Chapter 4

Limitations on Admission of Evidence

and the "Good Cause" Standard in Black Lung Claims

____________________________________________________________

 

The amended regulations at 20 C.F.R. Parts 718 and 725 (2008), which became effective on January 19, 2001, contain a number of significant changes regarding the admissibility of evidence.  These limitations significantly alter the adjudication and processing of the claims. 

 

I.       Limitation of documentary medical evidence

 

A.               Limitations are mandatory

 

1.         Cannot be waived by the parties

 

In Smith v. Martin County Coal Corp., 23 B.L.R. 1-69 (2004), the parties agreed to waive the evidentiary limitations at 20 C.F.R. § 725.414  (2004) and the judge admitted proffered evidence without further discussion.  The Board held that this constituted error as the provisions at 20 C.F.R. § 725.456(b)(1) (2004) mandate that an administrative law judge must find "good cause" prior to lifting the evidentiary restrictions at 20 C.F.R. § 725.414 (2004).  See also Phillips v. Westmoreland Coal Co., BRB No. 04-0379 BLA (Jan. 27, 2005) (unpub.). 

 

        2.      Parties must designate evidence

 

                        a.      Substitution of evidence

 

        In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-47 (2004) (en banc), vacated and remanded sub. nom. on other grounds, 523 F.3d 257 (4^th Cir. 2008), once Employer designated two medical reports in support of its affirmative case, the judge did not abuse his discretion in refusing to permit Employer to withdraw one of the reports at the hearing and substitute the report of another physician. The administrative law judge "reasonably considered claimant's objection that he had relied on employer's prior designation of its two medical reports in developing his medical evidence."  On the other hand, the judge properly allowed Employer to substitute Dr. Wiot's reading of an October 2002 x-ray study for that of Dr. Bellotte.  In a footnote, the Board stated that "Claimant (did) not argue that he uniquely relied on Dr. Bellotte's reading in developing his rebuttal of the October 2, 2002 x-ray."  See also Kiser v. L&J Equipment Co., 23 B.L.R. 1-246, 1-259 n. 18 (2006) (it was proper for the administrative law judge to deny employer's request to substitute a chest x-ray report more than one year after the hearing in the claim).

 

        In Consolidation Coal Co. v. Director, OWCP [Williams], 453 F.3d 609 (4^th Cir. 2006), cert. denied (Mar. 19, 2007), the court held that the administrative law judge properly permitted Claimant to designate two medical reports (out of three reports filed) in support of his claim as permitted by 20 C.F.R. § 725.414. The court cited to the Board's decision in Dempsey v. Sewell Coal Co., 23 B.L.R. 1-47 (2004) with approval. 

 

                        b.      Judge not required to retain

                                      excluded evidence

 

        In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-47 (2004) (en banc), vacated and remanded sub. nom. on other grounds, 523 F.3d 257 (4^th Cir. 2008), the Board held that an administrative law judge is not required to "retain the large number of excluded exhibits in the record."  Citing to 20 C.F.R. §§ 725.456(b)(1) and 725.464 (2001) as well as 29 C.F.R. §§ 18.47 and 18.52(a), the Board concluded that the "procedural regulations do not impose a duty to associate with the record proffered exhibits that are not admitted as evidence."

 

                        c.       Special circumstances

 

State claim evidence

 

          In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-47 (2004) (en banc), vacated and remanded sub. nom. on other grounds, 523 F.3d 257 (4^th Cir. 2008), the Board held that state claim medical evidence is properly excluded if it contains testing that exceeds the evidentiary limitations at § 725.414.  In so holding, the Board noted that such records (1) "do not fall within the exception for hospitalization or treatment records," and (2) "they are not covered by the exception for prior federal black lung claim evidence" at 20 C.F.R. § 725.309(d)(1) (2008).

 

Living miner's and survivor's claim

 

In Keener v. Peerless Eagle Coal Co., 23 B.L.R. 1-229 (2007) (en banc), the Board determined that, while miners' and survivors' claims may be consolidated for purposes of a hearing under § 725.460, evidence must be specifically designated in each claim in compliance with the limitations at 20 C.F.R. § 725.414.  In so holding, the Board agreed "with the Director's reasonable position . . . that the parties must designate the claim that each piece of evidence supports, and the administrative law judge should consider this evidence on the specific issues of entitlement in each claim."  The only exception to this limitation is the admission of treatment or hospitalization records pertaining to the miner's pulmonary or respiratory disease.  The Board stated that these records are not limited under 20 C.F.R. § 724.414(a)(4) and may be considered in both claims.  The Board also noted that § 725.456(b)(1) permits the admission of evidence in excess of the limitations for "good cause." 

Subsequent claim

 

        In Church v. Kentland-Elkhorn Coal Corp., BRB Nos. 04-0617 BLA and 04-0617 BLA-A (Apr. 8, 2005) (unpub.), the Board held that "when a living miner files a subsequent claim, all evidence from the first miner's claim is specifically made part of the record.  See 20 C.F.R. § 725.309(d)." 

 

        The regulatory provisions at 20 C.F.R. § 725.309(d)(1) (2008) provides that evidence admitted in conjunction with prior claims is automatically admitted in the adjudication of the subsequent claim:

 

Any evidence submitted in connection with any prior claim shall be made part of the record in the subsequent claim, provided that it was not excluded in the adjudication of the prior claim.

 

20 C.F.R. § 725.309(d)(1) (2008).

 

Evidence generated by adverse, dismissed party

 

By unpublished decision in Henley v. Cowin & Co., BRB No. 05-0788 BLA (May 30, 2006) (unpub.), the Board held that where the district director dismisses a responsible operator in a claim that is subject to the amended regulations, then any medical evidence submitted by the dismissed operator must be excluded unless a party specifically designates the evidence as part of its case under § 725.414 of the regulations.

 

B.      An original claim or a claim filed pursuant to

20 C.F.R. § 725.309 (2008)

 

                1.      In support of claimant's position

 

The provisions at 20 C.F.R. § 725.414(a)(2) (2008) provide the following regarding the limitation on the submission of documentary medical evidence by the claimant:

 

(i) The claimant shall be entitled to submit, in support of his affirmative case, no more than two chest X-ray interpretations, the results of no more than two pulmonary function tests, the results of no more than two arterial blood gas studies, no more than one report of an autopsy, no more than one report of each biopsy, and no more than two medical reports.  Any chest X-ray interpretations, pulmonary function test results, blood gas results, autopsy report, biopsy report, and physicians' opinions that appear in a medical report must each be admissible under this paragraph or paragraph (a)(4) of this section.

 

(ii) The claimant shall be entitled to submit, in rebuttal of this case presented by the party opposing entitlement, no more than one physician's interpretation of each chest X-ray, pulmonary function test, arterial blood gas study, autopsy or biopsy submitted by the designated responsible operator or the fund, as appropriate, under paragraph (a)(3)(i) or (a)(3)(iii) of this section and by the Director pursuant to § 725.406.  In any case in which the party opposing entitlement has submitted the results of other testing pursuant to § 718.107, the claimant shall be entitled to submit one physician's assessment of each piece of such evidence in rebuttal.  In addition, where the responsible operator or fund has submitted rebuttal evidence under paragraph (a)(3)(ii) or (a)(3)(iii) of this section with respect to medical testing submitted by the claimant, the claimant shall be entitled to submit an additional statement from the physician who originally interpreted the chest X-ray or administered the objective testing.  Where the rebuttal evidence tends to undermine the conclusion of a physician who prepared a medical report submitted by the claimant, the claimant shall be entitled to submit an additional statement from the physician who prepared the medical report explaining his conclusion in light of the rebuttal evidence.

 

20 C.F.R. § 725.414(a)(2)(i) and (ii) (2008).^[1]

 

2.      In support of responsible operator's

or Trust Fund's position

 

The regulations at 20 C.F.R. § 725.414(a)(3)(i) and (ii) (2008) address the limitations on evidence submitted by the responsible operator or the Trust Fund:

 

(i)  The responsible operator designated pursuant to § 725.410 shall be entitled to obtain and submit, in support of its affirmative case, no more than two chest X-ray interpretations, the results of no more than two pulmonary function tests, the results of no more than two arterial blood gas studies, no more than one report of an autopsy, no more than one report of each biopsy, and no more than two medical reports.  Any chest X-ray interpretations, pulmonary function test results, blood gas studies, autopsy report, biopsy report, and physicians' opinions that appear in a medical report must each be admissible under this paragraph or paragraph (a)(4) of this section.  In obtaining such evidence, the responsible operator 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 provided by § 725.406 of this part, whichever is greater, unless a trip of greater distance is authorized in writing by the district director.  If a miner unreasonably refuses-

 

(A) To provide the Office or the designated responsible operator with a complete statement of his or her medical history and/or to authorize access to his or her medical records, or

 

(B) To submit to an evaluation or test requested by the district director or the designated responsible operator, the miner's claim may be denied by reason of abandonment.  (See § 725.409 of this part). 

 

(ii) The responsible operator shall be entitled to submit, in rebuttal of the case presented by the claimant, no more than one physician's interpretation of each chest X-ray, pulmonary function test, arterial blood gas study, autopsy or biopsy submitted by the claimant under paragraph (a)(2)(i) of this section and by the Director pursuant to § 725.406.  In any case in which the claimant has submitted the results of other testing pursuant to § 718.107, the responsible operator shall be entitled to submit one physician's assessment of each piece of such evidence in rebuttal.  In addition, where the claimant has submitted rebuttal evidence under paragraph (a)(2)(ii) of this section, the responsible operator shall be entitled to submit an additional statement from the physician who originally interpreted the chest X-ray or administered the objective testing.  Where the rebuttal evidence tends to undermine the conclusion of a physician who prepared a medical report submitted by the responsible operator, the responsible operator shall be entitled to submit an additional statement from the physician who prepared the medical report explaining his conclusion in light of the rebuttal evidence.

 

20 C.F.R. § 725.414(a)(3)(i) and (ii) (2008).^[2]

 

                3.      The Department of Labor sponsored examination,

                             special circumstances

 

"Rebuttal" of chest x-ray, defined

 

By unpublished decision in Sprague v. Freeman United Coal Mining Co., BRB No. 05-1020 BLA (Aug. 31, 2006), the Board concluded that Claimant should be allowed to submit a positive x-ray interpretation to "rebut" the positive x-ray interpretation provided in conjunction with the Department-sponsored pulmonary evaluation.  In so holding, the Board rejected Employer's argument that admitting Claimant's positive re-reading of the x-ray study "would be to ignore the plain meaning of the word 'rebut,' which is to contradict or refute."  As summarized by the Board, the Director argued that:

 

. . . the language of the regulation does not limit a party to rebutting a particular item of evidence, rather, it permits a party to respond to a particular item of evidence in order to rebut ‘the case presented by the party opposing entitlement.'  (citation omitted) [emphasis added].

 

The Board stated that the Director's interpretation, as summarized above, was reasonable and persuasive.  However, without explanation, the Board then held that "rebuttal evidence submitted by a party pursuant to 20 C.F.R. § 725.414(a)(2)(ii), (a)(3)(ii), need not contradict the specific item of evidence to which it is responsive, but rather, need only refute ‘the case' presented by the opposing party."  (emphasis added).  Thus, while the Director proposed that rebuttal evidence constitutes evidence that is responsive to "the case presented by the party opposing entitlement," the Board held rebuttal evidence may be used to respond to "'the case' presented by the opposing party."  (emphasis added).  

 

                4.      The Director, OWCP

 

Steps into shoes of dismissed employer

 

In a footnote in Brasher v. Pleasant View Mining Co., 23 B.L.R. 1-141 (2006), the Board cited to § 725.414(a)(3)(iii) and noted that, in cases where no responsible operator has been identified as potentially liable, the district director is entitled to exercise the rights of a responsible operator, i.e. the right to submit two medical opinions and two sets of objective testing, as affirmative evidence.  However, if there is a designated operator, then the district director is not automatically entitled to exercise the rights of the responsible operator.

 

C.      On modification

 

1.                The regulation

 

The revised language at 20 C.F.R. § 725.310(b) (2008) contains limitations on the submission of medical evidence on modification and provides, in part, as follows:

 

Modification proceedings shall be conducted in accordance with the provisions of this part as appropriate, except that the claimant and the operator, or group of operators or the fund, as appropriate, shall each be entitled to submit no more than one additional chest X-ray interpretation, one additional pulmonary function test, one additional blood gas study, and one additional medical report in support of its affirmative case along with such rebuttal evidence and additional statements as are authorized by paragraphs (a)(2)(ii) and (a)(3)(ii) of § 725.414.

 

20 C.F.R. § 725.310(b) (2008).

 

                2.      Parties allowed to "back-fill" slots

 

        In Rose v. Buffalo Mining Co., 23 B.L.R. 1-221 (2007), the Board adopted the Director's position that the § 725.310(b) evidentiary limitations "supplement," rather than "supplant," the § 725.414 limitations.  The Board reasoned:

 

[W]here a petition for modification is filed on a claim arising under the amended regulations, each party may submit its full complement of medical evidence allowed by 20 C.F.R. § 725.414, i.e., additional evidence to the extent the evidence already submitted in the claim proceedings is less than the full complement allowed, plus the party may also submit additional medical evidence allowed by 20 C.F.R. § 725.310(b).

 

Id.

 

                3.      Rebuttal provisions from 20 C.F.R. § 725.414

                             incorporated into 20 C.F.R. § 725.310

 

        In Cumberland River Coal Co. v. Caudill, 2006 WL 3345416, Case No. 05-3680 (6^th Cir. Nov. 17, 2006) (unpub.), the court held that 20 C.F.R. § 725.310(b) (2008) limits each party's submission of initial evidence "along with such rebuttal evidence and additional statements as are authorized by paragraphs (a)(2)(ii) and (a)(3)(ii) of § 725.414"  (emphasis in original).  The court concluded that "[t]he portions of § 725.414 that are specifically incorporated into modification proceedings by § 725.310(b) apply only to rebuttal evidence, . . .."  (emphasis in original).

 

D.      Hospitalization and treatment records unaffected

 

1.                The regulation

 

The regulations at § 725.414(a)(4) provide that "[n]otwithstanding the limitations of paragraphs (a)(2) and (a)(3) of this section, any record of a miner's hospitalization for a respiratory or pulmonary or related disease, or medical treatment for a respiratory or pulmonary or related disease, may be received into evidence."  20 C.F.R. § 725.414(a)(4) (2008).

 

          In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-47 (2004) (en banc), vacated and remanded sub. nom. on other grounds, 523 F.3d 257 (4^th Cir. 2008), the Board held that treatment records, containing multiple pulmonary function and blood gas studies that exceed the limitations at § 725.414, are properly admitted.  This is so regardless of whether the records are offered by a claimant or an employer.  It is noted, however, that the Board required that, on remand, the administrative law judge must "analyze each set of records and made a specific finding as to its (sic) admissibility under § 725.414(a)(4)."

 

2.                Treatment records

 

a.      Rebuttal of

 

By unpublished decision in Henley v. Cowin & Co., BRB No. 05-0788 BLA (May 30, 2006), the Board held that the provisions at § 725.414 do not allow for the rebuttal of treatment records.  As a result, the Board vacated the administrative law judge's ruling that Employer could submit a rebuttal interpretation of a chest x-ray reading contained in the miner's treatment records.

 

b.      "Affirmative" evidence allowed

 

In R.L. v. Consolidation Coal Co., BRB No. 07-0127 BLA (Oct. 31, 2007), the Board held that it was error to exclude Employer's re-readings of certain CT scans found in treatment records.  The administrative law judge excluded Employer's proffer of the evidence on grounds that rebuttal of treatment records is not permitted under Henley v. Cowin & Co., BRB No. 05-0788 BLA (May 30, 2006)(unpub.).  The Board adopted the Director's position and concluded that Employer's proffer did not constitute "rebuttal" of treatment records in contravention of Henley.  Rather, as noted by the Director, Employer was entitled to submit the CT scan re-readings as its "affirmative" evidence.  The Board reiterated that the regulations do not limit the number of separate CT scans that may be admitted into the record, but "a party can proffer only one reading of each separate scan."  The Board also directed that, with regard to consideration of the CT-scan evidence on remand, the administrative law judge must "initially consider whether the party proffering the CT scan evidence has established its medical acceptability under Section 718.107."

 

c.       "Medical report" versus

treatment record

 

        For a discussion of the distinction between a treatment record and a "medical report," see subsection F of this Chapter, infra.

 

          E.      "Other evidence" under 20 C.F.R. § 718.107 (2008)

 

1.                No quality standards, evidence of reliability

under 20 C.F.R. § 718.107(b) (2008) required

 

          The category of "other evidence" under § 718.107 includes CT-scans and digital x-rays for which there are no quality standards.  As a result, the party proffering a piece of "other evidence" must submit expert testimony (written or oral) that the study, test, or procedure is medically acceptable and relevant.

 

In Tapley v. Bethenergy Mines, Inc., BRB No. 04-0790 BLA (May 26, 2005) (unpub.), the judge did not abuse his discretion in excluding CT-scan evidence proffered by the employer based on the employer's failure to demonstrate that the test was (1) medically acceptable, and (2) relevant to establishing or refuting the claimant's entitlement to benefits.  In accepting the Director's position on this issue, the Board held that, because CT-scans are not covered by specific quality standards under the regulations, the proffering party bears the burden of demonstrating that the CT-scans were "medically acceptable and relevant to establishing or refuting a claimant's entitlement to benefits."  See 20 C.F.R. § 718.107(b) (2004).   See also Harris v. Old Ben Coal Co., 23 B.L.R. 1-273 (2007) (en banc on recon.) (J. McGranery and J. Hall, concurring and dissenting), aff'g., 23 B.L.R. 1-98 (2006) (en banc); R.L. v. Consolidation Coal Co., BRB No. 07-0127 BLA (Oct. 31, 2007) (in considering CT-scan evidence, the administrative law judge must "initially consider whether the party proffering the CT scan evidence has established its medical acceptability under Section 718.107").

 

                   2.      Limitations on admission of

 

In Webber v. Peabody Coal Co, 23 B.L.R. 1-123 (2006)(en banc) (J. Boggs, concurring), aff'd. on recon., 23 B.L.R. 1-261 (2007) (en banc on recon.) the Board noted that the amended regulatory provisions at § 725.414 do not provide specific limitations to the admission of evidence under 20 C.F.R. § 718.107.  Nevertheless, in Webber, the Board adopted the Director's position that "the use of singular phrasing in 20 C.F.R. § 718.107" requires that "only one reading or interpretation of each CT scan or other medical test or procedure to be submitted as affirmative evidence."  The Board noted the Director's argument that:

 

[L]imiting the affirmative evidence under 20 C.F.R. § 725.107 (sic) is consistent with the Secretary of Labor's goal of limiting evidence in order to avoid repetition, reduce the costs of litigation, focus attention on quality rather than quantity, and level the playing field between employers and claimants.

 

Id. at footnote 15.  As a result, the administrative law judge was instructed on remand to require each party to select one CT-scan reading and one interpretation of each digital x-ray.  Further, the proffering party must provide evidence to support a finding under § 718.107(b) that the test or procedure is "medically acceptable and relevant to entitlement." See also Harris v. Old Ben Coal Co., 23 B.L.R. 1-98 (2006)(en banc)(J. McGranery and J. Hall, concurring and dissenting). 

 

By unpublished decision in H.M. v. Clinchfield Coal Co., BRB No. 07-0288 BLA (Dec. 31, 2007) (unpub.), the Board addressed the issue of admitting "other evidence" under 20 C.F.R. § 718.107.  Citing to its decision in Webber v. Peabody Coal Co., 23 B.L.R. 1-123 (2006), aff'd. on recon., 24 B.L.R. 1-1 (2007) (en banc), the Board held that "the regulations do not limit the number of separate CT scans that may be admitted into the record; rather, the parties are limited only to one affirmative reading of each separate scan."  Moreover, the Board noted that each party is entitled to "one rebuttal reading (of each CT-scan), as necessary to respond to the opposing party's affirmative reading."

 

          By unpublished decision in Mullins v. Plowboy Coal Co., BRB No. 06-0900 BLA (Aug. 30, 2007), the Board issued instructive holdings regarding application of certain evidentiary limitation provisions at 20 C.F.R. § 725.414.  Citing to its decision in Webber v. Peabody Coal Co., 23 B.L.R. 1-123 (2006) (en banc) (J. Boggs, concurring), aff'd. on recon., 23 B.L.R. 1-261 ( 2007) (en banc on recon.), the Board addressed the admissibility of multiple interpretations of a single CT-scan.  Under the facts of the case, four readings of an April 2, 2001 CT-scan were proffered as evidence.  The administrative law judge admitted (1) one reading as a "treatment" record under 20 C.F.R. § 725.414(a)(4), (2) one reading was offered by Claimant as his case-in-chief reading under 20 C.F.R. § 725.414(a)(2)(i), and (3) one reading was offered by Employer as its rebuttal to Claimant's case-in-chief reading.  The administrative law judge then excluded a second reading of the CT-scan proffered by Employer on grounds that it exceeded the evidentiary limitations and that rebuttal of the "treatment" record is not permitted.

 

        While the Board concluded that the administrative law judge properly admitted three readings of the CT-scan, it held that it was error to exclude the Employer's second reading.  The Board held that "[c]ontrary to the administrative law judge's ruling, . . . employer was entitled to submit, in addition to its rebuttal reading, one affirmative CT scan reading."  

 

        F.      Medical reports under 20 C.F.R. § 725.414 (2008)

 

1.                Defined in the regulation

 

          The regulations at 20 C.F.R. § 725.414(a)(1) (2008) provide the following definition of a "medical report":

 

For purposes of this section, a medical report shall consist of a physician's written assessment of the miner's respiratory or pulmonary condition.   A medical report may be prepared by a physician who examined the miner and/or reviewed the available admissible evidence.  A physician's written assessment of a single objective test, such as a chest X-ray or a pulmonary function test, shall not be considered a medical report for purposes of this section.

 

20 C.F.R. § 725.414(a)(1) (2008).

 

2.                Separate physical examination by same

physician, may be deemed two separate reports        

In Brasher v. Pleasant View Mining Co., 23 B.L.R. 1-141 (2006), the Board agreed with the administrative law judge's finding that Dr. Broudy's 2001 and 2002 physical examination reports constituted two separate medical reports for purposes of Employer's affirmative case evidentiary limitations.  The Board stated:

 

Where a physician's reports constitute two separate written assessments of the claimant's pulmonary condition at two different times, an administrative law judge may properly decline to construe them as a single medical report under the evidentiary limitations.

 

Id.

 

3.                Distinction between treatment note and

medical report

 

By unpublished decision in Stamper v. Westerman Coal Co., BRB No. 05-0946 BLA (July 26, 2006) (unpub.), the Board upheld the judge's finding that Dr. Baker's October 2000 report was a "supplemental opinion, in that it simply expounds on Dr. Baker's May 29, 1997 examination and report, which was admitted as one of claimant's affirmative medical reports pursuant to 20 C.F.R. § 725.414(a)(2)(i)."  However, the Board held that it was error to consider a particular physician's letter to be a treatment note such that it was admissible under § 725.414(a)(4) and it reasoned as follows:

 

Dr. Ducu's letter summarizes claimant's condition as it has developed since she began treating the miner in 1999, it contains her rationale for her diagnosis of black lung disease, and attempts to explain to the reader why she believes claimant is 100% totally and permanently disabled due to pneumoconiosis.  As such, Dr. Ducu's letter constitutes a ‘physician's written assessment of the miner's respiratory and pulmonary condition,' and not a simple record of the miner's ‘medical treatment for a respiratory or pulmonary or related disease' as contemplated by 20 C.F.R. § 725.414(a)(4).

 

In another unpublished decision, Presley v. Clinchfield Coal Co., BRB No. 06-0761 BLA (Apr. 30, 2007) (unpub.), the Board adopted the Director's position and held that a letter from the miner's treating physician, Dr. Robinette, constituted a medical report as defined at 20 C.F.R. § 725.414(a)(1) as opposed to a treatment record.  The Director maintained that Dr. Robinette's letter was provided to the miner's counsel in anticipation of litigation and it contained a "written assessment of claimant's respiratory condition based on a review of his treatment records and test results" such that it was subject to the evidentiary limitations at § 725.414(a)(2)(i) of the regulations.  In agreeing that the letter was a "medical report" under the regulations, the Board found:

 

In his January 10, 2005 letter to claimant's attorney, Dr. Robinette stated that he had been claimant's treating physician for several years, and reported claimant's symptoms, the medications he was taking, and the results from a chest x-ray and CAT scan.  (citation omitted).  Dr. Robinette concluded that the claimant is disabled from his usual coal mine employment, and has complicated coal workers' pneumoconiosis based on his chest x-ray abnormalities and CAT scan findings.

 

The Board concluded that the tenor and structure of Dr. Robinette's letter resulted in its classification as a "medical report" subject to the evidentiary limitations as opposed to a treatment note, the admission of which is not limited under the amended regulations.

 

4.                Expert's consideration of inadmissible evidence,

consequences of

 

In Keener v. Peerless Eagle Coal Co., 23 B.L.R. 1-229 (2007) (en banc), the Board emphasized that a medical opinion must be based on evidence that is "properly admitted" in a claim.  If a report is based on evidence not admitted in the claim, then the administrative law judge must "address the impact of Section 725.414(a)(2)(i), (a)(3)(i)."  The Board noted that the administrative law judge has several options in handling a report based, in part or in whole, on evidence not admitted in the claim such as excluding the report, redacting the objectionable content, asking the physician to submit a new report, or "factoring in the physician's reliance upon the inadmissible evidence when deciding the weight to which his opinion is entitled."  The Board specifically stated, however, that "exclusion is not a favored option, because it may result in the loss of probative evidence developed in compliance with the evidentiary limitations."

 

        In Harris v. Old Ben Coal Co., 23 B.L.R. 1-98 (2006)(en banc)(J. McGranery and J. Hall, concurring and dissenting), aff'd., 23 B.L.R. 273 (2007) (en banc on recon.), a case arising in the Seventh Circuit, the Board held that a physician's medical opinion must be based on evidence that is admitted into the record in accordance with 20 C.F.R. § 725.414.  In this vein, the Board concluded that the Seventh Circuit's decision in Peabody Coal Co. v. Durbin, 165 F.3d 1126 (7^th Cir. 1999), was not applicable to a claim filed under the amended regulations.  In Durbin, the Seventh Circuit held that a medical opinion could be fully credited even if the physician refers to evidence that is not in the record.  Because Durbin was decided prior to promulgation of the amended regulations, the Board concluded that it is not controlling.  Rather, the Board stated that "[w]ithin this new regulatory framework, requiring an administrative law judge to fully credit an expert opinion based upon inadmissible evidence could allow the parties to evade both the letter and the spirit of the new regulations by submitting medical reports in which the physicians have reviewed evidence in excess of the evidentiary limitations."

 

        Importantly, the Board held that "an administrative law judge is granted broad discretion in resolving procedural issues, particularly where the statute and the regulations do not provide explicit guidance as to the sanction that should result when the requirements of a regulation are not satisfied."  Consequently, the Board stated that "a party seeking to overturn an administrative law judge's disposition of an evidentiary issue must prove that the administrative law judge's action represented an abuse of his or her discretion." 

 

The Board noted that, when an administrative law judge is confronted with an opinion that considers evidence not admitted into the formal record, then he or she may exclude the report, redact the objectionable content, ask the physicians to submit revised reports, or consider the physicians' reliance on inadmissible evidence in deciding the probative value to accord their opinions.  In Harris, the Board held that the administrative law judge "appropriately indicated that exclusion is not a favored option, as it would result in the loss of probative evidence developed in compliance with the evidentiary limitations." 

 

The Board affirmed these holdings on reconsideration in Harris v. Old Ben Coal Co., 23 B.L.R. 1-273 (2007) (en banc on recon.) (J. McGranery and J. Hall, concurring and dissenting), aff'g., 23 B.L.R. 1-98 (2006) (en banc).  The Board reiterated that it would not apply the Seventh Circuit's holding in Peabody Coal Co. v. Director, OWCP [Durbin], 165 F.3d 1126 (7^th Cir. 1999) to a claim filed after January 19, 2001.  The Board reasoned that "[r]equiring an administrative law judge to fully credit an expert opinion based on inadmissible evidence could allow the parties to evade the limitations set forth in the new regulations (at § 725.414), by submitting medical reports in which the physicians have reviewed evidence in excess of the evidentiary limitations." 

 

G.        Autopsy and biopsy reports

 

1.                Report of autopsy, defined

 

In Keener v. Peerless Eagle Coal Co., 23 B.L.R. 1-229 (2007) (en banc), the Board adopted the Director's position that "a report by a pathologist who has reviewed the autopsy tissue slides is in substantial compliance with the Section 718.106 quality standards and . . . can constitute a report of an autopsy for the purposes of Section 725.414(a)(2)(i) and (a)(3)(i)."  The Board agreed with the Director that "since only claimant is likely to produce an autopsy prosector's report, this interpretation of the regulations is the most practical approach to satisfying the inclusive nature of Section 725.414(a)(2)(i), (a)(3)(i), which allows for both parties to submit an affirmative report of an autopsy. 

 

2.                Rebuttal of report of autopsy

 

In Keener v. Peerless Eagle Coal Co., 23 B.L.R. 1-229 (2007) (en banc), the Board again adopted the position of the Director and held that "rebuttal" of a report of autopsy must be limited to consideration of the pathological evidence (autopsy report and slides).  The "rebuttal" opinion cannot take into consideration clinical evidence, such as medical opinions and CT-scan interpretations. 

 

Notably, in defining "rebuttal" evidence, the Board cited to the Department's comments to the regulations at 65 Fed. Reg. 79990 (Dec. 20, 2000) to state that the "regulations contemplate that an opinion offered in rebuttal of the case presented by the opposing party will analyze or interpret the evidence to which it is responsive."  In this vein, the Board held that any portion of Dr. Bush's "rebuttal" autopsy opinion that is based on "materials beyond the scope of Dr. Plata's autopsy," should be redacted.  Thus, on remand, the Board directed that the administrative law judge review the "rebuttal opinion and address those portions of his opinion that exceed the scope of the autopsy submitted by claimant." 

 

3.      Report of biopsy, defined

 

        In Tapley v. Bethenergy Mines, Inc., BRB No. 04-0790 BLA (May 26, 2005) (unpub.),  where Employer offered the opinion of Dr. Bush under 20 C.F.R. § 725.414(a)(3)(i) as a "biopsy" report, the judge properly admitted the report only to the extent that Dr. Bush did not refer to inadmissible evidence and the report was considered only to the extent that it offered "an assessment of claimant's biopsy tissue for the existence of pneumoconiosis."  The report could not be considered as a medical opinion under § 725.414(a)(1) because Employer had designated the reports of two other physicians under this category.  As a result, Dr. Bush's opinion on disability causation was inadmissible.

 

H.       "Good cause" standard for admitting

evidence over limitations

 

The provisions at § 725.456 state that "[m]edical evidence in excess of the limitations contained in § 725.414 shall not be admitted into the hearing record in the absence of good cause."  20 C.F.R. § 725.456(b)(1) (2008).

 

1.                Prior to the regulatory amendments

 

a.      Introduction

       

Two central features of the Department of Labor's newly promulgated black lung regulations^[3] are that cases referred to this Office for hearing (1) will have one named responsible operator^[4], and (2) will be subject to limits on the submission of evidence.^[5]  The only exception allowing a party to exceed the evidentiary limitation, which is the focus of this paper, is when "good cause" is demonstrated^[6].  Unfortunately, there is no regulatory guidance in applying this critical standard.

 

In a law review article^[7] addressing the amendments, the critical role of judges in implementing the new regulations was emphasized:

 

The Department's rules will not be self-executing.  Their ultimate content will be a function of how ALJs interpret and apply them, and how courts carry out the function of review.  ALJs and federal judges thus will be crucial determinants of whether the Department realizes the goal of greater equity in the claims process.

 

The impact of the ALJs will be enormous.  One question is whether ALJs who are accustomed to the content and operation of the old rules will have difficulty assessing black lung claims through the prism of the new.

 

                        b.      National Mining Association Litigation

 

Employers and carriers lost their challenge to the validity of regulations limiting the submission of medical evidence in National Mining Ass'n. v. Chao^[8].  The circuit court concluded the following:

 

[R]ecord evidence . . . indicates that the new evidentiary limits are not at all 'artificial,' but - as the Secretary explained - will enable ALJs to focus their attention 'on the quality of the medical evidence in the record before [them].'  64 Fed. Reg. at 54,994.  The record also makes clear the need for evidence limitations; in their absence, lawyers often waste ALJs' time and resources with excessive evidence - in one case, a mine operator's lawyer submitted eighty-nine separate X-ray re-readings from fourteen different experts.  (citation omitted).  At oral argument, moreover, NMA conceded that ALJs have always had discretion to exclude evidence in precisely the manner outlined by the new evidence-limiting rules; it would be strange indeed to conclude that the Secretary acted arbitrarily and capriciously by codifying evidentiary limits that ALJs have always had the discretion to impose.

 

Thus, as noted by the circuit court, the limitation on evidence is not "arbitrary and capricious"; rather, it will enable the parties and adjudicators to focus on the quality of the evidence submitted. 

 

                        c.       "Good cause" and Shedlock

 

Because the "good cause" standard at § 725.414 to exceed the evidentiary limitations is relatively new, a review of "good cause" standards that have developed in other areas of the law, such as failure to timely controvert a claim^[9], failure to comply with the 20-day rule^[10], and reopening the record on remand^[11], may assist in developing a workable standard to apply under 20 C.F.R. § 725.414 (2008).  It is noted, however, that the Board's interpretation of "good cause" to allow documentary evidence not exchanged in compliance with the 20-day rule at § 725.456 has become so lenient that it renders the 20-day rule meaningless.  As an example, in Clark v. Karst-Robbins Coal Co., 12 B.L.R. 1-149 (1989)(en banc), the Board concluded that claimant submitted an x-ray reading that was exchanged timely under § 725.456 by "only a few days" and, therefore, the judge properly found that "fairness" required the post-hearing admission of x-ray reports by the opposing parties.  The Board held that the judge implicitly found that "good cause" existed to admit the evidence. If the same lenient standard is used to interpret "good cause" for admitting documents in excess of the limitations imposed by § 725.414, then the limitation will also become meaningless.

 

A lenient interpretation of "good cause" was first applied in Shedlock v. Bethlehem Mines Corp., 9 B.L.R. 1-195 (1986), aff'd. on recon., 9 B.L.R. 1-236 (1987)(en banc), one of the most often cited Board decisions on the "good cause" standard.  Under the facts of Shedlock, a case involving application of the 20-day rule, the Board noted:

 

[C]laimant's submission of Dr. Mastrine's report just prior to the deadline imposed by the 20-day rule for submitting documentary evidence into the record, coupled with the administrative law judge's refusal to allow employer the opportunity to respond to claimant's introduction of this 'surprise' evidence, constituted a denial of employer's due process right to a fair hearing.  On remand, the administrative law judge is, therefore, instructed to admit Dr. McQuillan's report into evidence and to weigh this report along with the other relevant evidence at Section 718.204(c), and in the event the issue of rebuttal is reached, at Section 718.305(d).  In so holding, we note that claimant will not suffer unfair prejudice from the admission of Dr. McQuillan's report because Dr. Mastrine's report is contemporaneous in time with that of Dr. McQuillan's report.^[12]

 

As a result, under the facts of Shedlock, "good cause" was established for submission of evidence less than 20 days prior to the hearing where (1) one party submitted "surprise" evidence on the eve of the 20-day deadline^[13], and (2) the opposing party submitted a "contemporaneously" generated report less than 20 days prior to the hearing in response.

 

In Bethlehem Mines Corp. v. Henderson^[14], the Fourth Circuit expressed its concern with the lenient "due process aspect" of the Board's Shedlock decision:

 

That decision appears to hold that whenever a claimant submits evidence just prior to the twenty-day deadline, such evidence constitutes a 'surprise' to which the employer must be permitted to respond, even though the evidence was timely and the deadline for submissions has passed.  (citations omitted).  At the same time, however, we agree that under certain narrow circumstances not present here, due process considerations may override the twenty-day rule.  (citation omitted).  Broadly construed, however, Shedlock would eviscerate the twenty-day rule.  The Board itself may have recognized this problem by suggesting in its opinion in this case that Shedlock did not set forth a specific holding regarding 20 C.F.R. § 725.456(b)(2), but simply propounded a decision based on the particular facts of that case.  (citation omitted).

 

Under the facts of Henderson, Claimant submitted two medical reports more than 20 days prior to the hearing.  Employer sought a continuance and requested that Claimant be examined by a physician of its choice.  In the alternative, Employer sought post-hearing examinations of Claimant as well as post-hearing depositions of the physicians.  The judge denied Employer's requests.  At the hearing, Employer offered two letters from Dr. Zaldivar (both of which had been exchanged in compliance with the 20-day rule) and it offered two additional exhibits, which had not been timely exchanged.  Citing to Shedlock, the judge admitted the untimely evidence and allowed Claimant an opportunity to submit rebuttal evidence.

 

The Fourth Circuit stated, however, that it would not have applied Shedlock to admit Employer's untimely evidence.^[15]  The court held that "[a]bsent the parties' consent or a showing of good cause, the tardy submissions (by the employer) should have been excluded pursuant to the second sentence of § 725.456(b)(2)."^[16]  The court reasoned as follows:

 

An obvious purpose of the twenty-day rule is to prevent unfair surprise.  Rigidly enforced without exception, however, the twenty-day rule itself would invite abuse by encouraging parties to withhold evidence until just before the deadline.  Yet we caution that neither the APA nor considerations of due process should be understood as providing a license for a dilatory party to delay preparation and timely submission of its affirmative case.  The APA makes clear that a party is only entitled to such rebuttal 'as may be required for a full and true disclosure of the facts.'  Similarly, in North American Coal^[17] the Third Circuit explained that due process 'requires an opportunity for rebuttal where it is necessary to the full presentation of a case.'  870 F.2d at 952 (emphasis added).  Put differently, submissions timely under the twenty-day rule should not, in the vast majority of cases, give rise to claims of unfair surprise and requests for further discovery, testimony, and time to respond.  In this respect, the Third Circuit noted that under the APA, the ALJ is always free to exclude irrelevant, immaterial or unduly repetitious evidence.  See 870 F.2d at 952; 5 U.S.C. § 556(d).

 

The court concluded that Employer's due process rights were satisfied and "[r]ebuttal by means of post-hearing depositions of physicians who already submitted medical reports was not necessary to the full presentation of Bethlehem's case."^[18]  The court further noted that "[a]ny disadvantage Bethlehem faced at the time of the hearing was at best a self-inflicted wound."^[19]  The court stated that Employer had six years from the date of Claimant's first examination to have him re-examined and "a prudent employer would have taken timely steps to arrange a new examination, rather than gamble that Henderson would not develop any evidence."^[20]  Moreover, the court held that Employer would not have been denied a fair hearing if the judge had refused to permit it to conduct post-hearing depositions of its physicians "whose opinions (were) the subject of the employer's untimely evidence."^[21] 

 

The point to remember is that "good cause" to exceed the evidentiary limitations at 20 C.F.R § 725.414 (2008) should not be interpreted leniently such that the exception to the rule swallows the rule.  In cases involving a responsible operator, the amended regulations allow five complete pulmonary evaluations^[22] of the miner to be submitted along with rebuttal and rehabilitative evidence.  In the vast majority of cases, this would constitute sufficient evidence "necessary for the full presentation of the case" and a "true disclosure of the facts" from all parties to the caseBemphasizing quality of the evidence over its quantity.

 

                        d.      "Good cause," examples of

 

In its comments to the amended regulations, the Department "suggests" that "the progressive nature of the disease might justify an administrative law judge's finding of good cause to admit documentary medical evidence in excess of the § 725.414 limitations when both parties had fully developed their evidence prior to the hearing but the hearing had to be rescheduled due to weather conditions."^[23]  However, the Department cautioned the following:

 

The example provided by the Department (to demonstrate good cause) was not intended to provide an automatic right to submit documentary medical evidence in excess of the limitations in any particular case.^[24]

 

On the other hand, the Department rejected an argument that "a claim of bare 'regression' should entitle a coal mine operator to exceed the § 725.414 evidentiary limitations."^[25]  The Department further commented that it:

 

. . . fully expects that administrative law judges will be able to fashion a remedy in all cases that both permits the party opposing entitlement to develop such rebuttal evidence as is necessary to ensure a full and fair adjudication of the claim, and retains the principle inherent in these regulations that the fairest adjudication of a claimant's entitlement will occur when the fact-finder's attention is focused on the quality of the medical evidence submitted by the parties rather than on its quantity.^[26]

 

e.                "Good cause" not established,

examples of

 

After a review of cases addressing "good cause" in other areas of black lung law, it is proposed that some examples where "good cause" to exceed the evidentiary limitations would not be demonstrated are:^[27]

 

-       evidence sought to be admitted is cumulative, immaterial, or unduly repetitious^[28];

-       the proponent of the evidence argues only that it is relevant^[29];

-       the evidence sought to be admitted is "vague and unreliable"^[30];

-       the party offering the evidence merely argues that it is offered for a "true disclosure of the facts" or is "necessary for a full presentation" of its case^[31].

 

 

f.                  "Good cause" established,

examples of

 

It is proposed that some examples where "good cause" to exceed the evidentiary limitations would be demonstrated are:^[32]

 

-       evidence is needed to address a change in legal standards since submission of prior evidence^[33];

-       hospitalization, treatment records, and "other evidence" such as CT-scans and digital x-rays, which are not subject to the limitations on evidence, are submitted subsequent to development of the physicians' opinions^[34];

-       a party failed to cooperate during discovery, which compromised the opponent's ability to present expert evidence^[35].

 

g.                Quality over quantity,

the emphasis

 

To give proper effect to the purpose of the amended regulations, allowing parties to exceed the evidentiary limitations should be a last resort.  Moreover, there is no regulatory authority for the parties to agree that the restrictions at § 725.414 be lifted.  In cases involving a responsible operator, there will be five complete pulmonary evaluations in the record as well as rebuttal and rehabilitative evidence with regard to each opinion and test result.  This structured presentation of the evidence gives both parties to a claim the opportunity to fully present their evidence and challenge an opponent's evidence to establish a "true disclosure of the facts."  Judges are empowered to exclude irrelevant, immaterial, and unduly repetitious evidence.  The evidentiary limitations at § 725.414 will serve this function and reduce the need to weigh mass amounts of evidence, which may be duplicitous and of variable quality.^[36]

 

        2.      "Good cause," interpretations of

                             20 C.F.R. § 725.456(b)(1) (2008)

 

                             a.      Waiver

 

In Brasher v. Pleasant View Mining Co., 23 B.L.R. 1-141 (2006), the Board held that it was improper for the administrative law judge to strike all of a party's evidence in a category on grounds that the party submitted evidence in excess of the limitations at § 725.414.  The Board stated:

 

Although Section 725.456(b)(1) provides that medical evidence in excess of the limitations contained in Section 725.414 shall not be admitted into the hearing record in the absence of good cause, the regulations do not authorize an administrative law judge to exclude properly submitted evidence based upon the fact that a party has submitted excessive evidence.  Consequently, an administrative law judge should not exclude all of a party's submitted evidence merely because that party submits evidence that exceeds the limitations set forth at 20 C.F.R. § 725.414.

 

Slip op. at pp. 5-6.  In its appeal brief, Employer argued that the excess evidence should be admitted on grounds of "good cause."  However, the Board agreed with the administrative law judge in finding that Employer waived this argument when it did not argue "good cause" at the time it sought admission of the excess evidence at the hearing.

 

b.                Relevance does not constitute

"good cause"

 

By unpublished decision in H.M. v. Clinchfield Coal Co., BRB No. 07-0288 BLA (Dec. 31, 2007) (unpub.), the Board upheld an administrative law judge's exclusion of x-ray interpretations offered by Employer in excess of the evidentiary limitations as well as the judge's redaction of a physician's opinion that referenced the inadmissible x-ray interpretations.  The Board held that "good cause" to exceed the evidentiary limitations was not established where Employer asserted that the "excess films are relevant" to the issue of whether Claimant suffered from complicated pneumoconiosis.  Moreover, the fact that the physician "specifically requested to review additional x-rays in order to provide a reasoned opinion as to the presence or absence of complicated pneumoconiosis" did not compel a finding of "good cause."  In this vein, the Board held that the administrative law judge "fashioned a permissible remedy for (the physician's) review of inadmissible evidence . . . by determining to redact only those portions of (the physician's) opinion that relied on the excluded x-ray readings."

 

In Teague v. Apple Coal Co., BRB No. 05-0489 BLA (Feb. 15, 2006) (unpub.), the Board affirmed the judge's finding that Employer failed to demonstrate "good cause" for exceeding the evidentiary limitations at 20 C.F.R. § 725.414.  As an initial matter, the Board rejected application of the Fourth Circuit's decision in Underwood v. Elkay Mining, 105 F.3d 946 (4^th Cir. 1997) on grounds that (1) Teague arose in the Sixth Circuit and (2) Underwood was decided under the pre-amendment regulations, which did not include the evidentiary limitations at § 725.414.  In addition, the judge correctly concluded that Employer failed to carry its burden to demonstrate "good cause" in support of admitting evidence in excess of the § 725.414 limitations.  In this vein, the Board held that Employer's arguments that the excess evidence was (1) developed in conjunction with the state workers' compensation claim, (2) relevant and probative, and (3) equally available to the parties, were not sufficient to establish "good cause."  In rejecting Employer's arguments, the Board cited to the published comments underlying the amended regulations to state that a purpose of § 725.414 "was to enable administrative law judges to focus on the quality, rather than the quantity, of evidence."

 

        In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-47 (2004) (en banc), vacated and remanded sub. nom. on other grounds, 523 F.3d 257 (4^th Cir. 2008), the Board held that "good cause" was not established solely on grounds that "the excess evidence was relevant."  The Board noted that Employer "did not explain why the admitted evidence of record was insufficient to distinguish IPS from coal workers' pneumoconiosis, or indicate how (additional medical evidence) would assist the physicians."

 

I.         Referral of claim by district director;

not required to include all medical evidence

 

Former proposed regulatory amendments at § 725.414(a)(6) required that the district director transmit all medical evidence submitted in the claim.  The final rules, however, dispense with this requirement and permit the district director to exclude certain medical evidence from referral to the Office.  In its comments, the Department states the following:

 

[T]he Department has deleted subsection (a)(6) (of § 725.414).  As proposed, subsection (a)(6) would have required the district director to admit into the record all of the evidence submitted while the case was pending before him.  As revised, however, the regulation may require the exclusion of some evidence submitted to the district director.  In the more than 90 percent of operator cases in which there is no substantial dispute over the identity of the responsible operator, most of the evidence available to the district director will be the medical and liability evidence submitted pursuant to the schedule for the submission of additional evidence, § 725.410.  In the remaining cases, however, the district director may alter his designation of the responsible operator after reviewing the liability evidence submitted by the previously designated responsible operator. 

.   .   .

 

At that point, the responsible operator will have an opportunity, if it was not the initially designated responsible operator, to develop its own medical evidence or adopt medical evidence submitted by the initially designated responsible operator.  Because the district director will not be able to determine which medical evidence belongs in the records until after this period has expired, the Department has revised §§ 725.415(b) and 725.421(b)(4) to ensure that the claimant and the party opposing entitlement are bound by the same evidentiary limitations.  Accordingly, the Department has deleted the requirement in § 725.414(a)(6) that the district director admit into the record all of the medical evidence that the parties submit.

 

65 Fed. Reg. 79,990-991 (Dec. 20, 2000).

 

II.     Responsible operator designation

 

A.      Limitations on testimony

 

The regulations restrict any testimony related to the designation of the responsible operator and provide as follows:

 

In accordance with the schedule issued by the district director, all parties shall notify the district director of the name and current address of any potential witness whose testimony pertains to the liability of a potentially liable operator or the designated responsible operator.  Absent such notice, the testimony of a witness relevant to the liability of a potentially liable operator or the designated responsible operator shall not be admitted in any hearing conducted with respect to the claim unless the administrative law judge finds that the lack of notice should be excused due to extraordinary circumstances.

 

20 C.F.R. § 725.414(c) (2008).  Moreover, subsection (d) states the following:

 

Except to the extent permitted by § 725.456 and § 725.310(b), the limitations set forth in this section shall apply to all proceedings conducted with respect to a claim, and no documentary evidence pertaining to liability shall be admitted in any further proceeding conducted with respect to a claim unless it is submitted to the district director in accordance with this section.

 

20 C.F.R. § 725.414(d) (2008). 

 

B.      Evidence related to responsible operator excluded absent "extraordinary circumstances"

 

                1.      The regulation

 

Subsection 725.456(b)(1) provides that "[d]ocumentary evidence pertaining to the liability of a potentially liable operator and/or the identification of a responsible operator which was not submitted to the district director shall not be admitted into the hearing record in the absence of extraordinary circumstances."  20 C.F.R. § 725.456(b)(1) (2008).  For example, in its comments, the Department "intends that a party will have shown extraordinary circumstances to present the testimony of a previously unidentified witness whose testimony is relevant to the issue of operator liability when the witness originally identified by the party is no longer available to testify."   65 Fed. Reg. 80,001 (Dec. 20, 2000).  See 20 C.F.R. § 725.456(c)(1) (2008).

 

                2.      Case law

 

Waiver of right to contest liability

 

        In Weis v. Marfork Coal Co., 23 B.L.R. 1-182 (2006) (en banc) (JJ. McGranery and Boggs, dissenting), it was undisputed that Claimant suffered from complicated pneumoconiosis and was entitled to benefits under the Act.  Employer, however, challenged its designation as the operator responsible by submitting x-ray evidence demonstrating that Claimant suffered from complicated pneumoconiosis prior to the time of his employment with Employer. 

 

A majority of the Board agreed with the administrative law judge's finding that Employer waived its right to contest liability by not doing so in a timely fashion before the district director as required at 20 C.F.R. § 725.412(a)(2).  Moreover, the Board upheld exclusion of the x-ray evidence at the formal hearing as the judge concluded that Employer failed to demonstrate "extraordinary circumstances" pursuant to 20 C.F.R. § 725.456(b)(1), which provides, in part, that "[d]ocumentary evidence pertaining to the liability of a potentially liable operator . . . which was not submitted to the district director shall not be admitted into the hearing record in the absence of extraordinary circumstances."  Citing to this regulation, and the Department's comments underlying its promulgation, a majority of the Board held that § 725.456(b)(1) applies to the x-ray evidence offered by Employer to the administrative aaw judge.  The majority agreed that the comments to the regulation, at 65 Fed. Reg. 79,999 to 80,000 (Dec. 20, 2000), do not "explicitly address the submission of 'medical records' as a means of escaping liability for the payment of benefits," but "the comments reveal the Department's intent that operators be required to submit 'any evidence' relevant to the liability of another party while the case is before the district director."  As a result, the majority held that "x-ray interpretations and other medical records are included in the term ‘documentary evidence' referenced in 20 C.F.R. § 725.456(b)(1)."^[37]

 

C.      Dismissal by administrative law judge not permitted

 

Finally, it is noted that § 725.465(b) provides that "[t]he administrative law judge shall not dismiss the operator designated as the responsible operator by the district director, except upon the motion or written agreement of the Director."  20 C.F.R. § 725.465(b) (2008).  In its comments, the Department states the following: 

 

The revised regulation is intended to . . . ensure that the designated responsible operator and the Director have the opportunity to fully litigate the liability issue at all levels.  Moreover, the regulation does not create any undue hardships.  If, after considering all of the evidence relevant to the responsible operator issue, the ALJ finds that the designated responsible operator is not liable for the payment of benefits, but concludes that the claimant is entitled to benefits, the operator merely has to wait until the Director, on behalf of the Trust Fund, files an appeal with the BRB.  The operator may then participate in that appeal in defense of the ALJ's liability determination if it wishes.  If the Director does not petition for review of the ALJ's liability decision, the operator need not participate in any further adjudication of the case, regardless of whether it is formally included as a party.

 

65 Fed. Reg. 80,005 (Dec. 20, 2000).  If multiple operators are listed on referral from the district director, the comments to the regulations state that the administrative law judge would be permitted to dismiss the operators at any time.  65 Fed. Reg. 80,004 (2000).  The plain language of § 725.418(d), however, requires that the Director consent to such dismissals.  20 C.F.R. § 725.418(d) (2008).

 

D.      Remand by administrative law judge

 

In its comments to the amended regulations, the Department asserts that the administrative law judge is not empowered to remand a claim for designation of an operator:

 

Once all of (the) evidence is forwarded to the Office of Administrative Law Judges for a formal hearing, the administrative law judge assigned to the case will determine, in light of the evidentiary burdens imposed by section 725.495, whether the district director designated the proper responsible operator.  If the administrative law judge determines that the district director did not designate the proper responsible operator, liability will fall on the Trust Fund.  No remand for further development of the responsible operator issue is permissible.

 

65 Fed. Reg. 80,008 (Dec. 20, 2000).

 

E.      On modification

 

With regard to identification of the proper responsible operator on modification, the Departments states the following in its comments to the amended regulations:

 

The Department disagrees that the regulations will always prevent an operator from seeking modification of a responsible operator determination based on newly discovered evidence.  It is true, however, that the regulations limit the types of additional evidence that may be submitted on modification and, as a result, an operator will not always be able to submit new evidence to demonstrate that it is not a potentially liable operator. 

 

The Department explained in its previous notices of proposed rulemaking that the evidentiary limitations of §§ 725.408 and 725.414 are designed to provide the district director with all of the documentary evidence relevant to the determination of the responsible operator liable for the payment of benefits.  The regulations recognize, and accord different treatment to, two types of evidence: (1) documentary evidence relevant to an operator's identification as a potentially liable operator, governed by § 725.408; and (2) documentary evidence relevant to the identity of the responsible operator, governed by §§ 725.414 and 725.456(b)(1). 

.   .   .

 

The operator's ability to seek modification based on additional documentary evidence will thus depend on the type of evidence that it seeks to submit.  Where the evidence is relevant to the designation of the responsible operator, it may be submitted in a modification proceeding if extraordinary circumstances exist that prevented the operator from submitting the evidence earlier.  For example, assume that the miner's most recent employer conceals evidence that establishes that it employed the miner for over a year, and that as a result an earlier employer is designated the responsible operator.  If that earlier employer discovers the evidence after the award becomes final, it would be able to demonstrate that extraordinary circumstances justify the admission of the evidence in a modification proceeding.

 

That same showing, however, will not justify the admission of evidence relevant to the employer's own employment of the claimant.  Under § 725.408, all documentary evidence pertaining to the employer's employment of the claimant and its status as a financially capable operator must be submitted to the district director. 

 

65 Fed. Reg. 79,976 (Dec. 20, 2000).

 

F.                Filing a subsequent claim under

20  C.F.R. § 725.309 (2008)

 

In its comments to the amended regulations, the Department states the following with regard to naming a new operator in a claim filed under 20 C.F.R. § 725.309:

 

To the extent that a denied claimant files a subsequent claim pursuant to § 725.309, of course, the Department's ability to identify another operator would be limited only by the principles of issue preclusion.  For example, where the operator designated as the responsible operator by the district director in a prior claim is no longer financially capable of paying benefits, the district director may designate a different responsible operator.  In such a case, where the claimant will have to re-litigate his entitlement anyway, the district director should be permitted to reconsider his designation of the responsible operator liable for the payment of the claimant's benefits. 

 

65 Fed. Reg. 79,990 (Dec. 20, 2000).

 

III.    Witness testimony

 

A.      Limitations on expert medical testimony

 

The amended regulations contain restrictions on expert testimony, both in terms of scope and content.  Subsection 725.414(c) addresses expert testimony and provides the following:

 

(c) Testimony.  A physician who prepared a medical report admitted under this section may testify with respect to the claim at any formal hearing conducted in accordance with subpart F of this part, or by deposition.  If a party has submitted fewer than two medical reports as part of that party's affirmative case under this section, a physician who did not prepare a medical report may testify in lieu of such a medical report.  The testimony of such a physician shall be considered a medical report for purposes of the limitations provided in this section.  A party may offer the testimony of no more than two physicians under the provisions of this section unless the adjudication officer finds good cause under paragraph (b)(1) of § 725.456 of this part.

 

20 C.F.R. § 725.414(c) (2008).  See also the discussion on medical reports, supra. 

 

                1.      Must provide one of two "medical reports"

 

In Tapley v. Bethenergy Mines, Inc., BRB No. 04-0790 BLA (May 26, 2005) (unpub.), the  judge properly excluded the deposition testimony of Dr. Jerome Wiot, a radiologist, based on the provisions at § 725.414(c), which provide that "[a] physician who prepared a medical report admitted under this section may testify with respect to the claim  . . . by deposition."  Because Dr. Wiot offered only chest x-ray interpretations and did not provide a medical report, as defined under the regulations, then his deposition testimony was not admissible.

 

2.      Testimony of radiologist inadmissible

          except as related to 20 C.F.R. § 718.107(b)

 

          In Webber v. Peabody Coal Co, 23 B.L.R. 1-123 (2006)(en banc) (J. Boggs, concurring), the Board upheld the administrative law judge's consideration of Dr. Wiot's deposition testimony under § 718.107(b) with regard to the medical acceptability and relevance of CT-scans and digital x-rays. The Board concluded that the "administrative law judge further acted within his discretion in severing and separately considering Dr. Wiot's additional testimony pertaining to the medical acceptability and relevance of these tests from the rest of his opinion regarding whether the miner in this case suffers from pneumoconiosis . . .."  In so holding, the Board stated the following:

 

We agree with the Director that where a physician's statement or testimony offered to satisfy the party's burden of proof at 20 C.F.R. § 718.107(b) also contains additional discussion, if the additional comments are not admissible pursuant to 20 C.F.R. §§ 725.414 or 725.456(b)(1), the administrative law judge need not exclude the deposition or statement in its entirety, but may sever and consider separately those portions relevant to 20 C.F.R. § 718.107(b).

 

Id.

 

3.      Testimony of treating physician not

automatically admissible

 

        In Gilbert v. Consolidation Coal Co., BRB Nos. 04-0672 BLA and 04-0672 BLA-A (May 31, 2005) (unpub.), the Board held that the evidentiary limitations set forth at 20 C.F.R. § 725.414 are mandatory and, absent a finding of "good cause," it was proper for the judge to exclude the deposition testimony offered by Employer of Claimant's treating physician, Dr. Altmeyer.  First, Employer already had medical opinions from two other physicians offered as evidence.  Second, the Board rejected Employer's argument that Claimant waived his right to object to admissibility of the deposition because he participated in the deposition.  The Board noted that § 725.456(b)(1) did not "include a waiver provision for evidence submitted under Section 725.414."  Finally, although Dr. Altmeyer's treatment records were admitted as evidence under § 725.414(a)(4), the record did not contain a "medical report prepared by Dr. Altmeyer pursuant to 20 C.F.R. § 725.414(a)(3)(i)" such that his deposition was inadmissible under these provisions as well.

 

        B.      Must be based on admissible evidence

 

        The regulations require that medical reports and expert medical testimony be based solely on evidence admitted into the record.  A review of case law on this issue is set forth supra in this Chapter.

 

C.      At the hearing

 

The regulatory provisions at § 725.457(a) have been amended to provide that "[a]ny party who intends to present the testimony of an expert witness at a hearing, including any physician, regardless of whether the physician has previously prepared a medical report, shall so notify all other parties to the claim at least 10 days before the hearing."  20 C.F.R. § 725.457(a) (2008) (emphasis added).  The regulations also contain the following additional restrictions:

 

(c) No person shall be permitted to testify as a witness at the hearing, or pursuant to deposition or interrogatory under § 725.458, unless that person meets the requirements of § 725.414(c).

 

(1) In the case of a witness offering testimony relevant to the liability of the responsible operator, in the absence of extraordinary circumstances, the witness must have been identified as a potential hearing witness while the claim was pending before the district director.

 

(2) In the case of a physician offering testimony relevant to the physical condition of the miner, such physician must have prepared a medical report.  Alternatively, in the absence of a showing of good cause under § 725.456(b)(1) of this part, a physician may offer testimony relevant to the physical condition of the miner only to the extent that the party offering the physician's testimony has submitted fewer medical reports than permitted by § 725.414.  Such physician's opinion shall be considered a medical report subject to the limitations of § 725.414.

 

(d) A physician whose testimony is permitted under this section may testify as to any other medical evidence of record, but shall not be permitted to testify as to any medical evidence relevant to the miner's condition that is not admissible.

 

20 C.F.R. § 725.457 (2008). 

 

In its comments, the Department noted that inclusion of subsection (d) was necessary to ensure the parties adherence to the evidentiary limitations.  65 Fed. Reg. 80,002 (Dec. 20, 2000). 

 

D.      By deposition

 

It is noted that § 725.458 provides that "[t]he testimony of any physician which is taken by deposition shall be subject to the limitations on the scope of testimony contained in § 725.457(d)."  20 C.F.R. § 725.458 (2008).

 

E.      Notice to opposing party

 

The regulations continue to require that adequate notice be given to the opposing party of any expert witness which will testify at the hearing or by deposition.  20 C.F.R. § 725.458 (2008) (30 days' notice of a deposition must be provided); 20 C.F.R. § 725.457(a) (2008) (10 days' notice of any witness to be called to testify at the hearing).

 

          F.      Expert witness fees, apportionment of

 

The witness fees continue to be based upon the fees and mileage received by witnesses before the courts of the United States.  20 C.F.R. § 725.459(a) (2008).  However, § 725.459(b) provides, in part, as follows:

 

If such witness is required to attend the hearing, give a deposition or respond to interrogatories for cross-examination purposes, the proponent of the witness shall pay the witness' fee.  If the claimant is the proponent of the witness whose cross-examination is sought, and demonstrates, within time limits established by the administrative law judge, that he would be deprived of ordinary and necessary living expenses if required to pay the witness fee and mileage necessary to produce the witness for cross-examination, the administrative law judge shall apportion the costs of such cross-examination among the parties to the case.  The administrative law judge shall not apportion any costs against the fund in a case in which the district director has designated a responsible operator, except that the fund shall remain liable for any costs associated with the cross-examination of the physician who performed the complete pulmonary evaluation pursuant to § 725.406.

 

20 C.F.R. § 725.459(b) (2008).   Further, subsection (d) provides that "[a] claimant shall be considered to be deprived of funds required for ordinary and necessary living expenses for purposes of paragraph (b) of this section where payment of the projected fee and mileage would meet the standards set forth at 20 C.F.R. § 404.508."  20 C.F.R. § 725.459(d) (2008).  The amended regulations encourage the administrative law judge to "authorize the least intrusive and expensive means of cross-examination . . .."  20 C.F.R. § 725.459(d) (2008).