JUDGES' BENCHBOOK
OF THE
BLACK LUNG BENEFITS ACT
CHAPTER 28
EVIDENCE AND PROCEDURE
FEBRUARY 2005
________________________
PREPARED BY THE U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, DC
________________________
[Note: This is a new Chapter to the Black Lung Benchbook. Supplements to this Chapter
will be maintained separately until the Chapter is incorporated into the Black Lung
Benchbook.]
1
Table of Contents for Chapter 28
I.
Applicability of Federal Rules of Civil Procedure
A.
Examples of application of Federal Rules of Civil Procedure
B.
Discovery provisions of the FRCP inapplicable unless expressly
provided by statute or regulation
II.
Authority of the administrative law judge, generally
A.
Unreasonable claim/defense
1.
Rule 11 sanctions
2.
Costs
B.
Issues of constitutionality
C.
Determination of insurance coverage
D.
Overpayment and repayment
E.
Reconsideration
1.
Consecutive motions not permitted
2.
Submission of evidence on reconsideration
F.
Interest and penalties
G.
Summary judgment
1.
ALJ has sua sponte authority
2.
ALJ does not have sua sponte authority
H.
Failure to file timely controversion
I.
ALJs discretionary finding on procedural matter is binding
J.
Remand for further evidentiary development authority limited
III.
Closing the record
A.
Decision on the recordALJs di scretion to consider briefs
B.
Submission of evidence post-hearing
1.
Untimely
a.
Evidence excluded
b.
Evidence admitted
2.
Must permit responsive evidence if late evidence is admitted
3.
Results of pulmonary evaluation; record incomplete
4.
Failure of opposing party to receive copy of evidence submitted
at hearing
C.
Error to close record prematurely
IV.
Continuances
A.
Denial proper
1.
Counsel failed to appear
2.
Party failed to timely obtain evidence
3.
Third continuance request; claimant failed to appear
B.
Denial improper
Statutory right to representation; first continuance request
Last Revised: 3/2/2005
2
V.
Decision of the administrative law judge
A.
Compliance with APAs requirements
1.
Adopting a partys brief constitutes error
2.
Correction of clerical error
3.
Delay in issuance of decision and order
4.
Evidence generated by adverse, dismissed party
B.
Finality of decision; appeals
1.
Decision final within 30 days
2.
Defect in notice
VI. Depositions
A.
Adequate notice required
1.
Reasonable notice in writing; objections and waiver
2.
Location of deposition; right of cross-examination
3.
Expert witness provisions at § 725.457 inapplicable
B.
Submission of pre-hearing deposition
1.
Generally
2.
Pre-hearing deposition submitted post-hearing
C.
Submission of post-hearing deposition
1.
Factors to be considered
2.
Exclusion proper
3.
Exclusion improper
a.
ALJ admitted one partys evidence post-hearing but
did not admit opposing partys post-hearing evidence
b.
Partys evidence submittedpost-hearing subject to
opposing partys opportunity to cross-examine
c.
Evidence submitted on eve of the 20-day deadline
d.
Evidence was unknown or unavailable prior to hearing
due to opposing partys failure to cooperate
VII. Due process
A.
Notice required for transfer of case to another ALJ
1.
On remand
2.
On modification
B.
Timely notice; opportunity to fully present case
1.
Presentation of evidence
a.
Copy of opposing partys evidence
b.
Expert witness testimony
c.
Failure to notify representative of examination;
evidence excluded
2.
Notice to carrier
3.
Delay in notice of liability
C.
Issuance of decision and order
Last Revised: 3/2/2005
3
VIII. Expert witness testimony
A.
Actual notice of intent to present required
B.
Expert witness provisions at § 725.457 inapplicable to expert deposition
testimony
IX. Failure to attend hearing
A.
Physical ailment; ALJ to make every reasonable accommodation
B.
Consideration of clients age and illness before binding client to
acts of counsel
C.
ALJ properly proceeded with hearing despite claimants absence
D.
Error to dismiss claim for failure to attend hearing where Director
objected and payments were being made by Trust Fund
E.
Inadvertent delay; no waiver of appeal rights
X.
Fair hearing
A.
Impartiality required
1.
Conduct by the ALJ
2.
Treatment of witnesses
3.
Competency of witnesses
B.
Right to oral hearing
1.
On remand
a.
No oral hearing necessary; witness credibility not
dispositive
b.
New hearing required; witness credibility at issue
c.
Notice to parties
2.
Multiple claims under § 725.309
3.
Overpayment claims
C.
Waiver of hearing
1.
Waiver must be voluntary, intentional, and in writing
2.
Withdrawal of waiver of hearing
3.
Error to decide merits of claim where hearing not waived
D.
Hearing limited to contested issues
XI.
Hearsay
A.
Medical reports and testing
1.
Elements of reliability
2.
Reports based on physical examinations
3.
Consultative reports
4.
Results of objective testing
B.
Affidavits
C.
Death of authoring physician
D.
Evidence that is lost or destroyed
Last Revised: 3/2/2005
4
XII.
Judicial/Official Notice
A.
Procedure used
B.
Taking official notice of one expert but not another expert
constitutes error
C.
Examples of judicial/official notice
1.
Medical opinion; no judicial notice
2.
Unreliability of early Social Security records
3.
Dictionary of Occupational Titles
4.
Directory of Medical Specialists
5.
Criminal conviction of a physician
XIII. Reassignment/transfer of cases
A.
Bias by original deciding judge
B.
Unavailability of original deciding judge
1.
On remand
2.
On modification
XIV. Representatives
A.
Right to representation
1.
The pro se claimant
a.
Informing claimant of his or her rights
b.
Claimants counsel fails to appear at hearing;
whether to proceed
Proceeding is not per se error
Inquiring whether claimant wants to proceed
Determining whether claimant has capacity to proceed
Leaving record open for post-hearing submissions
2.
Claimant fails to appear at hearing
B.
Disqualification of representative; appearance of impropriety
C.
Party bound by acts of representative
XV. Right to cross-examination
A.
Generally
B.
Waiver of right of cross-examination
C.
Improper denial of right of cross-examination
1.
Delay in notifying employer of potential liability
2.
Partys failure to cooperate during discovery
D.
The 20-day rule for exchanging evidence and good cause
1.
Requiring exchange of evidence more than 20 days
in advance of hearing is permitted
2. Exchange of evidence less than 20 days prior to hearing
a.
Good cause not established
Unreasonable delay
Knowledge of contents of late evidence not determinative
Relevancy of late evidence not determinative
b.
Good cause established
Last Revised: 3/2/2005
5
Evidence exchanged in connection with earlier state claim
Evidence to be used for impeachment purposes
Examination more than 20 days before hearing; report not
available until after hearing
3.
Admission of late evidence;
must allow responsive evidence
a.
Record must be left open for both parties
b.
Failure to timely submit responsive evidencewaiver of
right of cross-examination
4.
Admission of evidence post-hearing
a.
Evidence submitted after the hearing
Good cause established; responsive evidence
Good cause not established
b.
Evidence submitted on reconsideration
c.
Reopening the record for submission of evidence
Good cause established
Good cause not established
XVI. Settlements and withdrawals of claims
A.
Settlement of black lung claim prohibited
B.
Contingent withdrawal of controversion illegal
C.
Remand for payment of benefits proper; withdrawal of controversion
of issues
D.
Withdrawal of claim
XVII. Stipulations
A.
Stipulation of fact
1.
Binding when received into evidence
2.
Stipulation against pro se Claimants interest; not binding
B.
Parties cannot stipulate to legal effect of stipulated facts
XVIII. Subpoenas
A.
ALJ has subpoena power when case pending before district director
B.
Partys due process right limited to requesting subpoena
C.
Party may be subpoenaed to attend hearing
XIX. Summary judgment
A.
Sua sponte authority to render summary judgment
1.
ALJ has authority
2.
ALJ does not have authority
C.
Unresolved factual issues; summary judgment inappropriate
Last Revised: 3/2/2005
6
Chapter 28
Rules of Procedure and Evidence
The procedural and evidential rules applicable to black lung claims are found at
20 C.F.R. Part 725 and 29 C.F.R. Part 18. Although 29 C.F.R. §§ 18.101 through
18.1104 set forth rules of evidence that are similar to rules applied in federal district
courts, black lung proceedings are exempt from these provisions pursuant to 29 C.F.R. §
18.1101(b)(2) with the exception of §§ 18.403 (excluding relevant evidence on grounds
of confusion or waste of time), 18.611(a) (exercising control over mode and order in
interrogation of witnesses), and 18.614 (examination and cross-examination of
witnesses).
In this chapter, general rules of proce
dure and evidence applicable to all black
lung claims will be discussed. For black lung claims filed after January 19, 2001 and for
a discussion of the good cause standard, see also Chapter 4: Limitations on
Admission of Evidence. For a discussion of the application of the Tobias rule to
claims filed before January 1, 1982, see Chapter 11: Living Miners Claims--
Entitlement Under Part 718.
I.
Applicability of Federal Rules of Civil Procedure
Certain Federal Rules of Civil Procedure (FRCP) may apply to the adjudication of
black lung claims pursuant to 29 C.F.R. § 18.1, if the rules are not in conflict with the Act
or its implementing regulations. Hamrick v. Eastern Associated Coal Corp., 12 B.L.R. 1-
39 (1988).
A.
Examples of application of Federal Rules of Civil Procedure
·
Trump v Eastern Assoc. Coal Corp.
, 6 B.L.R. 1-1268 (1984) (applying
FRCP
5(b) and 30(b)(1) that parties receive reasonable notice of a deposition in
writing);
Arnold v. Consolidation Coal Co., 7 B.L.R. 1-648 (1985) (applying FRCP 26(c)
to issue a protective order for Claimant, an Ohio resident, from the undue expense
of attending Employers physicians examination in New York);
Brown Badgett, Inc. v. Jennings, 842 F.2d 899, 11 B.L.R. 2-92 (1988) (applying
FRCP 32(d)(1) that all errors in a notice for taking a deposition are waived unless
an objection is promptly served upon the party giving the notice);
Howell v. Director, OWCP, 7 B.L.R. 1-259 (1984) (holding that FRCP 41(b) is
similar to § 725.461(b) in the management of an ALJs docket);
Hamrick v. Eastern Associated Coal Corp., 12 B.L.R. 1-39 (1988) (applying
FRCP 56 permitting an ALJ to issue summary decision
sua sponte
); Montoya v.
Last Revised: 3/2/2005
7
National King Coal Co., 10 B.L.R. 1-56, 1-61 (1986) (applying FRCP 56
that
summary judgment is only appropriate when no genuine issue of material fact
exists), but also see Part XIX of this Chapter; and
Coleman v. Ramey Coal Co., 18 B.L.R. 1-9 (1993) (applying FRCP 60 to correct
misidentification of a party liable for the payment of a representatives fees).
B.
Discovery provisions of the FRCP
inapplicable unless expressly
provided by statute or regulation
The Board has held that the discovery provisions of the FRCP do not apply to
black lung proceedings, unless expressly permitted by statute or regulation. In Cline v.
Westmoreland Coal Co., 21 B.L.R. 1-69 (1997), Claimant requested medical
information obtained by employer which employer did not intend to introduce into
evidence and considered privileged duringthe discovery period. The Board declined
to find that FRCP 26(b)(4)(B) applied to black lung claims. Rather, it determined that
the federal procedural rules for discovery do not apply to administrative proceedings,
unless specifically provided by statute or regulation. The Board held that, on remand,
the ALJ should reconsider his Order Denying Motion to Compel in accordance with the
standard for the scope of discovery provided at 29 C.F.R. § 18.14 in conjunction with the
provisions of 20 C.F.R. § 725.455 under his discretionary authority. It further stated:
We reject, however, as overbroad, claimants interpretation of Section
725.455 that an ALJ has an obligation to fully develop the record,
develop the evidence, get all the evidence in . . .. We also reject the
position of claimant and the Director that the provision of 20 C.F.R. §
725.414, which requires the operator to submit evidence obtained to the
district director and all parties, is extended to the administrative law judge.
II.
Authority of the administrative law judge, generally
The conduct
hearing is within the
sound discretion of the ALJ. The ALJ is
not bound by formal rules of evidence or procedure except as provided for at 5 U.S.C. §
501 et seq., 20 C.F.R. Part 725, and 29 C.F.R. Part 18. See Chapter 25, Principles of
Finality. Note, however, that there are specific limitations on the admission of evidence
in claims filed after January 19, 2001, see Chapter 4: Limitations on Medical
Evidence.
A.
Unreasonable claim/defense
1.
Rule 11 sanctions
In Metropolitan Stevedore Co. v. Brickner, 11 F.3d 887 (9th Cir. 1993), the Ninth
Circuit declined to rule on whether Rule 11 sanctions are incorporated into administrative
proceedings through 29 C.F.R. § 18.1 because § 926 of the LHWCA provides for the
assessment of costs against a party who institutes or continues a proceeding without
Last Revised: 3/2/2005
8
reasonable ground. The court held that this impliedly includes a sanction for bad faith
claims . . .. The court did state, however, that its doubts that Rule 11 is incorporated
through § 18.1 are increased by 20 C.F.R. §18.29(b) which recognizes that enforcement
actions against those who misbehave in proceedings before an ALJ are to be referred to
the court system. See also Boland Marine & Mfg. Co. v. Rihner, 41 F.3d 997 (5th Cir.
1995).
2.
Costs
In Crum v. Wolf Creek Collieries, 18 B.L.R. 1-81 (1994), the Board held that
only a federal court can assess a partys costs as a sanction against a claimant who
institutes or continues, without reasonable ground, workers compensation proceedings
under the LHWCA, portions of which are incorporated into the Black Lung Benfits Act
pursuant to 30 U.S.C. § 931.
For additional discussion, see Chapter 27: Representatives Fees and
Representation Issues.
B.
Issues of constitutionality
The ALJ is without authority to decide issues of constitutionality. Kosh v.
Director, OWCP, 8 B.L.R. 1-168, 1-169 (1985).
C.
Determination of insurance coverage
The ALJ has jurisdiction to decide whether an insurance fund is liable under
contract for the payment of benefits; however, this jurisdiction does not extend to matters
outside the insurance contract. Gilbert v. Williamson Coal Co., 7 B.L.R. 1-289, 1-291
and 1-292 (1984).
For additional discussion on proper designation of an operator and/or carrier, see
Chapter 7: Designation of Responsible Operator.
D. Overpayment and repayment
In Kieffer v. Director, OWCP, 18 B.L.R. 1-35 (1993), the Board held that an ALJ
has authority to determine whether an overpayment exists and, if so, whether the miner is
liable for its repayment. However, an ALJ does not have authority to determine a
repayment schedule.
For additional discussion, see Chapter 18: Overpayment; Waiver; and
Recovery.
Last Revised: 3/2/2005
9
E.
Reconsideration
1.
Consecutive motions not permitted
In Midland Coal Co. v. Director, OWCP,
149 F.3d 558 (7
th
Cir. 1998), the court
held that an ALJ 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 ALJ 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 ALJ 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 §§
725.479 and 725.480. The Board then concluded that the ALJ may, but is not required
to, accept new evidence on reconsideration. Prior to admitting such evidence, however,
the ALJ must find that good cause existed for failure to obtain and exchange the
evidence in compliance with Section 725.456(b)(2).
For additional discussion of motions for reconsideration, see Chapter 25:
Principles of Finality and Chapter 26: Motions.
F.
Interest and penalties
An ALJ does not have authority to decide issues involving the computation of
interest or penalties assessed against an employer for reimbursements owed to the Black
Lung Disability Trust Fund for medical benefits paid by the Fund.
Wade v. Island Creek
Coal Co., BRB No. 93-549 BLA (Feb. 22, 1996) (unpub.). See also Bethenergy Mines v.
Director, OWCP, 32 F.3d 843 (3rd Cir. 1994); Vahalik v. Youghiogheny & Ohio Coal
Co., 970 F.2d 161 (6th Cir. 1992); Brown v. Sea B Mining Co.
, 17 B.L.R. 1-115 (1993)
(en banc); Balaban v. Duquesne Light Co., 16 B.L.R. 1-120 (1992).
Of interest, in Nowlin v. Eastern Associated Coal Corp., 331 F.Supp.2d 465 (N.D.
W. Va. 2004), the court held that a widow was entitled to a 20 percent penalty on unpaid
benefits from Employer, despite the fact that she received timely payments of benefits
from the Black Lung Disability Trust Fund.
Last Revised: 3/2/2005
10
For additional discussion of issues regarding assessments of interest and penalties,
see Chapter 21: Interest on Past Due Medical Bills and Penalties.
G.
Summary judgment
1.
ALJ has
sua sponte authority
The ALJ has authority to issue orders of summary judgment sua sponte where the
parties have been given notice and an opportunity to respond. In this vein, the Board
concluded that FRCP 56, permitting sua sponte summary judgment orders by a judge,
applies to black lung proceedings because it is not inconsistent with § 725.452(c) of the
regulations. Under the facts of the case, the ALJ provided 100 days notice of the
hearings to be conducted and requested that the parties exchange evidence 40 days prior
to the hearing. Thirty days before the hearing the ALJ sua sponte issued an order to show
cause why the claims should not be denied based upon the evidence received. The Board
held that the ALJ had authority to issue the order. However, it warned that such
deviation from standard procedures was strongly discouraged because of the negative
affect on the process. Smith v. Westmoreland Coal Co., 12 B.L.R. 1-39, 1-43 (1988),
affd. sub nom., Henshew v. Royal Coal Co.
, 871 F.2d 417 (4th Cir. 1989)(table).
2.
ALJ does not have
sua sponte
authority
In Robbins v. Cyprus Cumberland Coal Co., 146 F.3d 425 (6th Cir. 1998), the
Sixth Circuit held that an ALJ may issue a decision without holding a hearing only if the
parties agree to (1) a waiver of the hearing, or (2) a party moves for summary judgment.
The court noted the following:
A hearing is not necessary if all parties give written waiver of their rights
to a hearing and request a decision on the documentary record. (citation
and footnote omitted). The only other instance in the regulations which
permits a decision without holding a requested hearing is when a party
moves for summary judgment, and the ALJ determines that there is no
genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. See 20 C.F.R. § 725.452(c). As the Director
points out, [t]here is no regulatory provision which would permit an
administrative law judge to initiate summary judgment proceedings sua
sponte. (citation omitted).
For additional discussion and case law on summary judgment, see Part XIX of this
Chapter.
Last Revised: 3/2/2005
11
H.
Failure to file timely controversion
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 ALJ to determine, upon 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
directors determination on the issue of timeliness of filing a controversion or finding
good cause for an untimely filing is entitled to have the issued decided de novo by an
ALJ.
If the ALJ finds that Employer failed to timely controvert the claim, then
entitlement is established.
See
20 C.F.R. § 725.413(b)(3) (2001).
For additional discussion of failure to timely controvert a claim, see Chapter 26:
Motions.
I.
Discretionary finding on procedural matter by ALJ is binding
An ALJs discretionary finding on a procedural matter is not subject to
modification. By unpublished decision in Bowman v. Director, OWCP, BRB No. 03-
0720 BLA (Sept. 10, 2004) (unpub.), the Board held that an ALJs discretionary
determination that the Director established good cause for the untimely submission of Dr.
Greens report is not subject to modification because (the ALJ) was resolving a
procedural matter that
not
within the scope of issues th
at are subject to modification,
i.e., issues of entitlement.
The Board further stated that the proper recourse for
correction of error, if any, would have been a timely appeal or motion for
reconsideration, neither of which were timely pursued.
J.
Remand for further evidentiary developmentauthority limited
It was error for the ALJ
remand a clai
m to the district director 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 held that, unless mutually consented to by the parties under 20
C.F.R. § 725.456(b)(2), further development of the evidence by the administrative law
judge is precluded. Morgan v. Director, OWCP, 8 B.L.R. 1-491, 1-494 (1986).
III. Closing the record
A.
Decision
the recordALJs
discretion to consider briefs
Where Employer consented to a decision on the record without a hearing and
requested 30 days to submit a written memorandum, the ALJ did not violate
Last Revised: 3/2/2005
12
Employers due process rights by issuing a decision without considering Employers
memorandum. The court noted that 29 C.F.R. § 18.53 and 20 C.F.R. § 725.459A (1992)
demonstrate that the ALJ had discretion to accept legal memoranda, and was not
required to accept [Employers] memorandum. Because Employers consent to a
decision on the record was not contingent upon the ALJs consideration of its
memorandum, Employers due process rights were not violated. Freeman United Coal
Mining Co. v. Cooper, 965 F.2d 443 (7th Cir. 1992).
B.
Submission of evidence post-hearing
1.
Untimely
a.
Evidence excluded
Closing the record was not an abuse of discretion where the record was held open
for ten months to allow the Director to submit an x-ray re-reading and the Director failed
to do so. Amorose v. Director, OWCP, 7 B.L.R. 1-899, 1-900 (1985).
b.
Evidence admitted
In Pendleton v. U.S. Steel Corp., 6 B.L.R. 1-815, 1-819 n. 4 (1984), the Board
held that it was proper for the ALJ to accept a physicians report submitted two days after
the record closed where Claimants attorney explained that the report was forwarded to
the administrative law judge on the date it was received.
2. Must permit responsive evidence if late evidence is admitted
When late evidence, such as a medical report, is submitted, the opposing party
must be provided an opportunity to respond to the medical report or
to cross-examine the
physician who prepared the report. North American Coal Co. v. Miller
, 870 F.2d 948, 12
B.L.R. 2-222 (3d Cir. 1989); Fowler v. Freeman United Coal Mining Co., 7 B.L.R. 1-495
(1984), affd sub. nom.
, Freeman United Coal Mining Co. v. Director, OWCP, No. 85-
1013 (7th Cir. Jan. 24, 1986)(unpub.).
3. Results of pulmonary evaluation; record incomplete
Twenty-nine C.F.R. § 18.54, which addresses the procedure for closing the
record, does not preclude submission of a complete pulmonary examination by the
Department of Labor where the record is incomplete as to any issue in a claim filed under
20 C.F.R. § 725.309. However, Employer must be provided an opportunity to submit
responsive evidence. Hodges v. BethEnergy Mines, Inc., 18 B.L.R. 1-84 (1994).
Last Revised: 3/2/2005
13
4.
Failure of opposing party to receive copy of evidence
submitted at hearing
Due process required a remand to the ALJ to reopen the record where Employer
never received a copy of a report admitted at hearing and where the administrative law
judge appears to have been unaware of this fact when employer moved to close the
record.
Pendleton v. U.S. Steel Corp.
, 6 B.L.R. 1-815, 1-819 (1985).
C.
Error to close record prematurely
The ALJ violated the parties rights to a full and fair hearing by prematurely
closing the record. Specifically, the ALJ left the record open for a party to file responsive
evidence, but erred in issuing her decision two weeks prior to the date the record closed.
Lane v. Harman Mining Corp., 5 B.L.R. 1-87, 1-90 (1982).
For additional discussion of the submission of evidence post-hearing, see also
Chapter 4: Admission of Evidence and Chapter 26: Motions as well as Parts VI and
VIII of this Chapter.
IV. Continuances
A.
Denial proper
1.
Counsel failed to appear
It is within the ALJs discretion to proceed with a hearing despite the absence of
Claimants counsel. The ALJ acted properly in a case where Claimant was present at the
hearing without counsel, and the ALJ inquired whether he wished to proceed after fully
informing Claimant of his rights with respect to the presentation of his case. The ALJ
also left the record open for the submissi
on of post-hearing evidence by counsel. The
Board concluded that, pursuant to 20 C.F.R. § 725.454(d), counsel failed to provide ten
days notice of his request for continuance and his scheduling conflict did not
constitute good cause to grant a continuance. In particular, counsel notified the ALJ of
a scheduling conflict 20 minutes after the hearing was to start. In denying the
continuance, the ALJ noted that Claimant traveled 400 miles to the hearing location,
waited five hours for the hearing to commence, and chose to proceed without counsel
when asked on two occasions. Prater v. Clinchfield Coal Co., 12 B.L.R. 1-121 (1989).
2.
Party failed to timely obtain evidence
Denial of a continuance requested by Employer was proper where Employer
wanted to obtain autopsy slides for an independent review, but had access to the slides
and failed to secure them for one year. As noted by the Board, Claimant consented to
release of the autopsy slides, but Employer simply failed to secure the evidence in a
timely fashion. Witt v. Dean Jones Coal Co., 7 B.L.R. 1-21 (1984).
Last Revised: 3/2/2005
14
3.
Third continuance request; claimant failed to appear
The ALJ acted within his discretion in proceeding with a hearing despite
Claimants absence. Claimants right to participate fully at the hearing was adequately
protected where the ALJ allowed Claimant an opportunity to submit a sworn statement in
lieu of live testimony within 30 days of the hearing. The Board further concluded that
the ALJ did not abuse his discretion in denying Claimants third request for a
continuance. See 20 C.F.R. § 725.452(b); Wagner v. Beltrami Enterprises, 16 B.L.R. 1-
65 (1990).
B.
Denial improper
Statutory right to representation; first continuance request
The Board vacated an ALJs denial of benefits and remanded the claim for a de
novo hearing on grounds that the ALJ had abused his discretion in denying Claimants
request for a continuance. Claimant was entitled to be represented by counsel but could
not retain one by the date of the initial hearing. Moreover, Claimant did not waive his
statutory right to counsel, the Director did not oppose the continuance, and this was the
first request for a continuance submitted in the case. Johnson v. Director, OWCP, 9
B.L.R. 1-218, 1-220 (1986).
For additional discussion of continuances, see Chapter 26: Motions.
V.
Decision of the administrative law judge
A.
Compliance with APAs requirements
The requirements of the APA at 5 U.S.C. §§ 554, 556, and 557 direct that the ALJ
issue a decision containing findings of fact and conclusions of law with supporting
rationale. Arjonov v. Interport Maintenance Co., 34 B.R.B.S. 15 (2000) (The APA
requires an administrative law judge to adequately detail that rationale behind her
decision, analyze and discuss the relevant evidence of record, and explicitly set forth the
reasons for her acceptance or rejection of such evidence); Boggs v. Falcon Coal Co., 17
B.L.R. 1-62 (1992); Wojtowicz v. Duquesne Light Co., 12 B.L.R. 1-162 (1989).
1.
Adopting partys brief constitutes error
The Board remanded a case and directed that the ALJ independently evaluate the
evidence of record instead of adopting the Directors post-hearing brief in its entirety. It
concluded that, [i]f a decision cannot withstand scrutiny on the four corners of the
document, parties are compelled to rely on a document with which they may be
unfamiliar, and which may not be easily accessible. The Board further noted that the
Directors brief contained factual errors.
Hall v. Director, OWCP
, 12 B.L.R. 1-80
(1988).
Last Revised: 3/2/2005
15
2.
Correction of clerical error
The ALJ may correct the misidentification of a party liable for attorneys fees
pursuant to Federal Rule of Civil Procedure 60(a) where such misidentification
constituted a mere clerical error. Coleman v. Ramey Coal Co., 18 B.L.R. 1-9 (1993). See
also Allied Materials Corp. v. Superior Products Co., 620 F.2d 224, 226 (10th Cir. 1980).
3.
Delay in issuance of decision and order;
intervening case law
A delay in the issuance of
decision
by the ALJ did not constitute prejudicial
error where intervening case law did not substantively affect the claim. Worrell v.
Consolidation Coal Co., 8 B.L.R. 1-158, 1-162 (1985) (the ALJ found § 727.203(b)(2)
rebuttal and the change in law addressed only (b)(3) rebuttal; other intervening law
requiring that more weight be given to examining physicians opinions did not affect the
ALJs decision since both parties submitted such reports).
An ALJs decision is not invalid merely because it is not filed within 20 days of
the date the record is closed. A delay of more than 20 days in issuing a decision does not
warrant a remand for a new hearing unless the aggrieved party establishes prejudice due
to the delay. Williams v. Black Diamond Coal Mining Co., 6 B.L.R. 1-188 (1983).
4.
Evidence generated by adverse, dismissed party
An ALJ may properly admit evidence obtained by an adverse party who was
dismissed prior to the hearing. York v. Benefits Review Board, 819 F.2d 134, 10 B.L.R.
2-99 (6th Cir. 1987). See also Hardisty v. Director, OWCP, 7 B.L.R. 1-322, affd 776
F.2d 129, 8 B.L.R. 2-72 (7th Cir. 1985) (the court held that the Director could contest an
ALJs award and could benefit from evidence developed by a dismissed employer even
though the Director had supported Claimants pursuit of benefits while the case was
pending before the ALJ and had joined in Claimants objection to the admission of the
evidence at that time).
B.
Service by certified mail
By law, all final orders, supplemental orders regarding fees and costs, and
decisions on the merits must be served by certified mail to counsel for the claimant and
employer. If a party appears pro se, then the document must be served via certified mail
to that party. 20 C.F.R. § 725.478 (2001).
1.
Decision final within 30 days
The ALJs decision becomes final thirty days after it is filed in the district
directors office. The ALJ is without authority to extend the 30-day time period. Mecca
v. Kemmerer Coal Co., 14 B.L.R. 1-101 (1990).
Last Revised: 3/2/2005
16
2.
Defect in notice
The Sixth Circuit held that, even though notice of an ALJs adverse decision had
not been sent to Claimants attorney, the attorney had actual notice of the decision and,
therefore, the defect in notice would not toll the 30-day period for filing an appeal.
Claimant was hospitalized when his wife signed for the certified letter and advised the
attorney of the decision. Wellman v. Director, OWCP
, 706 F.2d 191, 193 (6
th
Cir. 1983).
The Third Circuit also held that, where Employers counsel was not served with
the district directors award, but had actual knowledge of the decision and did not file a
controversion, the 30-day period for filing such a controversion was not tolled.
Pothering v. Parkson Coal Co., 861 F.2d 1321, 1329, 12 B.L.R. 2-60, 2-72 and 2-73 (3rd
Cir. 1988). However, the Third Circuit concluded that, where an attorney was not served
with the ALJs decision and where he did not have actual notice of the decision, the 30-
day time period from the date the decision was filed with the district director was tolled.
Patton v. Director, OWCP, 763 F.2d 553, 560, 7 B.L.R. 2-216, 2-227 and 2-228 (3rd Cir.
1985).
For additional discussion of actual receipt of a decision, see the discussion on
circuit court jurisdiction at Chapter 1: Introduction to the Claims Process and
Research Tools.
VI. Depositions
For a discussion of the presentation of expert witness testimony at the hearing, see
Part VIII of this Chapter.
A.
Adequate notice required
The regulatory provisions at 20 C.F.R. § 725.458 (2001) provide, in part, that
[t]he testimony of any witness or party may be taken by deposition or interrogatory
according to the rules of practice of the Federal district court for the judicial district in
which the case is pending (or of the U.S. District Court for the District of Columbia if the
case is pending in the District
or outside the United States),
except that at least 30 days
prior notice of any deposition shall be given to all parties
unless such notice is waived.
1.
Reasonable notice in writ
ing; objections and waiver
The Board applied FRCP 30(b)(1), which requires that the party taking a
deposition give reasonable notice in writing to every other party to the action. The
Board further noted that FRCP 5(b) requires that service be made upon the attorney
representing a party unless otherwise ordered by the ALJ. Thus, it was error to admit
deposition testimony where claimants lay representative was not given notice of the
deposition. The Board concluded that the fact that Claimants representative was not a
member of the Bar was irrelevant as [a] lay representative, once qualified, holds the
Last Revised: 3/2/2005
17
same powers and is bound by the same procedural rules as an attorney. However, the
Board held that the error in admitting the deposition was cured because the ALJ left the
record open for 30 days to allow Claimant to cross-examine witnesses. Trump v. Eastern
Assoc. Coal Corp., 6 B.L.R. 1-1268 (1984).
In Brown Badgett, Inc. v. Jennings, 842 F.2d 899, 11 B.L.R. 2-92 (6th Cir. 1988),
Employer sent notice of a deposition to Claimants counsels partner, but Claimants
counsel never received the notice. The Sixth Circuit held that FRCP 32(d)(1) is
applicable to proceedings arising under the Act such that a deposition taken in violation
of the thirty-day notice requirement set forth in 20 C.F.R. § 725.458 was admissible
unless the opposing party expressly objects, in
writing, to [a]ll errors and irregularities
in service of the notice of deposition. The court then remanded the claim for a
determination of whether objections to the defective notice were waived because
Claimants counsel did not file objections in writing. The court cautioned that
[o]bviously, it is impossible to serve a written objection to a defective notice if, in fact,
no notice at all is provided. Thus, the court instructed that a determination be made as
to whether Claimants counsels objections were waived under the facts of the case.
2.
Location of deposition;
right of cross-examination
It was proper to apply FRCP 26(c) to the scheduling of depositions. The Board
held that good cause was established for issuance of a protective order for Claimant, an
Ohio resident, from having to incur the undue expense of attending a deposition of
Employers physician in New York, NY. The Board noted that Employer declined the
ALJs offer to permit a post-hearing deposition of the physician by telephone. As a
result, the Board held that Employer will not now be heard to complain that it was not
given an opportunity to depose Dr. Kleinerman. Arnold v. Consolidation Coal Co., 7
B.L.R. 1-648 (1985).
3.
Expert witness provisions at § 725.457 inapplicable
Section 725.457 states, in part, that [a]ny party who intends to present the
testimony of an expert witness at a hearing shall so notify all other parties to the claim at
least 10 days before the hearing. The Board has held that § 725.457(a) applies only to
the appearance by an expert witness at the hearing, not to the introduction of deposition
testimony at the hearing. A deposition taken five days before the hearing did not deny
due process to other parties who had receive
d adequate notice of the deposition pursuant
to § 725.458. Tucker v. Eastern Coal Corp.
, 6 B.L.R. 1-743 (1984).
B.
Submission of pre-hearing deposition
1.
Generally
In ruling on the submission of deposition testimony, it is important to understand
the distinction between submission of a pre-hearing deposition before, at, or after the
hearing as opposed to the submission of a
post-hearing
deposition. As long as 30 days
Last Revised: 3/2/2005
18
notice is properly given, a pre-hearing deposition is admissible
before, during, or after
the hearing. A pre-hearing deposition does not have to be exchanged in accordance with
the 20-day rule and ten days notice of a partys intention to submit expert witness
testimony by deposition does not have to be provided in advance of the hearing date. As
an example, a deposition conducted within five days of the date of the hearing was
admissible post-hearing where the opposing parties were given 30 days notice of the
deposition. Tucker v. Eastern Coal Corp., 6 B.L.R. 1-743 (1984).
On the other hand, as is discussed later in this Chapter, it is within the ALJs
discretion to permit and admit a post-hearing deposition. Indeed, the Board has set forth
specific factors to be considered in determining whether to permit a post-hearing
deposition, including whether the party has diligently tried to secure such evidence prior
to the hearing. See Lee v. Drummond Coal Co., 6 B.L.R. 1-544 (1983).
2. Pre-hearing deposition submitted post-hearing
Although 20 C.F.R. § 725.458 provides, in part, that [n]o post-hearing
deposition or interrogatory shall be permitted unless authorized by the administrative law
judge upon the motion of a party to the claim, these provisions are not applicable to the
post-hearing submission of a deposition taken pre-hearing. When adequate notice was
given and a deposition was taken five days prior to the hearing, the Board held that the
ALJ erred when he denied a request to admit the deposition post-hearing under § 725.458
of the regulations. Tucker v. Eastern Coal Corp., 6 B.L.R. 1-743 (1984).
Similarly, in another case, the Board held that it was error for the ALJ to exclude
pre-hearing deposition testimony from being
admitted post-hearing pursuant to § 725.458
of the regulations. The Board noted that counsel had provided 30 days notice of the two
pre-hearing depositions, which it sought to admit within 10 days of the hearing (after the
depositions were transcribed). In response to the 30 days notice of depositions,
Claimant was evaluated by his physician and sought to submit the resulting medical
report within 30 days of the hearing. Initially, the ALJ granted all three requests.
However, when Employer then sought to de
pose Claimants physician after Claimants
medical report was submitted as evidence, the ALJ reversed his earlier ruling and denied
all motions for the admission of evidence post-hearing so that he could close these
cases on a date certain. The Board held that this constituted an abuse of discretion. With
regard to Employers post-hearing submission of two pre-hearing depositions, the Board
noted that Claimant had ample notice of the scheduled depositions; his counsel was
present to conduct cross-examination; and the transcripts of the depositions would not be
available until after the hearing through no fault of Employer. The Board further held
that Claimants post-hearing submission of a medical report based upon the pre-hearing
examination by his physician must also be submitted in the interests of fairness and that
the record must then be left open for 30 days under § 725.456(b)(3) for the filing of any
responsive evidence, i.e. Employers cross-examination of Claimants physician.
Ference v. Rochester & Pittsburgh Coal Co., 5 B.L.R. 1-122 (1982).
Last Revised: 3/2/2005
19
In Hardisty v. Director, OWCP, 7 B.L.R. 1-322 (1984), affd 776 F.2d 129, 8
B.L.R. 2-72 (7th Cir. 1985), the Board held that the scheduling of depositions shortly
before the hearing is permissible where opposing counsel received six weeks notice of
the deposition and he attended the deposition and cross-examined the witnesses.
C.
Submission of post-hearing deposition
Section 725.458 provides, in part, that [n]o post-hearing deposition or
interrogatory shall be permitted unless authorized by the administrative law judge upon
the motion of a party to the claim. 20 C.F.R. § 725.458 (2001).
1.
Factors to be considered
Post-hearing depositions may be obtained with the permission, and in the
discretion, of the ALJ pursuant to § 725.458. The party taking the deposition bears the
burden of establishing the necessity of such evidence. Among the factors to consider in
determining whether to admit
post-hearing depositions are th
e following: (1) whether the
proffered deposition would be probative and not merely cumulative; (2) whether the party
taking the deposition took reasonable steps to secure the evidence before the hearing or it
is established that the evidence was unknown or unavailable at any earlier time; and (3)
whether the evidence is reasonably necessary to ensure a fair hearing.
Under the facts of Lee v. Drummond Coal Co., 6 B.L.R. 1-544 (1983), the ALJ
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 ALJ
to refuse the physicians post-hearing deposition where he commented on additional
medical evidence, which was unknown prior to the hearing because the opposing party
failed to fully answer interrogatories. Due process would be satisfied in permitting the
post-hearing deposition as the opposing party would have an opportunity to cross-
examine the physician during the deposition.
2.
Exclusion proper
In Seese v. Keystone Coal Mining Co., 6 B.L.R. 1-149, 1-152 (1983), the ALJ
denied Employers request to submit a post-hearing deposition of its physician for the
purpose of explaining shortcomings in the physicians earlier testimony. The Board
upheld the ALJs decision because [n]o proffer of evidence accompanied the request
and no indication was given that the denial would deprive movant
of a reasonable
opportunity to present evidence.
Last Revised: 3/2/2005
20
3.
Exclusion improper
a.
ALJ admitted one partys post-hearing evidence but
did not admit opposing partys post-hearing evidence
It was arbitrary for the ALJ to deny Employers request for a post-hearing
deposition of Claimants physician, while granting Claimants request to admit a post-
hearing physical examination by the physician. Schoenecker v. Allegheny River Mining
Co., 5 B.L.R. 1-378 (1982).
b.
Partys evidence submitted post-hearing subject to
opposing partys opportunity to cross-examine
The ALJ abused his discretion in denying admission of a post-hearing deposition
where Claimants medical opinion was admitted at the hearing subject to Employers
opportunity to cross-examine the physician. Claimants counsel was ordered to arrange
the deposition, but failed to do so prior to the closing of the record. The Board directed
that, on remand, the ALJ must provide Employer an opportunity to subpoena and depose
the physician, or to specifically waive this right. Jug v. Rochester and Pittsburgh Coal
Co., 1 B.L.R. 1-628 (1978).
c.
Evidence submitted on eve of the 20-day deadline
For a medical report submitted on the eve of the 20-day deadline, a party must be
provided an opportunity to respond to the medical report or to cross-examine the
physician who prepared the report. Because Claimants physicians report wassent 20
days prior to the hearing, depriving Employer of the opportunity to submit rebuttal in
compliance with the 20-day rule, the court reasoned that it was incumbent upon the ALJ
to permit Employer the opportunity to (1) submit a post-hearing rebuttal opinion and (2)
cross-examine Claimants physician. The court further determined that permitting the
rebuttal evidence would not result in the spector of a never ending series of rebuttals
because, pursuant to 5 U.S.C. § 556(d), the ALJ may exclude irrelevant, immaterial or
unduly repetitious evidence. North American Coal Co. v. Miller, 870 F.2d 114, 12
B.L.R. 2-222 (3rd Cir. 1989).
d.
Evidence was unknown or unavailable prior to hearing
due to opposing partys failure to cooperate
It was an abuse of discretion for the ALJ to refuse a physicians post-hearing
deposition wherein he commented on additional medical evidence that was unknown
prior to the hearing. In particular, the Board noted that the opposing party failed to fully
answer interrogatories. Due process would be satisfied in permitting the post-hearing
deposition because the opposing party would have an opportunity to cross-examine the
physician during the deposition. Lee v. Drummond Coal Co., 6 B.L.R. 1-544 (1983).
Last Revised: 3/2/2005
21
VII. Due process
A.
Notice required for transfer of case to another ALJ
1.
On remand
A de novo hearing was required on grounds that the parties procedural due
process rights were violated because: (1) notice that the case was reassigned on remand
was not given until the decision and order on remand was issued; and (2) the parties were
not given an opportunity to express any objections about the transfer of the case or to
request a new hearing. McRoy v. Peabody Coal Co., 11 B.L.R. 1-107 (1987). However,
the Board limited McRoy to its facts and held that where credibility of witnesses is not at
issue, a substituted ALJ need not hold a de novo hearing on remand. Edmiston v. F&R
Coal Co., 14 B.L.R. 1-65 (1990).
In Strantz v. Director, OWCP, 3 B.LR. 1-431 (1981), the Board held that,
pursuant to 5 U.S.C. § 554(d), the same administrative law judge who heard the case the
first time should hear the case on remand unless he is unavailable. If an ALJ is
unavailable, then the parties must be notified, and they should be given an opportunity
to express any objections to the transfer of the case to another administrative law judge or
request a de novo hearing. A new hearing should be held if witness credibility is at
issue.
2.
On modification
In Cunningham v. Island Creek Coal Co., 144 F.3d 388 (6th Cir. 1998), the court
held that, because the original decidi
ng ALJ was no longer with the agency, a
modification case was properly reassigned to another ALJ after notice was provided to
the parties. Claimant argued that it was error to change the ALJ assigned to his case
during the pendency of his proceeding. The court cited to 29 C.F.R. § 18.30 which
authorizes the Chief ALJ to reassign a claim where the original deciding judge is no
longer available. It then concluded that [a]s no party objected to the reassignment after
notice and because the proper procedures
for reassignment were followed, we find no
merit in Cunninghams argument.
B.
Timely notice; opportunity to fully present case
For a discussion of timely notice regarding conducting and submitting
depositions, see Part VI of this Chapter.
1.
Presentation of evidence
a.
Copy of opposing partys evidence
Procedural due process requi
res that interested parties
be notified of the pendency
of an action and afforded the opportunity to present objections. The Board held that,
Last Revised: 3/2/2005
22
although Claimant failed to serve Employer with an autopsy report after the record was
reopened, the ALJ did send it to Employer. The Board concluded that service of the
autopsy report by the administrative law judge provided employer adequate notice of the
pending admission of the autopsy report. The Board further stated that [a] party may
waive its right to cross-examine an opponents medical evidence by failure to object to
the proffered evidence and it was acceptable for the ALJ to conclude that Employer
waived its objection to admission of the autopsy report because Employer failed to object
before the ALJ issued a decision. Gladden v. Eastern Assoc. Coal Corp., 7 B.L.R. 1-577,
1-579 (1984).
b.
Expert witness testimony
Although Claimant served proper notice on the Director that Claimant would
present the testimony of his treating physician, the Director objected, arguing that he did
not know the physician intended to testify regarding 1983 examinations of Claimant. The
Board accepted an interlocutory appeal in the case and concluded that the ALJ properly
admitted the testimony of the physician.
Morgan v. Director, OWCP
, 8 B.L.R. 1-491, 1-
494 (1986).
Testimony of an expert witness presented at the hearing was stricken because of
the proponents failure to give actual notice to the other parties at least ten days in
advance of the hearing pursuant to § 725.457(a). Claimant presented expert physician
witness testimony at the hearing and the Director, who was not present at the hearing and
was not notified that the physician would be testifying, filed a motion to strike which the
ALJ should have sustained. Hamric v. Director, OWCP, 6 B.L.R. 1-1091 (1984).
c.
Failure to notify representative of examination;
evidence excluded
The ALJ properly refused to admit a non-qualifying blood gas study offered by
Employer because the study was scheduled by Carrier without notifying Claimants
counsel. Although Employer provided more than 20 days notice of its intent to proffer
the evidence at the hearing, the ALJ concluded that the procuring of the blood gas study
without first notifying claimants attorney effectively circumvented claimants right to
legal representation in contravention of 20 C.F.R. § 725.364. It was also proper for the
ALJ to deny Employer the opportunity to acquire another blood gas study because, under
§ 725.455, the ALJ was under no affirmative duty to seek out and receive all relevant
evidence. McFarland v. Peabody Coal Co., 8 B.L.R. 1-163, 1-165 (1985).
2.
Notice to carrier
Due process requires that an insurance carrier be given written notice of a black
lung claim prior to the administrative adjudication of the claim affecting the carriers
liability.
Warner Coal Co. v. Director, OWCP
[Warman], 804 F.2d 346, 11 B.L.R. 2-62
(6th Cir. 1986). See also Natl Mines Corp. v. Carroll, 64 F.3d 135 (3rd Cir. 1995); Tazco,
Last Revised: 3/2/2005
23
Inc. v. Director, OWCP
, 895 F.2d 949 (4
th
Cir. 1990); Caudill Construction Co. v. Abner,
679 F.2d 1086, 12 B.L.R. 2-335, 2-338 (6th Cir. 1989).
3.
Delay in notice of liability
Employer alleged that a five year delay in receiving notification of its potential
liability from the date the claim was filed prevented it from obtaining a physicians
report. The court held that the DOL followed its regulations in notifying Employer of its
liability and that Employer was not unduly prejudiced because the ALJ found the report
unpersuasive. The court further held that [t]he operator did have ample opportunity to
defend against the claims at issue. Peabody Coal Co. v. Holskey, 888 F.2d 440, 13
B.L.R. 2-95 (6th Cir. 1989).
For additional discussion of the consequences of a delay in notifying a potentially
responsible operator or carrier of liability or losing parts of a record, see Chapter 7:
Designation of Responsible Operator.
C.
Issuance of decision and order
The Sixth Circuit held that, even though notice of an ALJs adverse decision had
not been sent to Claimants attorney, the attorney had actual notice of the decision and,
therefore, the defect in notice would not toll the 30-day period for filing an appeal.
Claimant was hospitalized when his wife signed for the certified letter and advised the
attorney of the decision. Wellman v. Director, OWCP, 706 F.2d 191 and 193, 5 B.L.R. 2-
81, 2-83 (6th Cir. 1983).
The Third Circuit also held that, where Employers counsel was not served with
the district directors award, but had actual knowledge of the decision and did not file a
controversion, the 30-day period for filing such a controversion was not tolled.
Pothering v. Parkson Coal Co., 861 F.2d 1321, 1329, 12 B.L.R. 2-60, 2-72 and 2-73 (3d
Cir. 1988). However, the Third Circuit concluded that, where an attorney was not served
with the ALJs decision and where he did not have actual notice of the decision, the 30-
day time period from the date the decision was filed with the district director was tolled.
Patton v. Director, OWCP, 763 F.2d 553, 560, 7 B.L.R. 2-216, 2-227 and 2-228 (3d Cir.
1985).
For additional discussion of actual receipt of a decision, see the discussion on
circuit court jurisdiction at Chapter 1: Introduction to the Claims Process and
Research Tools.
VIII. Expert witness testimony
Pursuant to § 725.457(a), [a]ny party who intends to present the testimony of an
expert witness at a hearing shall so notify all other parties to the claim at least 10 days
before the hearing. The regulation provides that failure to give notice of the
appearance of an expert witness in accordance with this paragraph, unless notice is
Last Revised: 3/2/2005
24
waived by all parties, shall preclude the presentation of testimony by such expert
witness. 20 C.F.R. § 725.457(a). See Part VI of this Chapter for submission of expert
testimony by deposition.
A.
Actual notice of intent to present required
Testimony of an expert witness presented at the hearing was stricken because of
the proponents failure to give actual notice to the other parties at least ten days in
advance of the hearing pursuant to § 725.457(a) of the regulations. Claimant presented
expert physician witness testimony at the hearing and the Director, who was not present
at the hearing and was not notified that the physician would be testifying, filed a motion
to strike which the ALJ should have sustained. Hamric v. Director, OWCP, 6 B.L.R. 1-
1091 (1984).
B.
Expert witness provisions at § 725.457 inapplicable to expert
deposition testimony
Section 725.457 states, in part, that [a]ny party who intends to present the
testimony of an expert witness at a hearing shall so notify all other parties to the claim at
least 10 days before the hearing. The Board has held that 20 C.F.R. § 725.457(a)
applies only to the appearance by an expert witness at the hearing, not to the introduction
of deposition testimony at the hearing. A deposition taken five days before the hearing
did not deny due process to other parties who had received adequate notice of the
deposition pursuant to 20 C.F.R. § 725.458. Tucker v. Eastern Coal Corp., 6 B.L.R. 1-
743 (1984).
IX. Failure to attend hearing
Pursuant to 20 C.F.R. §§ 725.461(b) and 725.465, the unexcused failure of a party
to attend the hearing constitutes a waiver of the right to present evidence at the hearing
and may result in a dismissal of the claim. Dismissal is proper where Claimant and
Claimants representative fail to appear at the hearing absent a showing of good cause.
The ALJ is required to issue an order to show cause prior to dismissing the claim. See
e.g. Clevinger v. Regina Fuel Co., 8 B.L.R. 1-1 (1985) (no good cause established where:
(1) counsel stated that he had not received the notice of hearing ; (2) the ALJ noted that
counsel was present at prior hearings, which were scheduled in the same notice; and (3)
counsel failed to respond to the ALJs order to show cause).
A.
Physical ailment; ALJ to make every reasonable accommodation
If Claimant is physically unable to attend a hearing, the ALJ should make every
effort to obtain his or her testimony by deposition or by holding the hearing at a location
most convenient to Claimant, including Claimants home if s/he is bedridden. In this
vein, the Board held that it was improper for the ALJ to dismiss a claim as abandoned
where Claimants counsel advised him that Claimant recently underwent a cancer
Last Revised: 3/2/2005
25
operation and was unable to attend the hearing. Robertson v. Director, OWCP, 1 B.L.R.
1-932, 1-934 (1978).
The ALJ did not abuse his discretion in awarding benefits where Claimant failed
to attend the hearing because of a disabling stroke. Claimants wife, who testified at the
hearing, stated that the miners speech was impaired and he was confined to a wheelchair.
The ALJ then denied Employers motion that the claim be dismissed or denied.
Employer argued that it had a right to cross-examine the miner but did not have an
affirmative burden to obtain his deposition or testimony. The Board concluded
otherwise to find that the ALJ appropriately protected Employers interests by leaving the
record open for 45 days to allow Employer to secure Claimants testimony and develop
any further medical evidence. Chaney v. Sahara Coal Co., 10 B.L.R. 1-8, 1-10 (1987).
B. Consideration of clients age and illness before binding
client to acts of counsel
The Board concluded that the provisions at 20 C.F.R. § 725.461(b) are similar to
FRCP 41(b). It held that the rules reflect
a courts inherent authority to control its
docket, via dismissal, to manage the orderly and expeditious disposition of cases. The
Board further held that a dismissal may be reversed only for a clear abuse of discretion
and that a party is held to be responsible for the acts of its attorney. However, the Board
did find abuse of discretion and reversed the dismissal of a claim because the ALJ did not
consider Claimants age and illness before binding her to the acts of her counsel, who
failed to appear at the hearing. Moreover, the Board noted that Claimant forwarded the
notice of hearing to her attorney expecting him to act and Claimants immediate response
to the order to show cause demonstrated that she was not attempting to delay the
proceeding. Howell v. Director, OWCP, 7 B.L.R. 1-259 (1984).
C.
ALJ properly proceeded with hearing despite claimants absence
The ALJ acted within his discretion in proceeding with a hearing despite
Claimants absence. Claimants right to participate fully at the hearing was adequately
protected where the ALJ allowed Claimant an opportunity to submit a sworn statement in
lieu of live testimony within 30
days of the hearing. The Bo
ard also concluded that the
ALJ did not abuse his discretion in denying Claimants third request for a continuance.
Wagner v. Beltrami Enterprises, 16 B.L.R. 1-65 (1990).
D.
Error to dismiss claim for failure to attend hearing where Director
objected and payments were being made by Trust Fund
Neither Claimant nor her attorney appeared at the scheduled hearing and, by
telephone, the ALJ was advised that Claimant did not wish to pursue her claim. The ALJ
then issued an order to show cause why the claim should not be dismissed. The Director
responded that it should be decided on the record without a hearing. Claimant also
submitted a letter to state that she did not wish to withdraw her claim; that she had no
further evidence to submit; and that she did not object to the submission of evidence by
Last Revised: 3/2/2005
26
Employer. The ALJ nevertheless dismissed the claim. An appeal was taken by the
Director who argued that the ALJ was without authority to dismiss the case over the
Directors objection where payments were being made from the Fund. The Board
agreed. The Board further held, however, that:
The employers argument that failure to dismiss the claim would
circumvent its right to a hearing is without merit. While the employer
does have a right to a hearing, 20 C.F.R. § 725.450, there is no
requirement that the claimant be present at such a hearing. Further, the
employer may seek a subpoena compelling the claimant to attend if it feels
that her testimony is necessary to protect its interests.
Palovich v. Bethlehem Mines Corp., 5 B.L.R. 1-70 (1982).
E.
Inadvertent delay; no waiver of appeal rights
Employers failure to attend the hearing did not result in a waiver of its appeal
rights to the Board where the attorney fully intended to appear, but car trouble precluded
his attendance. Kimmel v. Diamond Coal Co., 6 B.L.R. 1-288, 1-290, n.3 (1983).
X.
Fair hearing
Pursuant to 20 C.F.R. § 725.455(b), the ALJ is required to inquire fully into the
matters at issue and to receive, on motion, all relevant and material testimony and
documentary evidence. A full and fair hearing includes the opportunity to present a
claim or defense by way of argument, proof,
and cross-examination of witnesses. 5
U.S.C. § 556(d). Laughlin v. Director, OWCP, 1 B.L.R. 1-488, 1-493 (1973).
Procedural due process requires notice and an opportunity to be heard. Parties must be
allowed to fairly respond to evidence
and present their own case in full.
Judicial finality requires that claimants continue to pursue their claims or, if
appropriate, that the claims be unconditionally withdrawn or dismissed. As a result, the
Board concluded that orders, which held the claims in abeyance, were invalid because
they lacked judicial finality. Slone v. Wolf Creek Collieries, Inc., 10 B.L.R. 1-66, 1-70
(1987).
The ALJ properly determined that Claimant was not entitled to benefits because
the claim was abandoned as a result of Claimants failure to request a hearing within 60
days of the district directors denial or to petition for modification within one year of such
denial. Stephens v. Director, OWCP, 9 B.L.R. 1-227, 1-230 (1987).
Last Revised: 3/2/2005
27
A.
Impartiality required
1.
Conduct of the ALJ
Claimant was denied a fair hearing because [a]t a number of points during the
hearing, the administrative law judge expressed disbelief regarding claimants testimony
and substituted his own personal knowledge and experience in place of hearing
testimony. The Board further noted that the ALJ incorrectly accused Claimants counsel
of asking leading questions and impeded the examination of witnesses. Hutnick v.
Director, OWCP, 7 B.L.R. 1-326, 1-328 (1984).
2.
Treatment of witnesses
Claimant received a fair hearing despite the contention that both attorneys did not
stand an equal distance from Claimant while he testified. Claimant had difficulty hearing
and, as a result, Directors counsel was allowed to move closer to Claimant during
questioning. There was no indication from the record that Claimant was harassed,
intimidated,
prejudiced.
Casias v. Director, OWCP
, 6 B.L.R. 1-438, 1-445 (1993).
3.
Competency of witnesses
The ALJ did not err in failing to explore a witnesss mental capacity despite
contention that his speech impairment impeded his ability to testify because the ALJ
afforded the lay representative great latitude, the transcript did not indicate any mental
infirmity, and no formal objections to the witnesss mental qualifications were raised. In
this vein, the Board held that the fact-finder is in a better position than an appellate
tribunal to determine whether a witness is mentally capable of testifying and that the
ALJs determination will not be overturned unless it is clearly erroneous. Elswick v.
Eastern Assoc. Coal Corp., 2 B.L.R. 1-1016 (1980).
Under Shapell v. Director, OWCP, 7 B.L.R. 1-304 (1984), the ALJ must
determine the complexity of the legal and medical problems presented in the case and
must assess Claimants ability to comprehend the issues and participate actively in their
resolution. Factors to be considered include physical defects, age, formal education,
apparent intelligence and general knowledge.
B.
Right to oral hearing
1. On remand
a.
No oral hearing necessary; witness credibility
not dispositive
A motion for a new hearing is properly denied when witness credibility is not
dispositive. Berka v. North American Coal Corp., 8 B.L.R. 1-183, 1-184 (1985). See
also White v. Director, OWCP, 7 B.L.R. 1-348 (1984); Strantz v. Director, OWCP, 3
Last Revised: 3/2/2005
28
B.LR. 1-431, 1-433 (1981); Worrell v. Consolidation Coal Co., 8 B.L.R. 1-158, 1-160
(1985); Meholovitch v. Oglebay Norton Co., Case No. 85-3485 (6th Cir. May 9,
1986)(unpub.).
b.
New hearing required; witness credibility at issue
A new hearing is required if the credibility of witnesses is a crucial, important, or
controlling factor in resolving a factual dispute. Worrell, supra; White, supra; Strantz,
supra.
c.
Notice to parties
In Strantz v. Director, OWCP, 3 B.LR. 1-431 (1981), the Board held that,
pursuant to 5 U.S.C. § 554(d), the same administrative law judge who heard the case the
first time should hear the case on remand unless he is unavailable. If an ALJ is
unavailable, then the parties must be notified and be given an opportunity to express any
objections to the transfer of the case to another administrative law judge or request a de
novo hearing.
2.
Multiple claims under § 725.309
Pursuant to Lukman v. Director, OWCP, 896 F.2d 1248 (10th Cir. 1990) and
Dotson v. Director, OWCP, 14 B.L.R. 1-10 (1990)(en banc), the parties are entitled to an
oral hearing in a subsequent claim filed pursuant to 20 C.F.R. § 725.309 of the
regulations.
3.
Overpayment claims
Citing to Califano v. Yamasaki, 442 U.S. 682 (1979), the Board held that, in cases
where the waiver of recovery is not at issue, the district director may begin recoupment
prior to a hearing and decision concerning the amount of the overpayment.
Burnette v.
Director, OWCP, 14 B.L.R. 1-152 (1990).
C.
Waiver of hearing
1.
Waiver must be voluntary, intentional, and in writing
Pursuant to 20 C.F.R. § 725.461 (2001), [i]f all parties waive their right to
appear before the administrative law judge, it shall not be necessary for the administrative
law judge to give notice of, or conduct, an oral hearing.
A request for waiver of an oral hearing must be voluntary, intentional, and in
writing. Morgan v. Carbon Fuel Co., 3 B.R.B.S. 302, 307 (1976).
Last Revised: 3/2/2005
29
2.
Withdrawal of waiver of hearing
A waiver may be withdrawn for good cause at any time prior to mailing of
the decision in the claim pursuant to 20 C.F.R. § 725.461(a) (2001). However, the ALJ
may conduct a hearing despite the fact that the parties have agreed to a waiver, if s/he
determines that the appearance and testimony of witnesses would be of value. 20 C.F.R.
§ 725.461(a).
3.
Error to decide merits of
claim where hearing not waived
The ALJ erred in awarding benefits on the record under 20 C.F.R. Part 727 where
neither the Director nor Claimant requested a waiver of their right to a hearing in writing
pursuant to 20 C.F.R. § 725.461. The Board noted that, although Claimant advised the
ALJ in advance that he would not be able to attend, the Director submits that Claimants
unjustified failure to attend the hearing prejudicially deprived the Director of the right to
examine, and that claimants testimony is cruc
ial to the resolution of
the contested issue
of total disability. The Board remanded the claim for issuance of an order to show cause
why the claim should not be dismissed pursuant to 20 C.F.R. § 725.465(c), which
provides, in part, that [i]n any case where a dismissal of a claim, defense, or party is
sought, the administrative law j
udge shall issue an order to
show cause why the dismissal
should not be granted and afford all parties a reasonable time to respond to such order.
Churpak v. Director, OWCP, 9 B.L.R. 1-71, 1-72 and 1-73 (1986).
D.
Hearing limited to contested issues
Pursuant to 20 C.F.R. § 725.421(b), the district director is required to submit to
the ALJ a document setting forth the contested and uncontested issues in the claim, often
referred to as the CM-1025. Moreover, 20 C.F.R. § 725.463(a) provides that the
hearing is confined to the issues listed as contested or any other issue raised in writing
before the district director. The purpose of these regulatory provisions is to expedite
cases by ensuring that the parties are not surprised by new issues at the hearing, and to
force the parties to develop evidence prior to the hearing. Carpenter v. Eastern Assoc.
Coal Corp., 6 B.L.R. 1-784, 1-786 (1984). The Board has held that [i]ntent and notice
are important criteria to consider in applying 20 C.F.R. § 725.463(a) to permit or
prevent consideration of substantive issues. Chaffins v. Director, OWCP, 7 B.LR. 1-431
(1984).
For additional discussion of the issues to be adjudicated, see Chapter 26:
Motions.
Last Revised: 3/2/2005
30
XI. Hearsay
A.
Medical reports and testing
1. Elements of reliability
Medical reports that are
ex parte
may constitute substantial evidence provided
that certain safeguards are met. In Perales, the Supreme Court held that:
. . . a written report by a licensed physician who has examined the
claimant and who sets forth in his report his medical findings in his area of
competence may be received as evidence in a disability hearing and,
despite its hearsay character and an absence of cross-examination, and
despite the presence of opposing direct medical testimony and testimony
by the claimant himself, may constitute substantial evidence supportive of
a finding by the hearing examiner adverse to the claimant, when the
claimant has not exercised his right to subpoena the reporting physician
and thereby provide himself with the opportunity for cross-examination of
the physician.
Richardson v. Perales, 402 U.S. 389, 402 (1971).
The following factors must be considered in determining how much weight to
accord to a hearsay report: (1) whether the out-of-court declarant has an interest in the
result of the case; (2) whether the opposing party could have obtained the report prior to
the hearing and could have subpoenaed the declarant; (3) whether the report is internally
consistent on its face; and (4) whether the report is inherently reliable. See also U.S. Pipe
& Foundry Co. v. Webb, 595 F.2d 264, 2 B.L.R. 2-7 (5th Cir. 1979).
2. Reports based on physical examinations
Properly authenticated reports written by a licensed physician who has examined
the miner may be received as evidence at a hearing and, despite their hearsay character,
may constitute substantial evidence supportive of a finding. Hogarty v. Honeybrook
Mines, Inc., 3 B.R.B.S. 485 (1976).
3. Consultative reports
In Evosevich v. Consolidation Coal Co., 789 F.2d 1021, 9 B.L.R. 2-10 (3rd Cir.
1986), the Third Circuit held that a non-examining physicians report is admissible and
may constitute substantial evidence.
Last Revised: 3/2/2005
31
4. Results of objective testing
In Parsons v. Black Diamond Coal Co., 7 B.L.R. 1-236 (1984), the Board held
that x-ray, blood gas and pulmonary studies, and physicians reports are admissible over
hearsay objections. See also U.S. Pipe & Foundry Co. v. Webb, 595 F.2d 264, 2 B.L.R.
2-7 (5th Cir. 1979) (ex-parte physicians reports and x-ray readings constitute probative
evidence in black lung claims).
B. Affidavits
An affidavit regarding the length of coal mine employment is admissible despite
challenges based on its hearsay character.
Williams v. Black Diamond Coal Mining Co.
,
6 B.L.R. 1-188 (1983). See also White v. Douglas Van Dyke Coal Co., 6 B.L.R. 1-905,
1-908 n. 3 (1984).
C. Death of authoring physician
The ALJ erred in excluding a medical report as hearsay, where the deposed
physician was unavailable for cross-examination due to his death. The Board concluded
that the opposing party had a fair opportunity to counter the physicians findings and,
therefore, due process was satisfied. Fowler v. Freeman United Coal Mining Co., 7
B.L.R. 1-495 (1984), affd. sub. nom., Freeman United Coal Mining Co. v. Director,
OWCP [Fowler], Case No. 85-1013 (7th Cir. June 24, 1986)(unpub.).
D. Evidence that is lost or destroyed
Lost, destroyed, or otherwise unavailable x-ray studies of a deceased miner
should be handled under 20 C.F.R. § 718.102(d) (2001) as follows:
Where the chest X-ray of a deceased miner has been lost, destroyed, or is
otherwise unavailable, a report of the chest X-ray submitted by any party
shall be considered in conjunction with the claim.
20 C.F.R. § 718.102(d) (2001).
Where a miners autopsy slides were destroyed, the employers right to cross-
examine the prosector by means of deposition or hearing testimony satisfies its right to
procedural due process. Lewis v. Consolidation Coal Co., 15 B.L.R. 1-37 (1991)
(autopsy slides were destroyed prior to the date on which Employer was named as the
potential responsible operator but a full and fair hearing was not denied where
Employer could have deposed the prosector or had his report reviewed by other
physicians); Peabody Coal Co. v. Holskey, 888 F.2d 440, 13 B.L.R. 2-95 (6th Cir. 1989)
(Employer was not denied a fair hearing despite the fact that it was notified five years
after the miners death).
Last Revised: 3/2/2005
32
An x-ray re-reading was properly admitted even though the x-ray film was lost
because the opposing party could depose the reader, thus satisfying its right to cross-
examination. Specifically, the Board noted that employer was on notice for eight and
one-half months that the x-ray was missing and failed to avail itself of the opportunity to
depose the interpreting physician. Pulliam v. Drummond Coal Co., 7 B.L.R. 1-846
(1985).
XII. Judicial/Official notice
A.
Procedure used
In Pruitt v. Amax Coal Co., 7 B.L.R. 1-544, 1-546 (1984), the Board delineated
the procedures for taking official notice and stated the following:
The rules of official notice in administrative proceedings are more relaxed
than in common law courts. The mere fact that the determining body has
looked beyond the record proper does not invalidate its action unless
substantial prejudice is shown to result. (citation omitted). Although the
administrative law judge erred in failing to cite the B reader list as the
source of his information regarding Dr. Morgans qualifications, and the
parties should have been afforded a full opportunity to dispute his
qualifications, Casias v. Director, OWCP, 2 B.L.R. 1-259 (1979), the error
is harmless because Dr. Morgans name does, in fact, appear on the B
reader list and a contrary finding cannot be made on remand. (citations
omitted). Claimant has not shown that he was substantially prejudiced by
the administrative law judges action.
B.
Taking official notice of one expert but not another
expert constitutes error
It is noteworthy that, in Simpson v. Director, OWCP, 9 B.L.R. 1-99 (1986), the
record was silent with regard to the B-reader status of two
physicians. The ALJ erred in
taking official notice of the B-reader status of one of the physicians appearing on the B-
reader list without taking official notice of the other physicians name appearing on the
list. This resulted in the ALJ improperly according more weight to the x-ray
interpretation of one reader based upon his superior B-reader credentials which, as the
Board concluded, was substantially prejudicial to the opposing party.
C.
Examples of judicial/official notice
1.
Medical opinion; no judicial notice
A medical opinion is not a fact of which judicial notice may be taken. Grigg v.
Director, OWCP, 28 F.3d 416 (4th Cir. 1994).
Last Revised: 3/2/2005
33
2.
Unreliability of early Social Security records
In Calfee v. Director, OWCP, 8 B.L.R. 1-7, 1-9 (1985), the Board held that it was
proper for the ALJ to note that early social security records were not wholly reliable in
weighing Claimants testimonial evidenceand affidavits against such records.
3.
Dictionary of Occupational Titles
An ALJ may take judicial notice of the Dictionary of Occupational Titles (DOT)
provided s/he does so in accord with principles concerning the taking of judicial notice.
Citing to 29 C.F.R. § 18.45, 20 C.F.R. § 725.464, Fed. R. Evid. 201, and Echo v.
Director, OWCP, 744 F.2d 327, 6 B.L.R. 2-110 (3rd Cir. 1986), it appears that the Board
required that the ALJ give the parties notice and an opportunity to be heard regarding
taking judicial notice of the DOT. Onderko v. Director, OWCP, 14 B.L.R. 1-2 (1989)
In Snorton v. Zeigler Coal Co., 9 B.L.R. 1-106, 1-108 (1986), the Board held that
the ALJ erred in concluding that the miner engaged in heavy labor based upon the job
description contained in the DOT because the ALJ failed to comply with the
requirements for taking judicial notice.
4.
Directory of Medical Specialists
In Maddaleni v. The Pittsburgh & Midway Coal Mining Co., 14 B.L.R. 1-135
(1990), the Board held that the ALJ properly took judicial notice of the qualifications of
physicians as stated in the Directory of Medical Specialists. The Board noted that
[a]lthough claimant first became aware of the administrative law judges use of judicial
notice upon receipt of the administrative law judges Decision and Order on Remand,
claimant had an opportunity to contest the administrative law judges finding before the
Decision and Order became final by filing a motion for reconsideration with the
administrative law judge. The Board noted that Claimant did not argue that the
credentials noticed by the ALJ were inaccurate.
5.
Criminal conviction of a physician
In Boyd v. Clinchfield Coal Co., 46 F.3d 1122, 1995 WL 10226 (4th Cir. 1995)
(table), the Fourth Circuit held that it was proper for the ALJ to take judicial notice of Dr.
Vinod Modis criminal conviction. Moreover, citing to Adams v. Canada Coal Co., Case
No. 91-3706 (6th Cir. July 13, 1992)(unpublished) (the ALJ was obviously justified in
not crediting the testimony of Dr. Modi because of his conviction), the court upheld the
ALJs decision to accord no weight to Dr. Modis medical opinion in light of his
conviction for tax evasion. See also Chapter 3: Principles of Weighing Medical
Evidence.
Last Revised: 3/2/2005
34
XIII. Reassignment/transfer of cases
A.
Bias by original deciding judge
The Board holds that it has authority to order reassignment of a case to a different
ALJ on remand if it determines that the original deciding judge exhibited bias against one
of the parties. Cochran v. Consolidation Coal Co.
, 16 B.L.R. 1-101 (1992).
In Milburn Colliery Co. v. Director, OWCP [Hicks], 138 F.3d 524 (4th Cir. 1998),
the court held that, considering the numerous legal errors made by the original
administrative law judge, the claim should be reassigned to another ALJ on remand as it
requires a fresh look at the evidence, unprejudiced by the various out comes of the ALJs
and Boards orders below . . ..
B.
Unavailability of original deciding judge
1.
On remand
The Chief Administrative Law Judge properly assigned a case on remand to a new
ALJ without first giving Claimant notice. In this vein, the court held that:
This is not a case where the matter was simply referred to another ALJ.
Here, the original ALJ had left the agency, leaving remand as the only
option. As to the notice problem, 29 C.F.R. § 18.30 states that if an ALJ is
unavailable, the Chief ALJ may designate another administrative law
judge for the purposes of further hearing or appropriate action. No
notice, so as to allow additional hearings or submissions, is generally
required. New hearings are required only when the evaluation of
credibility is crucial to resolving the factual disputes involved. The Chief
ALJ, in his remand order in this case, stated that questions of credibility
were not controlling, and the claimant has not made any specific
arguments as to why such questions are controlling. The new ALJ, in
order to address the errors made by the first ALJ, simply had to evaluate
the evidence under a different standard. The Chief ALJ acted well within
his discretion when he appointed the new ALJ.
Fife v. Director, OWCP, 888 F.2d 365 (6th Cir. 1989).
In Strantz v. Director, OWCP, 3 B.L.R. 1-431 (1981), the Board held that,
pursuant to 5 U.S.C. § 554(d), the same administrative law judge who heard the case the
first time should hear the case on remand unless he is unavailable. If an ALJ is
unavailable, then the parties must be notified, and they should be given an opportunity
to express any objections to the transfer of the case to another administrative law judge or
request a de novo hearing. A new hearing should be held if credibility is at issue.
Last Revised: 3/2/2005
35
2.
On modification
In Cunningham v. Island Creek Coal Co., 144 F.3d 388 (6th Cir. 1998), the court
held that, because the original deciding ALJ was no longer with the agency, a
modification case was properly reassigned to another ALJ after notice was provided to
the parties. Claimant argued that it was error to change the ALJ assigned to his case
during the pendency of his proceeding. The court cited to 29 C.F.R. § 18.30 which
authorizes the Chief ALJ to reassign a claim where the original deciding judge is no
longer available. It then concluded that [a]s no party objected to the reassignment after
notice and because the proper procedures
for reassignment were followed, we find no
merit in Cunninghams argument.
XIV. Representatives
A.
Right to representation
The Board has held that, pursuant to 5 U.S.C. § 555(b) and the regulations at 20
C.F.R. §§ 725.362-725.364, Claimant has the right to be represented by counsel at the
hearing. Shapell v. Director, OWCP, 7 B.L.R. 1-304 (1984). A party may waive its right
to be represented. 20 C.F.R. § 725.362(b).
1.
The
pro se claimant
a.
Informing claimant of his or her rights
The ALJ must inform a pro se claimant of his or her right to be represented by
counsel of choice without charge. Moreover, pursuant to § 725.362(b), the ALJ must
determine whether a claimants lack of representation is knowing and voluntary. If a
claimant elects to proceed pro se, the ALJ, as an impartial adjudicator, has no special
obligation to develop the evidence to enhance a claimants case. Specifically, the Board
held that providing a full and fair hearing means that:
the administrative law judge has the responsibility to inform a pro se
claimant of his right to be represented by a representative of his choice, at
no cost to him, and to inquire whether claimant desires to proceed without
such representation. If so, the administrative law judge must proceed to
inform claimant of the issues in the case; allow claimant the opportunity to
admit evidence and to object to admission of the adversarys evidence;
and allow claimant the opportunity to provide testimony concerning
relevant issues.
Shapell v. Director, OWCP, 7 B.L.R. 1-304 at 1-306 and 1-307 (1984). In this vein, the
Board noted that although (1) Claimant agreed when the ALJ presumed Claimant
wished to proceed without counsel and (2) the ALJ then extensively questioned claimant
as to his coal mine employment and his medical problems, the ALJ nevertheless denied
the miner a fair hearing because:
Last Revised: 3/2/2005
36
The administrative law judge merely inquired as to whether claimant
wished to proceed pro se without informing him that he had a right to
representation and that he would suffer no economic loss as a result of
representation. The administrative law judge also failed to determine
whether claimants lack ofrepresentation was voluntary.
Id. at 1-307.
It is import
ant to note, however, that th
e Board remanded the case for
consideration of pending motions and for a he
aring but reject[ed] th
e parties requests
for a de novo hearing because the administrative law judge fully performed his duties
with respect to the conduct of the hearing itself and no party has asserted that a de novo
hearing is necessary to further develop any testimonial evidence. Id. at 1-308.
In Young v. Director, OWCP, BRB No. 97-1411 BLA (June 24, 1998)(unpub.),
the Board held, in a case arising in the Sixth Circuit involving a modification petition by
a pro se claimant, that it was error for the ALJ to deny Claimant a hearing and to
conclude that Claimant woul
d proceed without counsel. Sp
ecifically, the Board stated
the following:
Section 6(a) of the Administrative procedure Act . . . grants claimant the
right to be represented at the hearing. (Citations omitted).
. . .
In order to conduct a full and fair hearing, the Board has held that the
administrative law judge must inform a pro se claimant of his or her right
to be represented by a representative of his choice without cost to him and
inquire whether claimant desires to proceed without representation.
(Citations omitted). Furthermore, Section 725.362(b) requires that the
administrative law judge determine whether claimant has made a knowing
and voluntary waiver of his or her right to presentation. The
administrative law judge must then proceed to inform claimant of the
issues in the case, allow claimant the opportunity to admit evidence and to
object to the admission of the adversarys evidence, and allow claimant
the opportunity to provide testimony concerning relevant issues.
(Citations omitted).
The Board concluded that, because the ALJ denied the parties a hearing on modification
after determining that there were no issues involving witness credibility, he could not
adequately determine whether Claimant intended to voluntarily proceed with her claim in
pro se status. Moreover, the Board determined
that, because the ALJ issued an order to
show cause why a hearing was necessary to which Claimant failed to respond, the ALJ
improperly placed the burden on claimant to establish the necessity of a hearing.
Citing to 20 C.F.R. §§ 725.450 and 725.461(a) and Cunningham v. Island Creek Coal
Co., 144 F.3d 388 (6th Cir. 1998), the Board concluded that there had not been a valid
waiver of claimants rightto a hearing on modification.
Last Revised: 3/2/2005
37
b.
Claimants counsel fails
to appear at hearing;
whether to proceed
·
Proceeding is not per se error. In
Laughlin v. Director. OWCP
, 1 B.L.R. 1-488,
1-490 (1978), the Board held that, under the circumstances of that case, it was proper for
the ALJ to conduct the hearing where Claimant was unrepresented:
While denial of the right to be represented by retained counsel
would clearly be error, the fact that an administrative hearing was
conducted at a time when the claimant was unrepresented is not
error per se. Absent a clear showing of prejudice or unfairness in
the proceedings, the lack of counsel is not grounds for remand if
the claimant was fully informed of his right to be represented by
counsel and subsequently elects to proceed without representation.
·
Inquiring whether claimant wants to proceed. The ALJ acted properly, where
Claimant appeared for hearing but his counsel did not, in inquiring whether Claimant
wished to proceed after informing him of his rights with respect to the presentation of his
case. The ALJ left the record open for 20 days to permit Claimants counsel to offer
evidence, which he did not do. The ALJ, in deciding to proceed with the hearing, noted
that Claimant had: (1) traveled 400 miles to get to the hearing; (2) waited approximately
five years for the hearing to take place; and (3) agreed to proceed without counsel after
being asked on two occasions. Prater v. Clinchfield Coal Co., 12 B.L.R. 1-121, 1-123
(1989).
·
Determining whether claimant has capacity to proceed. It must be determined
that the pro se party has the capacity to represent himself or herself. The Board noted
that, upon review of the hearing transcript, [t]he claimant either attempted to object to
the introduction of some evidence, or did not understand what was being asked of him.
As a result, the Board determined that the ALJ committed error in proceeding with the
hearing. York v. Director, OWCP, 5 B.L.R. 1-833, 1-837 (1983), overruled on other
grounds, Shapell v. Director, OWCP, 7 B.L.R. 1-304 (1984).
Indeed, under Shapell v. Director, OWCP, 7 B.L.R. 1-304 (1984), the ALJ must
determine the complexity of the legal and medical problems presented in the case and
must assess Claimants ability to comprehend the issues and participate actively in their
resolution. Factors to be considered include physical defects, age, formal education,
apparent intelligence and general knowledge.
·
Leaving record open for post-hearing submissions. It is within the ALJs
discretion to proceed with a hearing despite the absence of Claimants counsel. The ALJ
acted properly by inquiring whether Claimant
wished to proceed without counsel after
fully informing Claimant of his rights with respect to the presentation of his case. The
ALJ also left the record open for the submission of post-hearing evidence by counsel.
The Board concluded that, pursuant to 20 C.F.R. § 724.454(a), counsel failed to provide
ten days notice of his request for continuance and that his scheduling conflict did not
Last Revised: 3/2/2005
38
constitute good cause to grant a continuance. In particular, counsel notified the ALJ of
a scheduling conflict 20 minutes after the hearing was to start. In denying the
continuance, the ALJ noted that Claimant had: (1) traveled 400 miles to the hearing
location; (2) waited five hours for the hearing to commence; and (3) chose to proceed
without counsel when asked on two occasions. Prater v. Clinchfield Coal Co., 12 B.L.R.
1-121 (1989).
2.
Claimant fails to appear at hearing
The ALJ erred in awarding benefits on the record under 20 C.F.R. Part 727 where
neither the Director nor Claimant requested a waiver of their right to a hearing in writing
pursuant to 20 C.F.R. § 725.461. The Board noted that, although Claimant advised the
ALJ in advance of the hearing that he would not be able to attend, the Director
submit(ted) that Claimants unjustified failure to attend the hearing prejudicially deprived
the Director of the right to examine, and that claimants testimony (was) crucial to the
resolution of the contested issue of total disability. The Board remanded the claim for
issuance of an order to show cause why it should not be dismissed pursuant to §
725.465(c) which provides, in part, that [i]n any case where a dismissal of a claim,
defense, or party is sought, the administrative law judge shall issue an order to show
cause why the dismissal should not be granted and afford all parties a reasonable time to
respond to such order. Churpak v. Director, OWCP, 9 B.L.R. 1-71, 1-72 and 1-73
(1986).
B.
Disqualification of representative; appearance of impropriety
Pursuant to 29 C.F.R. §§ 18.34(g)(3)
nd 18.36, an administrative law judge may
disqualify counsel for conflicts of interest or conduct prohibited by the applicable rules of
professional conduct. Baroumes v. Eagle Marine Services, 23 B.R.B.S. 80 (1989). See
also Smiley v. Director, OWCP, 984 F.2d 278 (9th Cir. 1993) (attorneys dual
representation of claimant and, in an unrelated matter, the carrier who would pay
judgment in claimants favor). These regulations require the ALJ to give the parties
notice and an opportunity to be heard regarding the disqualification of a representative.
It gave
appearance of impropriety wh
ere Claimant was represented by his son,
a DOL-ESA-OWCP employee. However, the Board did not conclude that it was error
for the ALJ to permit the representation where the sons supervisor approved of the
representation and directed that no fees could be awarded to him in the event that
Claimant prevailed. Hayes v. Director, OWCP, 11 B.L.R. 1-20, 1-22 (1987).
C.
Party bound by acts of representative
Generally, a party is bound by the acts of its attorney. Where Employers counsel
failed to timely comply with the Boards filing requirements, Employers appeal was
properly dismissed with prejudice. The Sixth Circuit stated that the fact that counsel
may have been engaged in four thousand similar black lung cases and error-free in forty
previous appeals is not persuasive. The court found that Employer had received due
Last Revised: 3/2/2005
39
process in so far as both the district director and the administrative law judge had
reviewed the claim. Consolidation Coal Co. v. Gooding, 703 F.2d 230, 233 (6th Cir.
1983).
Claimants argument that the inadequate performance of his counsel deprived him
of the right to participate fully in the hearing was rejected. The Fourth Circuit reasoned
that: (1) Claimant freely selected his attorney; (2) the attorney appeared with him at the
hearing; (3) the ALJ appeared impartial; and (4) the record did not support a finding that
the performance of counsel at the hearing was inadequate. Collins v. Director, OWCP,
795 F.2d 368, 375, 9 B.L.R. 2-58, 2-63 (4th Cir. 1986).
On the other hand, the extreme sanction of dismissal with prejudice is not
appropriate without consideration of the clients conduct before binding him or her to the
attorneys misfeasance. In this vein, the Board concluded that the ALJ erred in
dismissing a claim where Claimant did not attend the hearing due to illness. Claimant
advised her counsel who, in turn, failed to request a continuance or provide reasons for
Claimants failure to appear. The Board concluded that a rule permitting dismissal for
want of prosecution:
. . . cannot be mechanically applied to punish a party for the acts of his
attorney. Dismissal with prejudice is an extreme sanction, and is
warranted only if a clear record of delay or contumacious conduct by the
plaintiff exist(s) . . . and a lesser sanction would not better serve the
interest of justice. (citation omitted).
Howell v. Director, OWCP, 7 B.L.R. 1-259, 1-262 (1983). The Board concluded that
dismissal was not proper because Claimant forwarded the hearing notice to her former
counsel expecting appropriate action to be taken. Further, Claimants prompt action in
responding to the show cause order by obtaining a new attorney and her overall pursuit of
her claim did not indicate an intent to delay. The Board further noted that the Director
made no claim of prejudice from the delay. Id. at 1-262 and 1-263. See also Link v.
Wabash, 370 U.S. 626, 630-31 (1962); McCargo v. Hedrick, 545 F.2d 393 (7th Cir.
1976); Reizakis v. Coy, 490 F.2d 1132 (4th Cir. 1974); Flaska v. Little River Marine
Construction Co., 389 F.2d 885 (5th Cir. 1968).
XV. Right of cross-examination
A.
Generally
In accordance with Richardson v. Perales, 402 U.S. 389, 401 (1971) and the
statutory provisions at 5 U.S.C. § 556(d), administrative proceedings must conform to the
requirements of the Fifth Amendment. Section 556(d) provides that [a] party is entitled
to present his case or defense by oral or documentary evidence, to submit rebuttal
evidence and to conduct such cross-examination as may be required for a full and true
disclosure of the facts.
Last Revised: 3/2/2005
40
B.
Waiver of right of cross-examination
The Director waived its right to present evidence challenging Claimants
entitlement to benefits when the Director did not contest entitlement at the hearing or on
reconsideration, but raised the issue for the first time before the Board. Kincell v.
Consolidation Coal Co., 9 B.L.R. 1-221, 1-223 (1986).
Employer waived its right to cross-examine the author of Claimants Exhibit 1
and its right to access to the chest x-ray in question both by its failure to request issuance
of a subpoena prior to or during the hearing and by its failure to object to the x-rays
submission into evidence at the hearing. The ALJ acted properly not only in admitting
Claimants Exhibit 1 into evidence, but also in denying Employers motion for
reconsideration and in refusing to reopen the hearing record. Hoffman v. Peabody Coal
Co., 4 B.L.R. 1-52 (1981) (it is noteworthy, that Claimants Exhibit 1 contained a report
diagnosing complicated pneumoconiosis based upon an x-ray study that was available at
the time the case was pending before the district director and the exhibit was offered for
dmission into evidence in violation of the 20-day rule).
a
C.
Improper denial of right of cross-examination
1.
Delay in notifying em
ployer of potential liability
In Lane Hollow Coal Co. v. Director, OWCP [Lockhart], 137 F.3d 799 (4th Cir.
1998), the Fourth Circuit held that Employer was dismissed from the case and relieved of
liability for the payment of benefits where the extraordinary delay in notifying
[Employer] of its potential liability deprived it of a meaningful opportunity to defend
itself in violation of the Due Process Clause of the Fifth Amendment. The court set
forth the lengthy procedural history of the claim and found that [Employer] was finally
notified of the claim on April 6, 1992, seventeen years after notice could have been given
and eleven years after the regulations command that it be given. The court further noted
the following:
The problem here is not so much that Claimant died before notice to
[Employer], but rather that he died many years after such notice could and
should have been given. The government
s grossly inefficient handling of
the matterand not the random timing of deathdenied [Employer] the
opportunity to examine [Claimant].
(emphasis in original).
2.
Partys failure to cooperate during discovery
Employer was denied a full and fair hearing where it was deprived of the
opportunity to have x-rays re-read or physicians deposed due to Claimants lack of
consent. Kislak v. Rochester & Pittsburgh Coal Co., 2 B.L.R. 1-249 (1979).
Last Revised: 3/2/2005
41
D.
The 20-day rule for exchanging evidence and good cause
Central to providing a fair hearing is that each party must have notice and an
opportunity to be heard, which includes an opportunity to conduct cross examination.
The 20-day rule is the centerpiece requirement for submission of evidence in black lung
claims. The regulations at 20 C.F.R. § 725.456(b)(1) (2000) and (2001) provide that
evidence, which has not been submitted to the district director, may be received in
evidence subject to the objection of any party, if such evidence is sent to all other parties
at least 20 days before a hearing is held in connection with the claim.1 See Amorose v.
Director, OWCP, 7 B.L.R. 1-899 (1985) (a medical report submitted more than 20 days
prior to the hearing did not violate 20 C.F.R. § 725.446(b)(1)). This regulation is
designed to eliminate surprise and to afford the parties adequate time to prepare its case.
The ALJ has discretion to admit evidence that is not exchanged in compliance
with the 20-day rule if (1) the parties waive the 20-day requirement, or (2) good cause
is demonstrated as to why such evidence was not timely exchanged.
This section contains a discussion of the good cause standard as it relates to
exchanging evidence in compliance with the 20-day rule. For a discussion of the good
cause standard as it relates to admitting
evidence in excess of the limitations at 20
C.F.R. § 725.414 (2001), see Chapter 4: Limitations on Admission of Evidence.
1.
Requiring exchange of evidence more than 20 days
in advance of the hearing is permitted
In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-53 (2004) (en banc), the Board
concluded that it was proper for the ALJ to rule on claimants 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 ALJ 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 claimants late evidence.
2.
Exchange of evidence less
than 20 days prior to hearing
The regulations at 20 C.F.R. § 725.456(b)(2) direct that waiver or good cause
be established prior to admitting evidence not exchanged at least 20 days prior to hearing.
Specifically, the ALJ is required to make a finding that good cause exists under §
725.456(b)(2) before admitting late evidence. Jennings v. Brown Badgett, Inc., 9 B.L.R.
1
It is noteworthy that the ALJ is not considered a party. Specifically, the Board held that an ALJ
misapplied the 20-day rule when he excluded a physicians deposition that was properly exchanged
between Claimant and the Director solely because the ALJ had not received a copy of it 20 days prior to the
hearing. Luketich v. Director, OWCP, 8 B.L.R. 1-477 (1986).
Last Revised: 3/2/2005
42
1-94 (1986), revd 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 partys failure to comply with the 20
day rule. Conn v. White Deer Coal Co., 6 B.L.R. 1-979 (1984) (the ALJ 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 ALJ 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).
a.
Good cause not established
·
Unreasonable delay. Delay in obtaining evidence that was readily available does
not support a finding of good cause to allow the untimely evidence. Some examples
are:
-
Medical report 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);
-
Proper to disregard a medical opinion that was not exchanged in
accordance with the 20-day rule where counsel failed to submit while the
record was kept open. Kuchwara v Director, OWCP
, 7 B.L.R. 1-167
(1984);
-
In a similar vein, Employers 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).
·
Knowledge of contents of late evidence not determinative. 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).
·
Relevancy of late evidence not determinative. Good cause is not established
by mere reference to the relevancy of the evidence. The ALJ 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 ALJ
Last Revised: 3/2/2005
43
acknowledged that the opposing partys objection was technically correct, he
erroneously overruled it. Conn v. White Deer Coal Co., 6 B.L.R. 1-979 (1984).
b.
Good cause established
·
Evidence exchanged in connection with 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 claimants counsel reason to believe that
employers counsel already had a copy of the report. The Board noted that the ALJ 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 judges 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).
·
Evidence to be used for impeachment purposes. Pursuant to 20 C.F.R. §
725.456(b)(4) evidence is admissible, notwithstanding a violation of the 20-day rule if it
is used for impeachment purposes. The Board remanded a case for the ALJ to consider
whether a tape recording, which was not exchanged at least 20 days prior to the hearing,
was admissible for impeachment purposes unde
r § 725.456(b)(4). 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 physicians written report.
Bowman v. Clinchfield Coal Co., 15 B.L.R. 1-22 (1991).
·
Examination more than 20 days before hearing; report not available until
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 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.
Admission of late evidence;
must allow responsive evidence
If late evidence is admitted, the regulatory provisions at 20 C.F.R. §
725.456(b)(3) require that the record be left open for 30 days to permit the filing of
responsive evidence.
Last Revised: 3/2/2005
44
a.
Record must be left open for both parties
It is important to note that the record must remain open for both parties to submit
evidence. In Baggett v. Island Creek Coal Co., 6 B.L.R. 1-1311 (1984), the ALJ
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 ALJ 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.
b.
Failure to timely submit responsive evidence
waiver of right of cross-examination
Employer was afforded due process where the ALJ 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 ALJ properly left the record open for 30
days after the hearing pursuant to § 725.456(b)(3) 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).
4.
Admission of post-hearing evidence
a.
Evidence submitted after the hearing
While the ALJ 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 ALJ 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).
For the propriety of conducting post-hearing medical examinations or submitting
reports post-hearing, see Chapter 26: Motions. For submission of depositions post-
hearing, see Part VI of this Chapter.
-
Good cause established; responsive evidence. Where evidence is
admitted post-hearing, then the ALJ must allow submission of responsive
Last Revised: 3/2/2005
45
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 ALJ 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 th
e 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 ALJ determines that a post-
hearing affidavit regarding Claimants 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 ALJ reasonably concluded that fairness required the post-hearing
admission of x-ray evidence and that good
cause was implicitly found to exist.
Specifically, Claimants 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 ALJ generally
has broad discretion in dealing with the conduct of the hearing, but remanded the
case to state that:
Claimants submission of Dr. Mastines report just prior to the
deadline imposed by the 20-day rule for submitting documentary
evidence into the record, coupled with the administrative law
judges refusal to allow employer the opportunity to respond to
claimants introduction of the surprise evidence, constituted a
denial of employers 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 employers opportunity to respond does not
automatically include having Claimant re-examined.
The Board has held that, even though Claimant was examined shortly
before the 20-day deadline and 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, we hold that due pr
ocess 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).
Last Revised: 3/2/2005
46
-
Good cause not established. Generally, good cause to submit
evidence after the hearing will not be established if there was a delay in obtaining
the evidence. In Wagner v. Beltrami Enterprises, 16 B.L.R. 1-65 (1990), the
ALJs denial of Claimants request to develop and submit post-hearing evidence
was proper where Claimant had received a continuance of a prior hearing for this
purpose and where the evidence sought was not in Employers possession as
Claimant had argued.
The ALJ properly denied the Directors motion to keep the record open for
submission of additional evidence when the Director sought
to obtain medical
records from the VA Hospital where Claimant retired due to a medical disability.
The ALJ concluded that the Director had notice prior to the hearing that Claimant
retired because of a disability and that medical records existed for the disability.
Moreover, the Board concluded that 20 C.F.R. § 725.456(b)(2), requiring that
evidence not exchanged at least 20 days prior to the hearing be excluded absent a
showing of good cause or waiver, is applicable to the submission of post-hearing
evidence as well as to evidence offered during the hearing. The ALJ is under no
affirmative duty to secure all material and probative evidence . . .. Stephenson v.
Director, OWCP, 7 B.L.R. 1-212 (1984).
In Shertzer v. McNally Pittsburgh Manufacturing Co., BRB No. 97-1121
BLA (June 26, 1998) (unpub.), the Board held that the ALJ erred in admitting
evidence submitted on modification where the evidence was in existence at the
time the ALJ issued his original decision. Specifically, the Board concluded that
certain Directors Exhibits should not have been admitted as evidence on
modification because this evidence was in existence but was not made available
to the administrative law judge
the time the administ
rative law judge issued his
1994 Decision and Order. The Board stated that 20 C.F.R. § 725.456(d) and
Wilkes v. F&R Coal Co., 12 B.L.R. 1-1 (1988) mandate the exclusion of
withheld evidence in the absence of extraordinary circumstances.
In Thomas v. Freeman United Coal Mining Co., 6 B.L.R. 1-739 (1984),
the ALJ properly denied Claimants request to submit a physicians affidavit on
reconsideration regarding his cooperation and comprehension during a pulmonary
function study conducted five years earlier. The ALJ concluded that Claimant
failed to establish good cause as to why the evidence was not obtained earlier
and submitted in compliance with the 20-day rule. The Board noted that, rather
than timely requesting that the record remain open for submission of such
evidence, claimant did not obtain and attempt to submit (the physicians)
affidavit until after issuance of the administrative law judges decision denying
benefits.
Last Revised: 3/2/2005
47
b.
Evidence submitted on reconsideration
Admissibility of evidence submitted on reconsideration must be considered
pursuant to 20 C.F.R. § 725.456(b)(2), i.e. good cause must be established for failure to
submit it prior to the hearing in compliance with the 20-day rule. Hensley v. Grays Knob
Coal Co., 10 B.L.R. 1-88 (1987).
c.
Reopening the record for submission of evidence
It is within the judges 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), affd 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 ALJ 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).
-
Good cause established. One example where good cause to reopen
the record on remand is established involves a change in the legal standard. The
Board has held that the law in effect at
the time a decision
is rendered must be
applied by the ALJ. Berka v. North American Coal Corp., 8 B.L.R. 1-183 (1985);
Rapavi v. Youghiogheny & Ohio Coal Co., 7 B.L.R. 1-435 (1984).
In Toler v. Associated Coal Co., 12 B.L.R. 1-49 (1989)(en banc on recon.)
the Board concluded that
ALJ may
reopen the record on remand to accept
evidence addressing a new legal standard.
The Sixth Circuit has held that a substantive change in the law during the
pendency of a claim warrants reopening the record at the earliest possible time for
admission of evidence addressing the new standard. In Harlan Coal, the claim
was heard by an ALJ and, after the record closed, but before issuance of a
decision, the court issued York v. Benefits Review Bd., 819 F.2d 134 (6th Cir.
1987), which significantly changed the rebuttal standard at § 727.302(b)(2).
Thus, the court held that [f]undamental fairness requires that Harlan Bell be
granted an opportunity to address comprehensively the post-York standards.
Harlan Coal Co. v. Lemar, 904 F.2d 1042, 14 B.L.R. 2-1, 2-9 (6th Cir. 1990).
Similarly, in Peabody Coal Co. v. Director, OWCP [Ferguson], 140 F.3d
634 (6th Cir. 1998), the court held that the ALJ erred in failing to consider
evidence submitted by Employer on remand in support of § 727.203(b)(3)
rebuttal. Specifically, the ALJ declined to reopen the record and reconsider his
findings under subsection (b)(3) on remand because the Board explicitly
affirmed (his) finding and that there was no rebuttal under § 727.203(b)(3) of the
regulations. The Board agreed. The Sixth Circuit, however, reasoned that the
change in legal standard under subsection (b)(2) shifted emphasis to subsection
Last Revised: 3/2/2005
48
(b)(3) rebuttal. Indeed, the court noted that subsection (b)(3) became the less
stringent rebuttal provision of the two subsections and 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.
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 standard. 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).
-
Good cause not established. 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 ALJ found that the proffered evidence was vague and
unreliable). Moreover, good cause is not
established based on a premise that the
miners 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 ALJ was not bound to accept it, and the ALJ provided reasons
for not doing so; the Board noted that the evidence could be submitted on modification
before the district director).
XVI. Settlements and withdrawals of claims
A.
Settlement of black lung claim prohibited
Settlement of claims under the Black Lung Benefits Reform Act is prohibited.
Lodigan v. Central Industries, Inc., 7 B.L.R. 1-192 (1984).
Moreover, 20 C.F.R. § 725.365 states that no fee charged for services rendered to
a claimant shall be valid unless approved by the appropriate adjudication officer.
Moreover, no contract or agreement for a fee shall be valid. Goodloe v. Peabody Coal
Co., 19 B.L.R. 1-91 (1995). In this vein, the Board has held that contingent and
stipulated fee agreements are invalid. Wells v. Director, OWCP, 9 B.L.R. 1-63 (1986).
Last Revised: 3/2/2005
49
In Eifler v. Peabody Coal Co., 13 F.3d 236, 18 B.L.R. 2-86 (7th Cir. 1993), the
Seventh Circuit held that, even though attorneys fees may not be awarded before a final
compensation award is entered, a settlement of attorneys fees may be approved before
such a final award. Under the facts of Eifler, Claimants counsel withdrew her petition
for fees before the court stating that the parties had settled the claim for attorneys fees
for $13,000. The court examined the terms of the settlement and noted, in approving the
fee settlement, that [a]s for the amount of compensation, the settlement provides that not
a penny will come out of any award of compensation to Eifler. So he has nothing to
lose.
B.
Contingent withdrawal of controversion illegal
An agreement, stating that Employer will withdraw its controversion of
Claimants eligibility for medical benefits in return for Claimants 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.
Remand for payment of benefits proper;
withdrawal of controversion of issues
It is proper to accept the Directors 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).
D. Withdrawal of claim
The regulations at 20 C.F.R. § 725.306 (2001) provide that the ALJ may grant a
motion to withdraw a claim if it is in the best interests of the claimant. The following
factors should be considered: (1) whether the Trust Fund has made payments to Claimant
that have not been reimbursed (§ 725.306(a)(3) prohibits withdrawal if money is owed to
the Trust Fund); (2) whether the ALJ has authority to enter an order granting withdrawal
of the claim under 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); (3) whether granting a
withdrawal of the claim could jeopardize a claimants rights under 20 C.F.R. § 725.308
(2001) (the three year statute of limitations); and (4) whether granting a withdrawal
would be in the best interests of the claimant overall.
Example where withdrawal was not in claimants best interests. In Jonida
Trucking, Inc. v. Hunt, 124 F.3d 739 (6th Cir. 1997), Claimant was found entitled to
benefits, but refused payments from Employer, who was Claimants 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
Last Revised: 3/2/2005
50
Employer in its appeal of the Boards denial, 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 employees best in
terests are served by
allowing him to forfeit payments from the employer. The court further held that
Employer could not be relieved of its liability for failure to timely controvert on grounds
that it relied on Claimants mistaken representation that the Trust Fund would be held
liable for benefits. As a result, the court concluded that 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 Employer, a trucking
company, secure the payment of $150,000 in benefits pursuant to 20 C.F.R. § 725.606.
For further discussion of withdrawals of claims, see Chapter 26: Motions.
XVII. Stipulations
A.
Stipulation of fact
1.
Binding when received into evidence
Stipulations of fact are binding when received into evidence. Grigg v. Director,
OWCP, 28 F.3d 416 (4th Cir. 1994).
A stipulation of fact
is binding upon the parties
and upon the trier-of-fact. Nippes
v. Florence Mining Co., 12 B.L.R. 1-108 (1985).
2.
Stipulation against
pro se Claimants interest; not binding
In Wilson v. Youghiogheny and Ohio Coal Co., 8 B.L.R. 1-73 (1985), the Board
held that it was proper for the district director to list total disability as a contested issue
notwithstanding the fact that the pro se Claimant stated that he was not totally disabled.
In so holding, the Board reasoned that it was proper for the district director to implicitly
find that the stipulation was not in Claimants best interests.
B.
Parties cannot stipulate to legal effect of stipulated facts
The Board holds that [i]t is well-settled that the stipulations of parties with
respect to the legal effect of admitted facts are not binding on a court. An ALJ is not
bound by any agreement of counsel on a question of law. Casias v. Director, OWCP, 6
B.L.R. 1-438, 1-443 n. 7 (1983).
Last Revised: 3/2/2005
51
XVIII.
Subpoenas
A.
ALJ has subpoena power when case
pending before district director
In Maine v. Brady-Hamilton Stevedore Co., 18 B.R.B.S. 129 (1986), the Board
held that district directors do not possess the authority to issue subpoenas. The Board
stated that, [i]f a case is pending at the (district directors) level, and the issuance of a
subpoena becomes necessary, the parties may simply apply to the Office of the Chief
Administrative Law Judge for the proper adjudicatory officer to issue the appropriate
subpoena.
B.
Partys due process right limited to requesting subpoena
The ALJ did not violate Claimants right to due process by denying his request for
subpoenas. Claimants due process right to a subpoena is limited to a right to request the
subpoena. The ultimate issuance of the subpoena is a matter of the ALJs discretion.
Specifically, the ALJ concluded that the reasons for requesting the subpoenas, including
obtaining the testimony of physicians who interpreted certain x-ray studies of record as
negative, were insufficient. Claimant had argued that the physicians attendance at the
hearing was necessary because responses to interrogatories would have been too
extensive. The Board held that the ALJ was not required to provide any further
explanation for his denial of Claimants subpoena request. Bowman v. Clinchfield Coal
Co., 15 B.L.R. 1-22 (1991). See also Souch v. Califano, 599 F.2d 577, 580 n. 5 (4th Cir.
1979).
C.
Party may be subpoenaed to attend hearing
Claimant has a right to a hearing, but s/he is not required to be present. The
opposing party may subpoena Claimant to appear where the opposing party deems
Claimants testimony necessary. Palovich v. Bethlehem Mines Corp., 5 B.L.R. 1-70, 1-
72 and 1-73 (1982).
XIX. Summary judgment
A.
Sua sponte authority to render summary judgment
1.
ALJ has authority
The ALJ has authority to issue orders of summary judgment sua sponte where the
parties have been given notice and an opportunity to respond. In this vein, the Board
concluded that FRCP 56, permitting sua sponte summary judgment orders by a judge,
applies to black lung proceedings because it is not inconsistent with 20 C.F.R. §
725.452(c). Under the facts of this case, the ALJ provided 100 days notice of the
hearings to be conducted and requested that the parties exchange evidence 40 days prior
to the hearing. Thirty days before the hearing the ALJ sua sponte issued an order to show
cause why the claims should not be denied based on the evidence received. The Board
Last Revised: 3/2/2005
52
held that the ALJ had authority to issue the order. However, it warned that such
deviation from standard procedures was strongly discouraged because of the negative
affect on the process. Smith v. Westmoreland Coal Co., 12 B.L.R. 1-39, 1-43 (1988),
affd. sub nom., Henshew v. Royal Coal Co.
, 871 F.2d 417 (4th Cir. 1989)(table).
2.
ALJ does not have authority
In Robbins v. Cyprus Cumberland Coal Co., 146 F.3d 425 (6th Cir. 1998), the
Sixth Circuit reiterated its position in Cunningham v. Island Creek Coal Co., 144 F.3d
388 (6th Cir. 1998) that an ALJ is required to hold an oral hearing on modification upon
request of a party. The Robbins court held the following:
A hearing is not necessary if all parties give written waiver of their rights
to a hearing and request a decision on the documentary record. (citation
and footnote omitted). The only other instance in the regulations which
permits a decision without holding a requested hearing is when a party
moves for summary judgment, and the ALJ determines that there is no
genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. See 20 C.F.R. § 725.452(c). As the Director
points out, [t]here is no regulatory provision which would permit an
administrative law judge to initiate summary judgment proceedings sua
sponte. (citation omitted).
B.
Unresolved factual issues; summary judgment inappropriate
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the ALJ must deny a
motion for summary judgment if there are unresolved factual issues. Specifically, the
ALJ may not decide whether a prior or successor operator is the responsible operator
where there is a factual issue of whether the successor operator actually gained control of
the mine. Montoya v. National King Coal Co., 10 B.L.R. 1-59, 1-61 (1986).
Last Revised: 3/2/2005