Chapter 28

 

The procedural and evidential rules applicable to black lung claims are found at 20 C.F.R. Part 725 and 29 C.F.R. Part 18.  Although 29 C.F.R. §§ 18.101 through 18.1104 set forth rules of evidence that are similar to rules applied in federal district courts, black lung proceedings are exempt from these provisions pursuant to 29 C.F.R. § 18.1101(b)(2) with the exception of 20 C.F.R. § 18.403 (excluding relevant evidence on grounds of confusion or waste of time), § 18.611(a) (exercising control over mode and order in interrogation of witnesses), and § 18.614 (examination and cross-examination of witnesses).  

 

I.       Applicability of Federal Rules of Civil Procedure

 

        Certain Federal Rules of Civil Procedure (FRCP) may apply to the adjudication of black lung claims pursuant to 29 C.F.R. § 18.1, if the FRCP are not in conflict with the Act or its implementing regulations.  Hamrick v. Eastern Associated Coal Corp., 12 B.L.R. 1-39 (1988).

 

A.               Notice of deposition in writing

 

1.      FRCP 5(b) and 30(b)(1)

 

Trump v. Eastern Assoc. Coal Corp., 6 B.L.R. 1-1268 (1984) (applying FRCP 5(b) and 30(b)(1) to require that parties receive reasonable notice of a deposition in writing).

 

                2.      Errors in notice of deposition waived,

                             FRCP 32(d)(1)

 

        Brown Badgett, Inc. v. Jennings, 842 F.2d 899, 11 B.L.R. 2-92 (1988) (applying FRCP 32(d)(1) that all errors in a notice for taking a deposition are waived unless an objection is promptly served upon the party giving the notice).

 

        B.      Protective order, FRCP 26(c)

 

 

        Arnold v. Consolidation Coal Co., 7 B.L.R. 1-648 (1985) (applying FRCP 26(c) to issue a protective order for Claimant, an Ohio resident, from the undue expense of attending Employer's physician's examination in New York).

 

        C.      Docket management, FRCP 41(b)

 

        Howell v. Director, OWCP, 7 B.L.R. 1-259 (1984) (holding that FRCP 41(b) is similar to 20 C.F.R. § 725.461(b) in the management of an administrative law judge's docket).

 

D.               Summary judgment, FRCP 56

 

        Hamrick v. Eastern Associated Coal Corp., 12 B.L.R. 1-39 (1988) (applying FRCP 56 permitting an administrative law judge to issue summary decision sua sponte);  Montoya v. National King Coal Co., 10 B.L.R. 1-56, 1-61 (1986) (applying FRCP 56 and noting that summary judgment is only appropriate when no genuine issue of material fact exists).

 

        E.      Correction of a clerical error,

                   FRCP 60

 

        Coleman v. Ramey Coal Co., 18 B.L.R. 1-9 (1993) (applying FRCP 60 to correct misidentification of a party liable for the payment of a representative's fees).

 

F.      Discovery provisions of FRCP 26

 

1.                Generally inapplicable

 

        The Board has held that the discovery provisions of the FRCP do not apply to black lung proceedings, unless expressly permitted by statute or regulation.  In Cline v. Westmoreland Coal Co., 21 B.L.R. 1-69 (1997), Claimant requested "medical information obtained by employer which employer did not intend to introduce into evidence and considered 'privileged'" during the discovery period.  The Board declined to find that FRCP 26(b)(4)(B) applied to black lung claims.  Rather, it determined that the federal procedural rules "for discovery do not apply to administrative proceedings, unless specifically provided by statute or regulation."  The Board held that, on remand, the "administrative law judge should reconsider his Order Denying Motion to Compel in accordance with the standard for the scope of discovery provided at 29 C.F.R. § 18.14 in conjunction with the provisions of 20 C.F.R. § 725.455" under his "discretionary authority."  It further stated:

 

We reject, however, as overbroad, claimant's interpretation of Section 725.455 that an 'administrative law judge has an obligation to fully develop the record, develop the evidence, get all the evidence in . . ..' We also reject the position of claimant and the Director that the provision of 20 C.F.R. § 725.414, which requires the operator to submit evidence obtained to the district director and all parties, is extended to the administrative law administrative law judge.

 

                   2.      "Undue hardship" and "substantial need,"

                             FRCP 26(b)(3)

 

In Keener v. Peerless Eagle Coal Co., 23 B.L.R. 1-229 (2007) (en banc), the Board upheld the administrative law judge's denial of Claimant's motion to compel discovery from Employer.  In particular, Claimant sought certain medical evidence generated by Employer in the claim.  The administrative law judge applied 29 C.F.R. § 18.14 to find that, while information sought by Claimant was not "privileged," Claimant had not demonstrated "substantial need of the materials," or that s/he would be "unable without undue hardship to obtain a substantial equivalent of the materials by other means" as required by 29 C.F.R. § 18.14 of the regulations.  It was noted that Claimant "had well-prosecuted his claim" and the evidence sought would not be "admissible given the evidentiary limitations and the quantity of evidence already submitted." 

 

G.      Physical examination may be discovered,

FRCP 35(b)

 

In Keener v. Peerless Eagle Coal Co., 23 B.L.R. 1-229 (2007) (en banc), the Board held that the administrative law judge properly declined to grant Claimant's motion to compel under FRCP 35(b).  The Board agreed that FRCP 35(b) provides that evidence related to a physical examination of the miner is discoverable without the need to establish "undue hardship" or "substantial need."  However, the Board noted that Employer "has asserted that all documents resulting from the physical examination of the miner (had) already been duly exchanged" such that FRCP 35(b) was inapplicable.  As a result, the Board affirmed the administrative law judge's denial of Claimant's motion to compel on this ground as well.

 

 

II.     Authority of the administrative law judge

 

        The conduct of the hearing is within the sound discretion of the administrative law judge.  The administrative law judge is not bound by formal rules of evidence or procedure except as provided for at 5 U.S.C. § 501 et seq., 20 C.F.R. Part 725, and 29 C.F.R. Part 18.  Moreover, the Board reviews an administrative law judge's procedural rulings using the "abuse of discretion" standard.  Keener v. Peerless Eagle Coal Co., 23 B.L.R. 1-229 (2007) (en banc)[1].

 

 

 

A.      Unreasonable claim/defense

 

                1.      Rule 11 sanctions

 

        In Metropolitan Stevedore Co. v. Brickner, 11 F.3d 887 (9^th Cir. 1993), the Ninth Circuit declined to rule on whether Rule 11 sanctions are incorporated into administrative proceedings through 29 C.F.R. § 18.1 because Section 926 of the Longshore and Harbor Workers' Compensation Act provides for the assessment of costs against a party who institutes or continues a proceeding without reasonable ground.  The court held that this "impliedly includes a sanction for bad faith claims . . .."  Nevertheless, the court's "doubts" that Rule 11 was incorporated through § 18.1 were "increased by 20 C.F.R. § 18.29(b) which recognizes that enforcement actions against those who misbehave in proceedings before an administrative law judge are to be referred to the court system."  See also Boland Marine & Mfg. Co. v. Rihner, 41 F.3d 997 (5^th Cir. 1995).

 

                2.      Costs

 

        In Crum v. Wolf Creek Collieries, 18 B.L.R. 1-81 (1994), the Board held that "only a federal court can assess a party's costs as a sanction against a claimant who institutes or continues, without reasonable ground, workers' compensation proceedings under the LHWCA," portions of which are incorporated into the Black Lung Benfits Act pursuant to 30 U.S.C. § 931.

 

B.      Issues of constitutionality

 

        The administrative law judge is without authority to decide issues of constitutionality.  Kosh v. Director, OWCP, 8 B.L.R. 1-168, 1-169 (1985).

 

 

C.      Determination of insurance coverage    

 

        The administrative law judge has jurisdiction to decide whether an insurance fund is liable under contract for the payment of benefits; however, this jurisdiction does not extend to matters outside the insurance contract.  Gilbert v. Williamson Coal Co., 7 B.L.R. 1-289, 1-291 and 1-292 (1984).

 

          For additional discussion on proper designation of an operator and/or carrier, see Chapter 7.

 

 

D.        Overpayment and repayment

       

        In Kieffer v. Director, OWCP, 18 B.L.R. 1-35 (1993), the Board held that an administrative law judge has authority to determine whether an overpayment exists and, if so, whether the miner is liable for its repayment.  However, an administrative law judge does not have authority to determine a repayment schedule. 

 

For additional discussion on overpayments, see Chapter 18.

 

E.                Reconsideration

 

An administrative law judge has authority to rule on a motion for

reconsideration that is filed within 30 days of the "effective" date of the judge's decision.  A judge's decision is considered "effective" as of the date it is filed with the district director's office.  20 C.F.R. § 725.478 (2008).  The judge does not, however, have authority to consider "consecutive" or "multiple" motions for reconsideration in the same claim. 

 

For additional discussion for handling motions for reconsideration and evidence filed with such a motion, see Chapters 25 and 26.

 

          F.      Interest and penalties

 

 

        An administrative law judge does not have authority to decide issues involving the computation of interest or penalties assessed against an employer for reimbursements owed to the Black Lung Disability Trust Fund for medical benefits paid by the Fund. 

 

For a discussion of the case law on the issue of assessing penalties and interest, see Chapter 21. 

 

As an aside, it is noted that, in Nowlin v. Eastern Associated Coal Corp., 331 F.Supp.2d 465 (N.D. W. Va. 2004), the court held that a widow was entitled to a 20 percent penalty on unpaid benefits from Employer, despite the fact that she received timely payments of benefits from the Black Lung Disability Trust Fund. 

       

G.      Summary judgment

                                 

                1.      Sua sponte authority

 

        The administrative law judge has sua sponte authority to issue orders of summary judgment sua sponte where the parties have been given notice and an opportunity to respond.  In this vein, the Board concluded that FRCP 56, permitting sua sponte summary judgment orders by a administrative law judge, applies to black lung proceedings because it is "not inconsistent" with 20 C.F.R. § 725.452(c) of the regulations.  Under the facts of the case, the judge provided 100 days' notice of the hearings to be conducted and requested that the parties exchange evidence 40 days prior to the hearing.  Thirty days before the hearing the judge sua sponte issued an order to show cause why the claims should not be denied based upon the evidence received.  The Board held that the judge had authority to issue the order.  However, it warned that such deviation from standard procedures was "strongly discouraged" because of the "negative" affect on the process.  Smith v. Westmoreland Coal Co., 12 B.L.R. 1-39, 1-43 (1988), aff'd. sub nom., Henshew v. Royal Coal Co., 871 F.2d 417 (4^th Cir. 1989)(table).

 

                2.      No sua sponte authority

 

        In Robbins v. Cyprus Cumberland Coal Co., 146 F.3d 425 (6^th Cir. 1998), the Sixth Circuit held that an administrative law judge may issue a decision without holding a hearing only if the parties agree to (1) a waiver of the hearing, or (2) a party moves for summary judgment.  The court noted the following:

 

A hearing is not necessary if all parties give written waiver of their rights to a hearing and request a decision on the documentary record.  (citation and footnote omitted).  The only other instance in the regulations which permits a decision without holding a requested hearing is when a party moves for summary judgment, and the administrative law judge determines that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.  See 20 C.F.R. § 725.452(c).  As the Director points out, '[t]here is no regulatory provision which would permit an administrative law administrative law judge to initiate summary judgment proceedings sua sponte.' (citation omitted).

 

Id.

 

                3.      No factual issues in dispute,

                        summary judgment improper

 

        Pursuant to FRCP 56, the administrative law judge must deny a motion for summary judgment if there are unresolved factual issues.  Specifically, the judge may not decide whether a prior or successor operator is the responsible operator where there is a factual issue of whether the successor operator actually gained control of the mine.  Montoya v. National King Coal Co., 10 B.L.R. 1-59, 1-61 (1986).

 

H.      Failure to file timely controversion

 

        In Pyro Mining Co. v. Slaton, 879 F.2d 187, 12 B.L.R. 2-238 (6^th Cir. 1989), the Sixth Circuit held that it is within the jurisdiction of the administrative law judge to determine, after de novo review of the issue, whether Employer established "good cause" for its failure to timely controvert the claim.  The Board adopted this holding in Krizner v. U.S. Steel Mining Co., 17 B.L.R. 1-31 (1992)(en banc) wherein it held that any party dissatisfied with the district director's determination on the issue of timeliness of filing a controversion or finding "good cause" for an untimely filing is entitled to have the issued decided de novo by an administrative law judge.     

 

          If the administrative law judge finds that Employer failed to timely controvert the claim, then entitlement is established.  See 20 C.F.R. § 725.413(b)(3) (2008).

 

        For additional discussion of failure to timely controvert a claim, see Chapter 26.

 

        I.       Remand for further evidentiary development,

authority limited

 

It was error for the administrative law judge to remand a claim to the district director for further evidentiary development where "the administrative law administrative law judge did not find the evidence to be incomplete on any issue before him but rather required the development of cumulative evidence."   The Board held that, "unless mutually consented to by the parties under 20 C.F.R. § 725.456(b)(2), further development of the evidence by the administrative law administrative law judge is precluded."  Morgan v. Director, OWCP, 8 B.L.R. 1-491, 1-494 (1986).

 

        For further discussion of a judge's authority to remand a claim under a variety of circumstances, see Chapter 26.

 

        J.       Recusal

 

          In Consolidation Coal Co. v. Director, OWCP [Williams], 453 F.3d 609 (4^th Cir. 2006), cert. denied (Mar. 19, 2007), the court affirmed the administrative law judge's decision not to recuse himself.  Employer argued that the judge's comments at the hearing, and in a discovery order, demonstrated bias against coal companies.  The court reasoned that "the tone and tenor of frustration expressed in the ALJ's comments do not, in and of themselves, establish bias against Consolidation" and, "given counsel's behavior, it is not surprising that the ALJ became annoyed."  The court further denied Employer's challenge to a discovery order as indicative of bias, reasoning that "judicial rulings alone almost never constitute a valid basis for a bias or partiality ruling."

 

K.               Failure to comply with order,

adverse inferences

 

          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 applied an adverse inference of bias to the reports of Employer's medical experts because of Employer's refusal to comply with the judge's discovery orders.  Specifically, Employer refused to respond to interrogatories, including how often its medical expert diagnosed pneumoconiosis.  Because Employer failed to comply with the judge's discovery order, the court found that the administrative law judge properly treated Employer's expert medical reports "as if Consolidation had complied with discovery and as if its responses to that discovery had demonstrated significant bias by both witnesses toward employers as a class and [it's law firm's clients as a class]."

 

III.    Closing the record

 

A.     Decision on the record,

judge's discretion to consider briefs

 

        Where Employer consented to a decision on the record without a hearing and "requested" 30 days to submit a written memorandum, the administrative law judge did not violate Employer's due process rights by issuing a decision without considering Employer's memorandum.  The court noted that 29 C.F.R. § 18.53 and 20 C.F.R. § 725.459A (1992) "demonstrate that the administrative law judge had discretion to accept legal memoranda, and was not required to accept [Employer's] memorandum."  Because Employer's consent to a decision on the record was not contingent upon the administrative law judge's consideration of its memorandum, Employer's due process rights were not violated.  Freeman United Coal Mining Co. v. Cooper, 965 F.2d 443 (7^th Cir. 1992).

 

B.     Submission of evidence post-hearing

 

        This subsection contains a very basic summary of issues surrounding the admission of post-hearing and late evidence as well as the applicability of the "good cause" standard.  For a more detailed discussion of the "good cause" standard, see Chapter 4.  For further discussion of admission or exclusion of post-hearing evidence and remands for further development of the record, see Chapter 26. 

                       

1.                Untimely

 

a.      Evidence excluded

 

        Closing the record was not an abuse of discretion because the record had been held open for ten months to allow the Director to submit an x-ray re-reading and the Director failed to do so.  Amorose v. Director, OWCP, 7 B.L.R. 1-899, 1-900 (1985). 

 

                    b.      Evidence admitted

 

        In Pendleton v. U.S. Steel Corp., 6 B.L.R. 1-815, 1-819 n. 4 (1984), the Board held that it was proper for the administrative law judge to accept a physician's report submitted two days after the record closed where Claimant's attorney "explained that the report was forwarded to the administrative law judge on the date [the report] was received [by the attorney]."                 

 

2.      Permitting responsive evidence

where "late" evidence admitted

 

        When late evidence is admitted, such as a medical report, the opposing party must be provided an opportunity to respond to the medical report, or to cross-examine the physician who prepared the report.  North American Coal Co. v. Miller, 870 F.2d 948, 12 B.L.R. 2-222 (3d Cir. 1989); Fowler v. Freeman United Coal Mining Co., 7 B.L.R. 1-495 (1984), aff'd sub. nom., Freeman United Coal Mining Co. v. Director, OWCP, No. 85-1013 (7^th Cir. Jan. 24, 1986)(unpub.).

 

                3.      Incomplete pulmonary evaluation under

                             20 C.F.R. § 725.406 (2008)   

 

 

        Twenty-nine C.F.R. § 18.54, which addresses the procedure for closing the record, does not preclude submission of a complete pulmonary examination by the Department of Labor where the record is incomplete as to any medical entitlement issue.  Hodges v. BethEnergy Mines, Inc., 18 B.L.R. 1-84 (1994).

 

4.      Failure to provide copy of evidence

          offered at hearing to opposing party       

 

        Due process required a remand for the administrative law judge to reopen the record where Employer never received a copy of a report admitted at hearing and "the administrative law administrative law judge appears to have been unaware of this fact when employer moved to close the record."  Pendleton v. U.S. Steel Corp., 6 B.L.R. 1-815, 1-819 (1985).

       

                               

C.      Issuance of decision before record closes

        constitutes error

 

        The administrative law judge violated the parties' rights to a "full and fair" hearing by prematurely closing the record.  Specifically, the administrative law judge left the record open for a party to file responsive evidence, but erred in issuing her decision two weeks prior to the date the record closed.  Lane v. Harman Mining Corp., 5 B.L.R. 1-87, 1-90 (1982).

 

IV.    Continuances

 

A.     Denial proper

 

                1.     Counsel failed to appear

 

        It is within the administrative law judge's discretion to proceed with a hearing despite the absence of Claimant's counsel.  The judge acted properly in a case where Claimant was present at the hearing without counsel, and the judge inquired whether Claimant wished to proceed after fully informing Claimant of his rights with respect to the presentation of his case.  The judge also left the record open for the submission of post-hearing evidence by counsel.  The Board concluded that, pursuant to 20 C.F.R. § 725.454(d), counsel failed to provide ten days' notice of his request for continuance and his "scheduling conflict" did not constitute "good cause" to grant a continuance.  In particular, counsel notified the judge of a scheduling conflict 20 minutes after the hearing was to start.  In denying the continuance, the judge noted that Claimant traveled 400 miles to the hearing location, waited five years for the hearing to commence, and chose to proceed without counsel when asked on two occasions.  Prater v. Clinchfield Coal Co., 12 B.L.R. 1-121 (1989).       

                       

                2.     Party failed to timely obtain evidence

 

        Denial of a continuance requested by Employer was proper where Employer wanted to obtain autopsy slides for an independent review, but had access to the slides and failed to secure them for one year.  As noted by the Board, Claimant consented to release of the autopsy slides, but "Employer simply failed to secure the evidence in a timely fashion."  Witt v. Dean Jones Coal Co., 7 B.L.R. 1-21 (1984).

 

                3.     Third continuance request,

claimant failed to appear

 

        The administrative law judge acted within his discretion in proceeding with a hearing despite Claimant's absence.  Claimant's right to participate fully at the hearing was adequately protected where the judge allowed Claimant an opportunity to submit a sworn statement in lieu of live testimony within 30 days of the hearing.  The Board further concluded that the judge did not abuse his discretion in denying Claimant's third request for a continuance.  See 20 C.F.R. § 725.452(b); Wagner v. Beltrami Enterprises, 16 B.L.R. 1-65 (1990).

       

B.      Denial improper

 

                Statutory right to representation;

first continuance request

 

        The Board vacated an administrative law judge's denial of benefits and remanded the claim for a de novo hearing on grounds that the judge abused his discretion in denying Claimant's request for a continuance.  Claimant was entitled to be represented by counsel but could not retain one by the date of the initial hearing.  Moreover, Claimant did not waive his "statutory" right to counsel, the Director did not oppose the continuance, and this was the first request for a continuance submitted in the case.  Johnson v. Director, OWCP, 9 B.L.R. 1-218, 1-220 (1986).

 

        For additional discussion of continuances, see Chapter 26.

 

V.      Decision of the administrative law judge

 

A.      Compliance with APA's requirements

 

        The requirements of the APA at 5 U.S.C. §§ 554, 556, and 557 direct that the administrative law judge issue a decision containing findings of fact and conclusions of law with supporting rationale.  Arjonov v. Interport Maintenance Co., 34 B.R.B.S. 15 (2000) ("The APA requires an administrative law judge to adequately detail that rationale behind her decision, analyze and discuss the relevant evidence of record, and explicitly set forth the reasons for her acceptance or rejection of such evidence"); Boggs v. Falcon Coal Co., 17 B.L.R. 1-62 (1992); Wojtowicz v. Duquesne Light Co., 12 B.L.R. 1-162 (1989).

 

                1.      Adopting party's brief constitutes error

 

        The Board remanded a case and directed that the administrative law judge independently evaluate the evidence of record instead of adopting the Director's post-hearing brief in its entirety.  It concluded that, "[i]f a decision cannot withstand scrutiny on the four corners of the document, parties are compelled to rely on a document with which they may be unfamiliar, and which may not be easily accessible."  The Board further noted that the Director's brief contained factual errors.  Hall v. Director, OWCP, 12 B.L.R. 1-80 (1988).

 

                2.      Correction of clerical error

 

        The administrative law judge was allowed to correct the misidentification of a party liable for attorney's fees pursuant to FRCP 60(a) where such misidentification constituted a mere clerical error.  Coleman v. Ramey Coal Co., 18 B.L.R. 1-9 (1993).  See also Allied Materials Corp. v. Superior Products Co., 620 F.2d 224, 226 (10^th Cir. 1980).

 

                3.      Delay in issuance of decision and order;

                             intervening case law         

 

        A delay in the issuance of a decision by the administrative law judge did not constitute prejudicial error where intervening case law did not substantively affect the claim.  Worrell v. Consolidation Coal Co., 8 B.L.R. 1-158, 1-162 (1985) (the administrative law judge found § 727.203(b)(2) rebuttal and the change in law addressed only subsection (b)(3) rebuttal; other intervening law requiring that more weight be given to examining physicians' opinions did not affect the judge's decision since both parties submitted such reports).

 

        An administrative law judge's decision is not invalid merely because it is not filed within 20 days of the date the record is closed.  A delay of more than 20 days in issuing a decision does not warrant a remand for a new hearing unless the aggrieved party establishes prejudice due to the delay.  Williams v. Black Diamond Coal Mining Co., 6 B.L.R. 1-188 (1983).

 

4.                Evidence generated by adverse,

dismissed party

 

        For claims filed on or before January 19, 2001, an administrative law judge may properly admit evidence obtained by an adverse party that was dismissed prior to the hearing.  York v. Benefits Review Board, 819 F.2d 134, 10 B.L.R. 2-99 (6^th Cir. 1987).  See also Hardisty v. Director, OWCP, 7 B.L.R. 1-322, aff'd 776 F.2d 129, 8 B.L.R. 2-72 (7^th Cir. 1985) (the court held that the Director could contest an administrative law judge's award and could benefit from evidence developed by a dismissed employer even though the Director had supported Claimant's pursuit of benefits while the case was pending before the judge and had joined in Claimant's objection to the admission of the evidence at that time).

 

        For claims filed after January 19, 2001, see Chapter 4 regarding the admission of evidence generated by an adverse, dismissed party.

 

B.     Service by certified mail

 

        By law, all final orders, supplemental orders regarding fees and costs, and decisions on the merits must be served by certified mail to counsel for the claimant and employer.  If a party appears pro se, then the document must be served via certified mail to that party.  20 C.F.R. §§ 725.477 and 725.478 (2008).

 

                1.     Decision final within 30 days                              

 

        The administrative law judge's decision becomes final thirty days after it is filed in the district director's office.  The judge is without authority to extend the 30-day time period.  Mecca v. Kemmerer Coal Co., 14 B.L.R. 1-101 (1990).

 

                2.     Defect in notice

 

"Actual" notice established

 

        The Sixth Circuit held that, even though notice of an administrative law judge's adverse decision had not been sent to Claimant's attorney, the attorney had actual notice of the decision and, therefore, the defect in notice would not toll the 30-day period for filing an appeal.  Claimant was hospitalized when his wife signed for the certified letter and advised the attorney of the decision.  Wellman v. Director, OWCP, 706 F.2d 191, 193 (6^th Cir. 1983). 

 

        The Third Circuit also held that, where Employer's counsel was not served with the district director's award, but had actual knowledge of the decision and did not file a controversion, the 30-day period for filing such a controversion was not tolled.  Pothering v. Parkson Coal Co., 861 F.2d 1321, 1329, 12 B.L.R. 2-60, 2-72 and 2-73 (3^rd Cir. 1988).  However, the Third Circuit concluded that, where an attorney was not served with the judge's decision and where he did not have actual notice of the decision, the 30-day time period from the date the decision was filed with the district director was tolled.  Patton v. Director, OWCP, 763 F.2d 553, 560, 7 B.L.R. 2-216, 2-227 and 2-228 (3^rd  Cir. 1985). 

 

VI.    Depositions

 

A.      Adequate notice required

 

          The regulatory provisions at 20 C.F.R. § 725.458 (2008) provide, in part, that "[t]he testimony of any witness or party may be taken by deposition or interrogatory according to the rules of practice of the Federal district court for the judicial district in which the case is pending (or of the U.S. District Court for the District of Columbia if the case is pending in the District or outside the United States), except that at least 30 days prior notice of any deposition shall be given to all parties unless such notice is waived."

 

                1.      Reasonable notice in writing;

objections and waiver

 

        The Board applied FRCP 30(b)(1), which requires that the party taking a deposition give "reasonable notice in writing to every other party to the action."  The Board further noted that FRCP 5(b) requires that service be made upon the attorney representing a party unless otherwise ordered by the administrative law judge.  Thus, it was error to admit deposition testimony where claimant's lay representative was not given notice of the deposition.  The Board concluded that the fact that Claimant's representative was not a member of the Bar was irrelevant as "[a] lay representative, once qualified, holds the same powers and is bound by the same procedural rules as an attorney."  However, the Board held that the error in admitting the deposition was cured because the administrative law judge left the record open for 30 days to allow Claimant to cross-examine witnesses.  Trump v. Eastern Assoc. Coal Corp., 6 B.L.R. 1-1268 (1984).

 

        In Brown Badgett, Inc. v. Jennings, 842 F.2d 899, 11 B.L.R. 2-92 (6^th Cir. 1988), Employer sent notice of a deposition to Claimant's counsel's partner, but Claimant's counsel never received the notice.  The Sixth Circuit held that FRCP 32(d)(1) is applicable to proceedings arising under the Act such that a deposition taken in violation of the thirty-day notice requirement set forth in 20 C.F.R. § 725.458 was admissible unless the opposing party expressly objects, in writing, to "[a]ll errors and irregularities" in service of the notice of deposition.  The court then remanded the claim for a determination of whether objections to the defective notice were waived because Claimant's counsel did not file objections in writing.  The court cautioned that "[o]bviously, it is impossible to serve a written objection to a defective notice if, in fact, no notice at all is provided."  Thus, the court instructed that a determination be made as to whether Claimant's counsel's objections were waived under the facts of the case.

 

                2.      Location of deposition,

right of cross-examination         

 

        It was proper to apply FRCP 26(c) for the scheduling of depositions.  The Board held that "good cause" was established for issuance of a protective order for Claimant, an Ohio resident, from having to incur the undue expense of attending a deposition of Employer's physician in New York, NY.  The Board noted that Employer declined the administrative law judge's offer to permit a post-hearing deposition of the physician by telephone.  As a result, the Board held that "Employer will not now be heard to complain that it was not given an opportunity to depose Dr. Kleinerman."  Arnold v. Consolidation Coal Co., 7 B.L.R. 1-648 (1985).                           

 

                3.      Expert witness provisions at § 725.457

inapplicable to deposition testimony

 

        Section 725.457 states, in part, that "[a]ny party who intends to present the testimony of an expert witness at a hearing shall so notify all other parties to the claim at least 10 days before the hearing."  The Board holds that § 725.457(a) applies only to the appearance by an expert witness at the hearing, not to the introduction of deposition testimony at the hearing.  A deposition taken five days before the hearing did not deny due process to other parties who had received adequate notice of the deposition pursuant to § 725.458 (i.e. the required 30 days' notice for the taking of a deposition).    Tucker v. Eastern Coal Corp., 6 B.L.R. 1-743 (1984).

 

B.      Submission of pre-hearing deposition

 

                1.      Generally

 

          In ruling on the submission of deposition testimony, it is important to understand the distinction between submission of a pre-hearing deposition before, at, or after the hearing as opposed to the submission of a post-hearing deposition.  As long as 30 days' notice is properly given, a pre-hearing deposition is admissible before, during, or after the hearing.  A pre-hearing deposition does not have to be exchanged in accordance with the 20-day rule and ten days' notice of a party's intention to submit expert witness testimony by deposition does not have to be provided in advance of the hearing date.  As an example, a deposition conducted within five days of the date of the hearing was admissible post-hearing where the opposing parties were given 30 days' notice of the deposition.  Tucker v. Eastern Coal Corp., 6 B.L.R. 1-743 (1984).

 

        On the other hand, as is discussed later in this Chapter, it is within the administrative law judge's discretion to permit and admit a post-hearing deposition.  Indeed, the Board has set forth specific factors to be considered in determining whether to permit a post-hearing deposition, including whether the party has diligently tried to secure such evidence prior to the hearing.  See Lee v. Drummond Coal Co., 6 B.L.R. 1-544 (1983).

 

2.         Pre-hearing deposition submitted

                        post-hearing

       

          Although 20 C.F.R. § 725.458 provides, in part, that "[n]o post-hearing deposition or interrogatory shall be permitted unless authorized by the administrative law administrative law judge upon the motion of a party to the claim," these provisions are not applicable to the post-hearing submission of a deposition taken pre-hearing.  When adequate notice was given and a deposition was taken five days prior to the hearing, the Board held that the administrative law judge erred when he denied a request to admit the deposition post-hearing under § 725.458 of the regulations.  Tucker v. Eastern Coal Corp., 6 B.L.R. 1-743 (1984).

 

        Similarly, in another case, the Board held that it was error for the administrative law judge to exclude pre-hearing deposition testimony from being admitted post-hearing pursuant to § 725.458 of the regulations.  The Board noted that counsel provided 30 days' notice of the two pre-hearing depositions, which it sought to admit within 10 days of the hearing (after the depositions were transcribed).  In response to the 30 days' notice of depositions, Claimant was evaluated by his physician and sought to submit the resulting medical report within 30 days of the hearing. 

 

Initially, the administrative law judge granted all three requests.  However, when Employer then sought to depose Claimant's physician after Claimant's medical report was submitted as evidence, the administrative law judge "reversed his earlier ruling and denied all motions for the admission of evidence post-hearing" so that he could "close these cases on a date certain." The Board held that this constituted an abuse of discretion. 

 

With regard to Employer's post-hearing submission of two pre-hearing depositions, the Board noted that (1) Claimant had ample notice of the scheduled depositions, (2) his counsel was present to conduct cross-examination, and (3) the transcripts of the depositions would not be available until after the hearing through no fault of Employer.  The Board further held that Claimant's post-hearing submission of a medical report based upon a pre-hearing examination by his physician must also be submitted in the interests of fairness and that the record must then be left open for 30 days under 20 C.F.R.

§ 725.456(b)(3) for the filing of any responsive evidence, i.e. Employer's cross-examination of Claimant's physician.  Ference v. Rochester & Pittsburgh Coal Co., 5 B.L.R. 1-122 (1982).

 

        In Hardisty v. Director, OWCP, 7 B.L.R. 1-322 (1984), aff'd 776 F.2d 129, 8 B.L.R. 2-72 (7^th Cir. 1985), the Board held that the scheduling of depositions shortly before a hearing is permissible where opposing counsel received six weeks' notice of the deposition and he attended the depositions and cross-examined the witnesses.

 

C.      Submission of post-hearing deposition

 

        Section 725.458 provides, in part, that "[n]o post-hearing deposition or interrogatory shall be permitted unless authorized by the administrative law administrative law judge upon the motion of a party to the claim."  20 C.F.R. § 725.458 (2008).

 

                1.     Factors to be considered

 

        Post-hearing depositions may be obtained with the permission, and in the discretion, of the administrative law judge pursuant to 20 C.F.R. § 725.458.  The party taking the deposition "bears the burden of establishing the necessity of such evidence."  Among the factors to consider in determining whether to admit post-hearing depositions are the following: (1) whether the proffered deposition would be probative and not merely cumulative; (2) whether the party taking the deposition took reasonable steps to secure the evidence before the hearing or it is established that the evidence was unknown or unavailable at any earlier time; and (3) whether the evidence is reasonably necessary to ensure a fair hearing. 

 

Under the facts of Lee v. Drummond Coal Co., 6 B.L.R. 1-544 (1983), the judge properly refused to permit a post-hearing deposition of a physician for the purpose of clarifying his earlier report.  On the other hand, it was an abuse of discretion for the judge to refuse the physician's post-hearing deposition where he commented on additional medical evidence, which was unknown prior to the hearing because the opposing party failed to fully answer interrogatories.  Due process would be satisfied in permitting the post-hearing deposition as the opposing party would have an opportunity to cross-examine the physician during the deposition. 

 

                2.      Exclusion proper

 

        In Seese v. Keystone Coal Mining Co., 6 B.L.R. 1-149, 1-152 (1983), the judge denied Employer's request to submit a post-hearing deposition of its physician for the purpose of explaining shortcomings in the physician's earlier testimony.  The Board upheld the judge's decision because "[n]o proffer of evidence accompanied the request" and no indication was given that the denial would deprive movant of a reasonable opportunity to present evidence.

 

                3.      Exclusion improper

 

                        a.      Admitting only one party's

post-hearing evidence

 

        It was arbitrary for the administrative law judge to deny Employer's request for a post-hearing deposition of Claimant's physician, while granting Claimant's request to admit a post-hearing physical examination by the physician.  Schoenecker v. Allegheny River Mining Co., 5 B.L.R. 1-378 (1982).

 

a.                Opposing party had opportunity to

cross-examine witness

 

        The administrative law judge abused his discretion in denying admission of a post-hearing deposition where Claimant's medical opinion was admitted at the hearing subject to Employer's opportunity to cross-examine the physician.  Claimant's counsel was ordered to arrange the deposition, but failed to do so prior to the closing of the record.  The Board directed that, on remand, the judge must provide Employer an opportunity to subpoena and depose the physician, or to specifically waive this right.  Jug v. Rochester and Pittsburgh Coal Co., 1 B.L.R. 1-628 (1978).

 

b.                Evidence submitted on eve

of the 20-day deadline

 

        For a medical report submitted on the eve of the 20-day deadline, a party must be provided an opportunity to respond to the medical report or to cross-examine the physician who prepared the report.   Because Claimant's physician's report was sent 20 days prior to the hearing, depriving Employer of the opportunity to submit rebuttal in compliance with the 20-day rule, the court reasoned that it was incumbent on the administrative law judge to permit Employer the opportunity to (1) submit a post-hearing rebuttal opinion and (2) cross-examine Claimant's physician.  The court further determined that permitting the rebuttal evidence would not result in the "spector of a never ending series of rebuttals" because, pursuant to the Administrative Procedures Act at 5 U.S.C. § 556(d), the judge may exclude "irrelevant, immaterial or unduly repetitious evidence."  North American Coal Co. v. Miller, 870 F.2d 114, 12 B.L.R. 2-222 (3^rd Cir. 1989).

 

                        d.      Evidence unknown or unavailable

prior to hearing due to failure to

cooperate

 

        It was an abuse of discretion for the administrative law judge to refuse a physician's post-hearing deposition regarding additional medical evidence that was unknown prior to the hearing.  In particular, the opposing party failed to fully answer interrogatories.  Due process would be satisfied in permitting the post-hearing deposition because the opposing party would have an opportunity to cross-examine the physician during the deposition.  Lee v. Drummond Coal Co., 6 B.L.R. 1-544 (1983).

 

VII.  Due process

 

A.      Transfer of case to another administrative

        law judge

               

                1.      On remand

 

        A de novo hearing was required on grounds that the parties' procedural due process rights were violated because: (1) notice that the case was reassigned on remand was not given until the decision and order on remand was issued; and (2) the parties were not given an opportunity to express any objections about the transfer of the case or to request a new hearing.  McRoy v. Peabody Coal Co., 11 B.L.R. 1-107 (1987).  However, the Board limited McRoy to its facts and held that where credibility of witnesses is not at issue, a substituted administrative law judge need not hold a de novo hearing on remand.  Edmiston v. F&R Coal Co., 14 B.L.R. 1-65 (1990).   

 

        In Strantz v. Director, OWCP, 3 B.LR. 1-431 (1981), the Board held that, pursuant to 5 U.S.C. § 554(d), "the same administrative law administrative law judge who heard the case the first time should hear the case on remand unless he is unavailable."  If an administrative law judge is unavailable, then the parties must be notified, and they should be given "an opportunity to express any objections to the transfer of the case to another administrative law administrative law judge or request a de novo hearing."  A new hearing should be held if witness credibility is at issue.

 

                2.      On modification

 

          In Cunningham v. Island Creek Coal Co., 144 F.3d 388 (6^th Cir. 1998), the court held that, because the original deciding administrative law judge was no longer with the agency, a modification case was properly reassigned to another judge after notice was provided to the parties.  Claimant argued "that it was error to change the administrative law judge assigned to his case during the pendency of his proceeding."  The court cited to 29 C.F.R. § 18.30, which authorizes the Chief Administrative Law Judge to reassign a claim where the original deciding administrative law judge is no longer available.  It then concluded that "[a]s no party objected to the reassignment after notice and because the proper procedures for reassignment were followed, we find no merit in Cunningham's argument."

 

B.      Timely notice; opportunity to fully present case

 

                1.      Presentation of evidence

                                       

                        a.      Copy of opposing party's evidence

 

        Procedural due process requires that interested parties be notified of the pendency of an action and afforded the opportunity to present objections.  The Board held that, although Claimant failed to serve Employer with an autopsy report after the record was reopened, the administrative law judge did send it to Employer.  The Board concluded that "service of the autopsy report by the administrative law judge provided employer adequate notice of the pending admission of the autopsy report."  The Board further stated that "[a] party may waive its right to cross-examine an opponent's medical evidence by failure to object to the proffered evidence."  Thus, it was acceptable for the judge to conclude that Employer waived its objection to admission of the autopsy report because Employer failed to object before the judge issued a decision.  Gladden v. Eastern Assoc. Coal Corp., 7 B.L.R. 1-577, 1-579 (1984).

 

                        b.      Expert witness testimony

 

        Although Claimant served proper notice on the Director that Claimant would present the testimony of his treating physician, the Director objected, arguing that he did not know the physician intended to testify regarding 1983 examinations of Claimant.  The Board accepted an interlocutory appeal in the case and concluded that the administrative law judge properly admitted the testimony of the physician.  Morgan v. Director, OWCP, 8 B.L.R. 1-491, 1-494 (1986).

 

        Testimony of an expert witness presented at the hearing was stricken because of the proponent's failure to give actual notice to the other parties at least ten days in advance of the hearing pursuant to 20 C.F.R. § 725.457(a).  Claimant presented expert physician witness testimony at the hearing and the Director, who was not present at the hearing and was not notified that the physician would be testifying, filed a motion to strike which the judge should have sustained.  Hamric v. Director, OWCP, 6 B.L.R. 1-1091 (1984).

                       

c.                 Failure to notify representative

of examination; exclusion proper

 

        The administrative law judge properly refused to admit a non-qualifying blood gas study offered by Employer because the study was scheduled by Carrier without notifying Claimant's counsel.  Although Employer provided more than 20 days' notice of its intent to proffer the evidence at the hearing, the judge concluded "that the procuring of the blood gas study without first notifying claimant's attorney effectively circumvented claimant's right to legal representation" in contravention of 20 C.F.R. § 725.364.  It was also proper for the judge to deny Employer the opportunity to acquire another blood gas study because, under § 725.455, the judge was under no affirmative duty to seek out and receive all relevant evidence.  McFarland v. Peabody Coal Co., 8 B.L.R. 1-163, 1-165 (1985). 

 

                2.      Notice to carrier

 

        Due process requires that an insurance carrier be given written notice of a black lung claim prior to the administrative adjudication of the claim affecting the carrier's liability.  Warner Coal Co. v. Director, OWCP [Warman], 804 F.2d 346, 11 B.L.R. 2-62 (6^th Cir. 1986).  See also Nat'l Mines Corp. v. Carroll, 64 F.3d 135 (3^rd Cir. 1995); Tazco, Inc. v. Director, OWCP, 895 F.2d 949 (4^th Cir. 1990); Caudill Construction Co. v. Abner, 679 F.2d 1086, 12 B.L.R. 2-335, 2-338 (6^th Cir. 1989). 

 

        For additional discussion of notification of the carrier, see Chapter 7.

 

                    3.     Delay in notice of liability

                            

        Employer alleged that a five year delay in receiving notification of its potential liability from the date the claim was filed prevented it from obtaining a physician's report.  The court held that the Department of Labor followed its regulations in notifying Employer of its liability and that Employer was not unduly prejudiced because the administrative law judge found the report "unpersuasive."  The court further held that "[t]he operator did have ample opportunity to defend against the claims at issue."  Peabody Coal Co. v. Holskey, 888 F.2d 440, 13 B.L.R. 2-95 (6^th Cir. 1989).

 

          For additional discussion of the consequences of a delay in notifying a potentially responsible operator or carrier of liability or losing parts of a record, see Chapter 7.

 

VIII.           Expert witness testimony

 

        Pursuant to § 725.457(a), "[a]ny party who intends to present the testimony of an expert witness at a hearing shall so notify all other parties to the claim at least 10 days before the hearing."  The regulation provides that "failure to give notice of the appearance of an expert witness in accordance with this paragraph, unless notice is waived by all parties, shall preclude the presentation of testimony by such expert witness."  20 C.F.R. § 725.457(a). 

 

A.      Actual notice of intent to present required

 

        Testimony of an expert witness presented at the hearing was stricken because of the proponent's failure to give actual notice to the other parties at least ten days in advance of the hearing pursuant to 20 C.F.R. § 725.457(a) of the regulations.  Claimant presented expert physician witness testimony at the hearing and the Director, who was not present at the hearing and was not notified that the physician would be testifying, filed a motion to strike which the administrative law judge should have sustained.  Hamric v. Director, OWCP, 6 B.L.R. 1-1091 (1984).

 

B.               Expert witness provisions at § 725.457

inapplicable to expert deposition testimony

 

        Section 725.457 states, in part, that "[a]ny party who intends to present the testimony of an expert witness at a hearing shall so notify all other parties to the claim at least 10 days before the hearing."  The Board has held that 20 C.F.R. § 725.457(a) applies only to the appearance by an expert witness at the hearing, not to the introduction of deposition testimony at the hearing.  A deposition taken five days before the hearing did not deny due process to other parties who had received adequate notice of the deposition pursuant to 20 C.F.R. § 725.458.    Tucker v. Eastern Coal Corp., 6 B.L.R. 1-743 (1984).

 

IX.    Failure to attend hearing

 

        Pursuant to 20 C.F.R. §§ 725.461(b) and 725.465, the unexcused failure of a party to attend the hearing constitutes a waiver of the right to present evidence at the hearing and may result in a dismissal of the claim.  Dismissal is proper where Claimant and Claimant's representative fail to appear at the hearing absent a showing of "good cause."  The administrative law judge is required to issue an order to show cause prior to dismissing the claim.  See e.g. Clevinger v. Regina Fuel Co., 8 B.L.R. 1-1 (1985) (no good cause established where: (1) counsel stated that he had not received the notice of hearing; (2) the judge noted that counsel was present at prior hearings, which were scheduled in the same notice; and (3) counsel failed to respond to the administrative law judge's order to show cause).

 

A.               Physical ailment,

obligation to provide reasonable accommodation

 

        If Claimant is physically unable to attend a hearing, the administrative law judge should make every effort to obtain his or her testimony by deposition or by holding the hearing at a location most convenient to Claimant, including Claimant's home if s/he is bedridden.  In this vein, the Board held that it was improper for the judge to dismiss a claim as abandoned where Claimant's counsel advised him that Claimant recently underwent a cancer operation and was unable to attend the hearing.  Robertson v. Director, OWCP, 1 B.L.R. 1-932, 1-934 (1978).

 

        The administrative law judge did not abuse his discretion in awarding benefits where Claimant failed to attend the hearing because of a disabling stroke.  Claimant's wife, who testified at the hearing, stated that the miner's speech was impaired and he was confined to a wheelchair.  The judge then denied Employer's motion that the claim be dismissed or denied.  Employer argued that it had a right to cross-examine the miner "but did not have an affirmative burden to obtain his deposition or testimony."  The Board concluded otherwise to find that the judge appropriately protected Employer's interests by leaving the record open for 45 days to allow Employer to secure Claimant's testimony and develop any further medical evidence.  Chaney v. Sahara Coal Co., 10 B.L.R. 1-8, 1-10 (1987).

 

B.        Consideration of client's age and illness

before binding client to acts of counsel

 

        The Board concluded that the provisions at 20 C.F.R. § 725.461(b) are similar to FRCP 41(b).  It held that the "rules reflect a court's inherent authority to control its docket, via dismissal, to manage the orderly and expeditious disposition of cases."  The Board further held that a dismissal "may be reversed only for a clear abuse of discretion" and that a party is held responsible for the acts of its attorney.  However, the Board did find abuse of discretion and reversed the dismissal of a claim because the administrative law judge did not consider Claimant's age and illness before binding her to the acts of her counsel, who failed to appear at the hearing.  Moreover, the Board noted that Claimant forwarded the notice of hearing to her attorney expecting him to act and Claimant's immediate response to the order to show cause demonstrated that she was not attempting to delay the proceeding.  Howell v. Director, OWCP, 7 B.L.R. 1-259 (1984).

 

C.      Proceeding with hearing despite claimant's absence   

 

        The administrative law judge acted within his discretion in proceeding with a hearing despite Claimant's absence.  Claimant's right to participate fully at the hearing was adequately protected where the judge allowed Claimant an opportunity to submit a sworn statement in lieu of live testimony within 30 days of the hearing.  The Board also concluded that the judge did not abuse his discretion in denying Claimant's third request for a continuance.  Wagner v. Beltrami Enterprises, 16 B.L.R. 1-65 (1990).

 

D.      Error to dismiss claim—Director objected and

payments had been made by Trust Fund

 

        Neither Claimant nor her attorney appeared at the scheduled hearing and, by telephone, the administrative law judge was advised that Claimant did not wish to pursue her claim.  The judge then issued an order to show cause why the claim should not be dismissed.  The Director responded that it should be decided on the record without a hearing.  Claimant also submitted a letter to state that (1) she did not wish to withdraw her claim, (2) she had no further evidence to submit,  and (3) she did not object to the submission of evidence by Employer.  The judge nevertheless dismissed the claim. 

 

An appeal was taken by the Director who argued that the judge was without authority to dismiss the case over the Director's objection where payments were being made from the Fund.  The Board agreed.  The Board further held, however, that:

 

The employer's argument that failure to dismiss the claim would circumvent its right to a hearing is without merit.  While the employer does have a right to a hearing, 20 C.F.R. § 725.450, there is no requirement that the claimant be present at such a hearing.  Further, the employer may seek a subpoena compelling the claimant to attend if it feels that her testimony is necessary to protect its interests.

 

Palovich v. Bethlehem Mines Corp., 5 B.L.R. 1-70 (1982).

 

E.      Inadvertent delay; no waiver of appeal rights

               

        Employer's failure to attend the hearing did not result in a waiver of its appeal rights to the Board where the attorney fully intended to appear, but car trouble precluded his attendance.  Kimmel v. Diamond Coal Co., 6 B.L.R. 1-288, 1-290, n.3 (1983).

 

X.      Fair hearing

 

        Pursuant to 20 C.F.R. § 725.455(b), the administrative law judge is required to inquire fully into the matters at issue and to receive, on motion, all relevant and material testimony and documentary evidence.  A full and fair hearing includes the opportunity to present a claim or defense by way of argument, proof, and cross-examination of witnesses.   5 U.S.C. § 556(d).  Laughlin v. Director, OWCP, 1 B.L.R. 1-488, 1-493 (1973).  Procedural due process requires notice and an opportunity to be heard.  Parties must be allowed to fairly respond to evidence and present their own case in full.

       

        Judicial finality "requires that claimants continue to pursue their claims or, if appropriate, that the claims be unconditionally withdrawn or dismissed."  As a result, the Board concluded that orders, which held the claims in abeyance, were invalid because they lacked judicial finality.  Slone v. Wolf Creek Collieries, Inc., 10 B.L.R. 1-66, 1-70 (1987).

 

        The administrative law judge properly determined that Claimant was not entitled to benefits because the claim was abandoned as a result of Claimant's failure to request a hearing within 60 days of the district director's denial, or to petition for modification within one year of such denial. Stephens v. Director, OWCP, 9 B.L.R. 1-227, 1-230 (1987). 

 

 

 

A.      Impartiality required

       

                1.      Conduct of the administrative law judge

 

        Claimant was denied a fair hearing because, "[a]t a number of points during the hearing, the administrative law judge expressed disbelief regarding claimant's testimony and substituted his own personal knowledge and experience in place of hearing testimony."  The Board further noted that the administrative law judge incorrectly accused Claimant's counsel of asking leading questions and impeded the examination of witnesses.  Hutnick v. Director, OWCP, 7 B.L.R. 1-326, 1-328 (1984).

 

                2.      Treatment of witnesses

 

        Claimant received a fair hearing despite the contention that both attorneys did not stand an equal distance from Claimant while he testified.  Claimant had difficulty hearing and, as a result, Director's counsel was allowed to move closer to Claimant during questioning.  There was no indication from the record that Claimant was harassed, intimidated, or prejudiced.  Casias v. Director, OWCP, 6 B.L.R. 1-438, 1-445 (1993).

 

                3.      Competency of witnesses

 

        The administrative law judge did not err in failing to explore a witness's mental capacity despite contention that his speech impairment impeded his ability to testify.  The judge afforded the lay representative great latitude, the transcript did not indicate any mental infirmity, and no formal objections to the witness' mental qualifications were raised.  In this vein, the Board held that the fact-finder is in a better position than an appellate tribunal to determine whether a witness is mentally capable of testifying and that the judge's determination will not be overturned unless it is "clearly erroneous."  Elswick v. Eastern Assoc. Coal Corp., 2 B.L.R. 1-1016 (1980).

 

        Under Shapell v. Director, OWCP, 7 B.L.R. 1-304 (1984), the judge must determine the complexity of the legal and medical problems presented in the case and must assess Claimant's ability to comprehend the issues and participate actively in their resolution.  Factors to be considered include physical defects, age, formal education, apparent intelligence and general knowledge. 

 

B.               Right to oral hearing

 

1.         On remand

       

a.      Witness credibility not dispositive

 

        A motion for a new hearing is properly denied when witness credibility is not dispositive.  Berka v. North American Coal Corp., 8 B.L.R. 1-183, 1-184 (1985).  See also White v. Director, OWCP, 7 B.L.R. 1-348 (1984); Strantz v. Director, OWCP, 3 B.LR. 1-431, 1-433 (1981); Worrell v. Consolidation Coal Co., 8 B.L.R. 1-158, 1-160 (1985); Meholovitch v. Oglebay Norton Co., Case No. 85-3485 (6^th Cir. May 9, 1986)(unpub.).

 

                            b.      New hearing required;

witness credibility at issue

 

        A new hearing is required if the credibility of witnesses is a crucial, important, or controlling factor in resolving a factual dispute.  Worrell, supra; White, supra; Strantz, supra.

 

                        c.       Notice to parties

 

        In Strantz v. Director, OWCP, 3 B.LR. 1-431 (1981), the Board held that, pursuant to 5 U.S.C. § 554(d), "the same administrative law judge who heard the case the first time should hear the case on remand unless he is unavailable."  If an administrative law judge is unavailable, then the parties must be notified and be given "an opportunity to express any objections to the transfer of the case to another administrative law administrative law judge or request a de novo hearing." 

 

                2.      Multiple claims under

20 C.F.R. § 725.309

 

        Pursuant to Lukman v. Director, OWCP, 896 F.2d 1248 (10^th Cir. 1990) and Dotson v. Director, OWCP, 14 B.L.R. 1-10 (1990)(en banc), the parties are entitled to an oral hearing in a subsequent claim filed pursuant to 20 C.F.R. § 725.309 of the regulations.

 

                3.      Overpayment claims

 

        Citing to Califano v. Yamasaki, 442 U.S. 682 (1979), the Board held that, in cases where the waiver of recovery is not at issue, the district director may begin recoupment prior to a hearing and decision concerning the amount of the overpayment.  Burnette v. Director, OWCP, 14 B.L.R. 1-152 (1990).

 

C.      Waiver of hearing

       

1.                Waiver must be voluntary,

intentional, and in writing

 

        Pursuant to 20 C.F.R. § 725.461 (2008), "[i]f all parties waive their right to appear before the administrative law judge, it shall not be necessary for the administrative law judge to give notice of, or conduct, an oral hearing."

 

A request for waiver of an oral hearing must be voluntary, intentional, and in writing.  Morgan v. Carbon Fuel Co., 3 B.R.B.S. 302, 307 (1976).

 

                2.      Withdrawal of waiver of hearing

 

        A waiver may be withdrawn for "good cause" at any time prior to "mailing" of the decision in the claim pursuant to § 725.461(a) (2008).  However, the administrative law judge may conduct a hearing despite the fact that the parties have agreed to a waiver, if s/he determines that the appearance and testimony of witnesses would be of value.  20 C.F.R. § 725.461(a).

 

3.      Error to decide merits of claim

where hearing not waived

 

        The administrative law judge erred in awarding benefits on the record under 20 C.F.R. Part 727 where neither the Director nor Claimant requested a waiver of their right to a hearing in writing pursuant to 20 C.F.R. § 725.461.  The Board noted that, although Claimant advised the judge in advance that he would not be able to attend the hearing, the "Director submits that Claimant's unjustified failure to attend the hearing prejudicially deprived the Director of the right to examine, and that claimant's testimony is crucial to the resolution of the contested issue of total disability."  The Board remanded the claim for issuance of an order to show cause why the claim should not be dismissed pursuant to 20 C.F.R. § 725.465(c), which provides, in part, that "[i]n any case where a dismissal of a claim, defense, or party is sought, the administrative law judge shall issue an order to show cause why the dismissal should not be granted and afford all parties a reasonable time to respond to such order."  Churpak v. Director, OWCP, 9 B.L.R. 1-71, 1-72 and 1-73 (1986).

 

D.      Hearing limited to contested issues

 

        Pursuant to 20 C.F.R. § 725.421(b) (2008), the district director is required to submit to the administrative law judge a document setting forth the contested and uncontested issues in the claim, often referred to as the "CM-1025."  Moreover, 20 C.F.R. § 725.463(a) (2008) provides that the hearing is confined to the issues listed as contested, or to any other issue raised in writing before the district director.  The purpose of these regulatory provisions is "to expedite cases by ensuring that the parties are not surprised by new issues at the hearing, and to force the parties to develop evidence prior to the hearing."  Carpenter v. Eastern Assoc. Coal Corp., 6 B.L.R. 1-784, 1-786 (1984).  The Board has held that "[i]ntent and notice are important criteria" to consider in applying 20 C.F.R. § 725.463(a) "to permit or prevent consideration of substantive issues."  Chaffins v. Director, OWCP, 7 B.LR. 1-431 (1984).

 

        For additional discussion of the issues to be adjudicated and amending the CM-1025, see Chapter 26.

 

XI.    Hearsay

               

A.      Medical reports and testing

 

                1.      Elements of reliability

 

        Medical reports that are ex parte may constitute substantial evidence provided that certain safeguards are met.  In Perales, the Supreme Court held that:

 

. . . a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician. 

 

Richardson v. Perales, 402 U.S. 389, 402 (1971).

 

        The following factors must be considered in determining how much weight to accord to a "hearsay" report:  (1) whether the out-of-court declarant has an interest in the result of the case; (2) whether the opposing party could have obtained the report prior to the hearing and could have subpoenaed the declarant; (3) whether the report is internally consistent on its face; and (4) whether the report is inherently reliable.  See also U.S. Pipe & Foundry Co. v. Webb, 595 F.2d 264, 2 B.L.R. 2-7 (5^th Cir. 1979).

 

                2.      Reports based on physical examinations

                                       

        Properly authenticated reports written by a licensed physician who has examined the miner may be received as evidence at a hearing and, despite their hearsay character, may constitute substantial evidence supportive of a medical finding.  Hogarty v. Honeybrook Mines, Inc., 3 B.R.B.S. 485 (1976). 

 

                3.         Consultative reports

                                               

        In Evosevich v. Consolidation Coal Co., 789 F.2d 1021, 9 B.L.R. 2-10 (3^rd Cir. 1986), the Third Circuit held that a non-examining physician's report is admissible and may constitute "substantial evidence."

 

                4.       Results of objective testing

 

        In Parsons v. Black Diamond Coal Co., 7 B.L.R. 1-236 (1984), the Board held that x-ray, blood gas and pulmonary studies, and physicians' reports are admissible over hearsay objections.  See also U.S. Pipe & Foundry Co. v. Webb, 595 F.2d 264, 2 B.L.R. 2-7 (5^th Cir. 1979) (ex-parte physicians' reports and x-ray readings constitute probative evidence in black lung claims).

 

B.     Affidavits

 

        An affidavit regarding the length of coal mine employment is admissible despite challenges based on its hearsay character.  Williams v. Black Diamond Coal Mining Co., 6 B.L.R. 1-188 (1983).  See also White v. Douglas Van Dyke Coal Co., 6 B.L.R. 1-905, 1-908 n. 3 (1984).

 

C.     Death of authoring physician

 

        The administrative law judge erred in excluding a medical report as "hearsay," where the deposed physician was unavailable for cross-examination due to his death.  The Board concluded that the opposing party had a fair opportunity to counter the physician's findings and, therefore, due process was satisfied.  Fowler v. Freeman United Coal Mining Co., 7 B.L.R. 1-495 (1984), aff'd. sub. nom., Freeman United Coal Mining Co. v. Director, OWCP [Fowler], Case No. 85-1013 (7^th Cir. June 24, 1986)(unpub.).

 

D.     Evidence that is lost or destroyed

 

        Lost, destroyed, or "otherwise unavailable" x-ray studies of a deceased miner should be handled under 20 C.F.R. § 718.102(d) (2008) as follows: 

 

Where the chest X-ray of a deceased miner has been lost, destroyed, or is otherwise unavailable, a report of the chest X-ray submitted by any party shall be considered in conjunction with the claim.

 

20 C.F.R. § 718.102(d) (2008).

 

        In Lewis v. Consolidation Coal Co., 15 B.L.R. 1-37 (1991), the Board held that, where autopsy slides were not available for review by Employer's physicians, Employer's right of cross-examination could be satisfied by deposing the prosector (or presenting the prosector's testimony at the hearing).  The Board held that such right of cross-examination is consistent with the standard set forth in Richardson v. Perales, 402 U.S. 389, 405 (1971).  See also Peabody Coal Co. v. Holskey, 888 F.2d 440, 13 B.L.R. 2-95 (6^th Cir. 1989) (Employer was not denied a fair hearing despite the fact that it was notified five years after the miner's death).

 

        An x-ray re-reading was properly admitted even though the x-ray film was lost because the opposing party could depose the reader, thus satisfying its right to cross-examination.  Specifically, the Board noted that "employer was on notice for eight and one-half months that the x-ray was missing and failed to avail itself of the opportunity to depose the interpreting physician."  Pulliam v. Drummond Coal Co., 7 B.L.R. 1-846 (1985).

 

XII.  Judicial/Official notice

 

A.      Procedure used

 

        In Pruitt v. Amax Coal Co., 7 B.L.R. 1-544, 1-546 (1984), the Board delineated the procedures for taking "official" notice and stated the following:

 

The rules of official notice in administrative proceedings are more relaxed than in common law courts.  The mere fact that the determining body has looked beyond the record proper does not invalidate its action unless substantial prejudice is shown to result.  (citation omitted).  Although the administrative law administrative law judge erred in failing to cite the "B" reader list as the source of his information regarding Dr. Morgan's qualifications, and the parties should have been afforded a full opportunity to dispute his qualifications, Casias v. Director, OWCP, 2 B.L.R. 1-259 (1979), the error is harmless because Dr. Morgan's name does, in fact, appear on the "B" reader list and a contrary finding cannot be made on remand.  (citations omitted).  Claimant has not shown that he was substantially prejudiced by the administrative law administrative law judge's action.

 

B.               Taking official notice of one expert

but not another expert constitutes error

 

        In Simpson v. Director, OWCP, 9 B.L.R. 1-99 (1986), the record was silent with regard to the B-reader status of two physicians.  The administrative law judge erred in taking official notice of the B-reader status of one of the physician's appearing on the B-reader list without taking official notice of the other physician's name appearing on the list.  This resulted in the administrative law judge improperly according more weight to the x-ray interpretation of one reader based on the physician's "superior" B-reader credentials which, as the Board concluded, was substantially prejudicial to the opposing party.

 

        For examples of judicial notice, see Chapter 3.

 

XIII.           Reassignment/transfer of cases

 

A.      Bias by original deciding judge

 

        The Board holds that it has authority to order reassignment of a case to a different administrative law judge on remand if it determines that the original deciding administrative law judge exhibited bias against one of the parties.  Cochran v. Consolidation Coal Co., 16 B.L.R. 1-101 (1992).

 

        In Milburn Colliery Co. v. Director, OWCP [Hicks], 138 F.3d 524 (4^th Cir. 1998), the court held that, considering the numerous legal errors made by the original administrative law judge, the claim should be reassigned to another administrative law judge on remand as it "requires a fresh look at the evidence, unprejudiced by the various outcomes of the administrative law judge's and Board's orders below . . .."

 

B.      Unavailability of original deciding judge

 

                1.      On remand

 

        The Chief Administrative Law Judge properly assigned a case on remand to a new administrative law judge without first giving Claimant notice.  In this vein, the court held that:

 

This is not a case where the matter was simply referred to another administrative law judge.  Here, the original administrative law judge had left the agency, leaving reassignment as the only option.  As to the notice problem, 29 C.F.R. § 18.30 states that if an administrative law judge is unavailable, the Chief Administrative Law Judge 'may designate another administrative law judge for the purposes of further hearing or appropriate action.'  No notice, so as to allow additional hearings or submissions, is generally required.  New hearings are required only when the evaluation of credibility is crucial to resolving the factual disputes involved.  The Chief Administrative Law Judge, in his remand order in this case, stated that questions of credibility were not controlling, and the claimant has not made any specific arguments as to why such questions are controlling.  The new administrative law judge, in order to address the errors made by the first administrative law judge, simply had to evaluate the evidence under a different standard.  The Chief Administrative Law Judge acted well within his discretion when he appointed the new administrative law judge.

 

Fife v. Director, OWCP, 888 F.2d 365 (6^th  Cir. 1989).

 

        In Strantz v. Director, OWCP, 3 B.L.R. 1-431 (1981), the Board held that, pursuant to 5 U.S.C. § 554(d), "the same administrative law judge who heard the case the first time should hear the case on remand unless he is unavailable."  If an administrative law judge is unavailable, then the parties must be notified and they should be given "an opportunity to express any objections to the transfer of the case to another administrative law administrative law judge or request a de novo hearing."  A new hearing should be held if credibility is at issue. 

 

                2.      On modification

 

          In Cunningham v. Island Creek Coal Co., 144 F.3d 388 (6^th Cir. 1998), the court held that, because the original deciding administrative law judge was no longer with the agency, a modification case was properly reassigned to another administrative law judge after notice was provided to the parties.  Claimant argued "that it was error to change the administrative law judge assigned to his case during the pendency of his proceeding."  The court cited to 29 C.F.R. § 18.30, which authorizes the Chief Administrative Law Judge to reassign a claim where the original deciding administrative law judge is no longer available.  It then concluded that "[a]s no party objected to the reassignment after notice and because the proper procedures for reassignment were followed, we find no merit in Cunningham's argument."

 

XIV.            Representatives

 

A.      Right to representation

 

        The Board has held that, pursuant to 5 U.S.C. § 555(b) and the regulations at 20 C.F.R. §§ 725.362-725.364, Claimant has the right to be represented by counsel at the hearing.  Shapell v. Director, OWCP, 7 B.L.R. 1-304 (1984).  A party may waive its right to be represented.  20 C.F.R. § 725.362(b).   

 

1.                The pro se claimant,

special considerations

                               

        The administrative law judge must inform a pro se claimant of his or her right to be represented by counsel of choice without charge.  Moreover, pursuant to § 725.362(b), the administrative law judge must determine whether a claimant's lack of representation is knowing and voluntary.  If a claimant elects to proceed pro se, the judge, as an impartial adjudicator, has no special obligation to develop the evidence to enhance a claimant's case.  Specifically, the Board held that providing a full and fair hearing means that:

 

. . . the administrative law judge has the responsibility to inform a pro se claimant of his right to be represented by a representative of his choice, at no cost to him, and to inquire whether claimant desires to proceed without such representation.  If so, the administrative law judge must proceed to inform claimant of the issues in the case; allow claimant the opportunity to admit evidence and to object to admission of the adversary's evidence; and allow claimant the opportunity to provide testimony concerning relevant issues.

 

Shapell v. Director, OWCP, 7 B.L.R. 1-304 at 1-306 and 1-307 (1984). 

 

In this vein, the Board noted that although (1) Claimant agreed when the judge "presumed" Claimant wished to proceed without counsel and (2) the judge then "extensively questioned claimant as to his coal mine employment and his medical problems," the judge nevertheless denied the miner a fair hearing because:

 

The administrative law judge merely inquired as to whether claimant wished to proceed pro se without informing him that he had a right to representation and that he would suffer no economic loss as a result of representation.  The administrative law judge also failed to determine whether claimant's lack of representation was voluntary.

 

Id. at 1-307.   It is important to note, however, that the Board remanded the case for consideration of pending motions and for a hearing, but "reject[ed] the parties' requests for a de novo hearing because the administrative law judge fully performed his duties with respect to the conduct of the hearing itself" and "no party has asserted that a de novo hearing is necessary to further develop any testimonial evidence."  Id. at 1-308.

 

        In Young v. Director, OWCP, BRB No. 97-1411 BLA (June 24, 1998)(unpub.), the Board held, in a case arising in the Sixth Circuit involving a modification petition by a pro se claimant, that it was error for the administrative law judge to deny Claimant a hearing and to conclude that Claimant would proceed without counsel.  Specifically, the Board stated the following:

 

Section 6(a) of the Administrative Procedure Act . . . grants claimant the right to be represented at the hearing.  (Citations omitted). 

. . .

 

In order to conduct a full and fair hearing, the Board has held that the administrative law judge must inform a pro se claimant of his or her right to be represented by a representative of his choice without cost to him and inquire whether claimant desires to proceed without representation.  (Citations omitted).  Furthermore, Section 725.362(b) requires that the administrative law judge determine whether claimant has made a knowing and voluntary waiver of his or her right to presentation.  The administrative law judge must then proceed to inform claimant of the issues in the case, allow claimant the opportunity to admit evidence and to object to the admission of the adversary's evidence, and allow claimant the opportunity to provide testimony concerning relevant issues.  (Citations omitted).

 

The Board concluded that, because the administrative law judge denied the parties a hearing on modification after determining that there were no issues involving witness credibility, he could not adequately determine whether Claimant intended to voluntarily proceed with her claim in pro se status.  Moreover, the Board determined that, because the judge issued an order to show cause why a hearing was necessary to which Claimant failed to respond, the judge "improperly placed the burden on claimant to establish the necessity of a hearing."  Citing to 20 C.F.R. §§ 725.450 and 725.461(a) and Cunningham v. Island Creek Coal Co., 144 F.3d 388 (6^th Cir. 1998), the Board concluded that there had not been "a valid waiver of claimant's right to a hearing on modification."

 

2.      Claimant's counsel fails to appear,

whether to proceed

 

                        a.      Proceeding not per se error

 

In Laughlin v. Director. OWCP, 1 B.L.R. 1-488, 1-490 (1978), the Board held that, under the circumstances of that case, it was proper for the judge to conduct the hearing where Claimant was unrepresented:

 

While denial of the right to be represented by retained counsel would clearly be error, the fact that an administrative hearing was conducted at a time when the claimant was unrepresented is not error per se.  Absent a clear showing of prejudice or unfairness in the proceedings, the lack of counsel is not grounds for remand if the claimant was fully informed of his right to be represented by counsel and subsequently elects to proceed without representation.

 

Id.

 

b.                Inquiring whether claimant

wants to proceed                             

 

The judge acted properly, where Claimant appeared for hearing but his counsel did not, in inquiring whether Claimant wished to proceed after informing him of his rights with respect to the presentation of his case.  The judge left the record open for 20 days to permit Claimant's counsel to offer evidence, which he did not do.  The judge, in deciding to proceed with the hearing, noted that Claimant had: (1) traveled 400 miles to get to the hearing; (2) waited approximately five years for the hearing to take place; and (3) agreed to proceed without counsel after being asked on two occasions.  Prater v. Clinchfield Coal Co., 12 B.L.R. 1-121, 1-123 (1989).

 

                        c.       Whether claimant has capacity

                                      to proceed

 

 

It must be determined that the pro se party has the capacity to represent himself or herself.  The Board noted that, after review of the hearing transcript, "[t]he claimant either attempted to object to the introduction of some evidence, or did not understand what was being asked of him."  As a result, the Board determined that the judge committed error in proceeding with the hearing.  York v. Director, OWCP, 5 B.L.R. 1-833, 1-837 (1983), overruled on other grounds, Shapell v. Director, OWCP, 7 B.L.R. 1-304 (1984). 

 

Indeed, under Shapell v. Director, OWCP, 7 B.L.R. 1-304 (1984), the judge must determine the complexity of the legal and medical problems presented in the case and must assess Claimant's ability to comprehend the issues and participate actively in their resolution.  Factors to be considered include physical defects, age, formal education, apparent intelligence and general knowledge. 

 

         d.       Leaving record open for

post-hearing submissions

 

It is within the judge's discretion to proceed with a hearing despite the absence of Claimant's counsel.  The judge acted properly by inquiring whether Claimant wished to proceed without counsel after fully informing Claimant of his rights with respect to the presentation of his case.  The judge also left the record open for the submission of post-hearing evidence by counsel.  The Board concluded that, pursuant to 20 C.F.R. § 724.454(a), counsel failed to provide ten days' notice of his request for continuance and that his "scheduling conflict" did not constitute "good cause" to grant a continuance.  In particular, counsel notified the judge of a scheduling conflict 20 minutes after the hearing was to start.  In denying the continuance, the judge noted that Claimant had: (1) traveled 400 miles to the hearing location; (2) waited five years for the hearing to be scheduled; and (3) chose to proceed without counsel when asked on two occasions.  Prater v. Clinchfield Coal Co., 12 B.L.R. 1-121 (1989).

 

                3.      Claimant unable to attend hearing

 

        The judge erred in awarding benefits on the record under 20 C.F.R. Part 727 where neither the Director nor Claimant requested a waiver of their right to a hearing in writing pursuant to 20 C.F.R. § 725.461.  The Board noted that, although Claimant advised the administrative law judge in advance of the hearing that he would not be able to attend, the "Director submit(ted) that Claimant's unjustified failure to attend the hearing prejudicially deprived the Director of the right to examine, and that claimant's testimony (was) crucial to the resolution of the contested issue of total disability."  The Board remanded the claim for issuance of an order to show cause why it should not be dismissed pursuant to § 725.465(c) which provides, in part, that "[i]n any case where a dismissal of a claim, defense, or party is sought, the administrative law judge shall issue an order to show cause why the dismissal should not be granted and afford all parties a reasonable time to respond to such order."  Churpak v. Director, OWCP, 9 B.L.R. 1-71, 1-72 and 1-73 (1986).

       

B.      Disqualification of representative;

appearance of impropriety

 

        Pursuant to 29 C.F.R. §§ 18.34(g)(3) and 18.36, an administrative law judge may disqualify counsel for conflicts of interest or conduct prohibited by the applicable rules of professional conduct.  Baroumes v. Eagle Marine Services, 23 B.R.B.S. 80 (1989).  See also Smiley v. Director, OWCP, 984 F.2d 278 (9^th Cir. 1993) (attorney's dual representation of claimant and, in an unrelated matter, the carrier who would pay judgment in claimant's favor).  These regulations require the administrative law judge to give the parties notice and an opportunity to be heard regarding the disqualification of a representative.

 

        It gave an appearance of impropriety where Claimant was represented by his son, a DOL-ESA-OWCP employee.  However, the Board did not conclude that it was error for the judge to permit the representation where the son's supervisor approved of the representation and directed that no fees could be awarded to him in the event that Claimant prevailed.  Hayes v. Director, OWCP, 11 B.L.R. 1-20, 1-22 (1987).

 

C.      Party bound by acts of representative

 

        Generally, a party is bound by the acts of its attorney.  Where Employer's counsel failed to timely comply with the Board's filing requirements, Employer's appeal was properly dismissed with prejudice.  The Sixth Circuit stated that the fact that "counsel may have been engaged in four thousand similar black lung cases and error-free in forty previous appeals is not persuasive."  The court found that Employer had received due process in so far as both the district director and the administrative law judge had reviewed the claim.  Consolidation Coal Co. v. Gooding, 703 F.2d 230, 233 (6^th Cir. 1983).

 

        Claimant's argument that the inadequate performance of his counsel deprived him of the right to participate fully in the hearing was rejected.  The Fourth Circuit reasoned that: (1) Claimant freely selected his attorney; (2)  the attorney appeared with him at the hearing; (3) the judge appeared impartial; and (4) the record did not support a finding that the performance of counsel at the hearing was inadequate.  Collins v. Director, OWCP, 795 F.2d 368, 375, 9 B.L.R. 2-58, 2-63 (4^th Cir. 1986).

 

        On the other hand, the extreme sanction of dismissal with prejudice is not appropriate without consideration of the client's conduct before binding him or her to the attorney's misfeasance.  In this vein, the Board concluded that the judge erred in dismissing a claim where Claimant did not attend the hearing due to illness.  Claimant advised her counsel who, in turn, failed to request a continuance or provide reasons for Claimant's failure to appear.  The Board concluded that a rule permitting dismissal for want of prosecution:

 

. . . cannot be mechanically applied to punish a party for the acts of his attorney.  Dismissal with prejudice is an extreme sanction, and is warranted only if 'a clear record of delay or contumacious conduct by the plaintiff exist(s) . . . and a lesser sanction would not better serve the interest of justice.' (citation omitted).

 

Howell v. Director, OWCP, 7 B.L.R. 1-259, 1-262 (1983).  The Board concluded that dismissal was not proper because Claimant forwarded the hearing notice to her former counsel expecting appropriate action to be taken.  Further, Claimant's prompt action in responding to the show cause order by obtaining a new attorney and her overall pursuit of her claim did not indicate an intent to delay.  The Board further noted that the Director "made no claim of prejudice from the delay."  Id. at 1-262 and 1-263.  See also Link v. Wabash, 370 U.S. 626, 630-31 (1962); McCargo v. Hedrick, 545 F.2d 393 (7^th Cir. 1976); Reizakis v. Coy, 490 F.2d 1132 (4^th Cir. 1974); Flaska v. Little River Marine Construction Co., 389 F.2d 885 (5^th Cir. 1968).

 

XV.    Right of cross-examination

 

A.      Generally

 

        In accordance with Richardson v. Perales, 402 U.S. 389, 401 (1971) and the statutory provisions at 5 U.S.C. § 556(d), administrative proceedings must conform to the requirements of the Fifth Amendment.  Subsection 556(d) provides that "[a] party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts."

 

B.      Waiver of right of cross-examination

 

        The Director waived its right to present evidence challenging Claimant's entitlement to benefits when the Director did not contest entitlement at the hearing or on reconsideration, but raised the issue for the first time before the Board.  Kincell v. Consolidation Coal Co., 9 B.L.R. 1-221, 1-223 (1986).

 

        Employer waived its right to "cross-examine the author of Claimant's Exhibit 1 and its right to access to the chest x-ray in question both by its failure to request issuance of a subpoena prior to or during the hearing and by its failure to object to the x-ray's submission into evidence at the hearing."  The judge acted properly in admitting Claimant's Exhibit 1 into evidence as well as denying Employer's motion for reconsideration and refusing to reopen the hearing record.  Hoffman v. Peabody Coal Co., 4 B.L.R. 1-52 (1981) (Claimant's Exhibit 1 contained a report diagnosing complicated pneumoconiosis based on an x-ray study that was available at the time the case was pending before the district director and the exhibit was offered for admission into evidence in violation of the 20-day rule).

 

 

C.      Improper denial of right of cross-examination

 

1.                Delay in notifying employer

of potential liability

 

        In Lane Hollow Coal Co. v. Director, OWCP [Lockhart], 137 F.3d 799 (4^th Cir. 1998), the Fourth Circuit held that Employer was dismissed from the case and relieved of liability for the payment of benefits where "the extraordinary delay in notifying [Employer] of its potential liability deprived it of a meaningful opportunity to defend itself in violation of the Due Process Clause of the Fifth Amendment."  The court set forth the lengthy procedural history of the claim and found that "[Employer] was finally notified of the claim on April 6, 1992, seventeen years after notice could have been given and eleven years after the regulations command that it be given."  The court further noted the following:

 

The problem here is not so much that Claimant died before notice to [Employer], but rather that he died many years after such notice could and should have been given.  The government's grossly inefficient handling of the matter–and not the random timing of death–denied [Employer] the opportunity to examine [Claimant].

 

(emphasis in original).

 

        For further discussion of case law on the consequences of delay in notifying a potential responsible operator, see Chapter 7.

 

                2.      Party's failure to cooperate

during discovery

 

Employer was denied a full and fair hearing where it was deprived of the opportunity to have x-rays re-read or physicians deposed due to Claimant's lack of consent.  Kislak v. Rochester & Pittsburgh Coal Co., 2 B.L.R. 1-249 (1979).

 

D.      The 20-day rule for exchanging evidence

and "good cause"

 

        Central to providing a fair hearing is that each party must have notice and an opportunity to be heard, which includes an opportunity to conduct cross examination.  The 20-day rule is the centerpiece requirement for submission of evidence in black lung claims.  The regulations at 20 C.F.R. § 725.456(b)(1) (2000) and (2008) provide that evidence, which has not been submitted to the district director, "may be received in evidence subject to the objection of any party, if such evidence is sent to all other parties at least 20 days before a hearing is held in connection with the claim."[2]  See Amorose v. Director, OWCP, 7 B.L.R. 1-899 (1985) (a medical report submitted more than 20 days prior to the hearing did not violate 20 C.F.R. § 725.446(b)(1)).   This regulation is designed to eliminate surprise and to afford the parties adequate time to prepare its case. 

 

The administrative law judge has discretion to admit evidence that is not exchanged in compliance with the 20-day rule if (1) the parties waive the 20-day requirement, or (2) "good cause" is demonstrated as to why such evidence was not timely exchanged. 

 

For a discussion of the application of "good cause" in black lung claims, see Chapter 4.  For a discussion of handling evidence submitted on reconsideration, see Chapter 26.

 

XVI.            Settlements and withdrawals of claims

 

        Settlement of claims under the Black Lung Benefits Reform Act is prohibited.  Lodigan v. Central Industries, Inc., 7 B.L.R. 1-192 (1984).  For a detailed discussion of settlements as well as the handling of motions to withdraw claims, see Chapter 26.

 

XVII.          Subpoenas

 

A.      Administrative Law Judge has subpoena power

when the case is pending before the district director

 

        In Maine v. Brady-Hamilton Stevedore Co., 18 B.R.B.S. 129 (1986), the Board held that district directors do not possess the authority to issue subpoenas.  The Board stated that, "[i]f a case is pending at the (district director's) level, and the issuance of a subpoena becomes necessary, the parties may simply apply to the Office of the Chief Administrative Law Judge for the proper adjudicatory officer to issue the appropriate subpoena."

 

B.      Party's due process right

limited to requesting subpoena

 

        The administrative law judge did not violate Claimant's right to due process by denying his request for subpoenas.  Claimant's due process right to a subpoena is limited to a right to request the subpoena.  The ultimate issuance of the subpoena is a matter of the judge's discretion.  Specifically, the judge concluded that the reasons for requesting the subpoenas, including obtaining the testimony of physicians who interpreted certain x-ray studies of record as negative, were insufficient.  Claimant argued that the physician's attendance at the hearing was necessary because his responses to interrogatories would have been "'too extensive.'"  The Board held that the judge was not required to provide any further explanation for his denial of Claimant's subpoena request.  Bowman v. Clinchfield Coal Co., 15 B.L.R. 1-22 (1991).  See also Souch v. Califano, 599 F.2d 577, 580 n. 5 (4^th Cir. 1979).

 

C.      Party may be subpoenaed to attend hearing

 

        Claimant has a right to a hearing, but s/he is not required to be present.  The opposing party may subpoena Claimant to appear where the opposing party deems Claimant's testimony necessary.  Palovich v. Bethlehem Mines Corp., 5 B.L.R. 1-70, 1-72 and 1-73 (1982).