Seena Foster
Editor in Chief

Note: If a Chapter is not linked in this table of contents, there are no supplementary materials for that Chapter.

1	Introduction to the Claims Process
2	Introduction to the Medical Evidence
3	General Principles of Weighing Medical Evidence
4	Limitations on Admission of Evidence
5	What Is The Applicable Law?
6	Definition of Coal Miner and Length of Coal Mine Employment
7	Designation of Responsible Operator
8	Living Miners' Claims: Entitlement Under Part 410
9	Living Miners' Claims: Entitlement Under Section 410.490
10	Living Miners' Claims: Entitlement Under Part 727
11	Living Miners' Claims: Entitlement Under Part 718
12	Introduction to Survivors' Claims
13	Survivors' Claims: Entitlement Under Part 410
14	Survivors' Claims: Entitlement Under § 410.490
15	Survivors' Claims: Entitlement Under Part 727
16	Survivors' Claims: Entitlement Under Part 718
17	Onset, Augmentation, Termination, and Interest
18	Overpayment, Waiver, and Recovery
19	Medical Benefits Only
20	Medical Treatment Dispute (BTD)
21	Interest on Past Due Medical Bills (BMI) and Penalties
22	Transfer of Liability to the Trust Fund
23	Petitions for Modification Under § 725.310
24	Multiple Claims Under § 725.309
25	Principles of Finality
26	Motions
27	Representative's Fees and Representation Issues



III. Chest roentgenogram evidence

   A. Physicians' qualifications

      1. Dually-qualified physicians

    In Zeigler Coal Co. v. Kelley, 112 F.3d 839, 842-43 (7th Cir. 1997), the court upheld the ALJ's decision to accord greater weight to the interpretation of a dually-qualified physician over the interpretation of a B-reader, who was not board-certified in radiology. See also Bethenergy Mines, Inc. v. Cunningham, Case No. 03-1561 (4th Cir. July 20, 2004)(unpub.); Peranich v. Director, OWCP, BRB No. 87-3158 BLA (Nov. 27, 1990) (unpub.) (it is proper to accord greater weight to the opinion of a dually-qualified physician over a physician who is a board-certified radiologist but not a B-reader).

   E. Film Quality

   In the Benchbook, the decision of Gober v. Reading Anthracite Co., 12 B.L.R. 1-67 (1988) is cited for the proposition that an interpretation may be accorded little weight if the film quality is "poor" or "unreadable." More accurately, the Board remanded the case for reconsideration where the ALJ credited the positive reading of an A-reader over a B-reader's finding that the film was of unacceptable quality. The Board was not persuaded by the ALJ's conclusion that the A-reader found the study readable and "'more likely than not' would have ordered another x-ray if the film quality was unacceptable." The Board stated the following:

We hold that the administrative law judge's rejection of (the B-reader's) re-reading was arbitrary. A radiologist's reading for film quality requires no explanation inasmuch as such conclusion can only indicate that the physician found the film to be unclear and of such poor quality from a visual perspective that it was not susceptible to expert interpretation. It is difficult to determine what further comments the administrative law judge would have required, and, how the administrative law judge could have utilized such comments, made by a medical expert, to gauge the credibility of the reader's assessment of the quality of the x-ray film.

Slip op. at 2. See also Peranich v. Director, OWCP, BRB No. 87-3158 BLA (Nov. 27, 1990) (unpub.) (the ALJ properly accorded greater weight to Dr. Greene's conclusion that the most recent x-ray was of unreadable film quality over Dr. Gill's positive interpretation of that film based on Dr. Greene's superior qualifications); Arch on the North Fork, Inc. v. Bolling, Case No. 97-3694 (6th Cir. Apr. 30, 1998) (the ALJ did not err in considering a physician's statement that his 0/1 interpretation of one film was due to poor film quality, but his reading of another film of superior quality was positive such that a preponderance of the studies demonstrated the presence of pneumoconiosis).

   If film quality is not noted on an interpretation, then the fact that a physician interprets the study sufficiently establishes that, in the absence of contrary proof, the film was of suitable quality to be read. Consolidation Coal Co. v. Director, OWCP [Chubb], 741 F.2d 968 (7th Cir. 1984).

VI. Medical reports

   B. Undocumented and unreasoned opinion of little or no probative value

   Failure to adequately address causation. In Cannelton Industries, Inc. v. Director, OWCP [Frye], Case No. 03-1232 (4th Cir. Apr. 5, 2004) (unpub.), the court concluded that the ALJ properly accorded less weight to the opinion of Dr. Forehand, who found that the miner was totally disabled due to smoking-induced bronchitis but failed to explain "how he eliminated (the miner's) nearly thirty years of exposure to coal mine dust as a possible cause" of the bronchitis. In affirming the ALJ, the court noted that "Dr. Forehand erred by assuming that the negative x-rays (underlying his opinion) necessarily ruled out that (the miner's) bronchitis was caused by coal mine dust . .

   Reversibility on pulmonary function testing; residual disability. In Consolidation Coal Co. v. Swiger, Case No. 03-1971 (4th Cir. May 11, 2004) (unpub.), the court upheld the ALJ's finding that reversibility of pulmonary function values after use of a bronchodilator does not rule out the presence of disabling coal workers' pneumoconiosis. In particular, the court noted the following:

All the experts agree that pneumoconiosis is a fixed condition and therefore any lung impairment caused by coal dust would not be susceptible to bronchodilator therapy. In this case, although Swiger's condition improved when given a bronchodilator, the fact that he experienced a disabling residual impairment suggested that a combination of factors was causing his pulmonary condition. As a trier of fact, the ALJ ‘must evaluate the evidence, weigh it, and draw his own conclusions.' (citation omitted). Therefore, the ALJ could rightfully conclude that the presence of the residual fully disabling impairment suggested that coal mine dust was a contributing cause of Swiger's condition. (citation omitted).

Slip op. at 8.

   C. Physicians' qualifications

       1. Treating physician

          b. After applicability of 20 C.F.R. Part 718 (2001)

    In Soubik v. Director, OWCP, 366 F.3d 226 (3rd Cir. 2004), the court held that the ALJ improperly accorded less weight to the treating physician's opinion that coal workers' pneumoconiosis was present. The court reasoned as follows:

The ALJ stated that he did not credit Dr. Karlavage's opinion as that of a treating physician because Dr. Karlavage had only seen Soubik three times over six months. That was, of course, three more times and six months more than Dr. Spagnolo saw him. So easily minimizing a treating physician's opinion in favor of a physician who has never laid eyes on the patient is not only indefensible on this record, it suggests an inappropriate predisposition to deny benefits. It is well-established in this circuit that treating physicians' opinions are assumed to be more valuable than those of non-treating physicians. Mancia v. Director, OWCP, 130 F.3d 579, 590-91 (3d Cir. 1997). The ALJ nevertheless ignored Dr. Karlavage's clinical expertise; an expertise derived from many years of diagnosing and treating coal miners' pulmonary problems. The ALJ did so without making any effort to explain why Dr. Spagnolo's board certification in pulmonary medicine was a more compelling credential than Dr. Karlavage's many years of ‘hands on' clinical training.

   D. Equivocal or vague conclusions

• Should "work in a dust-free environment"; not constitute finding of total disability. See White v. New White Coal Co., 23 B.L.R. 1-1 (2004).

   E. Physician's report based on premises contrary to ALJ's findings

    In Soubik v. Director, OWCP, 366 F.3d 226 (3rd Cir. 2004)¹ , the court held that a physician's failure to diagnose the presence of coal workers' pneumoconiosis would have an adverse effect on his or her ability to assess whether a miner's death was due to the disease. In Soubik, Dr. Spagnolo opined that, even if the miner suffered from pneumoconiosis, it would not have hastened his death. The court stated the following with regard to considering Dr. Spagnolo's opinion on the issue of causation:

Common sense suggests that it is usually exceedingly difficult for a doctor to properly assess the contribution, if any, of pneumoconiosis to a miner's death if he/she does not believe it was present. The ALJ did not explain why Dr. Spagnolo's opinion was entitled to such controlling weight despite Dr. Spagnolo's conclusion that Soubik did not have the disease that both parties agreed was present.

I. Limitations of documentary medical evidence

   C. Hospitalization and treatment records unaffected

   In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-__, BRB Nos. 03-0615 BLA and 03-0615 BLA- A (June 28, 2004) (en banc), the Board held that treatment records, containing multiple pulmonary function and blood gas studies that exceed the limitations at § 725.414, are properly admitted. This is so regardless of whether the records are offered by a claimant or an employer.

   D. "Good cause" standard for admitting evidence over limitations

   In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-__, BRB Nos. 03-0615 BLA and 03-0615 BLA-A (June 28, 2004) (en banc), the Board held that "good cause" was not established solely on grounds that "the excess evidence was relevant." The Board noted that Employer "did not explain why the admitted evidence of record was insufficient to distinguish IPS from coal workers' pneumoconiosis, or indicate how (additional medical evidence) would assist the physicians."

   F. CT-scans not limited under 20 C.F.R. § 725.414 (2001) [new]

   In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-__, BRB Nos. 03-0615 BLA and 03-0615 BLA-A (June 28, 2004) (en banc), the Board held that the evidentiary limitations at § 725.414 do not contain any restrictions on "other medical evidence" submitted under 20 C.F.R. § 718.107 (2001). In particular, it noted that there are no limitations on the submission of CT-scans as part of a party's affirmative case. However, the Board stated that "[i]f a party submits other medical evidence pursuant to Section 718.107, Section 725.414 provides that the opposing party may submit one physician's assessment of each piece of such evidence in rebuttal." 20 C.F.R. § 725.414(a)(2)(ii) and (a)(3)(ii) (2001).

   G. Evidence generated in conjunction with state claim [new]

   In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-__, BRB Nos. 03-0615 BLA and 03-0615 BLA-A (June 28, 2004) (en banc), the Board held that state claim medical evidence is properly excluded if it contains testing that exceeds the evidentiary limitations at § 725.414. In so holding, the Board noted that such records (1) "do not fall within the exception for hospitalization or treatment records," and (2) "they are not covered by the exception for prior federal black lung claim evidence" at 20 C.F.R. § 725.209(d)(1) (2001).

    H. Substitution of medical evidence [new]

   In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-__, BRB Nos. 03-0615 BLA and 03-0615 BLA-A (June 28, 2004) (en banc), once Employer designated two medical reports in support of its affirmative case, the ALJ did not abuse his discretion in refusing to permit Employer to withdraw one of the reports at the hearing and substitute the report of another physician. In this vein, the ALJ "reasonably considered claimant's objection that he had relied on employer's prior designation of its two medical reports in developing his medical evidence." On the other hand, the Board concluded that the ALJ properly allowed Employer to substitute Dr. Wiot's reading of an October 2002 x-ray study for that of Dr. Bellotte. In a footnote, the Board stated that "Claimant (did) not argue that he uniquely relied on Dr. Bellotte's reading in developing his rebuttal of the October 2, 2002 x-ray."

   I. Requiring identification of evidence more than 20 days prior to hearing [new]

    In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-__, BRB Nos. 03-0615 BLA and 03-0615 BLA-A (June 28, 2004) (en banc), the Board concluded that it was proper for the ALJ to "rule on claimant's motions to exclude and order employer to identify which items of evidence it would rely on as its affirmative case pursuant to Section 725.414(a)(3)(i)" more than 20 days in advance of the hearing "because claimant explained that he was unable to proceed with development of admissible evidence under Section 725.414 until his motions to exclude excess evidence were decided." The Board noted that the 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 claimant's late evidence."

   J. ALJ not required to retain proffered exhibits that are not admitted [new]

   In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-__, BRB Nos. 03-0615 BLA and 03-0615 BLA-A (June 28, 2004) (en banc), the Board held that an ALJ is not required to "retain the large number of excluded exhibits in the record." Citing to 20 C.F.R. §§ 725.456(b)(1) and 725.464 (2001) as well as 29 C.F.R. §§ 18.47 and 18.52(a), the Board concluded that the "procedural regulations do not impose a duty to associate with the record proffered exhibits that are not admitted as evidence."

   K. Data underlying medical opinion must be admissible [new]

    In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-__, BRB Nos. 03-0615 BLA and 03-0615 BLA-A (June 28, 2004) (en banc), the ALJ properly declined to consider one of two reports admitted as part of Employer's affirmative case. In particular, Dr. Bellotte issued a medical opinion based, in part, on his interpretation of a chest x-ray study. Because Employer opted not to utilize Dr. Bellotte's x-ray reading as one of the two permitted in its affirmative case, it was permissible not to consider Dr. Bellotte's medical opinion regarding the existence of pneumoconiosis. The ALJ found that the opinion was "inextricably tied to [Dr. Bellotte's] chest x-ray interpretation, which was previously excluded from the record." The Board concluded that any chest x-ray referenced in a medical report must be admissible. The Board further noted that "[t]he same restriction applies to a physician's testimony."

    The Board then noted that "[t]he regulations do not specify what is to be done with a medical report or testimony that references an inadmissible x-ray." However, it stated that "[r]eview of Dr. Bellotte's opinion reflects that his opinion regarding the absence of coal workers' pneumoconiosis was closely linked to his reading of the July 19, 2001 x-ray" such that the ALJ properly declined to consider it. In this vein, the Board held that the Seventh Circuit's holding in Peabody Coal Co. v. Durbin, 165 F.3d 1126 (7th Cir. 1999), requiring that an ALJ consider an expert medical opinion even if it was based on evidence outside the record, was inapplicable to claims arising under the amended regulations. In so holding, the Board noted that the Durbin court "emphasized the absence of any regulation imposing limits on expert testimony in black lung claims" in rendering its opinion at the time.

I. Limitation of documentary medical evidence

   D. "Good cause" standard for admitting evidence over limitations

[The following case is reported for instructive purposes]

   In Howard v. Valley Camp Coal Co., Case No. 03-1706 (4th Cir. Apr. 14, 2004) (unpub.), the court upheld the ALJ's exclusion of certain exhibits offered by Claimant stating that she did not establish "good cause" for failing to exchange the exhibits with Employer at least 20 days prior to the scheduled hearing. In this vein, the court noted that Claimant's counsel argued before the ALJ that he was not aware that he had the exhibits and he was not aware that the exhibits "weren't already in the record." The court concluded that "[a]s a matter of law, this explanation, which was tantamount to an admission of inattentiveness, was insufficient to establish ‘good cause' for failing to meet the deadline for exchange of documents not made part of the record before the district director."

VII. Address and phone numbers of circuit courts; jurisdiction

Name correction:
       Federal Circuit Court of Appeals
       Jan Horbaly, Clerk of the Court

III. The existence of pneumoconiosis

   A. "Pneumoconiosis" defined

       2. After applicability of 20 C.F.R. Part 718 (2001)

   In Midland Coal Co. v. Director, OWCP [Shores], 358 F.3d 486 (7th Cir. 2004), the court upheld application of the amended definition of "pneumoconiosis," i.e. that it is a latent and progressive disease. The court noted that the issue of "[w]hether pneumoconiosis . . . is a disease that can be latent and progressive is a scientific question," but the "Department of Labor's regulation reflects the agency's conclusion on that point" and the agency's regulation is entitled to deference. The court found that the regulation is designed to "prevent operators from claiming that pneumoconiosis is never latent and progressive." As a result, the court declined to require that Claimant present medical evidence that the miner's pneumoconiosis was "one of the particular kinds of pneumoconiosis that are likely to manifest latent and progressive forms."

    3. Evidence relevant to finding pneumoconiosis

       e. Pulmonary function studies not diagnose presence of pneumoconiosis

   In Consolidation Coal Co. v. Swiger, Case No. 03-1971 (4th Cir. May 11, 2004) (unpub.), the the ALJ discredited four out of five physicians rendering opinions in the case because they found no pneumoconiosis stating that the miner's "impairment was obstructive in nature." The court upheld the ALJ and noted that the definition of legal pneumoconiosis "may consist of an obstructive impairment." After reviewing comments of the physicians who stated, inter alia, that pneumoconiosis is associated with restrictive impairments and smoking is associated with obstructive impairments, the court concluded that such comments "supported the ALJ's findings that the employer's physicians were overwhelmingly focused on clinical rather than legal pneumoconiosis."

       f. Stipulations

    In Soubik v. Director, OWCP, 366 F.3d 226 (3rd Cir. 2004)² , the court held that the ALJ erred in finding no pneumoconiosis based on the medical opinion of Dr. Spagnolo, where the parties agreed that the disease was present. Citing to Scott v. Mason Coal Co., 289 F.3d 263, 269 (4th Cir. 2002), the Third Circuit agreed that "an ALJ may not credit a medical opinion stating that a claimant did not suffer from pneumoconiosis causing respiratory disability after the ALJ had already accepted the presence of pneumoconiosis unless the ALJ stated ‘specific and persuasive reasons' why he or she relied upon such an opinion." In this case, the ALJ did not offer "specific and persuasive reasons" for crediting Dr. Spagnolo's opinion.

    g. Admission against interest [new]

   In Johnson v. Royal Coal Co., 22 B.L.R. 1-132 (2002), Claimant served Requests for Admission on Employer and Director to which Employer responded and admitted certain matters, but remained silent on other matters, including the existence of pneumoconiosis and disability causation. The Director failed to respond. At the hearing, Employer's counsel withdrew controversion of all issues listed on the CM-1025 except the existence of pneumoconiosis and disability causation. At that time, Claimant's counsel "did not contend that employer had already admitted the existence of pneumoconiosis and that claimant's total disability is due to pneumoconiosis due to its failure to respond to claimant's request for an admission on these matters." The hearing proceeded on the merits.

    For the first time in its closing brief, Claimant argued that, pursuant to 29 C.F.R. § 18.20, Employer admitted the existence of pneumoconiosis as well as the etiology of Claimant's disability in failing to respond to requests for admissions on these issues. The Board upheld the ALJ's denial of benefits and concluded that the "statement of issues (on the CM-1025) prepared by the district director is of critical importance, as the regulations contemplate that this document will provide the road map for the hearing." The Board further stated the following:

The alleged admissions that claimant points to under 29 C.F.R. § 18.20 are in conflict with the issues listed on the Form CM-1025 pursuant to the black lung regulations, yet claimant does not explain his apparent assumption that the black lung procedures are trumped by 29 C.F.R. § 18.20 because of employer's technical error in drafting its response to the request for admissions.

Cross-reference: For possible application of collateral estoppel in a survivor's claim, see Chapter 25: Principles of Finality.

II. Qualifying for benefits

   A. Surviving spouse and surviving divorced spouse

      2. Spouse – dependency upon the miner

   In Lombardy v. Director, OWCP, 355 F.3d 211 (3rd Cir. 2004), the ALJ properly found that a surviving divorced spouse's reliance on social security benefits, deriving from the miner's employment, did not qualify her as a "dependent" of the miner for purposes of receiving black lung benefits. The court cited to Taylor v. Director, OWCP, 15 B.L.R. 1-4, 1-7 (1991) as well as Director, OWCP v. Ball, 826 F.2d 603 (7th Cir. 1987), Director, OWCP v. Hill, 831 F.2d 635 (6th Cir. 1987), and Director, OWCP v. Logan, 868 F.2d 285, 286 (8th Cir. 1989) to hold that Social Security benefits are not part of the miner's property and do not constitute a "contribution" to the survivor for purposes of establishing dependency under the Black Lung Benefits Act.

II. Standards of entitlement

   B. Survivor's claim filed prior to January 1, 1982 and there is no miner's claim or miner not found entitled to benefits as a result of claim filed prior to January 1, 1982

       2. Lay evidence

   In Soubik v. Director, OWCP, 366 F.3d 226 (3rd Cir. 2004)³ , the court stated that its decision in Hillibush v. Dep't. of Labor, 853 F.2d 197, 205 (3rd Cir. 1988) provides that the survivor may prove her claim using "medical evidence alone, non-medical evidence alone, or the combination of medical and non-medical evidence . . .." Thus, Hillibush required that the ALJ consider lay evidence in determining whether the miner had a pulmonary or respiratory impairment, but "[e]xpert testimony will usually be required to establish the necessary relationship between . . . observed indicia of pneumoconiosis and any underlying pathology." As a result, the court determined that it was error for the ALJ to accord less weight to a medical opinion because it was based, in part, on lay evidence.

III. Treatment related to the miner's black lung condition

   A. Burden of persuasion/production

      1. Prior to applicability of 20 C.F.R. Part 725 (2001)

• Fourth Circuit. In Lewis Coal Co. v. Director, OWCP [McCoy], 373 F.3d 570 (4th Cir. 2004), the court upheld the presumption set forth in Doris Coal Co. v. Director, OWCP, 938 F.2d 492, 494 (4th Cir. 1991).

I. Generally

   By unpublished decision in Bowman v. Director, OWCP, BRB No. 03-0720 BLA (Sept. 10, 2004), the Board held that an ALJ's "discretionary determination that the Director established good cause for the untimely submission of Dr. Green's report is not subject to modification because (the ALJ) was resolving a procedural matter that is not within the scope of issues that 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."

I. Generally

   A. Re-filing more than one year after prior denial

   In Midland Coal Co. v. Director, OWCP [Shores], 358 F.3d 486 (7th Cir. 2004), the court upheld application of the amended definition of "pneumoconiosis," i.e. that it is a latent and progressive disease. The court noted that the issue of "[w]hether pneumoconiosis . . . is a disease that can be latent and progressive is a scientific question," but the "Department of Labor's regulation reflects the agency's conclusion on that point" and the agency's regulation is entitled to deference. The court found that the regulation is designed to "prevent operators from claiming that pneumoconiosis is never latent and progressive." As a result, the court declined to require that Claimant present medical evidence that the miner's pneumoconiosis was "one of the particular kinds of pneumoconiosis that are likely to manifest latent and progressive forms."

   B. Survivors

   A petition for writ of certiorari was filed in Coleman v. Director, OWCP, 345 F.3d 861 (11th Cir. 2003). The Department maintains that certiorari should be denied because the court of appeals correctly upheld an ALJ's dismissal of a survivor's second duplicate claim under 20 C.F.R. § 725.309. The petitioning survivor counters that she was deprived of her constitutional due process rights because she did not receive adequate notice of the reason for denial of her previous claims by the district director.

IV. Proper review of the record

   A. Prior to applicability of 20 C.F.R. Part 725.309 (2001)-"material change in conditions"

   In U.S. Steel Mining Co. v. Director, OWCP [Jones], ___ F.3d ___, Case No. 02-00817 BLA-BRB (11th Cir. Sept. 28, 2004), the Eleventh Circuit adopted the "one element" standard for establishing a "material change in condition" as set forth by the Third, Fourth, and Eighth Circuit Courts of Appeals. The court further cited to the amended regulatory provisions at 20 C.F.R. § 725.309(d) (2001) with approval.

   In Grundy Mining Co. v. Director, OWCP [Flynn], 353 F.3d 467 (6th Cir. 2003), a multiple claim arising under the pre-amendment regulations at 20 C.F.R. § 725.309 (2000), the court reiterated that its decision in Sharondale Corp. v. Ross, 42 F.3d 993 (6th Cir. 1994) requires that the ALJ resolve two specific issues prior to finding a "material change" in a miner's condition: (1) whether the miner has presented evidence generated since the prior denial establishing an element of entitlement previously adjudicated against him; and (2) whether the newly submitted evidence differs "qualitatively" from evidence previously submitted. Specifically, the Flynn court held that "miners whose claims are governed by this Circuit's precedents must do more than satisfy the strict terms of the one-element test, but must also demonstrate that this change rests upon a qualitatively different evidentiary record." Once a "material change" is found, then the ALJ must review the entire record de novo to determine ultimate entitlement to benefits.

   In Flynn, the ALJ properly held that the miner demonstrated a "material change in conditions" based on a comparison of the restrictions listed in Dr. Martin Fitzhand's 1980 and 1984 medical reports. In the 1980 report, which was submitted with the first claim, Dr. Fitzhand determined that the miner could perform "mild activity at best"; whereas by 1984, in the second claim, Dr. Fitzhand opined that the miner could do "no more than sedentary activity." The ALJ reasonably noted that the miner's last coal mining job, although light-duty work, required more than sedentary activity. The court stated that this "downgraded assessment" was further supported by underlying objective testing, including physical examinations, pulmonary function studies, and blood gas studies. As a result, it upheld the ALJ's finding of "material change in conditions."

   In Midland Coal Co. v. Director, OWCP [Shores], 358 F.3d 486 (7th Cir. 2004), the circuit court found that Claimant established that he was totally disabled in the fourth claim, which was sufficient to find a "material change in conditions" since denial of his third claim.

By unpublished decision in McNally Pittsburgh Manufacturing Co. v. Director, OWCP, Case No. 03-9508 (10th Cir. Feb. 10, 2004), the court clarified its "material change" standard in Wyoming Fuel Co. v. Director, OWCP, 90 F.3d 1502, 1511 (10th cir. 1996) to state that "in order for an administrative law judge to determine whether a claimant establishes this necessary change in his or her physical conditions, the administrative law judge should determine whether evidence obtained after the prior denial demonstrates a material worsening of those elements found against the claimant." In the case before it, the miner filed a petition for modification of the district director's denial of his original claim. The claim was denied on modification and, after more than one year, the miner filed a second claim. The court determined that, when assessing whether a "material change in conditions" is established, the administrative law judge must use the date of denial of the original claim, not the date of denial on modification.

   B. After applicability of 20 C.F.R. Part 725.309 (2001)

       1. Establishing an element of entitlement previously denied

   In White v. New White Coal Co., 23 B.L.R. 1-1 (2004), the Board upheld the ALJ's denial of the miner's multiple claim on grounds that the miner failed to establish that he was totally disabled or that he suffered from pneumoconiosis. With regard to the elements of causation, the Board stated the following:

Although the administrative law judge did not render findings on the two other ‘requirements for entitlement,' . . . claimant has not raised any further allegations of error. We, therefore, affirm the administrative law judge's finding that this claim fails pursuant to Section 725.309 because claimant has not established that one of the applicable elements of entitlement has changed since the date of the denial of the prior claim . . ..

Slip op. at 7.

   C. Evidence withheld by opposing party in prior claim [new]

    In Cline v. Westmoreland Coal Co., 21 B.L.R. 1-69 (1997), the Board held that, in reviewing the evidence to determine whether a "material change in condition" is established, it was proper for the administrative law judge to refuse to consider evidence "in existence at the time the first claim was decided on grounds that such evidence ‘is not applicable in determining whether there has been a change in condition since the denial.'" The Board reasoned:

Claimant's argument that the first claim should be reopened since employer withheld the results of Dr. Zaldivar's report in violation of 20 C.F.R. § 725.414, which requires that all evidence be submitted to the district director when the case is pending before the district director . . . has no merit since Dr. Zaldivar's report was generated . . . when the case was before Judge Patton, not before the district director.

The Board indicated that Claimant could have requested a copy of the report pursuant to 29 C.F.R. § 18.18(b)(4) but did not do so. Slip op. at 4, n. 3. Claimant, during discovery, requested "medical information obtained by employer which employer did not intend to introduce into evidence and considered ‘privileged.'" The Board declined to find that Federal Rule of Civil Procedure 26(b)(4)(B) applied to black lung claims. Indeed, it determined that the federal procedural rules "for discovery do not apply to administrative proceedings, unless specifically provided by statute or regulation." However, 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." The Board further stated:

We reject, however, as overbroad, claimant's 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.

VI. Effect of the three-year statute of limitation

• Fourth Circuit. In Bethenergy Mines, Inc. v. Cunningham, Case No. 03-1561 (4th Cir. July 20, 2004) (unpub.), the court held that Employer waived its argument that the miner's claim was barred by the three year statute of limitations because Employer "stipulated at the first hearing before the ALJ that Cunningham's claim was timely." Notably, however, the court did not automatically conclude that the statute of limitations does not apply to subsequent claims filed under 20 C.F.R. 725.309. Compare Andryka v. Rochester & Pittsburgh Coal Co., 14 B.L.R. 1-34 (1990).

      In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-__, BRB Nos. 03-0615 BLA and 03-0615 BLA-A (June 28, 2004) (en banc), the Board declined to apply the three year statute of limitations to a subsequent claim filed under 20 C.F.R. § 725.309 (2001) in a case arising in the Fourth Circuit. Citing to its decision in Faulk v. Peabody Coal Co., 14 B.L.R. 1-18 (1990), the Board concluded that applying the statute of limitations only to an initial claim "satisfies the purpose of the statute of limitations by ensuring that employer is provided with notice of the current claim and of the potential for liability for future claims, in view of the progressive nature of pneumoconiosis."

• Sixth Circuit. In a case arising in the Sixth Circuit, Furgerson v. Jericol Mining, Inc., BRB Nos. 03-0798 BLA and 03-0798 BLA-A (Sept. 20, 2004), the Board vacated the ALJ's finding that a physician's opinion did not commence the running of the limitations period at 725.308 after applying Peabody Coal Co. v. Director, OWCP [Dukes], Case No. 01-3043 (6th Cir. Oct. 2, 2002)(unpub.). The Board held that it was improper for the ALJ to apply Dukes holding, to wit: the statute of limitations is not triggered by a medical determination submitted in conjunction with a claim that is ultimately denied as that opinion would be in error.⁴ Rather, the Board concluded that the published panel decision in Tennessee Consolidated Coal Co. v. Kirk, 264 F.3d 602 (6th Cir. 2001) was controlling and it directed that "the administrative law judge must determine if (the physician) rendered a well-reasoned diagnosis of total disability due to pneumoconiosis such that his report constitutes a ‘medical determination of total disability due to pneumoconiosis which has been communicated to the miner'" under § 725.308 of the regulations.

I. Appellate decisions

   C. Law of the case

    By unpublished decision in Mitchell v. Daniels Co., BRB Nos. 01-0364 BLA and 03-0134 BLA (Feb. 12, 2004), the Board held that the "law of the case" doctrine does not apply to a modification proceeding; rather, all judicially determined facts, including length of coal mine employment and designation of the proper responsible operator, must be reviewed de novo on modification. This is so even where the findings were previously affirmed by the Board on appeal.

III. Res judicata and collateral estoppel

   B. Collateral estoppel

      2. Examples of application

         f. Miner's and survivor's claims—existence of pneumoconiosis

   ? Prior award in miner's claim and no autopsy evidence.

• Citation update: Benefits Review Board. Collins v. Pond Creek Mining Co., 22 B.L.R. 1-229 (2003).
• Citation update: Third and Fourth Circuits; special considerations. Sturgill v. Old Ben Coal Co., 22 B.L.R. 1-315 (2003).
• Citation update: On appeal, in Howard v. Valley Camp Coal Co., Case No. 03-1706 (4th Cir. Apr. 14, 2004) (unpub.), the Fourth Circuit affirmed the decision of the Board and held that, because of an intervening change in the law, Employer was not collaterally estopped from re-litigating the existence of pneumoconiosis in a survivor's claim where benefits were awarded in the miner's earlier claim. Specifically, the court noted that, at the time benefits were awarded in the miner's claim, pneumoconiosis could be established under any one of the four methods set forth at 20 C.F.R. § 718.202(a)(1)-(4). Subsequently, however, the court issued Island Creek Coal Co. v. Compton, 211 F.3d 203 (4th Cir. 2003), which required that the fact-finder weigh evidence under all four methods together to determine the presence of pneumoconiosis. As a result, the court held that "the requirement of identicality of issues was not satisfied" in the survivor's claim due to this intervening change in the law.

[Additional case law has been added throughout this supplement chapter.]

II. Remand to the district director

   H. Further evidentiary development—not permitted unless evidence incomplete as to an issue

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

V. Motions for discovery and proffers of evidence

   B. Medical examinations

      1. Development of evidence

         a. District director's failure to act on request for medical examination

   The ALJ properly resolved confusion caused by the district director's failure to act on Claimant's request for a medical examination by permitting the development of additional evidence. Lefler v. Freeman United Coal Co., 6 B.L.R. 1-579, 1-580 and 1-581 (1983).

         b. Director has standing to contest issue of whether claimant provided with complete pulmonary examination

    The Director has standing to contest the issue of whether Claimant has been provided a complete pulmonary examination at the Department of Labor's expense. Hodges v. Bethenergy Mines, Inc., 18 B.L.R. 1-84 (1994).

         c. Notice of examination must be provided to claimant's representative

   Claimant's due process rights were violated where his representative was not served with notice, in contravention of 20 C.F.R. § 725.364, of the Director's request that Claimant undergo a medical examination. As a result, the Board struck the physician's report. Casias v. Director, OWCP, 6 B.L.R. 1-438, 1-444 (1983).

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

      2. Requiring post-hearing examination

          a. No "good faith" effort by employer to examine claimant at district director's level

   In Scott v. Bethlehem Steel Corp., 6 B.L.R. 1-760 (1984), the Board held that ALJ erred in requiring Claimant to submit to a post-hearing examination conducted by a physician of Employer's choice after determining that, while the claim was pending before the district director, Employer failed "to undertake a good faith effort to develop its evidence and, consequently, had waived its right to have . . . Claimant examined by a physician of its choice." See 20 C.F.R. § 725.414(e)(2). The Board stated:

The administrative law judge initially determined that the employer had failed to proffer any good reason why it had delayed for almost a year after being apprised of its potential benefits liability to schedule claimant for an examination.

. . .

Furthermore, while the fact that the employer did not intentionally obstruct the expedient processing and adjudication of (the) claim is certainly relevant to the issue of whether the employer had made a ‘good faith' effort to develop its evidence, that determination, in and of itself, is not sufficient to compel the claimant to submit to a physical exam conducted by employer's physician post-hearing.

Id. at 1-764.

   In Pruitt v. USX Corp., 14 B.L.R. 1-129 (1990), the Board held that Employer's failure to engage in "good faith" development of the evidence at the district director's level may result in a waiver of its right to have Claimant examined by a physician of its choice or to have Claimant's evidence reviewed by a physician of its choice. See also Hardisty v. Director, OWCP, 7 B.L.R. 1-322 (1984), aff'd., 776 F.2d 129, 8 B.L.R. 2-72 (7th Cir. 1985); Horn v. Jewell Ridge Coal Corp., 6 B.L.R. 1-933 (1984); Bertz v. Consolidation Coal Co., 6 B.L.R. 1-820 (1984).

   In Morris v. Freeman United Coal Mining Co., 8 B.L.R. 1-505 (1986), the Board held that, because Employer failed to contest the district director's denial of its request to have Claimant examined and took no further action in the two years prior to the hearing, the ALJ properly concluded that Employer waived its right to have Claimant examined.

          b. Proper to require post-hearing examination for purpose of filing evidence responsive to late evidence

   In Horn v. Jewell Ridge Coal Corp., 6 B.L.R. 1-933 (1984), Claimant contended that the ALJ improperly permitted Employer the opportunity to conduct a post-hearing examination. The Board noted that the ALJ admitted an x-ray interpretation offered by Claimant at the hearing, which was not exchanged in accordance with the 20-day rule. The Board found that the ALJ then properly left the record open for 60 days to permit Employer the opportunity to submit rebuttal evidence. It further determined that Employer had the right to have Claimant re-examined during this period and to submit the post-hearing report before the record closed.

   However, in Owens v. Jewell Smokeless Coal Corp., 14 B.LR. 1-47 (1990)(en banc), the Board concluded that an employer's opportunity to respond to evidence not exchanged in accordance with the 20-day rule does not automatically include having Claimant re-examined.

       3. ALJ ordered medical evaluation

          a. Evaluation/Remand is proper

• Record is incomplete. Before the ALJ can order any development of the record, s/he must make a determination that the record is incomplete as to one or more of the contested issues. Conn v. White Deer Coal Co., 6 B.L.R. 1-979 (1984).

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

     If the ALJ determines that the documentary evidence is incomplete with regard to an issue to be adjudicated, the claim may be remanded to the district director for further processing or the parties may be afforded reasonable time to submit such evidence pursuant to § 725.456(e). King v. Cannelton Industries, Inc., 8 B.L.R. 1-146, 1-148 (1985) (development of additional medical evidence is proper when the ALJ, questioning the validity of blood gas studies and seeking to learn more about Claimant's condition, permitted Employer the opportunity to obtain a post-hearing blood gas study and permitted Claimant 30 days to respond). Further, admission of a post-hearing examination of Claimant under § 725.456(e) was proper where the ALJ wanted to learn more about the effects of Claimant's back injury. Lefler v. Freeman United Coal Co., 6 B.L.R. 1-579 (1983).

• Department's obligation to provide complete pulmonary evaluation. The Board has held that the district director has the obligation of providing Claimant with a complete pulmonary examination in an original claim, or in subsequent claims filed under § 725.309 of the regulations. Hall v. Director, OWCP, 14 B.L.R. 1-51 (1990)(en banc). See also Pettry v. Director, OWCP, 14 B.L.R. 1-98 (1990)(en banc); Newman v. Director, OWCP, 745 F.2d 1162, 7 B.L.R. 2-25 (8th Cir. 1984).The Director must provide a medical opinion which addresses all elements of entitlement. Hodges v. Bethenergy Mines, Inc., 18 B.L.R. 1-84 (1994).

• Claimant did not cooperate in initial evaluation. The Board remanded a claim where the ALJ failed to discuss Claimant's refusal to attend a medical examination at Employer's request. The ALJ's finding that the issue was moot after concluding that the named Employer was not responsible for the payment of benefits was reversed, and the ALJ was required to address the issue on remand. Settlemoir v. Old Ben Coal Co., 9 B.L.R. 1-109 (1986).

     It was proper under § 725.456(e) for the ALJ to order Claimant to undergo a second Employer-procured examination where the pulmonary function study conducted as part of the first examination could not be interpreted due to Claimant's poor effort. Blackstone v. Clinchfield Coal Co., 10 B.L.R. 1-27 (1987).

     However, the Board has also held that Employer received a full and fair hearing despite the fact that the ALJ denied its Motion to Require Claimant's Cooperation on a Pulmonary Function Study. Employer argued that the record contained "ample evidence" that Claimant did not cooperate during a prior pulmonary function study. The Board held that Employer did not establish "substantial prejudice" as a result of the ruling because a nonqualifying study, even if valid, would not have sustained Employer's burden. Lafferty v. Cannelton Industries, Inc., 12 B.L.R. 1-190, 1-192 and 1-193 (1989).

          b. Failure to attend ALJ ordered medical examination

• Dismissal held to be proper. The ALJ may order Claimant to submit to a post    hearing physical examination and may dismiss a claim where the miner unreasonably fails to attend.

     In Goines v. Director, OWCP, 6 B.L.R. 1-897 (1984), Claimants refused to attend physical examinations, which were scheduled by the district director and ordered by the ALJ. In support of their refusal, Claimants submitted two physicians' opinions stating that, due to Claimants' poor health, further stress testing including x-ray studies and pulmonary function and blood gas studies "would be hazardous to the claimants and should be avoided." The Board affirmed the ALJ's requirement that Claimants undergo physical examinations, which did not include stress testing or x-ray studies, and it upheld the ALJ's dismissal of the claims based upon Claimants' failure to comply with his lawful orders.

• Dismissal improper; further evaluation contraindicated by treating physician. Dismissal was improper where testimony supported a treating physician's opinion that further blood gas testing was contraindicated. Thus, where Claimant's physician stated that further blood gas testing was not advisable due to Claimant's history of phlebitis and thrombosis, it was proper for the ALJ: (1) to decline to require Claimant to undergo such testing; and (2) to deny Employer's motion to dismiss for Claimant's failure to attend the examination. Bertz v. Consolidation Coal Co., 6 B.L.R. 1-820 (1984).

         c. Refusal to attend medical evaluation; refusal to cooperate

   In a claim arising under the pre-amended regulations, the Board held that Employer has a right to request a physical examination of Claimant in order to ensure a "full and fair hearing." The Board noted that Employer is not limited to only one examination or to an examination by the same physician. Thus, where the record revealed that the pulmonary function study could not be interpreted by Employer's physician due to poor effort, it was proper for the ALJ to order a second examination. Blackstone v. Clinchfield Coal Co., 10 B.L.R. 1-27, 1-29 (1987).

   Employer may have the miner examined more than once, either by the same physician or by different physicians of Employer's choosing. It is within the ALJ's discretion to compel Claimant to submit to a second Employer-procured examination. King v. Cannelton Industries, Inc., 8 B.L.R. 1-146 (1985), aff'd. mem., 811 F.2d 1505 (4th Cir. 1987) (it was proper for the ALJ to order Claimant to submit to further blood gas testing where the validity of testing already conducted was questioned; the ALJ properly left the record open to allow Claimant the opportunity to respond to the post-hearing blood gas study results).

      4. Post-hearing submission of medical evaluation

   For additional discussion on the submission of depositions, see Chapter 28: Rules of Procedure and Evidence.

   In Thomas v. Freeman United Coal Mining Co., 6 B.L.R. 1-739 (1984), the Board cited to the factors in Lee v. Drummond Coal Co., 6 B.L.R. 1-544 (1983) (admission of post-hearing depositions) as instructive on the issue of admission of post-hearing medical evaluations. Under Lee, post-hearing depositions may be obtained with the permission, and in the discretion, of the ALJ pursuant to § 725.458 of the regulations. The party taking the deposition "bears the burden of establishing the necessity of such evidence." Among the factors to consider in determining whether to admit post-hearing depositions are the following: (1) whether the proffered deposition would be probative, and not merely cumulative; (2) whether the party taking the deposition took reasonable steps to secure the evidence before the hearing or it is established that the evidence was unknown or unavailable at any earlier time; and (3) whether the evidence is reasonably necessary to ensure a fair hearing. Under the facts of Lee, the 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 physician's post-hearing deposition where he commented on additional medical evidence which was unknown prior to the hearing because the opposing party failed to fully answer interrogatories. Due process would be satisfied in permitting the post-hearing deposition as the opposing party would have an opportunity to cross-examine the physician during the deposition.

   Note, however, that submission of a post-hearing report based upon a pre-hearing medical examination is not necessarily in violation of the 20-day rule. The Board has held that, where Claimant was examined shortly before the 20-day deadline commenced to run, but the report was not available for submission until after the hearing, "good cause" was established for its submission. However, the Board also noted that "[b]ecause employer never received a copy of the report and because the administrative law judge appears to have been unaware of this fact when employer moved to close the record, we hold that 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).

           a. Properly admitted

• Evaluation occurred prior to hearing. "Good cause" was established when Claimant submitted a post-hearing report of a medical examination, which occurred more than 20 days prior to the hearing but where the report was not received until after the hearing. Due process was satisfied where the ALJ also gave Employer 60 days in which to submit responsive evidence. Pendleton v. U.S. Steel Corp., 6 B.L.R. 1-815 (1984).

• Responsive to evidence filed on eve of 20-day deadline. After the hearing, the ALJ properly admitted re-readings of x-rays by both the Director and Employer "in fairness" to the parties where Claimant's original reading was submitted in compliance with the 20-day rule by only a few days. Clark v. Karst-Robbins Coal Co., 12 B.L.R. 1-149 (1989)(en banc).

         b. Properly excluded

• Delay in obtaining evidence. Refusal to reopen the record is proper where Claimant did not establish "good cause" for failure to obtain a physician's affidavit earlier or to make a timely request that the record remain open. In applying the principles of Lee to admission of post-hearing documentary evidence, the Board held that the ALJ properly excluded a post-hearing affidavit from consideration where Claimant did not request that the record be left open for submission of the affidavit. The evidence was neither obtained, nor submitted, before the ALJ issued a decision denying benefits. Thomas v. Freeman United Coal Mining Co., 6 B.L.R. 1-739 (1984).

• Failure to timely request extension of time. The ALJ properly denied an untimely denied a request to submit evidence when the evidence could have been timely obtained. Haer v. Penn Pocahontas Coal Co., 1 B.L.R. 1-579 (1978) (the ALJ properly denied an untimely written request for extension of time to submit post-hearing evidence). See also Thomas v. Freeman United Coal Mining Co., 6 B.L.R. 1-739 (1984); Scott v. Bethlehem Steel Corp., 6 B.L.R. 1-760 (1984).

    5. Failure to consent to release of medical records; exclusion of evidence

   It is imperative that due process, i.e. notice and an opportunity to be heard, is observed. In Kislak v. Rochester & Pittsburgh Coal Co., 2 B.L.R. 1-249 (1979), the Board held that the ALJ improperly considered evidence which Employer could not review because the miner would not give his consent to a release of medical records.

X. Amend the list of contested issues (CM-1025) (revised)

   A. Issues listed on the CM-1025

      1. Limitation to scope of litigation

   The ALJ erred in permitting the Director, without reason, to litigate issues that were easily ascertainable while the case was pending before the district director, but were not checked as contested on referral by the district director. Thorton v. Director, OWCP, 8 B.L.R. 1-277, 1-280 (1985). See 20 C.F.R. § 725.463(b) (2000) and (2001).

   In Chaffins v. Director, OWCP, 7 B.LR. 1-431 (1984), the ALJ properly declined to consider the issue of length of coal mine employment where the Director merely argued that because of a clerical error, the issue was not "checked" on the CM-1025. The Director further stated that the issue had been raised in writing before the district director on prior occasions. The Board held:

[W]e squarely reject the implication of the Director's position on appeal; that he has no duty with respect to identifying the issues to be heard and that the administrative law judge and claimant must look behind the statement of contested issues in the chance that a clerical error was made in its preparation.

   Similarly, in Simpson v. Director, OWCP, 6 B.L.R. 1-49 (1983), the ALJ erred in considering whether Claimant suffered from pneumoconiosis, where the issue was not listed as contested. See also Perry v. Director, OWCP, 5 B.L.R. 1-527 (1982)(pneumoconiosis not listed as contested); Kott v. Director, OWCP, 17 B.L.R. 1-9 (1992) (error to deny benefits on grounds that Claimant failed to establish coal workers' pneumoconiosis where those issues were not listed as contested on the Form CM-1025); Mullins v. Director, OWCP, 11 B.L.R. 1-132 (1988)(en banc) (eligibility of survivor conceded if reasonably ascertainable at district director's level but not raised at that level by the opposing party).

   In an unpublished decision, Linton v. Director, OWCP, Case No. 85-3547 (3rd Cir. June 10, 1986)(unpub.), the Third Circuit held that Claimant could not raise the issue of an employer's failure to timely controvert the claim at the hearing because the issue was reasonably ascertainable while the case was pending before the district director.

       2. Permitting new issues to be added at hearing

          a. Raising a new issue

   If a new issue is presented at the hearing, the ALJ has the option of remanding the claim to the district director for consideration of the new issue or s/he may refuse to consider the issue at the hearing. Callor v. American Coal Co., 4 B.L.R. 1-687 (1982), aff'd. sub. nom., American Coal Co. v. Benefits Review Board, 738 F.2d 387, 6 B.L.R. 2-81 (10th Cir. 1984).

           b. Waive challenge to new issue

   In Grant v. Director, OWCP, 6 B.L.R. 1-619 (1983), Claimant waived his right to challenge litigation of issues not marked as contested because Claimant failed to object when the ALJ expressly stated the issues as those to be decided at the hearing. See also Prater v. Director, OWCP, 87 B.L.R. 1-461 (1986) (Claimant's counsel failed to object to Employer's motion to enlarge issues at the hearing).

   In Carpenter v. Eastern Assoc. Coal Corp., 6 B.L.R. 1-784 (1984), the ALJ properly decided certain medical issues, which were not listed as contested on the CM-1025, because the record supported a finding that both parties (1) developed medical evidence on the issues, and (2) were aware of each other's intent to litigate the issues.

      3. Amending contested issues while case pending before ALJ

   The regulatory provisions at § 725.463(b) permit new issues to be raised before the ALJ if they were not "reasonably ascertainable" while the claim was pending at the district director's level. In Thorton v. Director, OWCP, 8 B.L.R. 1-277 (1985), the ALJ erred in adjudicating issues raised one week before the hearing. The Board determined that the issues were ascertainable while the claim was pending before the district director.

   B. Error to conduct hearing where issues not specified or developed

   It is error for an ALJ to conduct a hearing where the issues were not specified by the district director. Indeed, the Board held that it is proper to remand a claim in accordance with § 725.456(e) to develop the evidence and identify contested issues prior to referral. Stidham v. Cabot Coal Co., 7 B.L.R. 1-97, 1-101 (1984).

   C. Error to decide issue that parties agreed not to litigate

   Fundamental fairness was violated and resulted in prejudicial error when an ALJ considered an issue which the parties had agreed not to litigate. Specifically, the Board reversed an ALJ's decision to consider length of coal mine employment where (1) it was not listed as an issue on the CM-1025, and (2) it was not submitted in writing to the district director. As a result, the Board concluded that Claimant was denied due process. Derry v. Director, OWCP, 6 B.L.R. 1-553, 1-555 (1983) (the parties stipulated to ten years of coal mine employment).

   In Kott v. Director, OWCP, 17 B.L.R. 1-9 (1992), the ALJ erred in determining that Claimant did not suffer from pneumoconiosis arising out of coal mine employment. Neither issue was marked as contested on the CM-1025 or raised in writing before the district director. The Board concluded that the Director conceded the issues of pneumoconiosis related to coal mine employment.

   D. Remand for payment of benefits; withdrawal of controversion of issues

   It is proper to accept the Director's Motion to Remand for the Payment of Benefits as a withdrawal of controversion of all issues. Pendley v. Director, OWCP, 13 B.L.R. 1-23 (1989)(en banc). However, an agreement, stating that Employer will withdraw its controversion of Claimant's eligibility for medical benefits in return for Claimant's agreement to first submit all future medical expenses to alternative health carriers is illegal. The agreement would deprive Claimant of protection afforded him under the regulations. 20 C.F.R. §§ 725.701-725.707. Gerzarowski v. Lehigh Valley Anthracite, Inc., 12 B.L.R. 1-62 (1988).

   E. Failure to file a 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 a claim. The Board adopted this holding in Krizner v. U.S. Steel Mining Co., 17 B.L.R. 1-31 (1992)(en banc), wherein it held that any party dissatisfied with the district director's determination on the issue of timeliness of filing a controversion or finding "good cause" for an untimely filing is entitled to have the issued decided de novo by an ALJ.

   Moreover, the ALJ's 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), the Board held that an ALJ's "discretionary determination that the Director established good cause for the untimely submission of Dr. Green's report is not subject to modification because (the ALJ) was resolving a procedural matter that is not within the scope of issues that 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."

   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) (2000) and § 725.412(b) (2001).

III. Amount of the fee award

   A. Generally

      2. Enhancement of the fee for delay—proper for employer but not Director, OWCP

Citation update: Frisco v. Consolidation Coal Co., 22 B.L.R. 1-321 (2003).

   D. The hourly rate and hours requested

   In Consolidation Coal Co. v. Swiger, Case No. 03-1971 (4th Cir. May 11, 2004) (unpub.), the court upheld the ALJ's award of $225.00 per hour to Claimant's counsel for successful prosecution of a black lung claim. Employer argued that counsel normally charged $175.00 for most civil litigation matters. The court concluded that the ALJ properly considered the factors set forth at 20 C.F.R. § 725.366(b) in approving of a higher hourly rate.

    The Department's amended black lung regulations challenged by the National Mining Association were upheld by the D.C. Circuit Court of Appeals in National Mining Ass'n., et al. v. Dep't. of Labor, 292 F.3d 849 (D.C. Cir. 2002) with the exception of a few provisions found to be impermissibly retroactive and a cost-shifting provision found to be invalid.

      1. Retroactivity

         [a] Affirmed

    Upon review of the challenged regulations, the court held that the following provisions were not impermissibly retroactive:

• the "treating physician rule" at 20 C.F.R. § 718.104(d) "is not retroactive because it codifies judicial precedent and does not work a substantive change in the law";
• the amended definition of pneumoconiosis at 20 C.F.R. § 718.201(a)(2), which provides that legal pneumoconiosis may include "any chronic restrictive or obstructive pulmonary disease arising out of coal mine employment," is not impermissibly retroactive because it does not create any presumption that an obstructive impairment is coal dust related; rather, it is the claimant's burden to establish that his/her restrictive or obstructive lung disease arose out of coal mine employment;
• the amended provisions at 20 C.F.R. § 718.201(c), which provide that pneumoconiosis is "recognized as a latent and progressive disease which may first become detectable only after the cessation of coal mine dust exposure," are not impermissibly retroactive. The court noted that both parties agreed that, in rare cases, pneumoconiosis is latent and progressive. As a result, the court found that the amended regulation "simply prevents operators from claiming that pneumoconiosis is never latent and progressive";
• the provisions at 20 C.F.R. § 725.309(d), related to filing multiple claims, are not improperly retroactive; and
• the provisions at 20 C.F.R. § 725.101(a)(6), wherein the definition of "benefits" includes expenses related to the Department-sponsored medical examination and testing of the miner under § 725.406, is not impermissibly retroactive. Under the amended provisions, as with the prior version of the regulations, the Trust Fund is reimbursed by the employer for the costs of the Department-sponsored examination in the event that the claimant is successful.

          [b] Not affirmed

    The court did, however, remand the case for further proceedings regarding certain provisions, which were impermissibly retroactive. The court defined an impermissibly retroactive regulation as a regulation applying to pending claims where "the new rule reflects a substantive change from the position taken by any of the Courts of Appeals and is likely to increase liability . . .." With this criteria in mind, the court concluded that the following regulations were improperly retroactive:

• the "total disability rule" at 20 C.F.R. § 718.204(a) is impermissibly retroactive because the amendments provide that "an independent disability unrelated to the miner's pulmonary or respiratory disability, shall not be considered in determining whether a miner is totally disabled due to pneumoconiosis" contrary to the Seventh Circuit's holding in Peabody Coal Co. v. Vigna, 22 F.3d 1388 (7th Cir. 1994) (holding that a non-respiratory or non-pulmonary disability, such as a stroke, will preclude entitlement to black lung benefits);
• the provisions at 20 C.F.R. § 725.101(a)(31), which provide that "[a] payment funded wholly out of general revenues shall not be considered a payment under a workers' compensation law," are impermissibly retroactive. The court cited to a contrary decision from the Third Circuit in Director, OWCP v. Eastern Associated Coal Corp., 54 F.3d 141 (3rd Cir. 1995), wherein the court declined to adopt the Director's policy of not reducing a miner's black lung benefits by any amount s/he received from general revenues under a state occupational disease compensation act;
• the medical treatment dispute provisions at 20 C.F.R. § 725.701 are impermissibly retroactive as they create a rebuttable presumption that medical treatment for a pulmonary disorder is related to coal dust exposure contrary to the Sixth Circuit's holding in Glen Coal Co. v. Seals, 147 F.3d 502 (6th Cir. 1998); and
• the amended provisions at 20 C.F.R. §§ 725.204, 725.212(b), 725.213(c), 725.214(d), and 725.219(c) and (d) are impermissibly retroactive "because they expand the scope of coverage by making more dependents and survivors eligible for benefits."

       2. Arbitrary and capricious, not found

    In addition to reviewing the regulatory amendments to determine whether they could be retroactively applied, the court also analyzed substantive changes in the following regulations and determined that they were not "arbitrary and capricious":

• the definition of pneumoconiosis at 20 C.F.R. § 718.201(a), to include "legal" and "medical" pneumoconiosis, is proper as it "merely adopts a distinction embraced by all six circuits to have considered the issue";
• the provisions at 20 C.F.R. § 718.201(c), which state that pneumoconiosis is recognized as a "latent and progressive disease which may first become detectable only after cessation of coal mine dust exposure," is not arbitrary and capricious given the government's narrow construction of the regulation during oral argument that pneumoconiosis "may" be latent and progressive as well as a study cited at 62 Fed. Reg. 3,338, 3,344 (Jan. 22, 1997), which supports a finding that pneumoconiosis is latent and progressive "as much as 24% of the time";
• the "change in condition" rule at 20 C.F.R. § 725.309 is not arbitrary and capricious because the burden of proof continues to rest with the claimant to demonstrate that one of the applicable conditions of entitlement has changed;
• the "treating physician rule" at 20 C.F.R. § 718.104(d) provides that a treating physician's opinion "may" be accorded controlling weight, but the rule is not "mandatory." As a result, the court concluded that it did not arbitrary and capricious nor does it improperly shift the burden of proof from the claimant to the employer;
• the "hastening death" rule at 20 C.F.R. § 718.205(c)(5) is not arbitrary and capricious because the regulation "nowhere mandates the conclusion that pneumoconiosis be regarded as a hastening cause of death, but only describes circumstances under which a hastening-cause conclusion may be made";
• the responsible operator designation provisions at 20 C.F.R. § 725.495(c) are not arbitrary and capricious "[w]here, as here, the Secretary affords a mine operator liable for a claimant's black lung disease the opportunity to shift liability to another party, it is hardly irrational to require the operator to bear the burden of proving that the other party is in fact liable";
• the medical treatment dispute regulation at 20 C.F.R. § 725.701(e) is not arbitrary and capricious; and
• the total disability rule at 20 C.F.R. § 718.204 is not arbitrary and capricious merely because it abrogates the Seventh Circuit's decision in Peabody Coal Co. v. Vigna.

       3. Burden of proof not improperly shifted

    The court also upheld the following regulations on grounds that they did not improperly shift the burden of proof:

• the regulation at 20 C.F.R. § 725.408, which sets a deadline for an operator to submit evidence if it disagrees with its designation as the potentially liable operator, does not improperly shift the burden of proof from the Director to the employer to identify the proper responsible operator; rather, the court found that the regulation "shifts the burden of production, not the burden of proof; it requires nothing more than that operators must submit evidence rebutting an assertion of liability within a given period of time"; and
• the medical treatment dispute regulation at 20 C.F.R. § 725.701(e) does not improperly shift the burden of proof to the employer to "disprove medical coverage"; rather, "the Secretary explains that it shifts only the burden of production to operators to produce evidence that the treated disease was unrelated to the miner's pneumoconiosis; the ultimate burden of proof remains on claimants at all times."

      4. Limitation of evidence upheld

    The court also upheld the evidence limitation rules on grounds that the Administrative Procedure Act at 5 U.S.C. § 556(d), as well as the Black Lung Benefits Act, permit the agency to exclude "irrelevant, immaterial, or unduly repetitious evidence" as "a matter of policy." Moreover, the circuit court noted that the amended regulations afford ALJs the discretion to admit additional evidence for "good cause." See 20 C.F.R. § 725.456(b)(1). The court also determined that the evidentiary limitations were not arbitrary and capricious.

      5. Cost shifting not upheld where claimant unsuccessful

    Finally, the court found that the cost-shifting regulation at 20 C.F.R. § 725.459 was "invalid on its face" because it improperly permitted ALJs, in their discretion, to shift costs incurred by a claimant's production of witnesses to an employer, regardless of whether the claimant prevailed. The court noted that the Secretary is authorized to shift attorney's fees under 33 U.S.C. § 928(d) only in the event that the claimant prevails.

¹ While the case was pending on appeal, the court noted that the widow died and the executor of her estate, John Soubik, was substituted as the appellant.

² While the case was pending on appeal, the court noted that the widow died and the executor of her estate, John Soubik, was substituted as the appellant.

³ While the case was pending on appeal, the court noted that the widow died and the executor of her estate, John Soubik, was substituted as the appellant.

⁴ The Board noted that the Sixth Circuit declined to publish the panel decision in Dukes despite a motion to do so.