge’s denial of benefits was affirmed and the court concluded that the Department of Labor-sponsored examination conducted pursuant to 20 C.F.R. § 725.406 was sufficiently reasoned and documented to meet the Department’s obligations. At issue was the administrative law judge’s rejection of Dr. Baker’s diagnosis of coal workers’ pneumoconiosis on grounds that it was “lacking adequate support.”  Notably, the physician’s opinion was compromised, in part, by reliance on erroneous smoking and coal mine employment histories.  Moreover, the opinion was based on a positive x-ray interpretation underlying the report, whereas the administrative law judge concluded that the x-ray evidence on the record as a whole did not support a finding of the disease.  Consequently, it was determined that Dr. Baker did not adequately explain how he reached his medical conclusions in light of the miner’s symptoms and testing.

        The Director, OWCP and Claimant argued that, “if Dr. Baker’s opinion was so poorly reasoned and documented as to justify the ALJ’s refusal to rely upon it, then the case must be remanded so the DOL can provide (Claimant) with a proper evaluation.”  The court disagreed and stated:

In the end, DOL’s duty to supply a ‘complete pulmonary evaluation’ does not amount to a duty to meet the claimant’s burden of proof for him.  In some cases, that evaluation will do the trick.  In other cases, it will not.  But the test of ‘complete[ness]’ is not whether the evaluation presents a winning case.  The DOL meets its statutory obligation . . . when it pays for an examining physician who (1) performs all of the medical tests required by 20 C.F.R. §§ 718.101(a) and 725.406(a), and (2) specifically links each conclusion in his or her medical opinion to those medical tests.  Together, the completion of these tasks will result in a medical opinion under 20 C.F.R. § 718.202(a)(4) that is both documented, i.e., based on objective medical evidence, and reasoned.

Slip op. at 19.

        In R.B. v. Southern Ohio Coal Co., BRB No. 08-0465 BLA, ALJ Case No. 2007-BLA-5136 (Feb. 19, 2009)(unpub.), the Board has scheduled oral argument in Pittsburgh, Pennsylvania on Tuesday, April 21, 2009 to hear the parties’ positions on the following issues:

Whether the authority of an administrative law judge under 20 C.F.R. § 725.456(e) to remand a claim to the district director for a complete pulmonary evaluation pursuant to 20 C.F.R. § 725.406 may be exercised prior to the assembly of the evidentiary record at the formal hearing?
Whether the administrative law judge erred in issuing an Order of Remand without prior notice to the parties?
Whether the concession of the Director, Office of Workers’ Compensation Programs, for the first time on appeal, that the pulmonary evaluations of (certain named coal miners) are incomplete, requires that liability for benefits in these cases be transferred to the Black Lung Disability Trust Fund?

Id.

VI.     Medical examinations
     A.     Multiple examinations permitted
             2.     After applicability of 20 C.F.R. Part 725 (2008)
                     d.     Failure to cooperate   [new]

     Under the pre-amendment regulations, the provisions at 20 C.F.R. § 725.408, “Refusal to submit to medical examinations or tests,” read as follows:

If an adjudication officer determines that a miner has unreasonably refused to submit to medical examinations or tests scheduled under §§ 725.406 or 725.407(a), all evidentiary development of the claim shall be suspended and the adjudication officer shall proceed to deny the claim by reason of abandonment (§ 725.409) or by dismissal (§ 725.465) as is appropriate.

20 C.F.R. § 725.408 (2000).  Under the December 2000 amendments to the Part 725 regulations, the foregoing regulatory provisions were dropped. 

        Moreover, under the pre-amendment regulations, in cases where the judge ordered claimant to attend an examination or undergo testing, s/he had authority to dismiss the claim under 20 C.F.R. § 725.465(a)(2) (2000) to dismiss a claim for “failure of the claimant to comply with a lawful order of the administrative law judge . . ..”  The administrative law judge retains this authority under the amended regulations, see 20 C.F.R. § 725.465(a)(2) (2008).  The problem is, however, that “[n]o claim shall be dismissed in a case with respect to which payments prior to final adjudication have been made to the claimant in accordance with § 725.522, except upon the motion or written agreement of the Director.”

        Therefore, without the Director’s consent, the administrative law judge cannot dismiss a claim because of a claimant’s failure to cooperate.  Alternatively, where a claimant refuses to undergo testing or attend a medical examination as ordered by the administrative law judge, then the claim may be “denied” as abandoned.  However, 20 C.F.R. § 725.409 provides, in part, the following:

(a)  A claim may be denied at any time by the district director by reason of abandonment where the claimant fails:
(1)  To undergo a required medical examination without good cause . . ..

20 C.F.R. § 725.409(a)(1) (2000) and (2008) (italics added). 

     Although the regulation addresses the authority of the district director (formerly deputy commissioner) to deny a claim by reason of abandonment, the Board upheld an administrative law judge’s use of § 725.409 to deny a claim.  Notably, in Bianco v. Director, OWCP, 12 B.L.R. 1-94 (1989), the administrative law judge found the miner’s claim abandoned pursuant to 20 C.F.R. § 725.410 and denied it.  The Board stated, “[W]e hold that the administrative law judge properly found the living miner’s claim to have been abandoned.” 

     The pre- and post-amendment abandonment provisions at 20 C.F.R. § 725.409 contain the same language and address the “district director’s” authority to deny a claim by reason of abandonment.  However, in Bianco, the Board upheld the administrative law judge’s use of § 725.409 to deny the miner’s black lung claim.  Because the post-amendment regulations eliminated the pre-amendment language at 20 C.F.R. § 725.408, it is unknown whether this has an impact on the administrative law judge’s authority to utilize 20 C.F.R. § 725.409.    

     F.     Limitations on requiring miner to travel for examination [new]

    In C.B. v. Bowman Coal Co., BRB No. 07-0320 BLA (July 23, 2008) (unpub.), because Claimant was a Florida resident, the Board held that Employer was not entitled to have him examined in Virginia despite Employer's argument that Claimant "travels regularly to Virginia and was examined by physicians in Virginia in connection with all three of his claims . . .." The Board held that the provisions at 20 C.F.R. § 725.414(a)(3)(i) mandate that an employer "may not require the miner to travel more than 100 miles from his or her place of residence, or the distance traveled by the miner in obtaining the complete pulmonary evaluation" under 20 C.F.R. § 725.406. Here, Claimant was a resident of Florida and his pulmonary evaluation under § 725.406 was conducted within 100 miles of his residence.

XIV.     Miscellaneous procedural motions and orders
     D.     Reconsideration
          3.     Benefits Review Board’s jurisdiction  [new]

        In J.L.S. v. Eastern Associated Coal Co., BRB No. 08-0146 BLA (Oct. 24, 2008) (unpub.), the Board held that it had jurisdiction to consider Claimant’s appeal, which was filed within 30 days of the administrative law judge’s denial of his second motion for reconsideration.  In so holding, the Board rejected Employer’s argument that the second motion for reconsideration did not toll the time for filing an appeal with the Board.  Citing to Jones v. Illinois Central Gulf Railroad, 846 F.2d 1099, 11 B.L.R. 2-150 (7th Cir. 1988) and Tucker v. Thames Valley Steel, 41 B.R.B.S. 62 (2007), the Board held that, for “internal administrative appeals within an agency,” the 30 day time period for Claimant to file an appeal did not commence to run until the judge finally disposed of the claim which, in this case, was upon denial of Claimant’s second motion for reconsideration.


Chapter 27
Representative's Fees and Representation Issues

CITATION UPDATE:
B&G Mining Inc. v. Director, OWCP [Bentley], 522 F.3d 657 (6th Cir. 2008).

I.     Entitlement to fees
        F.     Medical treatment disputes

        By unpublished decision in Fuller v. South Hollow Coal Co., BRB No. 09-0710 BLA (July 20, 2010)(unpub.)(J. Hall, dissenting), two panel members vacated the Administrative Law Judge’s award of attorney’s fees and costs in a medical dispute dispute case.  The Board reasoned as follows:

This proceeding involved a request by the Director for employer to reimburse the Trust Fund for the payment of the miner’s medical bills, all of which had been previously paid by the Trust Fund.  Because all of the miner’s bills for medical treatment were paid by the Trust Fund, they were not ‘declined,’ as required under Section 725.367(a)(3) in order for liability for the payment of attorneys’ fees to attach.  Furthermore, as employer has never sought recoupment of the payment of any medical bills from the miner’s estate and no overpayment was ever sought by the Trust Fund against the miner’s estate, no adversarial relationship between employer or the Director and claimant existed.  See 20 C.F.R. § 725.367(a)(3).  Representation by claimant’s counsel, therefore was not ‘necessary’ to the proceeding, especially in light of the fact that recoupment would have impossible against the miner’s widow.  (footnote and citations omitted).

Slip op. at 4.  In a dissenting opinion, Appeals Judge Hall wrote:

I would affirm the administrative law judge’s finding that an adversarial relationship existed between claimant and employer, . . . when claimant, as a named party to the proceeding, was requested by employer to sign a medical records release, and continuing when claimant was served with interrogatories from employer . . ., which necessitated the retention of counsel.  See 20 C.F.R. § 725.367(a)(3).  Furthermore, despite the administrative law judge’s urging on several occasions, neither employer nor the Director would agree to voluntarily dismiss claimant from the case or stipulate that they would not seek subrogation or indemnification against claimant.  Thus, the administrative law judge rationally concluded that the presence of claimant’s counsel was required to ensure that claimant would not be exposed to liability.

Slip op. at 5.

II.     Fee petitions
          F.  Proponent of petition carries burden to establish appropriateness of hourly rates and
 necessity of services [new]

        In Parks v. Eastern Associated Coal Corp., 24 B.L.R. 1-177 (2010), the Board remanded an attorney fee award stating that Claimant’s counsel failed to sustain his burden of providing “specific evidence of the prevailing market rates in the relevant community for which he seeks an award . . ..”  However, the Board affirmed the Administrative Law Judge’s conclusion that affidavits proffered by Employer regarding the prevailing market rate for Claimant’s counsel “were entitled to no weight, as they either did not provide sufficient specific underlying information to make them reliable, or they failed to recognize the factors that are necessarily incorporated into a rate charged by a claimant’s counsel” in black lung claims.  The Board instructed that, on remand:

. . . the administrative law judge must, as a starting point to his fee analysis, require Mr. Wolfe to provide evidence of an applicable prevailing rate.  (citations omitted).  The administrative law judge must also reconsider counsel’s fee petition in accordance with the criteria set forth at Section 725.366.

Slip op. at 5.  The Board offered suggested sources of “evidence” for Claimant’s counsel:

Counsel may submit evidence of the fees he has received in the past as well as affidavits of other lawyers, who might not practice black lung law, but who are familiar both with the skills of the fee applicant and more generally with the type of work in the relevant community.  Further, in determining a reasonable prevailing rate, the administrative law judge is not limited to consideration of fees granted in black lung cases; rather, consideration of fees granted in other administrative proceedings of similar complexity would also yield instructive information.  (citations omitted).

Slip op. at 5.

          In Westmoreland Coal Co. v. Director, OWCP [Cox], 602 F.3d 276 (4th Cir. 2010), the court held that it was permissible for the Administrative Law Judge to find that the Altman Weil Survey of Law Firm Economics (2006) was not an “accurate indicator” of counsel’s prevailing hourly rate.  However, the hourly rate awarded was vacated because the Administrative Law Judge took into consideration risk of loss and the contingent nature of attorney fee awards in black lung cases.  The court held that such considerations are not proper.  It noted that there are a variety of “sources” from which to determine a prevailing hourly rate, including evidence of fees received by the attorney in the past, affidavits of other lawyers, and fees awarded in “other administrative proceedings of similar complexity may “also yield instructive information.”

     In C.B. v. Bowman Coal Co., BRB No. 07-0320 BLA (July 23, 2008) (unpub.), the Board held that it is the burden of the proponent of a petition to establish the reasonableness of the fee requested in light of the factors set forth at 20 C.F.R. § 725.366(b). As a result, the Board concluded that the judge erred in assessing the number of hours awarded based on whether Employer demonstrated that the services were unnecessary or duplicative. The Board concluded that "the administrative law judge (improperly) shifted the burden of proof to employer . . .." As a result, the fee award was vacated and the judge was instructed to reconsider the reasonableness of the number of hours claimed on remand.

IV.     Augmentation or enhancement based on unique circumstances
     C.    Risk of loss and delay in payment

        In companion published decisions, Bowman v. Bowman Coal Co., 24 B.L.R. 1-167 (2010) (governed by Fourth Circuit case law) and Maggard v. International Coal Group, Knott County, LLC, 24 B.L.R. 1-172 (Apr. 15, 2010) (governed by Sixth Circuit case law), the Board allowed Claimant’s counsel 30 days in which to submit amended fee petitions.  Notably, it concluded that counsel did not present evidence sufficient to support a finding that his hourly rate was the “market rate”.  The Board noted:

Although claimant’s counsel identifies the hourly rates that he seeks in this case, claimant’s counsel has failed to make any declaration regarding the normal hourly rates that its lawyers seek for cases similar to this one.  At a minimum, this defect must be cured before the Board addresses counsel’s fee petition.

Bowman, slip op. at 4; Maggard, slip op. at 4.  Further, in Maggard, the Board held that, if work is performed by a “legal assistant”, then the “normal billing rate” of the legal assistant must be set forth in a declaration. 

        Further, the Board concluded that counsel had not “provided sufficient information relevant to the market rate for services in the geographic jurisdiction of the litigation.”  Bowman, slip op. at 5; Maggard, slip op. at 4.  Here, the Board found that counsel relied “exclusively upon a 2006 Altman Weil ‘Survey of Law Firm Economics’ to justify his requested hourly rates.”  Bowman, slip op. at 5; Maggard, slip op. at 4.  However, in both cases, the Board stated: 

[B]ecause the survey alone does not provide sufficient information for the Board to determine that the listed rates are for similar services as those provided by claimant’s counsel’s firm, it is of little assistance in determining the prevailing market rate.  (citations omitted).
In addressing the difficulty of determining a reasonable hourly rate, claimant’s counsel states that he knows of ‘no other firms in Virginia and very few across the nation taking new [federal black lung] cases.  (citation omitted).

Bowman, slip op. at 5; Maggard, slip op. at 5.  In both cases, the Board suggested that “[h]ourly rates charged by similarly situated attorneys in Kentucky may assist in establishing a market rate.”  Bowman, slip op. at 5; Maggard, slip op. at 5. 

        The Board stated that “the goal is to establish a market rate paid by paying clients in the requesting attorneys’ geographic area.”  Bowman, slip op. at 5-6; Maggard, slip op. at 5.  It determined:

[I]n order to be entitled to a rate claimed, it is claimant’s counsel’s burden to produce satisfactory evidence that the requested rates are in line with those prevailing in the community for similar services by lawyers of comparable skill, experience, and reputation.  (citation omitted).

Bowman, slip op. at 6; Maggard, slip op. at 6.  Claimant’s counsel complied and, by decision in Maggard v. International Coal Group, Knott County, LLC, 24 B.L.R. 1-203 (Nov. 8, 2010), the Board awarded Claimant’s counsel fees at an hourly rate of $300.00.

        In Westmoreland Coal Co. v. Director, OWCP [Cox], 602 F.3d 276 (4th Cir. 2010), the court held that it was permissible for the Administrative Law Judge to find that the Altman Weil Survey of Law Firm Economics (2006) was not an “accurate indicator” of counsel’s prevailing hourly rate.  However, the hourly rate awarded was vacated because the Administrative Law Judge took into consideration risk of loss and the contingent nature of attorney fee awards in black lung cases.  The court held that such considerations are not proper.  It noted that there are a variety of “sources” from which to determine a prevailing hourly rate, including evidence of fees received by the attorney in the past, affidavits of other lawyers, and fees awarded in “other administrative proceedings of similar complexity may “also yield instructive information.”

    In C.B. v. Bowman Coal Co., BRB No. 07-0320 BLA (July 23, 2008) (unpub.), the Board noted that "risk of loss" is a "constant factor in black lung litigation and, therefore, is deemed incorporated into the hourly rate and is not evaluated separately."  On the other hand, the Board concluded that enhancement of the hourly rate to reflect "delay in payment" of the fee is an appropriate factor to consider.

     D.     Billing method

     In C.B. v. Bowman Coal Co., BRB No. 07-0320 BLA (July 23, 2008) (unpub.), the Board affirmed the judge's approval of use of quarter-hour increments in billing.

V.    Liability for payment
        C.      The Black Lung Disability Trust Fund [new]

        In Duncan v. Director, OWCP, 24 B.L.R. 1-153 (2010), the Board held that it was improper for an Administrative Law Judge to deny the fee petition of Claimant’s attorney.  Under the facts of the claim, the Black Lung Disability Trust Fund (Trust Fund), and not the operator designated by the District Director, was held liable for the payment of benefits by the Administrative Law Judge.  As a result, the Administrative Law Judge noted that the Trust Fund never challenged Claimant’s entitlement to benefits, was never in an adversarial relationship with Claimant, and, as a result, the Trust Fund could not be held liable for the payment of attorney’s fees.

        Adopting the position of the Director on appeal, the Board concluded otherwise and stated:

[W]hile Section 725.367 does not directly address this issue, the regulations contains no provision that would negate imposing liability on the Trust Fund for the payment of an attorney’s fee, when the operator that created an adversarial relationship is later (released) by the administrative law judge.

Id.  Consequently, the Board remanded the matter to the Administrative Law Judge for consideration of the fee petition.

       A surety may be held liable  [new]

       In Crowe v. Zeigler Coal Co., 2011 WL 3678136 (7th Cir. Aug. 23, 2011)(unpub.), the court upheld an award of attorney’s fees to Claimant’s counsel against the defunct coal company’s surety, Travelers Companies, and noted:

Travelers does not dispute that Crowe prevailed, that she is entitled to fees, or that the requested fee amount is reasonable.  The most Travelers says to dispute a fee award against it is that we decided its intervention was improper.

.  .  .

A fee-shifting statute can authorize a fee award against an unsuccessful intervenor who causes the prevailing party to incur additional fees.

In the end, the court awarded $13,268.75 in attorney’s fees to be paid by the surety, Travelers Companies.


Chapter 28
Rules of Evidence and Procedure

I.      Applicability of the Federal Rules of Civil Procedure
        F.       Discovery provisions of FRCP 26
                  3.        “Fraud on the court” [new]

        By unpublished decision of Fox v. Elk Run Coal Co., BRB No. 09-0438 BLA (Apr. 16, 2010)(unpub.), the Board addressed an Administrative Law Judge’s authority to order discovery as well as the Judge’s finding that Employer “committed fraud on the court.”  Under the facts of the case, the Administrative Law Judge ordered that Employer produce certain pathology reports to Claimant and, on review of evidence produced, he concluded that Employer “committed fraud on the court by concealing pathology reports diagnosing claimant with complicated pneumoconiosis” in a prior claim.  As a result, the Administrative Law Judge concluded that the denial of benefits in the prior claim was “ineffective.” 

        On appeal, Employer argued that the Administrative Law Judge erred in ordering production of pathology reports by Drs. Naeye and Caffrey on grounds that the reports are protected by the “work product” rule.  The Board disagreed and held the following:

In this case, claimant sought the actual medical reports prepared by employer’s non-testifying experts.  The administrative law judge reasonably found that the information sought by claimant is not protected work product because it is ‘the work product of physicians, not attorneys.’

Slip op. at 4.  The Board further noted:

The administrative law judge found that claimant had a substantial need to know whether employer had withheld pertinent x-ray and pathology reports during the adjudication of claimant’s prior 1999 claim.  The Director accurately notes that, in order to prove that employer provided false information to its reviewing physicians in the 1999 claim, it was necessary for claimant to discover what information employer actually possessed.  (citation omitted).  Moreover, the Director accurately notes that there was no way for claimant to obtain this information without asking employer to provide it.  Consequently, we reject employer’s argument that the administrative law judge abused his discretion in granting claimant’s motion to compel discovery of the pathology reports of Drs. Naeye and Caffrey.

Slip op. at 4-5.

        However, the Administrative Law Judge’s finding that Employer committed “fraud upon the court” was vacated and the claim was remanded for further consideration of this issue.  The Board concluded that the Administrative Law Judge “failed to assemble a proper evidentiary record” in support of his finding of fraud.  Specifically, the Board found:

[T]he administrative law judge reviewed and discussed numerous documents in reaching his determination that employer committed fraud on the court by producing misleading evidence in the prior claim.  (citation omitted).  However, none of these documents is in the record before the Board.

. . .

In this case, the parties did not submit, and the administrative law judge did not admit, any medical reports, documents, or exhibits into evidence.

. . .

Due to the lack of an evidentiary record before us, we are constrained to vacate the administrative law judge’s determinations regarding fraud on the court and the onset date of claimant’s entitlement to benefits, and remand the case for further proceedings.  (citations omitted).

Slip op. at 5.

        H.     Discovery of communications between counsel and medical experts [new]
                   Permitted

        In V.B. v. Elm Grove Coal Co., 24 B.L.R. 1-107 (2009), the Board noted that, pursuant to the Fourth Circuit’s decision in this claim in Elm Grove Coal Co. v. Director, OWCP [Blake], 480 F.3d 278 (4th Cir. 2007), discovery of communications between a party’s counsel and the party’s testifying experts was permitted “and was necessary for a proper cross-examination” of the party’s experts.  Under the facts of the case, Employer maintained that “claimant’s counsel had gone beyond merely providing drafting assistance to Drs. Lenkey and Cohen, such that the opinions expressed were those of claimant’s attorney, and not of the physicians.” 

Claimant’s counsel responded with an affidavit stating that, with regard to Dr. Lenkey, “he and his paralegal drafted a report that was consistent with Dr. Lenkey’s views and submitted it to Dr. Lenkey, along with copies of all the relevant records so that Dr. Lenkey could review them again.”  Dr. Lenkey would then send a final report to counsel. 

        With regard to Dr. Cohen, Claimant’s counsel explained that his office prepared a draft report “to summarize the record in the form that Dr. Cohen likes to use.”  From this, counsel stated that Dr. Cohen then “added to and revised the drafts to produce his opinion.” 

        In regard to assisting both doctors, Claimant’s counsel stated that “the summaries of the evidence and draft reports that he and his paralegal provided were based on his communications with the doctors, and that this assistance was provided to both reduce the time these two busy doctors had to spend on the case, and to reduce the miner’s litigation costs.”  Counsel maintained in his affidavit that “the doctors’ opinions expressed in the resulting reports ‘were, in fact, the doctors’ opinions of [the miner’s] condition.”

        Employer argued that counsel’s affidavit should not have been admitted under Illinois Rule of Professional Conduct 3.7, which governs a lawyer acting as a witness because, “by filing an affidavit, Mr. Johnson compromised his role as advocate, and, therefore, either his affidavit should have been stricken from the record, or Mr. Johnson should have been required to withdraw from the case.”  The Board disagreed to hold that the administrative law judge is “not bound by statutory rules of evidence or by technical or formal rules of procedure” except as provided by the Administrative Procedure Act and 20 C.F.R. Part 725.  To this end, the judge “is granted broad discretion in resolving procedural issues, including the admission of hearsay evidence.”  The board reasoned that the APA does not bar the consideration of hearsay evidence and “because Mr. Johnson was available for cross-examination, the administrative law judge found that his affidavit was admissible.” 

Moreover, the Board held that the judge properly noted that Illinois Rule of Professional Conduct 3.7 provides that an attorney need not withdraw if it would result in “substantial hardship on the client.”  In this vein, the judge concluded that “because of Mr. Johnson’s longstanding association with the case, and his familiarity with the facts and its procedural posture, requiring him to withdraw at this stage of the litigation would result in a substantial hardship to claimant.” 

However, the Board held that the judge improperly denied Employer’s request to “re-depose” Drs. Lenkey and Cohen in light of information contained in Mr. Johnson’s affidavit and communications between counsel and the experts.  In his denial of Employer’s request, the judge stated that “[t]he issue of the mechanics of the drafting of the expert opinions is tangential to the issue of whether the reports are well reasoned, well documented, and credible.”  The judge then stated that “[b]oth Drs. Lenkey and Cohen have testified under oath and personally explained, in detail, the basis for their opinions” such that Employer “had ample opportunity to question both physicians, and the record will not be re-opened for cross-examination.” 

On this point, the Board concluded that the judge erred and remanded the claim to allow Employer the opportunity to cross-examine Drs. Lenkey and Cohen based on its access to communications between Claimant’s counsel and the experts.  Further, in reconsidering evidence on remand, the Board instructed that the judge “must qualify all of the evidence as ‘reliable, probative, and substantial,’ including Mr. Johnson’s affidavit, before relying upon it, pursuant to the standard set forth in United States Steel Mining Co. v. Director, OWCP [Jarrell], 187 F.3d 384, 389 (4th Cir. 1999).”

II.     Authority of the administrative law judge
     D.    Overpayment and repayment
            Certification of the facts under 29 C.F.R. § 18.29 [new]

     By unpublished decision in Itmann Coal Co. v. Scalf, Civil Action No. 5:07-cv-00940 (S.D. W.Va. July 10, 2008) (unpub.), the district court dismissed Employer's motion for default judgment in an action "seeking enforcement of an order by the District Director for the Office of Workers' Compensation awarding (Employer) recoupment of an overpayment of black lung benefits to (Claimant)." In support of this opinion, the district court determined that it lacked subject matter jurisdiction over the action.

     Citing to 33 U.S.C. § 921(d), which is incorporated into the Black Lung Benefits Act at 30 U.S.C. § 932(a), the court noted that these statutory provisions allow beneficiaries of compensation awards to enforce the awards in federal district court. These provisions do not, on the other hand, "authorize employers to bring an action in federal district court to recover alleged overpayment of benefits."

     The court did note that it would have jurisdiction to enforce an order directing recovery of an overpayment under 33 U.S.C. § 927(b), which requires that the administrative law judge certify the facts to the district court:

For a court to retain jurisdiction under (§ 927(b)), a person must first ‘disobey[] or resist[] any lawful order or process' of the ALJ, and the ALJ must certify the facts to the district court regarding the alleged violation of the order. § 927(b). Although (Employer) here seeks to enforce a lawful order of the ALJ that was allegedly breached by (Claimant), . . . nowhere in the Complaint or any other filings does (Employer) present a certification of facts from the ALJ. Without a certification of facts from the ALJ, the requirements of § 927(b) are not met and the Court may not retain jurisdiction.

Slip op. at 2.

III.   Closing the record
        D.     Evidentiary rulings must be made prior to  issuance of the decision; parties must have
                   opportunity to object [new]

        In C.S. v. Koch Carbon Raven Division VA, BRB No. 08-0340 BLA (Feb. 27, 2009)(unpub.), the Board held that the administrative law judge must render all evidentiary rulings prior to the close of the record and issuance of a decision.  To that end, the Board reasoned that “[p]rocedural due process requires that interested parties be notified of the evidence contained in the record and that they be afforded the opportunity to present objections to that evidence.”  See 20 C.F.R. § 725.456(a)(2).  As a result, the Board vacated the judge’s sua sponte admission of Claimant’s Exhibit 9 after the close of the hearing.
 
The records at Claimant’s Exhibit 9 were originally offered by Claimant’s counsel at the hearing and then withdrawn when the exhibits could not be located in the record.  In his decision on the claim, however, the judge advised that he had located the treatment records at issue and found that they had been exchanged between the parties.  Thus, sua sponte, the judge proceeded to admit the treatment records in his decision.  The Board noted:

On remand, the administrative law judge has discretion, upon motion by claimant’s counsel, to admit Claimant’s Exhibit 9 into the record, if that evidence is properly identified and employer’s counsel is afforded the opportunity to object to its admission in accordance with 20 C.F.R. § 725.456(a)(2).

Slip op. at 5-6.

XV.     Right of cross-examination
     E.     Expert treating physician, right to cross-examination under the amended regulations [new]

     In L.P. v. Amherst Coal Co., 24 B.L.R. 1-55 (2008) (on recon. en banc), the Board adopted the Director's position and held that a party has the right to cross-examine a physician whose report is admissible under 20 C.F.R. § 718.104(d). In so holding, the Board stated that Employer's cross-examination of the miner's treating physician was necessary "to ensure the integrity and fundamental fairness of the adjudication of the survivor's claim and for a full and true disclosure of the facts." However, the Board circumscribed its decision as follows:

In rendering this holding, we have recognized only a right to cross-examine a physician whose report is admissible under Section 725.414(a)(4), if the physician's report is material and cross-examination is necessary to ensure the integrity and fundamental fairness of the adjudication of the claim and for a full and true disclosure of the facts. We decline to address the question of whether there is a general right to rebut the evidence admitted under Section 725.414(a)(4) because the circumstances of this case do not squarely present the issue.

Slip op. at 7-8.

     The Board further noted that "adoption of the evidentiary limitations set forth in Section 725.414 represented a shift from a system that favored the admission of all relevant evidence to a system that balanced this preference with a concern for fairness and the need for administrative efficiency." From this, the Board concluded:

Consistent with the principles of fairness and administrative efficiency that underlie the evidentiary limitations, therefore, if the administrative law judge determines that the evidentiary limitations preclude that consideration of proffered evidence, the administrative law judge should render his or her evidentiary rulings before issuing the Decision and Order. The parties should then have the opportunity to make good cause arguments under Section 725.456(b)(1), if necessary, or to otherwise resolve issues regarding the application of the evidentiary limitations that may affect the administrative law judge's consideration of the elements of entitlement in the Decision and Order.

Slip op. at 8.


Medical Articles, Literature, and Studies
cited in the Department of Labor’s Comments
to the Amended Regulations
65 Fed. Reg. 79,920-80,045 (Dec. 20, 2000)

Location in the
Federal Register  Authors/Editors          Article/Literature/Studies

65 Fed. Reg. 79,943 (Dec. 20, 2000)

N/A

“One commenter repeatedly accuses the Department of not supporting its definitional change with ‘peer-reviewed’ scientific and medical studies, but does not point to any study or article in particular.  The Department rejects this assertion.  Each of the articles and studies cited . . ., as well as the majority relied upon by NIOSH in the Criteria document, appeared in a peer-reviewed journal:  American Review of Respiratory Disease, American Journal of Industrial Medicine, Thorax, Journal of Occupational Medicine, Lancet, British Journal of Industrial Medicine, Occupational and Environmental Medicine, Environmental Research, and others.  The textbooks relied upon are authored and edited by highly respected professionals in the field.  Textbook editors serve as peer-reviewers of the relevant published literature because they comprehensively survey, evaluate the validity of, and comment on, the literature.  Seaton’s review in Morgan and Seaton’s Occupational Lung Disease is a good example.  Moveover, the NIOSH Criteria document, Rulemaking Record, Exhibit 2-1, received extensive peer review prior to its publication.  See Criteria, Rulemaking Record, Exhibit 2-1 at xxii-xxiv.”

65 Fed. Reg. 79,937 (Dec. 20, 2000)

N/A

“Congress created NIOSH as a source of expertise in occupational disease research.”

65 Fed. Reg. 79,944 (Dec. 20, 2000)

N/A

“. . . the relevant scientific and medical information available on these topics has been thoroughly reviewed by highly-qualified experts, including NIOSH, the advisor designated by Congress to consult with the Department in developing criteria for total disability due to pneumoconiosis under the Black Lung Benefits Act.”

65 Fed. Reg. 79,951 (Dec. 20, 2000)

N/A

“The Department . . . considers NIOSH’s view particularly significant in evaluating the conflicting medical opinions concerning the ‘hastening death’ standard especially since its views are consistent with other studies submitted into the record.”

65 Fed. Reg. 79,936, 79,944, 79,945 (Dec. 20, 2000)

Kleinerman, et al.

“Pathologic Criteria for Assessing Coal Workers’ Pneumoconiosis,” Archives of Pathology and Laboratory Medicine (1979)

65 Fed. Reg. 79,938, 79,939, 79,940, 79,941, 79,942, 79,943, 79,944, 79,950, 79,951, 79,970 (Dec. 20, 2000)

NIOSH

“Criteria for a Recommended Standard, Occupational Exposure to Respirable Coal Mine Dust” (1995) (in the Department’s comments, it stated that “[t]his publication provides the most exhaustive review and analysis of the relevant scientific and medical evidence through 1995, including its evaluation of the evidence regarding the role smoking plays in a coal miner’s respiratory status”—65 Fed. Reg. 79,939 (Dec. 20, 2000)).

65 Fed. Reg. 79,939, 79,942, 79,970 (Dec. 20, 2000)

Morgan, WKC, Seaton A, eds.

“Occupational Lung Diseases” (1995)

65 Fed. Reg. 79,939 (Dec. 20, 2000)

Murray J, Nadel J, Becklake

Textbook of Pulmonary Medicine (1988)

65 Fed. Reg. 79,939 (Dec. 20, 2000)

Oxman AD, Muir DCF, Shannon HS, Stock SR, Hnizdo E, Lange HJ

“Occupational dust exposure and chronic obstructive pulmonary disease:  A systematic overview of the evidence” Am. Rev. Resp. Dis., 148: 38-48 (1993)

65 Fed. Reg. 79,939, 79,941, 79,942, 79,951 (Dec. 20, 2000)

Coggon D, Newman Taylor A

“Coal mining and chronic obstructive pulmonary disease: a review of the evidence”  Thorax  53:398-407, 400 (1998)

65 Fed. Reg. 79,939, 79,940, 79,941 (Dec. 20, 2000)

Marine WM, Gurr D, Jacobsen M

“Clinically important respiratory effects of dust exposure and smoking in British coal miners”  Am. Rev. Resp. Dis., 137: 106-112 (1988)

65 Fed. Reg. 79,940, 79,941 (Dec. 20, 2000)

Attfield MD, Hodous TK

“Pulmonary function of U.S. coal miners related to dust exposure estimates”  Am. Rev. Resp. Dis., 145: 605-609 (1992)

65 Fed. Reg. 79,940 (Dec. 20, 2000)

Seixas NS, Robins TG, Attfield MD, Moulton LH

“Exposure-response relationships for coal mine dust and obstructive lung disease following enactment of the Federal Coal Mine Health and Safety Act of 1969”  Am. J. Ind. Med. 21:715-732 (1992)

65 Fed. Reg. 79,940 (Dec. 20, 2000)

Attfield MD

“Longitudinal decline in FEV1 in United States coal miners”  Thorax 40:132-137 (1985)

65 Fed. Reg. 79,940 (Dec. 20, 2000)

Love RG, Miller BG

“Longitudinal study of lung function in coal miners”  Thorax  37: 193-197 (1982)

65 Fed. Reg. 79,941 (Dec. 20, 2000)

Brewis RAL, Corrin B, Geddes DM, Gibson GJ, eds.

Respiratory Medicine (1995), Morgan WKC, “Pneumoconiosis”

65 Fed. Reg. 79,941 and 79,751 (Dec. 20, 2000)

Green FHY, Vallyathan V

“Coal Workers’ Pneumoconiosis and Pneumoconiosis Due to Other Carbonaceous Dusts” in Chung A and Green FHY, eds., Pathology of Occupational Lung Disease (1998)

65 Fed. Reg. 79,941 (Dec. 20, 2000)

Hasleton PS, ed.

“Occupational Lung Disease” in Spencer’s Pathology of the Lung (1996)

65 Fed. Reg. 79,941 (Dec. 20, 2000)

Roy TM, et al.

“Cigarette Smoking and Federal Black Lung Benefits in Bituminous Coal Miners” J. Occ. Med. 31(2):100 (1989)

65 Fed. Reg. 79,941, 79,971 (Dec. 20, 2000)

Surgeon General, U.S. Department of Health and Human Services

“Respiratory Disease in Coal Miners, The Health Consequences of Smoking:  Cancer and Chronic Lung Disease in the Workplace” 313 (1985)

65 Fed. Reg. 79,941, 79,942 (Dec. 20, 2000)

Cockcroft A, Wagner JC, Ryder R, Seal RME, Lyons JP, Andersson N

“Post-mortem study of emphysema in coalworkers and non-coalworkers”  Lancet 2:600-603 (1982)

65 Fed. Reg. 79,941, 79,942 (Dec. 20, 2000)

Leigh J, Outhred KG, McKenzie HI, Glick M, Wiles AN

“Quantified pathology of emphysema, pneumoconiosis and chronic bronchitis in coal workers”  Br. J. Indust. Med. 40:258-263 (1983)

65 Fed. Reg. 79,942 (Dec. 20, 2000)

Leigh J, Driscoll TR, Cole BD, Beck RW, Hull BP, Yang J

“Quantitative relation between emphysema and lung mineral content in coalworkers”  Occ. Environ. Med. 51:400-407 (1994)

65 Fed. Reg. 79,942 (Dec. 20, 2000)

Ruckley VA, Gauld SJ, Chapman JS, et al.

“Emphysema and dust exposure in a group of coal workers”  Am. Rev. Resp. Dis. 129:528-532 (1984)

65 Fed. Reg. 79,942 (Dec. 20, 2000)

Snider GL

“Emphysema:  the first two centuries and beyond:  A historical review with suggestions for future reference”  Am. Rev. Resp. Dis. 146:1333-1344 (Part 1) and 146:1615-1622 (Part 2) (1992)

65 Fed. Reg. 79,942 (Dec. 20, 2000)

Takemura T, Rom WM, Ferrans VJ, Crystal RG

“Morphologic characterization of alveolar macrophages from subject with occupational exposure to inorganic particles”  Am. Rev. Resp. Dis. 140:1674-1685 (1989)

65 Fed. Reg. 79,942, 79,943 (Dec. 20, 2000)

Rom WN

“Basic mechanisms leading to focal emphysema in coal workers’ pneumoconiosis” Environ. Res. 53:16-28 (1990)

65 Fed. Reg. 79,950, 79,951 (Dec. 20, 2000)

Miller BG, Jacobsen M

“Dust exposure, pneumoconiosis, and mortality of coal miners”  Br. J. Ind. Med. 42:723-733 (1985)

65 Fed. Reg. 79,950, 79,951 (Dec. 20, 2000)

Keumpel, ED, et al.

“An exposure-response analysis of mortality among U.S. miners”  Am. J. Ind. Med. 28(2):167-184 (1995)

65 Fed. Reg. 79,951 (Dec. 20, 2000)

Parker, Banks

“Lung diseases in coal workers”, Occupational Lung Disease (1998)

65 Fed. Reg. 79,951 (Dec. 20, 2000)

Morgan, WKC

“Dust, Disability, and Death”  Am. Rev. Resp. Dis. 134: 639, 641 (1986)

65 Fed. Reg. 79,970 (Dec. 20, 2000)

Maclaren WM, Soutar CA

“Progressive massive fibrosis and simple pneumoconiosis in ex-miners”  Br. J. Ind. Med. 42:734-740 (1985)

65 Fed. Reg. 79,970 (Dec. 20, 2000)

Donnan PT, Miller BG, Scarisbrick DA, Seaton A, Wightman AJA, Soutar CA

“Progression of simple pneumoconiosis in ex-coalminers after cessation of exposure to coalmine dust” IOM Report TM/97/07 (Institute of Occupational Medicine, Dec. 1997) 1-67

65 Fed. Reg. 79,970 (Dec. 20, 2000)

Merchant, Taylor, Hodous

“Occupational Respiratory Diseases” (1986)

65 Fed. Reg. 79,970 (Dec. 20, 2000)

Beckett, WS

“Occupational Respiratory Diseases” The New England Journal of Medicine, 342:406-413 (2000) (the Department’s comments state that this article was included after the close of the rulemaking comment period to further support other literature on the issue)

65 Fed. Reg. 79,971, 79,972 (Dec. 20, 2000)

Dimich-Ward H, Bates DV

“Reanalysis of longitudinal study of pulmonary function in coal miners in Lorraine France”  Am. J. Ind. Med. 25:613-623 (1994)