Motions
I. Generally
The regulatory bases for procedural, evidentiary,
and discovery motions are commonly located at 20 C.F.R. Part 725 and 29 C.F.R.
Part 18. Note, however, that the evidentiary rules at 29 C.F.R. § 18.101 et
seq., do not apply to black lung cases. 29 C.F.R. § 18.1101.
A. Ten
days to respond
Generally, parties are afforded a period of ten
days to respond to a motion, unless otherwise authorized by an administrative
law judge. 29 C.F.R. § 18.6(b). Twenty-nine C.F.R. § 18.40 sets forth the
procedures to be applied for the computation of time for filing motions and
responsive pleadings.
B. Dismissal
of a claim, defense or party
Twenty C.F.R. § 725.465(c) 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
shall not be granted and afford all parties a reasonable time to respond to
such order." The failure to comply with a lawful order of an administrative
law judge may result in the dismissal of the claim, defense, or party. 20
C.F.R. § 725.465 (2000) and (2008).
C. Caption
Miners' and survivors' claims will have a "BLA"
case number. For other case types, the designations will be as follows: (1) "BMO"
for medical benefits only claims; (2) "BTD" for medical treatment
dispute claims; (3) "BLO" for overpayment claims (and the parties
will generally be styled as the Director, OWCP versus Claimant); (4) "BMI"
for medical interest claims (none of these claims should be pending before this
Office, see Chapter 20); (5) "BCP" for black lung civil money
penalty claims; and (6) "BLB" for Black Lung Part B claims (these are
non-adversarial proceedings, see Chapter 19).
Only the claimants' initials should be used in the
captions and texts of final orders and decisions published to the website by
the Office. This policy is designed to protect their Privacy Act rights.
II. Remand to the district director
A.
District director's
obligation to
provide complete examination
1.
Generally
The district director has an obligation to provide the
miner with a complete pulmonary examination in an original claim, or in
subsequent claims filed under 20 C.F.R. § 725.309 of the regulations. Hall
v. Director, OWCP, 14 B.L.R. 1-51 (1990)(en banc). See also Pettry
v. Director, OWCP, 14 B.L.R. 1-98 (1990)(en banc); Newman v. Director,
OWCP, 745 F.2d 1162, 7 B.L.R. 2-25 (8th Cir. 1984). The
Department-sponsored medical evaluation must address all elements of
entitlement. Hodges v. Bethenergy Mines, Inc., 18 B.L.R. 1-84 (1994).
For
additional discussion of the district director's obligation to provide a
complete pulmonary evaluation, see Chapter 1.
2.
Report credible on one
issue,
§ 725.406 requirements may be satisfied
In Jeffrey v. Mingo Logan Coal Co.,
BRB Nos. 05-0107 BLA and 05-0107 BLA-A (Sept. 22, 2005) (unpub.), the administrative
law judge properly found that Dr. Hussain, who conducted the Department of
Labor-sponsored examination of the miner, did not provide a reasoned opinion
regarding the presence or absence of clinical pneumoconiosis. Notwithstanding
this deficiency, the Board agreed with the Director that the Department's duty
to provide a complete, credible pulmonary evaluation under 20 C.F.R. § 725.406
was discharged. In particular, Dr. Hussain also found that Claimant was not
totally disabled and the judge relied on this component of Dr. Hussain's
opinion, along with other medical evidence of record, to deny benefits.
3.
Claimant provided
erroneous history,
20 C.F.R. § 725.406 requirements satisfied
In Broughton v. C & H Mining,
Inc., BRB No. 05-0376 BLA (Sept. 23, 2005)(unpub.), the administrative law
judge properly discredited the opinion of Dr. Simpao, who conducted the
Department of Labor-sponsored examination of Claimant, on grounds that Dr.
Simpao's diagnosis was based on 18 years of coal mine employment where the judge
found 8.62 years established on the record. However, the Board denied
Claimant's request that the claim be remanded for another pulmonary evaluation
under § 725.406. In particular, the Board agreed with the Director that the
miner was provided with a pulmonary evaluation in compliance with § 725.406 and
"Dr. Simpao's reliance on an incorrect coal mine employment history was
not a flaw attributable to Dr. Simpao, but instead was an inaccuracy provided
by claimant who reported his employment history to the physician."
4.
Incomplete or invalid
examination,
additional examination or testing required
If, during the pendency of a claim before this
Office, it is determined by the administrative law judge that the pulmonary
evaluation provided to the miner by the Department of Labor under § 725.406 is
incomplete as to any issue that must be adjudicated, or fails to comply with
the quality standards, the administrative law judge may, in his or her
discretion, remand the claim to the district director with instructions to
develop only such additional evidence as is required, or allow the parties a
reasonable time to obtain and submit such evidence, before the termination of
the hearing. 20 C.F.R. §§ 725.406 and 725.456(e) (2008).
5.
Evaluation
outweighed but not discredited,
§ 725.406 requirements satisfied
In W.C. v. Whitaker Coal Corp., 24 B.L.R. 1-___,
BRB Nos. 07-0649 BLA and 07-0649 BLA-A (Apr. 30, 2008), the Board held that,
although the Director agreed that the exam conducted under § 725.406 was
incomplete on the issue of whether the miner was totally disabled, a remand for
an additional opinion by the physician was unnecessary because the judge found
the physician’s finding of a “severe respiratory impairment” to be outweighed
by assessments of other physicians of record. Because any supplemental opinion
by the physician would be based on this discredited premise, remand was not
needed. Similarly, in Lovins v. Arch Mineral Corp., BRB No. 05-0201 BLA
(Sept. 30, 2005) (unpub.), the Board denied the miner's request that his claim
be remanded for another Department-sponsored pulmonary evaluation where the administrative
law judge "did not discredit Dr. Hussain's disability opinion
entirely," but found only that it was outweighed by a contrary opinion of
record.
6. Director, OWCP has standing to contest
whether complete evaluation provided
The Director has standing to contest the issue of
whether Claimant was provided a complete pulmonary examination at the
Department of Labor's expense. Hodges v. Bethenergy Mines, Inc., 18
B.L.R. 1-84 (1994).
B.
Withdrawal of controversion or
agreement
to pay benefits
It is
proper to accept the Director's "Motion to Remand for the Payment of Benefits" as a withdrawal of controversion of
all issues. Pendley v. Director, OWCP, 13 B.L.R. 1-23 (1989)(en banc).
On the other hand, Employer's agreement to withdraw its controversion of
Claimant's eligibility for medical benefits in return for Claimant's agreement
to first submit all future medical expenses to alternative health carriers is
illegal. The agreement would deprive Claimant of protection afforded him under
the regulations. 20 C.F.R. §§ 725.701-725.707. Gerzarowski v. Lehigh
Valley Anthracite, Inc., 12 B.L.R. 1-62 (1988).
C. Failure
to timely controvert
1.
Generally
If the administrative law judge determines that a
designated employer failed to timely controvert the claim, then entitlement is
established and the claim may be remanded for the payment of benefits. See 20
C.F.R. § 725.413(b)(3) (2000) and § 725.412(b) (2008). See also Chapter
28.
2.
Entitled to de novo consideration by
administrative
law judge
In Pyro Mining Co. v. Slaton, 879 F.2d 187,
12 B.L.R. 2-238 (6th 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 filing a timely 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 judge finds that Employer failed to timely
controvert the claim, then entitlement is established. 20 C.F.R. §
725.413(b)(3) (2008).
3.
Employer thought Fund
would be liable,
no "good cause" established
In Jonida Trucking, Inc. v. Hunt, 124 F.3d
739 (6th Cir. 1997), the court held that an employer could not be
relieved of its liability for failure to timely controvert on grounds that it
relied on the claimant's mistaken representation that the Trust Fund would be
held liable for benefits. As a result, the court concluded that the employer
failed to demonstrate "good cause" for its failure to timely
controvert both the claim and its designation as the responsible operator. The
court then upheld an order directing that the employer secure the payment of
$150,000 in benefits pursuant to 20 C.F.R. § 725.606 (2000) and (2008).
D. Inability to
locate the claimant
or abandonment of the claim
If the claimant has died or cannot be located, and
it is unclear who has authority to proceed with the claim, or if the widow
wishes to file a separate survivor's claim, remand may be appropriate. Within
the administrative law judge's discretion, the claim may also be dismissed on
the basis of abandonment. 20 C.F.R. §§ 725.409, 725.465, and 725.466 (2008).
It must be noted, however, that the regulations require that an order to show
cause be issued prior to an order of dismissal.
E. Consolidation
of claims
A party may file a motion to consolidate claims
where the issues to be resolved are identical. 29 C.F.R. § 18.11. Typical
motions to consolidate involve a survivor who seeks to consolidate his or her
claim with the deceased miner's claim. 20 C.F.R. § 725.460 (2008). Although
remand is not required to consolidate claims, for practical reasons, it may
often be necessary. When two claims are consolidated, evidence submitted in
conjunction with one claim can be considered with relation to the consolidated
claim. A single hearing applicable to both claims is held and, if both claims
are not currently before this Office, a case may have to be continued or
remanded so that they may be consolidated before hearing.
For claims adjudicated under the amended
regulations at 20 C.F.R. Parts 718 and 725 (2008), the fact-finder and parties
should consider the impact of the evidentiary limitations at 20 C.F.R. § 725.414
(2008) when considering consolidation of the living miner's and survivor's
claims. Notably, evidence must be specifically designated in accordance with
the limitations set forth at 20 C.F.R. §
725.414 (2008) for any claim filed after January 19, 2001.
F. Determination
of responsible operator
(or motion to dismiss as a party)
1. Prior
to applicability of
20 C.F.R. Part 725 (2008)
a.
Generally
The regulations require that the district director
make the initial determination of the proper responsible operator. 20 C.F.R. §
725.412 (2000). A remand of the case may be appropriate where the district
director has not properly named the responsible operator. Before a responsible
operator is dismissed as a party to a claim, the administrative law judge
should issue an order to show cause why that party's motion should not be granted.
20 C.F.R. §§ 725.465 and 725.466 (2000).
Occasionally, the district director transfers a
case with more than one putative responsible operator named. A responsible
operator should not be dismissed if there are contested issues concerning
qualifying coal mine employment or ability to assume liability. If a de
novo hearing is necessary for these issues, dismissing a potentially
responsible operator would be premature.
The district director has the burden to investigate
and assess liability against the proper operator. England v. Island Creek
Coal Co, 17 B.L.R. 1-141, 1-444 (1993). However, if the operator is
financially incapable of assuming liability, the ruling in Director, OWCP v.
Trace Fork Coal Co. [Matney], 67 F.3d 503 (4th Cir. 1995), rev'g.
in part sub. nom., 17 B.L.R. 1-145 (1993), allows the district director to
reach back and name earlier operators. However, Crabtree v. Bethlehem Steel
Corp., 7 B.L.R. 1-354 (1984) mandates that the responsible operator issue
be resolved in a preliminary proceeding or that all potential operators be
proceeded against at every stage of adjudication. Failure to do so precludes
the designation of another responsible operator and exposes the Trust Fund to
liability. As a result, the matter should proceed to hearing without
dismissing those parties.
b.
Remand prior to hearing
In Director, OWCP v. Oglebay Norton Co., 12
B.L.R. 2-357 (6th Cir. 1989), the court upheld remand of a claim to
the district director for determination of the responsible operator. Although
the claim had been referred to the administrative law judge, a hearing had not
been held. The court noted that, once the claim is heard, other potential
operators cannot be identified by the district director. However, prior to
adjudication, the district director may name potential responsible operators as
long as the employer is not unduly prejudiced. See Lewis v. Consolidation
Coal Co., 15 B.L.R. 1-37 (1991); Beckett v. Raven Smokeless Coal Co.,
14 B.L.R. 1-43 (1990).
c.
Criteria for remands
The Board has delineated restrictions on remands
for the determination of a responsible operator. In Crabtree v. Bethlehem
Steel Corp., 7 B.L.R. 1-354 (1984), the Board held that a claim should not
be remanded if: (1) the remand would either jeopardize the claimant's case; or
(2) the remand would be incompatible with the efficient administration of the
Act. The district director must resolve the responsible operator issue, or
proceed against all putative operators at every stage of the claim's adjudication.
Otherwise, an employer that should have been designated would be prejudiced by
not having notice and an opportunity to be heard at the district director level
and before the administrative law judge. Id. at 1-357. See also
England v. Island Creek Coal Co., 17 B.L.R. 1-141 (1993) (the district
director has the burden of naming the appropriate responsible operator); Shepherd
v. Arch of West Virginia, 15 B.L.R. 3-134 (1991)(presenting a good example
of the application of Crabtree and the definition of piecemeal
litigation). Therefore, motions to remand on the issue of responsible operator
are most often granted when it is demonstrated that the correct responsible
operator may not have been named.
In Baughman v. R. Turner Clay Co., 15 B.L.R.
3-697 (1991), the administrative law judge allowed a remand for a determination
of responsible operator on employer's motion because new issues were presented
for consideration. 20 C.F.R. § 725.463 (2008). The new issues were not
reasonably ascertainable by Employer's counsel while the claim was before the
district director due to counsel's illness and his unfamiliarity with the
procedures.
2. After
applicability of
20 C.F.R. Part 725 (2008)
Under the amended regulations, a claim is forwarded
with only one operator listed as responsible for the payment of any benefits.
Subsection 725.418(d) provides the following:
The proposed decision and order shall reflect the
district director's final designation of the responsible operator liable for
the payment of benefits. No operator may be finally designated as the
responsible operator unless it has received notification of its potential
liability pursuant to § 725.407, and the opportunity to submit additional
evidence pursuant to § 725.410. The district director shall dismiss, as
parties to the claim, all other potentially liable operators that received
notification pursuant to § 725.407 and that were not previously dismissed
pursuant to § 725.410(a)(3).
20
C.F.R. § 725.418(d) (2008). In addition, the provisions at § 725.465(b) have
been altered to provide the following:
The administrative law judge shall not dismiss the
operator designated as the responsible operator by the district director,
except upon motion or written agreement of the Director.
20
C.F.R. § 725.465(b) (2008). Notably, the amended regulations do not include
provisions allowing for remand of a claim if the judge determines that the
district director designated the wrong operator; rather, the Black Lung
Disability Trust Fund should be held liable for the payment of benefits. For
further discussion of this issue, see Chapters 4 and 7.
G.
Remand for evidentiary development permitted
only
if record is incomplete
Before the administrative law judge may order
further development of the record, s/he must make a determination that the
record is incomplete as to one or more of the contested issues. Conn v.
White Deer Coal Co., 6 B.L.R. 1-979 (1984).
Notably,
it was error to remand a claim for further evidentiary development where
"the 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 determined that, "unless mutually
consented to by the parties . . ., further development of the evidence by the
administrative law judge is precluded." Morgan v. Director, OWCP,
8 B.L.R. 1-491, 1-494 (1986).
But see King v. Cannelton Industries, Inc., 8 B.L.R. 1-146, 1-148 (1985) (development of
additional medical evidence is proper when the judge, questioning the validity
of blood gas studies and seeking to learn more about Claimant's condition,
permitted Employer the opportunity to obtain a post-hearing blood gas study and
permitted Claimant 30 days to respond); Lefler v. Freeman United Coal Co.,
6 B.L.R. 1-579 (1983) (admission of post-hearing examination of Claimant under
20 C.F.R. § 725.456(e) was proper where the judge wanted to learn more about
the effects of Claimant's back injury).
III. Transfer of liability to the Black Lung
Disability Trust Fund
The purpose of the transfer of liability to the
Trust Fund is to shield the employer from unexpected liability resulting from
amendments to the Black Lung Benefits Act. The 1977 Amendments provide for
reconsideration of claims previously dismissed. The Fund is deemed liable in
such cases so that employers do not suffer liability in claims that they
reasonably expected were finally adjudicated. 20 C.F.R. § 727.101 et seq..
See Chapter 22 for a discussion of the transfer of liability provisions.
IV. Amend controversion form
A.
Generally
Every claim file referred to the Office of
Administrative Law Judges for adjudication should contain a Form CM-1025. This
form sets forth the issue contested by the party or parties opposing
entitlement (i.e. employer and/or Director, OWCP). The hearing is
confined to the issues included on the controversion form. 20 C.F.R. § 725.463
(2000) and (2008). Prior to the scheduled hearing, the Director, OWCP or the
employer may move to amend the list of contested issues. Such a motion is only
granted where the additional issues were raised in writing at the district
director's level. 20 C.F.R. § 725.463(a) (2000) and (2008).
When new issues are raised before the
administrative law judge, s/he has the discretion under 20 C.F.R. § 725.463(b)
(2000) and (2008) to (1) remand the case to the district director, (2) hear and
resolve the new issue, or (3) refuse to consider the new issue. See Callor
v. American Coal Co., B.L.R. 1-687 (1982), aff'd sub nom., American
Coal Co. v. Benefits Review Board, 738 F.2d 387, 6 B.L.R. 2-81 (10th
Cir. 1984).
An issue not previously considered by the district
director may be adjudicated if the parties consent. Such consent may be
inferred where the parties develop evidence and are aware of each other's
intent to litigate the issue. See Carpenter v. Eastern Associated Coal
Corp., 6 B.L.R. 1-784 (1984).
B. Limits
scope of litigation
The administrative
law judge erred in permitting the Director, without reason, to litigate issues
that were easily ascertainable while the case was pending before the district
director, but were not checked as contested on referral (the Form CM-1025) by
the district director. Thorton v. Director, OWCP, 8 B.L.R. 1-277, 1-280
(1985). See 20 C.F.R. § 725.463(b) (2000) and (2008).
C.
Parties bound by "clerical error" on CM-1025
In
Chaffins v. Director, OWCP, 7 B.LR. 1-431 (1984), the administrative law
judge properly declined to consider the issue of length of coal mine employment
where the Director merely argued that because of a clerical error, the issue
was not "checked" on the CM-1025. The Director further stated that
the issue had been raised in writing before the district director on prior
occasions. The Board held:
[W]e squarely reject the implication of the
Director's position on appeal; that he has no duty with respect to identifying
the issues to be heard and that the administrative law judge and claimant must
look behind the statement of contested issues in the chance that a clerical error
was made in its preparation.
Id.
Similarly,
in Simpson v. Director, OWCP, 6 B.L.R. 1-49 (1983), the judge erred in
considering whether Claimant suffered from pneumoconiosis, where the issue was
not listed as contested. See also Perry v. Director, OWCP, 5 B.L.R.
1-527 (1982)(pneumoconiosis not listed as contested); Kott v. Director, OWCP,
17 B.L.R. 1-9 (1992) (error to deny benefits on grounds that Claimant failed to
establish coal workers' pneumoconiosis where the issue was not listed as
contested on the Form CM-1025); Mullins v. Director, OWCP, 11 B.L.R.
1-132 (1988)(en banc) (eligibility of survivor conceded if reasonably
ascertainable at district director's level, but not raised at that level by the
opposing party).
In
an unpublished decision, Linton v. Director, OWCP, Case No. 85-3547 (3rd
Cir. June 10, 1986)(unpub.), the Third Circuit held that Claimant could not
raise the issue of an employer's failure to timely controvert the claim at the
hearing because the issue was reasonably ascertainable while the case was
pending before the district director, but not listed on the CM-1025.
D.
Amending the CM-1025
1. Raising a new issue at the hearing,
alternative
means of handling
If a
new issue is presented at the hearing, the judge has the option of remanding
the claim to the district director for consideration of the new issue, or s/he
may refuse to consider the issue at the hearing. Callor v. American Coal
Co., 4 B.L.R. 1-687 (1982), aff'd. sub. nom., American Coal Co.
v. Benefits Review Board, 738 F.2d 387, 6 B.L.R. 2-81 (10th Cir.
1984).
2.
Waiver of objection to new issue,
failure
to object
In Grant
v. Director, OWCP, 6 B.L.R. 1-619 (1983), Claimant waived his right to
challenge litigation of issues not marked as contested because Claimant failed
to object when the judge expressly stated the issues as those to be decided at
the hearing. See also Prater v. Director, OWCP, 87 B.L.R. 1-461 (1986)
(Claimant's counsel failed to object to Employer's motion to enlarge issues at the
hearing).
In
Carpenter v. Eastern Assoc. Coal Corp., 6 B.L.R. 1-784 (1984), the judge
properly decided certain medical issues, which were not listed as contested on
the CM-1025, because the record supported a finding that both parties (1)
developed medical evidence on the issues, and (2) were aware of each other's
intent to litigate the issues.
3.
Issue "reasonably
ascertainable" at
district director's level, error to consider
The regulatory provisions at 20 C.F.R. § 725.463(b)
permit new issues to be raised before the administrative law judge if they were
not "reasonably ascertainable" while the claim was pending at the
district director's level.
In Thorton
v. Director, OWCP, 8 B.L.R. 1-277 (1985), the administrative law judge
erred in adjudicating issues raised one week before the hearing. The Board
determined that the issues were ascertainable while the claim was pending
before the district director.
4.
Issue not specified or
developed,
error to consider
It is
error for an administrative law judge to conduct a hearing where the issues
were not specified by the district director. Indeed, the Board held that it is
proper to remand a claim in accordance with 20 C.F.R. § 725.456(e) to develop
the evidence and identify contested issues prior to referral. Stidham v.
Cabot Coal Co., 7 B.L.R. 1-97, 1-101 (1984).
5.
Parties agree not to litigate issue,
error
to consider
Fundamental
fairness was violated and resulted in prejudicial error when the administrative
law judge considered an issue that the parties agreed not to litigate.
Specifically, the Board reversed the judge's decision to consider length of
coal mine employment where (1) it was not listed as an issue on the CM-1025,
and (2) it was not submitted as an issue in writing to the district director.
As a result, the Board concluded that Claimant was denied due process. Derry
v. Director, OWCP, 6 B.L.R. 1-553, 1-555 (1983) (the parties stipulated to
ten years of coal mine employment).
In
Kott v. Director, OWCP, 17 B.L.R. 1-9 (1992), the judge erred in
determining that Claimant did not suffer from pneumoconiosis arising out of
coal mine employment. Neither issue was marked as contested on the CM-1025, or
raised in writing before the district director. The Board concluded that the
Director conceded the issues of pneumoconiosis related to coal mine employment
such that it was error for the judge to adjudicate the issues.
V. Motions for discovery and proffers of
evidence
In responding to motions to compel discovery, the
primary consideration is to guarantee the right of every party to a full and
fair hearing. The regulations at 20 C.F.R. § 725.455 (2000) and (2008) set
forth the hearing procedures in general terms and give the administrative law
judge the ability to inquire into the facts and evidence. This section also
exempts the hearing before the administrative law judge from the common law or
the Federal Rules of Evidence, thus giving the administrative law judge greater
latitude in determining the facts and merits of a claim.
Prior to a hearing, any party may submit a motion
to compel discovery. 29 C.F.R. § 18.6. Motions to compel discovery can be
used to request physical examinations, answers to interrogatories, depositions,
medical reports, and medical release forms. Twenty C.F.R. § 725.450 (2008)
guarantees the right of all parties to a full and fair hearing. Thus, the
parties have a right to develop evidence relevant to the claim.
Twenty-nine C.F.R. § 18.21(a) provides that "if
. . . a party upon whom a request is made pursuant to §§ 18.18 through 18.20 .
. . fails to respond adequately or objects to the request, or any part thereof
. . . , the discovering party may move the administrative law judge for an
order compelling a response . . . ." Pursuant to 20 C.F.R. § 725.465, a
claim may be dismissed upon failure of the claimant to comply with a lawful
order of the administrative law judge, or failure to attend a scheduled
hearing. 20 C.F.R. § 725.465 (2000) and (2008).
For a discussion of the admission of pre- and post-hearing
deposition testimony, see Chapter 28.
VI. Medical examinations
A. Multiple examinations permitted
1.
Prior to
applicability of
20 C.F.R. Part 725 (2008)
a. Generally
Twenty C.F.R. § 725.414 (2000) allows the putative
responsible operator to require that the claimant submit to a physical
examination by a doctor of the operator's choice. See also 20 C.F.R. §§
725.413 and 725.414(a) (2000). This section does not limit the number of
examinations of the miner, Horn v. Jewell Ridge Coal Co., 6 B.L.R. 1-933
(1984), and an employer may have the claimant examined more than one time. King
v. Cannelton Indus., Inc., 8 B.L.R. 1-146 (1985), aff'd., Case No.
85-1878 (4th Cir. Jan. 30, 1987)(unpub.).
b.
Motion to compel
examination,
factors to consider
If the claimant has already undergone one or more
medical examinations at the employer's request, and the employer submits a
motion seeking to compel an additional examination, such motion should be
granted only if (1) the claimant has submitted evidence indicating a
substantial change in condition from the time of the last submitted evidence,
(2) the employer has not previously submitted reasonably contemporaneous
evidence, or (3) the record is incomplete as to an issue requiring
adjudication. Harlan Coal Co. v. Lemar, 904 F.2d 1042 (6th
Cir. 1990); Marx v. Director, OWCP, 870 F.2d 114 (3rd Cir.
1989); North American Coal Co. v. Miller, 870 F.2d 948 (3rd
Cir. 1989); and Blackstone v. Clinchfield Coal Co., 10 B.L.R. 1-27
(1987).
In addition, before granting a motion to compel a
medical examination, consideration should be given to hardship on the
claimant. See Arnold v. Consolidation Coal Co., 7 B.L.R. 1-68
(1985); Bertz v. Consolidation Coal Co., 6 B.L.R. 1-820 (1984). In
response to an employer's motion to compel a medical examination, the claimant
may file a motion for protective order pursuant to 29 C.F.R. § 18.15. To
prevail, the claimant must demonstrate good cause by setting forth facts demonstrating
that the examination is annoying, embarrassing, oppressive, or unduly
burdensome. Further, a claimant cannot be required to travel more than 100
miles for an examination unless authorized by the district director. 20 C.F.R.
§ 725.414(a) (2000). The employer does have alternatives to obtaining evidence
including interrogatories, depositions, consultative reviews of the medical
evidence, and rereading x-rays. See 20 C.F.R. § 725.414(a) (2000) and
29 C.F.R. § 18.15.
c.
Failure to cooperate
In a claim filed prior to January 19, 2001, the Board
held that Employer has a right to request a physical examination of Claimant in
order to ensure a "full and fair hearing." The Board noted that
Employer is not limited to only one examination, or to an examination by the
same physician. Thus, where the record revealed that a pulmonary function
study could not be interpreted by Employer's physician due to poor effort, it
was proper for the judge to order a second examination. Blackstone v.
Clinchfield Coal Co., 10 B.L.R. 1-27, 1-29 (1987).
As
previously noted, Employer may have the miner examined more than once, either
by the same physician or by different physicians of Employer's choosing. It is
within the administrative law judge's discretion to compel Claimant to submit
to a second Employer-procured examination. King v. Cannelton Industries,
Inc., 8 B.L.R. 1-146 (1985), aff'd. mem., 811 F.2d 1505 (4th
Cir. 1987) (it was proper to order Claimant to submit to further blood gas
testing where the validity of testing already conducted was questioned; the judge
properly left the record open to allow Claimant the opportunity to respond to
the post-hearing blood gas study results).
d.
Evidentiary development before
district
director required
Twenty C.F.R. § 725.414(e)(2) (2000) requires that
the employer make a "good faith" attempt to develop its evidence
while the claim is pending before the district director. Failure to make such
effort may constitute a waiver of the right to an examination of the claimant
or to have the claimant's evidence evaluated by a physician of the operator's
choice. See Morris v. Freeman United Coal Mining Co., 8 B.L.R. 1-505
(1986).
On the other hand, if it is determined that the
claimant has unreasonably refused to submit to a medical examination, all
evidentiary development of the claim should be suspended and the claim denied
by reason of abandonment or dismissed (as appropriate). 20 C.F.R. § 725.408
(2000). However, before a claim can be denied by reason of abandonment or
dismissed for failure to submit to a medical examination, the claimant must be
notified of the reasons for the potential denial or dismissal and of any action
that needs to be taken to avoid the denial or dismissal. 20 C.F.R. § 725.409
(2000); Couch v. Betty B Coal Co., BRB No. 88-4067 BLA (June 29,
1992)(unpub.).
In Scott
v. Bethlehem Steel Corp., 6 B.L.R. 1-760 (1984), the Board held that the
administrative law judge erred in requiring Claimant to submit to a
post-hearing examination conducted by a physician of Employer's choice after
determining that, while the claim was pending before the district director,
Employer failed "to undertake a good faith effort to develop its evidence
and, consequently, had waived its right to have . . . Claimant examined by a
physician of its choice." See 20 C.F.R. § 725.414(e)(2). The
Board stated:
The administrative law judge initially determined
that the employer had failed to proffer any good reason why it had delayed for
almost a year after being apprised of its potential benefits liability to schedule
claimant for an examination.
. . .
Furthermore, while the fact that the employer did
not intentionally obstruct the expedient processing and adjudication of (the)
claim is certainly relevant to the issue of whether the employer had made a 'good
faith' effort to develop its evidence, that determination, in and of itself, is
not sufficient to compel the claimant to submit to a physical exam conducted by
employer's physician post-hearing.
Id. at 1-764.
In
Pruitt v. USX Corp., 14 B.L.R. 1-129 (1990), the Board held that
Employer's failure to engage in "good faith" development of the
evidence at the district director's level may result in a waiver of its right
to have Claimant examined by a physician of its choice or to have Claimant's
evidence reviewed by a physician of its choice. See also Hardisty v.
Director, OWCP, 7 B.L.R. 1-322 (1984), aff'd., 776 F.2d 129, 8
B.L.R. 2-72 (7th Cir. 1985); Horn v. Jewell Ridge Coal Corp.,
6 B.L.R. 1-933 (1984); Bertz v. Consolidation Coal Co., 6 B.L.R. 1-820
(1984).
In
Morris v. Freeman United Coal Mining Co., 8 B.L.R. 1-505 (1986), the
Board held that, because Employer failed to contest the district director's
denial of its request to have Claimant examined and took no further action in
the two years prior to the hearing, the judge properly concluded that Employer
waived its right to have Claimant examined.
e.
Response to medical reports
A party must be provided an opportunity to respond
to medical reports submitted into the record by the opposing party, or to
cross-examine the physicians who prepared the reports. North American Coal
Co. v. Miller, 870 F.2d 98 (3d Cir. 1989); Pruitt v. USX Corp., 14
B.L.R. 1-129 (1990); Morris v. Freeman United Coal Mining Co., 8 B.L.R.
1-505 (1986); Chancey v. Consolidation Coal Co., 7 B.L.R. 1-240 (1984).
However, in dealing with the rebuttal of the claimant's evidence in claims
filed on or before January 19, 2001, there is no requirement that the employer
be allowed to submit an equal number of medical reports as the claimant. See
Blackstone v. Clinchfield Coal Co., 10 B.L.R. 1-27 (1987); King v.
Cannelton Indus., Inc., 8 B.L.R. 1-146 (1985); Bertz v. Consolidation
Coal Co., 6 B.L.R. 1-820 (1984); Horn v. Jewell Ridge Coal Corp., 6
B.L.R. 1-933 (1984).
f. Physician may consider
evidence not admitted
It is proper for the administrative law judge to
consider a medical opinion that reviews medical evidence not formally admitted
into the record. Peabody Coal Co. v. Director, OWCP [Durbin], 165 F.3d
1126 (7th Cir. 1999).
2. After applicability of
20 C.F.R. Part 725 (2008)
a. Generally
Under the amended regulations at 20 C.F.R. § 725.414
(2008), the claimant and employer may each submit two medical opinions based on
examinations of the miner and/or review of the medical evidence of record in
originally filed claims as well as claims filed under 20 C.F.R. § 725.309 (2008).
On modification, each party is permitted to submit one additional medical
opinion based on examination of the miner. 20 C.F.R. § 725.310 (2008). See
Chapter 4 for further discussion of the evidentiary limitations under the
amended regulations (including limitations pertaining to petitions for
modification).
b. Rebuttal of
medical opinion
For
a discussion of the limitations on "rebuttal" of a medical report
under the amended regulations, see Chapter 4.
c. Physician may consider
only admitted evidence
For claims filed after January 19, 2001, the
evidentiary limitations at 20 C.F.R. § 725.414 (2008) apply. Under these
regulations, medical reports or expert testimony may only be based on evidence
that is properly admitted into the record. 20 C.F.R. §§ 725.414(a)(2)(i) and
(3)(i), 725.457(d), and 725.458 (2008). For a discussion of the application of
the amended regulations, see Chapters 3 and 4.
B. Failure
or refusal to attend medical evaluation
1.
Physical examination not contraindicated,
dismissal
proper
The
administrative law judge may order Claimant to submit to a post hearing physical
examination and may dismiss a claim where the miner unreasonably fails to
attend. In Goines v. Director, OWCP, 6 B.L.R. 1-897 (1984), Claimants refused
to attend physical examinations, which were scheduled by the district director
and ordered by the administrative law judge. In support of their refusal,
Claimants submitted two physicians' opinions stating that, due to Claimants'
poor health, further stress testing including x-ray studies and pulmonary
function and blood gas studies "would be hazardous to the claimants and
should be avoided." The Board affirmed the judge's orders that Claimants
undergo physical examinations, which did not include stress testing or x-ray
studies, and it upheld the judge's dismissal of the claims based upon
Claimants' failure to comply with his lawful orders.
2.
Physical examination contraindicated,
dismissal
improper
Dismissal was improper where testimony supported a
treating physician's opinion that further blood gas testing was
contraindicated. Thus, where Claimant's physician stated that further blood
gas testing was not advisable due to Claimant's history of phlebitis and
thrombosis, it was proper for the administrative law judge: (1) to decline to
require Claimant to undergo such testing; and (2) to deny Employer's motion to
dismiss for Claimant's failure to attend the examination. Bertz v.
Consolidation Coal Co., 6 B.L.R. 1-820 (1984).
C.
Questionable test results; lack of cooperation
The Board remanded a claim where the administrative
law judge failed to discuss Claimant's refusal to attend a medical examination
at Employer's request. The Board reversed the judge's finding that the issue
was moot after concluding that the named Employer was not responsible for the
payment of benefits. Consequently, the judge was required to address the issue
on remand. Settlemoir v. Old Ben Coal Co., 9 B.L.R. 1-109 (1986).
It was proper under 20 C.F.R. § 725.456(e) (2000) for
the administrative law judge to order that Claimant undergo a second
Employer-procured examination where the pulmonary function study conducted as
part of the first examination could not be interpreted due to Claimant's poor
effort. Blackstone v. Clinchfield Coal Co., 10 B.L.R. 1-27 (1987).
However, the Board has also held that Employer
received a full and fair hearing despite the fact that the judge denied its
Motion to Require Claimant's Cooperation on a Pulmonary Function Study.
Employer argued that the record contained "ample evidence" that
Claimant did not cooperate during a prior pulmonary function study. The Board
held that Employer did not establish "substantial prejudice" as a
result of the ruling because a non-qualifying study, even if valid, would not
have sustained Employer's burden. Lafferty v. Cannelton Industries, Inc.,
12 B.L.R. 1-190, 1-192 and 1-193 (1989).
D.
District director's
failure to act on request for
medical examination, remedy for
The
administrative law judge properly resolved confusion caused by the district
director's failure to act on Claimant's request for a medical examination by
permitting the development of additional evidence. Lefler v. Freeman United
Coal Co., 6 B.L.R. 1-579, 1-580 and 1-581 (1983).
E.
Notice of examination provided to claimant's
representative
Claimant's
due process rights were violated where his representative was not served with
notice, in contravention of 20 C.F.R. § 725.364, of the Director's request that
Claimant undergo a medical examination. As a result, the Board struck the
physician's report. Casias v. Director, OWCP, 6 B.L.R. 1-438, 1-444
(1983).
Similarly,
the Board held that the administrative law judge properly refused to admit a
non-qualifying blood gas study offered by Employer because the study was
scheduled by Employer's insurance 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 is 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).
VII. Interrogatories
Twenty-nine C.F.R. § 18.29 grants an administrative
law judge the authority to compel answers to interrogatories. Before the
motion to compel answers to interrogatories may be granted, however, a party
must make a proper request for the answers pursuant to 29 C.F.R. § 18.18(b).
The possible result claimant's failure to comply with an order to compel is
dismissal of the claim for failure to comply with a lawful order of an
administrative law judge pursuant to 20 C.F.R. § 725.465(a)(2) (2008).
VIII. Excluding evidence
A. Motion to exclude evidence
A motion to exclude evidence may be filed by any
party. 20 C.F.R. § 725.456 (2000) and (2008). The common contention is that
the evidence was improperly submitted so as to deny the opposing party a chance
to rebut the evidence. Harlan Bell Coal Co. v. Lemar, 904 F.2d 1042 (6th
Cir. 1990); North American Coal Co. v. Miller, 870 F.2d 948 (3rd
Cir. 1989).
B.
The 20-day rule
Twenty C.F.R. § 725.456(b) states that no
documentary evidence, including medical reports, shall be admitted if not
provided to all other parties at least 20 days before the hearing. However, 20
C.F.R. § 725.456(b)(2) (2000) and 20 C.F.R. § 725.456(b)(3) (2008) allow the
administrative law judge, at his or her discretion, to admit documentary
evidence that is late if (1) the parties agree, or (2) "good cause"
is shown. Newland v. Consolidation Coal Co., 6 B.L.R. 1-1286
(1984).
In dealing with a motion to exclude, the record is
to be kept open to allow for rebuttal of a medical report pursuant to 20 C.F.R.
§ 725.456(b)(2). See also Cabral v. Eastern Associated Coal Corp. 18
B.L.R. 1-25 (1993)(the exchange of evidence on the eve of the twenty day deadline
does not constitute unfair surprise where the evidence "at issue contains
conclusions that are no different from conclusions contained within reports
already exchanged with the other parties"). For further discussion of the
"good cause" standard, see Chapter 4.
C.
Due process
In adjudicating claims under the Act, the employer
has a due process right to have all relevant evidence made available for its
examination. Kislak v. Rochester & Pittsburgh Coal Co., 2 B.L.R.
1-249, 1-258 to -259 (1979). However, regarding interpretations of x-ray
evidence, this due process right may be satisfied either by (1) examination of
the x-ray film from which an interpretation was made, or (2) cross-examination
of the interpreting physician. Pulliam v. Drummond Coal Co., 7 B.L.R.
1-846, 1-848 (1985). Thus, if an x-ray film is no longer available, and a
party moves for the exclusion of the an interpretation of that x-ray, the
motion should only be granted where it is established that (1) the x-ray film
itself is unavailable for meaningful interpretation, and (2) the interpreting
physician is no longer available.
D.
Depositions
The regulations at 20 C.F.R. § 725.458 (2000) and (2008)
provide that any party may depose a witness as long as the other parties have
30 days' notice of the intended deposition. For a discussion of the admission
of pre- and post-hearing deposition testimony, see Chapter 28. For a
discussion of the admission of deposition testimony under the amended
regulations, see Chapter 4.
E.
Claimant's refusal to consent to release of records
It is
imperative that due process (notice and an opportunity to be heard) be
observed. In Kislak v. Rochester & Pittsburgh Coal Co., 2 B.L.R.
1-249 (1979), the Board held that an administrative law judge improperly
considered evidence that Employer could not review because the miner would not
give his consent to a release of medical records.
IX. Submission of post-hearing evidence and
leaving the record open
For a discussion of the admission of pre- and
post-hearing deposition testimony, see Chapter 28.
A.
Curing a violation of
the 20 day rule
An administrative law judge may keep the record
open to allow for the submission of post-hearing evidence in response to
evidence submitted in violation of the 20 day rule. 20 C.F.R. § 725.456(b)(2);
Bethlehem Mines Corp. v. Henderson, 939 F.2d 143 (4th Cir.
1991). However, 20 C.F.R. § 725.458 provides, in pertinent part, that "[n]o
post-hearing deposition or interrogatory shall be permitted unless authorized by
the judge upon a motion of the party to the claim." Due process may
require the development of post-hearing evidence in certain circumstances where
a party has not had the opportunity to respond to evidence that the judge finds
dispositive.
In
Horn v. Jewell Ridge Coal Corp., 6 B.L.R. 1-933 (1984), Claimant
contended that the judge improperly permitted Employer the opportunity to
conduct a post-hearing examination. The judge admitted an x-ray interpretation
offered by Claimant at the hearing, which was not exchanged in accordance with
the 20-day rule. As a result, the Board concluded that the judge properly left
the record open for 60 days to permit Employer the opportunity to submit
rebuttal evidence. The Board further determined that Employer had the right to
have Claimant re-examined during this period and to submit the post-hearing
report before the record closed.
However,
in Owens v. Jewell Smokeless Coal Corp., 14 B.LR. 1-47 (1990)(en banc),
the Board concluded that an employer's opportunity to respond to evidence not
exchanged in accordance with the 20-day rule does not automatically include
having Claimant re-examined.
B.
Lack of due diligence,
no post-hearing submission
Notions of due process, however, do not require
leave to develop post-hearing evidence to overcome a party's own lack of due
diligence. See Richardson v. Perales, 402 F.2d U.S. 389, 404-05 (1971) (due
process satisfied where opposing party had the opportunity to confront and
cross-examine reporting physicians, but failed to request subpoenas). The
Board set forth the parameters for approving a request for post-hearing
deposition in Lee v. Drummond Coal Co., 6 B.L.R. 1-544 (1983): (1) the
proffered evidence should be probative, and not merely cumulative; (2) the
proponent must establish that reasonable steps were taken to secure the
evidence; and (3) the evidence must be reasonably necessary to insure the
opportunity for a fair hearing. Id. at 1-547 and 1-548.
1.
Delay in obtaining the evidence
Refusal
to reopen the record is proper where Claimant did not establish "good
cause" for failure to obtain a physician's affidavit earlier or to make a
timely request that the record remain open. In applying the principles of Lee
to admission of post-hearing documentary evidence, the Board held that the administrative
law judge properly excluded a post-hearing affidavit from consideration where
Claimant did not request that the record be left open for submission of the
affidavit. The evidence was neither obtained, nor submitted, before the judge
issued a decision denying benefits. Thomas v. Freeman United Coal Mining
Co., 6 B.L.R. 1-739 (1984).
2.
Failure to timely request extension of time
Haer
v. Penn Pocahontas Coal Co., 1
B.L.R. 1-579 (1978) (the administrative law judge properly denied an untimely
written request for extension of time to submit post-hearing evidence). See
also Thomas v. Freeman United Coal Mining Co., 6 B.L.R. 1-739 (1984); Scott
v. Bethlehem Steel Corp., 6 B.L.R. 1-760 (1984).
C.
Post-hearing medical evaluation
1.
Factors to consider
In
Thomas v. Freeman United Coal Mining Co., 6 B.L.R. 1-739 (1984), the
Board cited to the factors set forth in Lee v. Drummond Coal Co., 6
B.L.R. 1-544 (1983) (admission of post-hearing depositions) as instructive on
the issue of admission of post-hearing medical evaluations. Under Lee,
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 (2000)
of the regulations.
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, 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 that 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.
Post-hearing report based on
pre-hearing examination
Submission
of a post-hearing report based on a pre-hearing medical examination should not
be automatically excluded as a violation of the 20-day rule. The Board has
held that, where Claimant was examined shortly before the 20-day deadline
commenced to run, but the report was not available for submission until after
the hearing, "good cause" was established for its submission.
However, the Board also noted that "[b]ecause employer never received a
copy of the report and because the administrative law judge appears to have been
unaware of this fact when employer moved to close the record, . . . due process
requires that the case be remanded and the record be reopened for 60 days. Pendleton
v. U.S. Steel Corp., 6 B.L.R. 1-815 (1984).
3. Post-hearing evidence responsive to
evidence
filed on eve of 20 day deadline
After the hearing, the judge properly admitted
re-readings of x-rays by both the Director and Employer "in fairness"
to the parties where Claimant's original reading was submitted in compliance
with the 20-day rule by only a few days. Clark v. Karst-Robbins Coal Co.,
12 B.L.R. 1-149 (1989)(en banc).
X. Reopening the record on remand
A.
Submission of additional
evidence,
change in legal standard
After the time specified for submission of evidence
has expired, a party may submit a motion to reopen the record. Usual grounds
for such motions are that a party has inadvertently failed to meet a deadline
or the legal standards, which were in place at the time of the hearing,
subsequently changed. In Shrewsberry v. Itmann Coal Co., BRB No.
89-2927 (Aug. 27, 1992)(unpub.), the Board stated that "the administrative
law judge has broad discretion in resolving procedural issues, and absent
compelling circumstances or a showing of good cause, is not required to open
the record for submission of post-hearing evidence." However, in Toler
v. Associated Coal Co., 12 B.L.R. 1-49 (1989)(en banc on recon.) the Board
concluded that an administrative law judge may reopen the record on remand to
accept evidence addressing a new legal standard.
When a party has failed to meet a deadline, the
decision to reopen the record is discretionary. Factors which should be taken
into account are: (1) the reasonableness of the request and its grounds; (2)
whether the opposing party objects to the motion; and (3) whether the opposing
party would be prejudiced by the grant of an extension.
A significant change in the legal standards
in effect at the time of the hearing may constitute grounds for reopening the
record:
1. Third Circuit
Marx v. Director, OWCP, 870 F.2d 114 (3rd Cir. 1989). But see Williams
v. Bishop Coal Co., Case No. 88- 672 BLA, 1992 U.S. App. LEXIS 32679 (3d
Cir. Dec. 16, 1992)(unpub.)(the new standard under 20 C.F.R. § 727.203(b)(2),
that the miner be disabled for any reason, is not significant enough to
warrant reopening the record on remand to permit additional evidence to be
considered under (b)(3)).
2.
Fourth Circuit
In Robinson v. Pickands Mather & Co.,
914 F.2d 1144 (4th Cir. 1990), the court modified the legal standard
for determining the cause of total disability. It placed a heavier burden on
the employer than the previous standard promulgated in Wilburn v. Director,
OWCP, 11 B.L.R. 1-135 (1988).
However, the court denied a reopening of the record
in Harman Mining Co. v. Layne, 21 B.L.R. 2-507, Case No. 97-1385 (4th
Cir. 1998) (unpub.) and the court held that the administrative law judge
properly refused to reopen the record on remand where Employer was on notice of
the standard for establishing subsection (b)(2) rebuttal, i.e. that it
must demonstrate that the miner was not disabled for any reason, from the plain
language of the regulation requiring Employer establish "that the
individual is able to do his usual coal mine work or comparable and gainful
work." See 20 C.F.R. § 727.203(b)(2). The court reasoned that
Board decisions, which had held that (b)(2) rebuttal requires that Employer
demonstrate the miner is not totally disabled for any pulmonary or respiratory
reason, were inconsistent with the language of the regulation and the fact that
Employer "chose to restrict its evidence to the lesser standard . . . does
not allow it to avoid the fact that it was on notice of the higher standard."
3. Sixth Circuit
Harlan Bell Coal Co. v. Lemar, 904 F.2d 1042 (6th Cir. 1990);
Tackett v. Benefits Review Board, 806 F.2d 640 (6th Cir. 1986).
In Peabody Coal Co. v. Director, OWCP [Ferguson], 140 F.3d 634 (6th
Cir. 1998), the court held that the administrative law judge erred in failing
to consider evidence submitted by Employer on remand regarding rebuttal under
20 C.F.R. § 727.203(b)(3). Specifically, the administrative law judge declined
to reopen the record and reconsider his findings under subsection (b)(3) on
remand because the Board "explicitly affirmed (his) finding that there was
no rebuttal under § 727.203(b)(3) of the regulations." The court,
however, held otherwise and reasoned that a change in the legal standard under
subsection (b)(2) after the hearing, requiring that Employer establish that the
miner was not totally disabled for any reason, shifted emphasis to
subsection (b)(3) rebuttal. The court noted that subsection (b)(3) became the
less stringent rebuttal provision of the two subsections. The court then
stated the following:
In the case at hand, Peabody presented new evidence
as to (b)(2) and (b)(3), however, the ALJ refused to consider the new evidence
as to (b)(3), and thus, only considered (b)(2) rebuttal. This was error. It
is clear that Peabody was entitled to reconsideration as to both (b)(2) and
(b)(3). (footnote omitted). Thus, in accord with (Cal-Glo Coal Co. v.
Yeager, 104 F.3d 827, 832 (6th Cir. 1997)), the Board committed
a manifest injustice by denying Peabody full consideration.
Similarly, in Cal-Glo Coal Co. v. Yeager,
104 F.3d 827 (6th Cir. 1997), the court reiterated that the
administrative law judge must reopen the record to permit the introduction of
evidence where there is a change in legal standards. Specifically, the court
held that "when an employer rebuts the interim presumption under the pre-York
standard applicable to § 727.203(b)(2), but not under the post-York
standard, the BRB commits a manifest injustice if it refuses to allow the
employer to present new evidence to the ALJ that the employer believes will
establish rebuttal either under the post-York standards applicable to § 727.203(b)(2)
or another regulatory subsection." (emphasis added). See also Peabody
Coal Co. v. Director, OWCP [Ferguson], 140 F.3d 634 (6th Cir.
1998).
4.
Seventh Circuit
In Peabody Coal Co. v. Director, OWCP [Durbin],
165 F.3d 1126 (7th Cir. 1999), the court held that an administrative
law judge improperly excluded an autopsy report of Dr. Naeye on grounds that no
good cause was established for its late submission on remand. Moreover, the court
concluded that the administrative law judge improperly discredited a reviewing
physician's report which was based, in part, on the excluded autopsy report.
In the administrative law judge's decision on remand, he stated the following:
Dr. Naeye's review of the autopsy was submitted on
April 1, 1994, well after the deadline for submission of evidence. No good
cause was shown for the lateness of the submission - only a confession of
inadvertence. Inadvertence may serve as a reason for failure to meet a
deadline; it will not do as an excuse. Dr. Naeye's report is rejected. That
being the case, to the extent that Dr. Fino's appraisal of the extent of
Claimant's pneumoconiosis is based on Dr. Naeye's report, that appraisal is
flawed.
The Seventh Circuit held that a medical expert may
base his or her opinion on evidence that has not been made part of the record
in administrative proceedings.
The court stated that "[t]he reason these
rules are not applicable to agencies is that being staffed by specialists the
agencies are assumed to be less in need of evidentiary blinders than lay jurors
or even professional, though usually unspecialized, judges." It stated
that "Naeye's report may have been put into evidence late, but there is no
suggestion that it was too late to enable the claimant to prepare a rebuttal or
that Fino was irresponsible in relying on the report in formulating his own
opinion about the causality of (the miner's) disability." As a result,
the Seventh Circuit vacated the administrative law judge's award of benefits
and remanded the case to the administrative law judge for consideration of Dr.
Fino's opinion.
Notably, claims filed after January 19, 2001 must
be based on evidence properly admitted into the record. 20 C.F.R. §§ 725.414(a)(2)(i)
and (3)(i), 725.457(d), and 725.458 (2008) require that a medical opinion
consider only evidence properly admitted into the record].
B. On remand
1.
Within the judge's
discretion
The Board has held that, where its remand decision
did not require reopening the record for additional evidence, the decision
whether to submit new evidence is a matter within the discretion of the
administrative law judge. Meecke v. I.S.O. Personnel Support Dep't, 14
B.R.B.S. 270 (1981). This is true even when the party seeks to submit evidence
that was not available at the time of the original hearing. White v.
Director, OWCP, 7 B.L.R. 1-348 (1984). As previously discussed in this Chapter,
an administrative law judge is required to reopen the record on remand only
when there has been a significant change in law subsequent to the formal
hearing.
It is within the administrative law judge’s
discretion to reopen the record for the submission of evidence. 20 C.F.R. §
725.456(e). See also Lynn v. Island Creek Coal Co., 12 B.L.R.
1-146 (1988), aff’d on recon., 13 B.L.R. 1-57 (1989)(en banc);
Tackett v. Benefits Review Board, 806 F.2d 640 (6th Cir. 1986);
Clark v. Karst-Robbins Coal Co., 12 B.L.R. 1-149 (1989)(en banc).
In particular, the administrative law judge must determine whether “manifest
injustice” will result against either party in refusing to admit evidence on
remand. Cochran v. Consolidation Coal Co., 16 B.L.R. 1-101 (1992).
2.
Evidence is vague or
unreliable,
no "good cause" to reopen
"Good
cause" to reopen the record is not established where the proffered
evidence is "vague and unreliable." Borgeson v. Kaiser Steel Coal
Co., 12 B.L.R. 1-169 (1989)(en banc) ("good cause" to reopen the
record was not established where the administrative law judge found that the
proffered evidence was "vague and unreliable").
3.
Miner's condition worsening,
no
"good cause" to reopen
Moreover, "good cause" is not established
based on a premise that the miner’s condition is worsening. White v.
Director, OWCP, 7 B.L.R. 1-348, 1-351 (1988) (although Claimant offered
evidence on remand to demonstrate a worsening of his pulmonary condition, the administrative
law judge was not bound to accept it, and the judge provided reasons for not
doing so; the Board noted that the evidence could be submitted on modification
before the district director).
C. A de novo
hearing
The Board has held that a de novo hearing is
required, where the administrative law judge who originally heard the case is
no longer available to consider the case and the substituted fact finder's
decision is dependent on a credibility evaluation. In Strantz v. Director,
OWCP, 3 B.L.R. 1-431 (1981), the Board stated that "the object [of the
procedural guarantee of a de novo] hearing is to provide for credibility
evaluation on a direct basis, based on appearance and demeanor on the part of
the testifying witness." Id. at 1-432. A de novo hearing
is "required where the credibility of witnesses is an important, crucial,
or controlling factor in resolving a factual dispute." Worrell v.
Consolidation Coal Co., 8 B.L.R. 1-158, 1-60 (1985)(citing 5 U.S.C.
§554(d); Gamble-Skogmo, Inc. v. Federal Trade Commission, 211 F.2d 106
(8th Cir. 1954); Van Teslaar v. Bender, 365 F. Supp. 1007 (D. Md.
1973)). The Board has also held that a de novo hearing is required
where a hearing on a modification petition is requested. Pukas v.
Schuylkill Contracting Co., 22 B.L.R. 1-69 (2000) (see Chapter 23
for additional discussion regarding modification).
The amended regulations at 20 C.F.R. § 725.452(d) (2008)
provide the following regarding the requirement of an oral hearing:
If the administrative law judge believes that an
oral hearing is not necessary (for any reason other than on motion for summary
judgment), the judge shall notify the parties by written order and allow at
least 30 days for the parties to respond. The administrative law judge shall
hold the oral hearing if any party makes a timely request in response to the
order.
20
C.F.R. § 725.452(d) (2008).
XI.
"Good cause" generally
A.
The 20-day rule and violations of the rule
The
regulations at 20 C.F.R. § 725.456(b)(3) direct that waiver or "good cause"
be established prior to admitting evidence not exchanged at least 20 days prior
to hearing. Specifically, the administrative law judge is required to make a
finding that "good cause" exists under 20 C.F.R. § 725.456(b)(3)
(2008) before admitting late evidence. Jennings v. Brown Badgett, Inc.,
9 B.L.R. 1-94 (1986), rev’d on other grounds sub. nom., Brown
Badgett, Inc. v. Jennings, 842 F.2d 899 (6th Cir. 1988).
The
Board similarly held that 20 C.F.R. § 725.456(b)(3) requires a preliminary
determination of whether "good cause" exists for a party’s failure to
comply with the 20 day rule. Conn v. White Deer Coal Co., 6 B.L.R.
1-979 (1984) (the judge improperly admitted a medical report and deposition not
exchanged in accordance with the 20-day rule; error not corrected by offering
to leave the record open where opposing party continued to object to admission
of report and did not accept alternative of leaving the record open).
If
there is no waiver and "good cause" is not established, the judge may
either exclude the evidence from the record, Farber v. Island Creek Coal Co.,
7 B.L.R. 1-428 (1984), or remand the case to the district director for further
development of the evidence. Trull v. Director, OWCP, 7 B.L.R. 1-615
(1984).
Finally, it is noted that in Dempsey v. Sewell
Coal Co., 23 B.L.R. 1-53 (2004) (en banc), vacated and remanded on other
grounds sub. nom., 523 F.3d 257 (4th Cir. 2008), a case decided
under the amended regulations, the Board concluded that it was proper for the administrative
law judge to "rule on claimant’s motions to exclude and order employer to
identify which items of evidence it would rely on as its affirmative case pursuant
to Section 725.414(a)(3)(i)" more than 20 days in advance of the hearing
"because claimant explained that he was unable to proceed with development
of admissible evidence under Section 725.414 until his motions to exclude
excess evidence were decided." The Board noted that the judge left the
record open for 45 days for Employer to respond and he "admitted two of
the four items of post-hearing evidence that employer submitted in response to
claimant’s late evidence."
1.
"Good cause" not established
a.
Unreasonable delay
Delay in obtaining evidence that was readily
available does not support a finding of "good cause" to allow the
untimely evidence.
A medical
report was properly excluded where the employer failed to explain why it waited
more than two and one-half years to secure a review of a pulmonary function
study. Newland v. Consolidation Coal Co., 6 B.L.R. 1-1286 (1984).
It was proper
to disregard a medical opinion that was not exchanged in accordance with the
20-day rule where counsel failed to submit the opinion while the record was
kept open. Kuchwara v. Director, OWCP, 7 B.L.R. 1-167 (1984).
In a
similar vein, Employer’s request for a continuance to obtain autopsy slides for
an independent review properly denied where Employer had access to the slides
for one year, but failed to secure them. Witt v. Dean Jones Coal Co., 7
B.L.R. 1-21 (1984).
b. Knowledge of contents of late evidence
not relevant
A case was remanded for a determination of whether
Employer established "good cause" as to why an affidavit had not been
timely exchanged pursuant to 20 C.F.R. § 725.456(b)(2). The Board held that
the fact that Claimant would not be surprised by the contents of the affidavit
does not satisfy the "good cause" standard. White v. Douglas Van
Dyke Coal Co., 6 B.L.R. 1-905, 1-907 and 1-908 (1984).
c.
Relevancy of evidence
not
determinative
"Good cause" is not established by mere
reference to the relevancy of the evidence. The administrative law judge erred
in admitting evidence which was mailed to the opposing party less than 20 days
before the hearing on grounds that it was his intention "to consider all
relevant medical evidence." While the judge acknowledged that the
opposing party’s objection was "technically correct," he erroneously
overruled it. Conn v. White Deer Coal Co., 6 B.L.R. 1-979 (1984).
2.
"Good cause" established
a.
Evidence exchanged in earlier
state
claim
"Good cause" was established where
evidence not exchanged 20 days prior to the hearing was nevertheless admitted
on grounds that the evidence was sent to the opposing party "three years
earlier in connection with a state claim (which) gave claimant’s counsel reason
to believe that employer’s counsel already had a copy of the report." The
Board noted that the judge left the record open for 30 days, but the opposing
party failed to respond to admission of the report. The Board held that it was
proper to admit the report but cautioned that:
Affirmance of the administrative law administrative
law judge’s exercise of discretion in this case . . . should not be construed
as an endorsement of the view that documents exchanged in connection with an
earlier state claim uniformly satisfy the 20-day rule. Documents, generally
speaking, must be exchanged during the course of proceedings before the
Department of Labor in order to satisfy the 20-day rule . . ..
Buttermore
v. Duquesne Light Co., 7 B.L.R.
1-604, 1-607 (1984), modified on recon., 8 B.L.R. 1-36 (1985).
b.
Evidence used for impeachment
The Board remanded a case for the administrative
law judge to consider whether a tape recording, which was not exchanged at
least 20 days prior to the hearing, was admissible for impeachment purposes.
Claimant argued that the recording was of his conversation with a physician who
stated that Claimant had "black lung," contrary to the diagnosis
contained in the physician’s written report. Bowman v. Clinchfield Coal Co.,
15 B.L.R. 1-22 (1991).
c.
Examination more than 20 days before
hearing,
report available after hearing
Where Claimant
was examined shortly before the 20-day deadline and the medical report was not
available for submission until after the hearing, "good cause" was
established for its submission. However, the Board also noted that "[b]ecause
employer never received a copy of the report and because the administrative law
administrative law judge appears to have been unaware of this fact when
employer moved to close the record, . . . due process requires that the case be
remanded and the record be reopened for 60 days." Pendleton v. U.S.
Steel Corp., 6 B.L.R. 1-815 (1984).
B.
Admission of late evidence; must allow response
If
late evidence is admitted, the regulatory provisions at 20 C.F.R. § 725.456(b)(4)
(2008) require that the record be left open for 30 days to permit the filing of
responsive evidence.
While the administrative law judge has broad
discretion in procedural matters and may properly refuse to admit medical
evidence submitted post-hearing, Itell v. Ritchey Trucking Co., 8 B.L.R.
1-356 (1985) (the judge properly refused to reopen the record for post-hearing
evidence "absent compelling circumstances or a showing of good cause"),
s/he must provide rationale prior to issuing a decision for accepting or
rejecting post-hearing evidence. Covert v. Westmoreland Coal Co., 6
B.L.R. 1-1111 (1984).
Where evidence is admitted post-hearing, then the administrative
law judge must allow submission of responsive evidence. In Coughlin v.
Director, OWCP, 757 F.2d 966, 7 B.L.R. 2-177 (8th Cir. 1983),
the court held that it was error for the judge to permit the Director to obtain
a post-hearing re-reading of an x-ray study without providing Claimant with a
copy of the re-reading or permitting him the opportunity to rebut the new
reading. The court held that "fundamental concepts of fairness require
that litigants be given equal opportunities to present their respective
positions." Id. at 969.
Similarly, the Board concluded that, if the judge
determines that a post-hearing affidavit regarding Claimant’s work history was
properly admitted, then Employer must be given an opportunity to "depose
and cross-examine the affiant." Lane v. Harmon Mining Corp., 5
B.L.R. 1-87, 1-89 (1982).
The judge reasonably concluded that "fairness"
required the post-hearing admission of x-ray evidence and that "good cause"
was implicitly found to exist. Specifically, Claimant’s reading of an x-ray
study was submitted in compliance with the 20-day rule "by only a few days"
such that Employer was properly permitted to submit responsive evidence
post-hearing. Clark v. Karst-Robbins Coal Co., 12 B.L.R. 1-149, 1-153
(1989)(en banc).
In Shedlock v. Bethlehem Mines Corp., 9
B.L.R. 1-195, 1-200 (1986), Claimant submitted the report of his physician
immediately prior to the 20-day deadline and objected to admission of a
rebuttal report based upon an examination conducted 18 days prior to the
hearing. The Board held that the administrative law judge generally has broad
discretion in dealing with the conduct of the hearing, but remanded the case to
state that:
Claimant’s submission of Dr. Mastine’s report just
prior to the deadline imposed by the 20-day rule for submitting documentary
evidence into the record, coupled with the administrative law administrative
law judge’s refusal to allow employer the opportunity to respond to claimant’s
introduction of the 'surprise' evidence, constituted a denial of employer’s due
process right to a fair hearing.
However,
in Owens v. Jewell Smokeless Coal Corp., 14 B.LR. 1-47 (1990)(en banc),
the Board concluded that an employer’s opportunity to respond does not
automatically include having Claimant re-examined.
1.
Record left open for both parties
In Baggett v. Island Creek Coal Co., 6
B.L.R. 1-1311 (1984), the administrative law judge admitted an x-ray re-reading
by Employer on the grounds that Employer established "good cause" as
to why the reading was not exchanged in compliance with the 20-day rule. The judge
left the record open to permit the parties an opportunity to submit any further
evidence. Claimant was subsequently granted two extensions of time to submit
evidence, but Employer was denied an extension of time. The Board concluded
that this was error because § 725.456(b)(2) requires that the record be left
open for both parties.
2. Failure to timely submit response,
waiver of right of cross-examination
Employer was afforded due process where the judge reopened
the record to admit an autopsy report, provided Employer with a copy, and
waited more than 30 days for Employer to respond before issuing a decision. In
failing to submit rebuttal evidence while the record was left open, Employer "waived"
its right to cross-examination. Gladden v. Eastern Assoc. Coal Corp., 7
B.L.R. 1-577, 1-579 (1984).
The
Director, who was absent at a hearing, was precluded from objecting to
admission of new evidence at the hearing. The administrative law judge
properly left the record open for 30 days after the hearing pursuant to 20 C.F.R.
§ 725.456(b)(3) (2000) for the Director to respond. However, the Director: (1)
did not request notification of the newly submitted evidence; (2) made no
attempt to ascertain what had transpired during the hearing; and (3) did not
submit rebuttal during the 30 days in which the record was left open. DeLara
v. Director, OWCP, 7 B.L.R. 1-110 (1984).
XII. Dispose of a claim
A. Withdrawal
The
regulations at 20 C.F.R. § 725.306 (2008) provide that the administrative law
judge may grant a motion to withdraw a claim if it is in the best interests
of the claimant and certain requirements set forth below are met.
1.
Threshold requirements
a.
No decision on the merits issued
In Clevenger v. Mary Helen Coal Co., 22
B.L.R. 1-193 (2002)(en banc) and Lester v. Peabody Coal Co., 22 B.L.R.
1-183 (2002)(en banc), the Board held that once a decision on the merits issued
by an adjudication officer
becomes effective pursuant to 20 C.F.R. §§ 725.419, 725.479, and 725.502 (2008),
there no longer exists an "appropriate" adjudication officer
authorized to approve a withdrawal request under 20 C.F.R. § 725.306 (2008).
In Keene v. Dominion Coal Co., BRB No. 05-0384 BLA
(Sept. 30, 2005) (unpub.), the Board held that the administrative law judge had
authority to grant Claimant's request to withdraw his claim where the written
request was submitted after the district director issued a schedule for the
submission of additional evidence, but prior to issuance of a decision on the
merits.
b.
Request is in writing
A motion for withdrawal must be in written form to
the proper adjudicating officer and must set forth the reasons for seeking
withdrawal. See 20 C.F.R. § 725.306(a) (2008).
c.
Withdrawal is in
"best interests"
of claimant
The motion for withdrawal may only be granted on
the grounds that withdrawal is in the best interests of the claimant. 20
C.F.R. § 725.306(a)(2) (2008); Rodman v. Bethlehem Steel Corp., 16
B.L.R. 123 (1984); Matthews v. Mid-States Stevedoring Corp., 11 B.R.B.S.
139 (1979).
A claimant is permitted to withdraw the request to
withdraw at any time prior to the approval of such request. When a claim has
been withdrawn pursuant to 20 C.F.R. § 725.306(a), "the claim will be
considered not to have been filed." 20 C.F.R. § 725.306(b) (2008).
Notably, if a withdrawal is granted, it is as if
the miner or survivor never filed the claim. Therefore, the administrative law
judge must consider the impact, if any, of the three-year statute of
limitations at 20 C.F.R. § 725.308 (2008) in determining whether withdrawal is
in the claimant's best interests. For further discussion of this issue, see
Chapter 11.
d. Claimant not receive
interim benefits
If a claimant has been receiving benefits and then
decides to withdraw the claim, s/he must agree to repay the benefits received.
See 20 C.F.R. § 725.306(a)(3) (2008). Before any motion to withdraw is
granted, a show cause order should be issued to afford opposing parties the
opportunity to object to the withdrawal, which the employer or Director may do
if interim benefits are being, or have been, paid.
e. Withdrawal of petition
for modification
In W.C. v. Whitaker Coal Corp., 24 B.L.R. 1-___,
BRB Nos. 07-0649 BLA and 07-0649 BLA-A (Apr. 30, 2008), the Board held that a
petition for modification may be withdrawn under 20 C.F.R. § 725.306 at any
time before a decision becomes “effective.” Here, the miner filed a petition
for modification in 2001, after the Board affirmed the denial of benefits in
his first claim on October 18, 2000. Subsequently, the miner sought withdrawal
of the petition. Adopting the Director’s position, the Board held that the
petition could be withdrawn as there was no effective decision on the petition:
Although the Director agrees that the
August 2001 application constituted a modification request, the Director also
asserts that the modification request was properly withdrawn by claimant. The
Director contends that a withdrawn modification request is treated in a manner
similar to a withdrawn claim, insofar as it must be considered never to have
been filed. See 20 C.F.R. § 725.306(b).
Citing to Clevenger v. Mary Helen Coal Co., 22
B.L.R. 1-193 (2002) (holding a claim may be withdrawn before a denial becomes
effective), the Board held that, since the district director in this case had
not issued a decision regarding the 2001 modification petition prior to
receiving a letter from Claimant seeking its withdrawal, it was proper to allow
withdrawal of the petition for modification. The Board concluded that the 2001
petition would be “treated as if it were never filed.”
With regard to evidence submitted in conjunction with the
2001 petition, Employer argued that such evidence should automatically be part
of the record for consideration in any subsequent proceeding. The Board
disagreed and held that “evidence developed in conjunction with the August 2001
application must be treated as if it had never been filed, and is not part of
the record unless the parties choose to specifically designate that evidence
under Section 725.414.”
2.
Withdrawal improper, example of
It was not in the claimant's bests interests to
allow withdrawal of the claim in Jonida Trucking, Inc. v. Hunt, 124 F.3d
739 (6th Cir. 1997). Under the facts of Jonida Trucking,
Claimant was found entitled to benefits but refused payments from Employer, who
was Claimant's long-time friend. Instead, Claimant sought payments from the
Trust Fund. Employer stated that it failed to contest the claim "because
it had relied on information from (Claimant) that any award would run against
the Trust Fund and not against (Employer)." When Claimant was informed
that he could not receive benefits from the Trust Fund, he requested a
withdrawal of his claim, which was denied by the Board.
Because Claimant did not join Employer in its
appeal of the Board's denial of withdrawal of the claim, the court held that
Employer did not have "standing to appeal the withdrawal issue." The
court stated that "it is clear that an employer is not the proper party to
argue that its employee's best interests are served by allowing him to forfeit
payments from the employer." The court then upheld an order directing
that Employer, a trucking company, secure the payment of $150,000 in benefits
pursuant to 20 C.F.R. § 725.606 (2000).
3. Employer's interests not
considered
In Bailey v.
Dominion Coal Corp., 23 B.L.R. 1-85 (2005), the Board affirmed the administrative
law judge's granting of Claimant's request to withdraw his claim. Under the
facts of the case, Claimant submitted a request to withdraw his claim with the
district director after receiving an unfavorable opinion from the physician
conducting the Department-sponsored examination. Claimant's representative
asserted "[i]t is impossible to win his claim because he does not meet the
disability standards" and it would result in "great cost and time to
the claimant and to the Department of Labor to continue a case that we feel we
cannot win at this time." The district director granted Claimant's
request to withdraw on grounds that it was in his best interests and the
administrative law judge agreed. Pursuant to 20 C.F.R. § 725.306(b), the claim
was considered not to have been filed and the administrative law judge declined
to require automatic admission of medical evidence generated in conjunction
with the withdrawn claim if Claimant should again file a claim.
On appeal to the Board, Employer argued that it was
not in Employer's best interests to have the claim withdrawn as it "paid
to have claimant examined twice, thereby developing evidence that will not be
included in the record, because of claimant's request for withdrawal."
Moreover, Employer posited that this is a "waste of employer's financial
resources and will hamper employer's ability to defend itself in any future
claim."
The Board disagreed. It adopted the Director's
position that § 725.306(a)(2) allows for withdrawal of a claim, if it is in the
best interests of a claimant, prior to issuance of an effective decision. The
Board concluded that the adjudicator is not required to consider Employer's
interests. In addition, the Board stated that "employer has not shown a
clear and specific basis for denial of claimant's request for withdrawal in
this case."
The Board then rejected Employer's argument that
evidence generated in conjunction with the withdrawn claim should be
automatically included in the record of any subsequent filing without being
counted under the evidentiary limitations at § 725.414 of the regulations.
Employer reasoned that, in any future claim, it "risks showing the new
examining physician too much relevant evidence" unless a ruling is made to
specifically include evidence underlying the withdrawn claim. The
administrative law judge declined to rule on the issue because she determined
that, once the request to withdraw a claim is granted, the claim is considered
not to have been filed under § 725.306(b). As a result, she was without
authority to order the automatic inclusion of evidence into the record of any
future claim. The Board agreed.
4. Medical evidence generated
in withdrawn claim excluded
In Anderson v. Kiah Creek Mining Co., BRB No.
03-0828 BLA (May 24, 2004) (unpub.), the Board affirmed the administrative law
judge's order granting withdrawal of the miner's claim under 20 C.F.R. §
725.306 (2008) as interpreted in Lester v. Peabody Coal Co., 22 B.L.R.
1-183 (2002)(en banc) and Clevenger v. Mary Helen Coal Co., 22 B.L.R.
1-193 (2002)(en banc). With regard to medical evidence developed in connection
with the withdrawn claim, the Board held that such evidence would not be
included with the filing of any additional claims by the miner. However, the
Board stated that a party would not be "precluded from submitting the
evidence developed in (the withdrawn) claim for inclusion in a new claim
record, subject to the evidentiary limitations or with a showing of good cause
for its inclusion." See also Feltner v. Whitaker Coal Corp., BRB
No. 04-0823 BLA (Apr. 27, 2005); Sizemore v. LEECO, Inc., BRB No.
04-0514 BLA (Feb. 7, 2005) (unpub.); Stamper v. Westerman Coal Co., BRB
No. 05-0946 BLA (July 26, 2006) (unpub) (in a footnote, the Board cited to Bailey
v. Dominion Coal Corp., 23 B.L.R. 1-85 (2005) and 20 C.F.R. § 725.306(b) to
state that, if a prior claim is withdrawn, "[t]he effect of treating the
claim as if it had never been filed precludes the automatic inclusion of the
evidence from that claim in the record of any subsequently filed claim").
See
also W.C. v. Whitaker Coal Corp., 24 B.L.R. 1-___, BRB Nos. 07-0649 BLA and 07-0649 BLA-A
(Apr. 30, 2008) (medical evidence generated in conjunction with withdrawn
petition for modification excluded).
B. Dismissal/abandonment
1. Prior
to applicability of
20 C.F.R. Part 725 (2008)
Any party may file a motion to dismiss the claim.
A dismissal operates as a final disposal of a claim and, therefore, is subject
to res judicata, unless the administrative law judge specifies in the
order that the dismissal is without prejudice. See 20 C.F.R. § 725.465
(2000). A claim may be dismissed for the failure of the claimant, or claimant's
counsel, to appear at a scheduled hearing or for the failure of the claimant to
comply with an order issued by an administrative law judge. See 20
C.F.R. § 725.465 (2000); Clevinger v. Regina Fuel Co., 8 B.L.R. 1-1 (1985).
Twenty C.F.R. § 725.465 (2000) requires that an
order of dismissal be preceded by an order to show cause. This allows the
claimant an opportunity to explain his actions and take the steps necessary to
avoid dismissal of the claim. An order to show cause should explain the steps
that are necessary to avoid dismissal and provide Claimant an ample opportunity
to answer the order. If the claimant answers the show cause order within the
allotted time, sets forth a reasonable explanation of earlier defects, and
takes the steps set forth in the show cause order, then the claim should not be
dismissed and an order denying the motion to dismiss should be issued.
If the claimant is acting pro se, more
leeway should be given in regards to time limits in show cause orders and in
making attempts to resolve the problem without having to issue the show cause
order. However, if attempts to contact the claimant are not successful, or if
the failure to follow an administrative law judge's order is ongoing, a claim may
also be denied by reason of abandonment pursuant to 20 C.F.R. §§ 725.408 and
725.409 (2000). Abandonment occurs when the claimant fails to pursue the claim
with reasonable diligence, fails to submit evidence, or refuses to undergo a
required medical examination without good cause. Clevinger v. Regina Fuel
Co., 8 B.L.R. 1-1 (1985).
2. After
applicability of
20 C.F.R. Part 725 (2008)
The amended regulations retain the requirement that
an order to show cause should be issued prior to an order of dismissal. 20
C.F.R. § 725.465(b) (2008). However, the abandonment provisions at § 725.409
have been altered considerably and will result in a new type of case before
this Office. Denial by reason of abandonment may be proper where the claimant
fails to undergo a medical examination without good cause, fails to submit
evidence sufficient to make a determination of the claim, fails to pursue the
claim with reasonable diligence, or fails to attend the informal conference
without good cause. 20 C.F.R. § 725.409(a) (2008). New provisions at § 725.409(b)(2)
and (c) state, in relevant part, the following:
(b)(2) In any case in which a claimant has failed
to attend and informal conference and has not provided the district director
with his reasons for failing to attend an informal conference and has not
provided the district director with his reasons for failing to attend, the
district director shall ask the claimant to explain his absence.
. . .
If the claimant does not supply the district
director with his reasons for failing to attend the conference within 30 days
of the date of the district director's request, or the district director
concludes that the reasons supplied by the claimant do not establish good
cause, the district director shall notify the claimant that the claim has been
denied by reason of abandonment. Such notification shall be served on the
claimant and all other parties to the claim by certified mail.
(c) The denial of a claim by reason of abandonment
shall become effective and final unless, within 30 days after the denial is
issued, the claimant requests a hearing.
. . .
For purposes of § 725.309, a denial by reason of
abandonment shall be deemed a finding that the claimant has not established any
applicable condition of entitlement. If the claimant timely requests a
hearing, the district director shall refer the case to the Office of
Administrative Law Judges in accordance with § 725.421. Except upon the motion
or written agreement of the Director, the hearing will be limited to the issue
of abandonment and, if the administrative law judge determines that the claim
was not properly denied by reason of abandonment, he shall remand the claim to
the district director for the completion of administrative processing.
20
C.F.R. § 725.409(b) and (c) (2008).
C. Summary
judgment
The regulations at 29 C.F.R. § 18.40 provide that a
motion for summary judgment may be filed by any party at least 20 days before
the date fixed for a hearing. A motion for summary judgment requests that the
administrative law judge render a decision without a formal hearing and is
appropriate only when no genuine issue of material fact remains in dispute. See
Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986); Hines v. Consolidated Rail Corp., 926 F.2d 262 (3rd
Cir. 1990). Summary judgment may be limited to specific issues (such as length
of coal mine employment) or may go to the merits of the claim for benefits. 20
C.F.R. § 725.465 (2008).
D. Subject matter
jurisdiction
Neither the Office of Administrative Law Judges nor
the Benefits Review Board has subject matter jurisdiction over cases involving
reimbursement and interest payable to the Black Lung Disability Trust Fund.
The United States Court of Appeals for the Sixth Circuit held in Youghiogheny
& Ohio Coal Co. v. Vahalik, 970 F.2d 161 (6th Cir. 1992),
that jurisdiction in such cases properly lies in the federal district courts.
For further discussion of medical interest cases, see Chapter 21.
XIII. Representation issues
A. Appointment of
a representative
Twenty C.F.R. § 725.362(a) (2008) provides for the
representation of parties in any proceeding in the determination of a black
lung claim. This provision requires that the appointment of a representative
be made in writing, or on the record at the hearing.
B. Withdrawal as
a representative
The request to withdraw as the claimant's
representative may be granted provided that a finding is made that the claimant
will not be prejudiced by counsel's withdrawal. See e.g., 20 C.F.R. § 725.362(b)
(2008). Twenty-nine C.F.R. § 18.34(g)(1) states that an attorney of record
must provide prior written notice of intent to withdraw as counsel. If leave
to withdraw is granted, the claimant would normally be provided additional time
in which to secure another representative.
C. Sanctions
Twenty-nine C.F.R. § 18.6(d)(2)(i-v) provides for
the imposition of sanctions for the failure of a party or its representative to
comply with an order of the administrative law judge.
XIV. Miscellaneous procedural motions and orders
A. Extension of
time
At the hearing, the administrative law judge may
specify that the record shall remain open for a specified amount of time to
allow for the submission of post-hearing briefs or evidence. The granting or
denial of a motion for an extension of time is discretionary and takes into
account the reasonableness of the request, circumstances, the opposing party's
view on the matter, and whether any party is prejudiced by the extension. See
29 C.F.R. § 18.54.
Extensions should normally not be granted to allow for
the submission of new evidence that was not addressed at the hearing. In
dealing with the regular submission of evidence in a black lung claim, 20
C.F.R. § 725.456 (2008) provides that all documents transmitted to the
administrative law judge by the district director will be placed into evidence
(but this is subject to the limitations at 20 C.F.R. § 725.414 (2008)). If the
evidence was not placed in the record at the district director's level, it
shall be admitted at the administrative law judge's level as long as it is sent
to all other parties at least twenty days prior to a hearing in connection to
the claim and it complies with the evidentiary restrictions at 20 C.F.R. § 725.414
(2008). See 20 C.F.R. § 725.456(b)(1) (2008); Cochran v.
Consolidation Coal Co., 12 B.L.R. 1-137 (1989); Shedlock v. Bethlehem
Mines Corp., 9 B.L.R. 1-236 (1987).
B. Continuance/postponement
of hearing
After a hearing has been scheduled and the notice
of hearing is issued, any party may request a continuance. Typical reasons for
requesting a continuance are as follows: health problems, scheduling conflicts,
unpreparedness for hearing, new counsel retained, claimant attempting to obtain
counsel, and the attempt to resolving an issue prior to the hearing. Deciding
whether to grant a motion for continuance is discretionary; no single
regulation governs whether such a motion should be granted. The following
factors should be considered: whether there have been prior continuances,
whether the claimant would be prejudiced by a continuance, whether the grounds
for the request are reasonable, and whether the opposing party has objected to
the continuance. 29 C.F.R. § 18.28.
C. Decision on
the record
Pursuant to 20 C.F.R. § 725.461, any party may
waive their right to a hearing. The waiver must be made in writing and can be
withdrawn for good cause at any time prior to the mailing of the decision in
the claim. However, even if all of the parties agree to waive the hearing, an
administrative law judge may still conduct a hearing if he believes that the "personal
appearance and testimony of the party or parties would assist in ascertaining
the facts in issue. . . ." 20 C.F.R. § 725.461(a) (2008). If the waiver
is granted, the administrative law judge should consider all the documents and
stipulations that comprise the record in the case.
In addition, the unexcused failure of any party to
attend a hearing shall constitute a waiver of that party's right to present
evidence at a hearing and may result in dismissal of the claim. 20 C.F.R. § 725.461(b)
(2008).
D. Reconsideration
Any party may request reconsideration of an
administrative law judge's decision and order, if such request is made within
30 days after such decision and order is filed. 20 C.F.R. § 725.479(b) (2008).
The administrative law judge determines the procedures to be followed in the
reconsideration. During the consideration of a request for reconsideration,
the time for appeal to the Benefits Review Board is suspended. 20 C.F.R. § 725.479(c)
(2008).
It is noteworthy that the amended regulations
contain a new provision at § 725.479(d) providing "[r]egardless of any
defect in service, actual receipt of the decision is sufficient to commence the
30-day period for requesting reconsideration or appealing the decision."
20 C.F.R. § 725.479(d) (2008).
1.
Consecutive motions not
permitted
In Midland Coal Co. v. Director, OWCP, 149
F.3d 558 (7th Cir. 1998), the court held that an administrative law judge
has jurisdiction to adjudicate a motion for reconsideration, if it is filed
within 30 days of the date of issuance of his or her decision. The judge is
not empowered, however, to entertain subsequent motions for reconsideration
filed outside the 30 day time period.
In
Knight v. Director, OWCP, 14 B.L.R. 1-166 (1991), the Board held that a
second motion for reconsideration, which was filed within 30 days of the
decision on reconsideration but not within 30 days of the original decision and
order, was untimely. Moreover, the Board concluded that, even if the second
motion was timely, it improperly raised issues which were not raised in the
first motion.
2.
Submission of evidence
on reconsideration
In
Hensley v. Grays Knob Coal Co., 10 B.L.R. 1-88, 1-91 (1987), the Board
held that the administrative law judge had jurisdiction to consider a motion
for reconsideration, which was filed within 30 days of the date the decision
and order became "effective" pursuant to 20 C.F.R. §§ 725.479 and
725.480. The Board then concluded that the judge may, but is not required to,
accept new evidence on reconsideration. Prior to admitting such evidence,
however, the judge must find that "good cause" existed for failure to
obtain and exchange the evidence in compliance with § 725.456(b)(3) of the
regulations.
E. Petitions for
modification
Any party may request a modification of a final
adjudication, if such request is filed within one year of the prior denial or
last payment of benefits, whichever is later. See 20 C.F.R. §§ 725.310
and 725.480 (2008). If an administrative law judge is assigned a petition for
modification, s/he must hold a hearing unless all parties of record waive this
right in writing. See 20 C.F.R. § 725.310 (2008); Pukas v.
Schuylkill Contracting Co., 22 B.L.R. 1-69 (2000). See Chapter 23
for a further discussion of modification petitions.
F. Remand to organize
or reconstruct the record
If a record received from the district director's
office is improperly numbered or documents are missing, or documents are out of
sequence in such a manner that makes processing the claim impractical, an
administrative law judge may order the file returned to the district director
to reorganize the record. Also, when files are lost or otherwise misplaced, an
administrative law judge may order the district director to reconstruct the
record and return it to this Office.
Sample Order: To Reconstruct Record
The record in the above-captioned matter received
in this Office from the district director is disorganized in that the exhibits
are not consecutively paginated. Accordingly, IT IS HEREBY ORDERED that this
case be REMANDED to the district director of the ______________, ________
office so that an accurate and organized copy of the record may be forwarded to
all parties in this matter. As this case is scheduled for hearing on XXXXX XX,
XXXX, the district director is hereby ORDERED to return the case file to this
Office and to provide copies to all parties no later than XXXXX XX, XXXX.
______________________________
Administrative Law Judge
G. Correcting a
clerical mistake
An administrative law judge may issue an order
correcting a clerical mistake of a previous decision and order. Rule 60 of the
Federal Rules of Civil Procedure provides relief with respect to clerical
errors and states that "[c]lerical mistakes in judgements, orders or other
parts of the record and errors therein arising from such oversight or omission
may be corrected by the court at any time of its own initiative or on the
motion of any party and after such notice, if any, as the court orders. . . .."
In Coleman v. Ramey Coal Co., 18 B.L.R. 1-9
(1993), the Board applied Rule 60(a) to hold that a clerical mistake may be
corrected at any time before an appeal, if any, is docketed or, if an appeal is
pending, such a correction may be made with leave of the appellate court. If
no appeal is filed, there is no time limit regarding the correcting of a
clerical mistake. The Board was careful to note, however, that a clerical
error is "one which is a mistake or omission mechanical in nature which
does not involve a legal decision or judgment by an attorney and which is
apparent on the record." For further discussion of clerical errors, see
Chapter 25.
