480 F.3d 278 (4th Cir. 2007), 05-1108, Elm Grove Coal Co. v. Director, O.W.C.P

Docket Nº:05-1108.
Citation:480 F.3d 278
Party Name:ELM GROVE COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor; Velma Blake, Widow of Ivan Randall Blake, Respondents.
Case Date:March 07, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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480 F.3d 278 (4th Cir. 2007)

ELM GROVE COAL COMPANY, Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, United States Department of Labor; Velma Blake, Widow of Ivan Randall Blake, Respondents.

No. 05-1108.

United States Court of Appeals, Fourth Circuit.

March 7, 2007

Argued: Feb. 3, 2006.

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ARGUED:

Douglas Allan Smoot, Jackson & Kelly, P.L.L.C., Charleston, West Virginia, for Petitioner.

Barry H. Joyner, United States Department of Labor, Office of the Solicitor, Washington, D.C.; Anne Megan Davis, Johnson, Jones, Snelling, Gilbert & Davis, P.C., Chicago, Illinois, for Respondents.

ON BRIEF:

Kathy L. Snyder, Jackson & Kelly, P.L.L.C., Morgantown, West Virginia, for Petitioner.

Howard M. Radzely, Solicitor of Labor, Donald S. Shire, Associate Solicitor, Christian P. Barber, Counsel for Appellate Litigation, Rita A. Roppolo, United States Department of Labor, Office of the Solicitor, Washington, D.C., for Respondent Director, Office of Workers' Compensation Programs. Thomas E. Johnson, Johnson, Jones, Snelling, Gilbert & Davis, P.C., Chicago, Illinois, for Respondent Velma Blake, Widow of Ivan Randall Blake.

Before NIEMEYER, MOTZ, 1 and KING, Circuit Judges.

Petition for review granted in part; Decision and Order vacated and remanded by published opinion. Judge KING wrote the opinion, in which Judge NIEMEYER joined.

OPINION

KING, Circuit Judge:

Elm Grove Coal Company petitions for review of the December 2004 Decision and Order of the Benefits Review Board (the "BRB") affirming the award of benefits made by an Administrative Law Judge ("ALJ") to retired coal miner Ivan R. Blake under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945 (the "Black Lung Act" or the "Act"). 2 Elm Grove raises multiple contentions of error, including, of most significance: (1) a claim that recently

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amended regulations limiting the admissible medical evidence in Black Lung Act proceedings are invalid; (2) alternatively, that the new evidence-limiting rules, if valid, were nonetheless misapplied by the ALJ in excluding certain evidence submitted by Elm Grove; and (3) that the ALJ erroneously barred Elm Grove's discovery of draft reports and communications between Blake's lawyers and their expert witnesses. As explained below, we reject the first of these three contentions, but agree with Elm Grove on its second and third contentions. We thus grant Elm Grove's petition for review in part, vacate the 2004 Decision and Order of the BRB, and remand for such further proceedings as may be appropriate. 3

I.

A.

1.

Enacted on December 30, 1969, the Black Lung Act is intended to provide benefits to coal miners who have been totally disabled by pneumoconiosis, as well as to the surviving dependents of miners whose deaths were due to such disease. See 30 U.S.C. § 901. 4 Under Part B of the Act, see id. §§ 921-925, claims filed on or before December 31, 1973, are to be adjudicated by the Secretary of Health and Human Services and paid by the United States. Pursuant to Part C of the Act, see id. §§ 930-944, claims filed after December 31, 1973, are to be adjudicated by the Secretary of Labor (the "Secretary") and, in the absence of an approved state workers' compensation law, paid by the responsible mine operator.

The Black Lung Act incorporates various other statutory provisions--including provisions pertaining to administrative rule-making and adjudication of claims--by both internal cross-reference and reference to other statutes. For instance, its Part C incorporates, "to the extent appropriate," the provisions of Part B. 30 U.S.C. § 940. Part B, in turn, incorporates a number of provisions from Title II of the Social Security Act. Id. § 923(b). One such incorporated provision from the Social Security Act is 42 U.S.C. § 405(a), which endows the Commissioner of Social Security with the "full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions," and to "adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder."

Significantly, Part B of the Black Lung Act mandates that, "[i]n determining the validity of claims under this part, all relevant evidence shall be considered." 30 U.S.C. § 923(b) (emphasis added) (the "All Relevant Evidence Provision" or the "Provision"). The All Relevant Evidence Provision

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was added to the Act in 1972, in the context of prohibiting the denial of benefits based only on the results of a chest roentgenogram. See id. In fuller part, the Provision reads as follows:

No claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram. In determining the validity of claims under this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant's physician, or his wife's affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner's physical condition, and other supportive materials.

Id. (emphasis added).

Finally, Part C of the Black Lung Act incorporates certain provisions of the Longshore and Harbor Workers' Compensation Act, including 33 U.S.C. § 919(d), which in turn incorporates provisions of the Administrative Procedure Act (the "APA"), by reference to 5 U.S.C. § 554. See 30 U.S.C. § 932(a). The APA provides, as relevant here, that "[a]ny oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence." 5 U.S.C. § 556(d) (the "Irrelevant Evidence Exclusion").

2.

On December 20, 2000, after several years of consideration, the Secretary issued sweeping revisions to the rules governing the adjudication of miners' claims under Part C of the Black Lung Act, effective January 19, 2001. 5 See Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended, 65 Fed.Reg. 79,920 (Dec. 20, 2000) (to be codified at 20 C.F.R. pts. 718, 722, 725-727) (the "Amended Regulations"). The Amended Regulations include limitations on the amount of medical evidence that each party may submit (the "Evidence-Limiting Rules"). The Secretary proposed the Evidence-Limiting Rules "in order to ensure that eligibility determinations are based on the best quality evidence submitted rather than on the quantity of evidence submitted by each side." Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended, 62 Fed.Reg. 3338, 3338 (proposed Jan. 22, 1997) (to be codified at 20 C.F.R. pts. 718, 722, 725-727). In explaining, the Secretary observed that,

[c]urrently, in establishing their eligibility to benefits, claimants must confront the vastly superior economic resources of their adversaries: coal mine operators and their insurance carriers. Often, these parties generate medical evidence in such volume that it overwhelms the evidence supporting entitlement that claimants can procure. The proposed changes limiting evidentiary development

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attempt to make more equitable the adjudication of black lung claims and reduce the costs associated with these cases.

Id.; see also Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended, 65 Fed.Reg. at 79,989-95 (describing development of Evidence-Limiting Rules and reasons for them).

The Evidence-Limiting Rules, as promulgated, are found in the Code of Federal Regulations, in various subparts of 20 C.F.R. § 725. Pursuant thereto, a claimant and the responsible operator are each entitled to submit, in support of their respective affirmative cases, "no more than two chest X-ray interpretations, the results of no more than two pulmonary function tests, the results of no more than two arterial blood gas studies, no more than one report of an autopsy, no more than one report of each biopsy, and no more than two medical reports." 20 C.F.R. § 725.414(a)(2)(i), (3)(i). 6 They further provide that "[a]ny chest X-ray interpretations, pulmonary function test results, blood gas studies, autopsy report, biopsy report, and physicians' opinions that appear in a medical report must each be admissible under" either paragraph (a)(2)(i), paragraph (a)(3)(i), or paragraph (a)(4) (allowing "any record of a miner's hospitalization for a respiratory or pulmonary or related disease, or medical treatment for a respiratory or pulmonary or related disease, [to] be received into evidence"). § 725.414(a)(2)(i), (3)(i).

To rebut evidence submitted in support of an opposing party's affirmative case, the claimant and the responsible operator each may submit, inter alia, "no more than one physician's interpretation of each chest X-ray, pulmonary function test, arterial blood gas study, autopsy or biopsy" submitted by the opposing party. § 725.414(a)(2)(ii), (3)(ii). 7 Finally, in response to rebuttal evidence with respect to medical testing, the Evidence-Limiting Rules authorize a party to "submit an additional statement from the physician who originally interpreted the chest X-ray or administered the objective testing." Id. And, in the event that "rebuttal evidence tends to undermine the conclusion of a physician who prepared a...

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