Bethlehem Mines Corp. v. Henderson

• Citation: 939 F.2d 143
• Decision Date: 05 August 1991
• Docket Number: No. 89-3348,89-3348
• Parties: BETHLEHEM MINES CORPORATION, Petitioner, v. James M. HENDERSON; Director, Office of Workers Compensation Programs, United States Department of Labor, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 143

939 F.2d 143

BETHLEHEM MINES CORPORATION, Petitioner, v. James M. HENDERSON; Director, Office of Workers

Compensation Programs, United States Department of

Labor, Respondents.

No. 89-3348.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 7, 1991.

Decided July 1, 1991.

As Amended Aug. 5, 1991.

William S. Mattingly, Jackson & Kelly, Morgantown, W.Va., for petitioner.

Michelle Seyman Gerdano, argued (Robert P. Davis, Sol. of Labor, Donald S. Shire, Associate Sol. for Black Lung Benefits, Michael J. Denney, Counsel for Appellate Litigation, on brief), Office of the Sol., U.S. Dept. of Labor, Washington, D.C., for respondent Director.

Ray Edmond Ratliff, Jr., Kaufman & Ratliff, Charleston, W.Va., for respondent Henderson.

Before WILKINSON and WILKINS, Circuit Judges, and ELLIS, District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

ELLIS, District Judge:

Bethlehem Mines Corp. ("Bethlehem") petitions for review of a decision of the Benefits Review Board ("Board") affirming an administrative law judge's ("ALJ") award of benefits under the Black Lung Benefits Act, 30 U.S.C. Secs. 901 et seq. (the "Act"). Bethlehem contends that it was denied a full and fair hearing when the ALJ denied its requests to develop post-hearing evidence and have the claimant examined by a physician of its own choosing. Bethlehem also claims that the Board erred in affirming the ALJ's decision that rebuttal under 20 C.F.R. Sec. 727.203(b) was not established. Finding no error, we affirm the Board's decision.

I.

James M. Henderson worked as a coal miner for more than twenty years, principally as a motorman hauling coal in underground mines. On February 1, 1980, Henderson filed a claim for benefits under the Act. A review of the chronology of events following the claim filing is central to an assessment of Bethlehem's contention that it was denied a fair hearing.

Approximately one year after the claim was filed, the Department of Labor provided Henderson with a physical examination by Dr. George L. Zaldivar. As a result of the examination, Dr. Zaldivar concluded that Henderson had "no impairment." On this basis, the Department of Labor denied Henderson's claim for benefits. Next, on March 13, 1981, Henderson requested that his claim be referred to the Office of Administrative Law Judges for a formal hearing. Almost four years later, the Department of Labor referred the claim to the Office of Administrative Law Judges for a hearing and also notified Bethlehem, Henderson's immediate past employer, of its potential liability. After the passage of another 18 months, the Office of Administrative Law Judges, on November 16, 1986, set the claim for hearing on January 13, 1987. As of this time, the record contained only one medical report concerning Henderson, namely Dr. Zaldivar's report from the 1980 examination, concluding that Henderson suffered from "no impairment."

On December 17, 1986, more than twenty days before the scheduled hearing, Henderson submitted and served on Bethlehem's counsel a medical report by Dr. D.L. Rasmussen. This report, inter alia, concluded that Henderson had "minimal to moderate impairment in respiratory function as reflected by the resting blood gas studies." Thereafter, on December 19, 1986, still more than twenty days prior to the scheduled hearing, Henderson submitted and served a further report, this one by Dr. Maurice Bassali concluding that x-rays of Henderson indicated the presence of pneumoconiosis. Bethlehem responded to these submissions by moving for a continuance of the hearing and requesting that Henderson be required to submit to an examination by a physician chosen by Bethlehem. Alternatively, Bethlehem sought a post-hearing physical examination of Henderson, coupled with post-hearing depositions of the physicians. The ALJ denied this motion and proceeded with the hearing as scheduled.

At the hearing, the ALJ admitted the reports of Drs. Rasmussen and Bassali over Bethlehem's objection. Bethlehem then renewed its motion for a continuance or, alternatively, for a post-hearing examination of Henderson. The ALJ denied the motion, noting that these reports had been timely submitted in compliance with the twenty-day rule. See 20 C.F.R. Sec. 725.456(b)(1) (1990). At this point, Bethlehem counter-attacked by offering two letters from Dr. Zaldivar (both of which had been exchanged in a timely manner) and, for the first time, two additional exhibits: (1) a letter from Dr. Rasmussen stating that resting blood gases--the test on which his conclusion of mild to moderate impairment had been based--were of limited value in assessing overall lung function; (2) a report from Dr. George Kress concluding solely on the basis of a review of the medical reports, that Henderson had no significant pulmonary or respiratory impairment. Henderson objected to these new exhibits on the ground that they were submitted in violation of the twenty-day rule. The ALJ overruled the objection and admitted the exhibits, but gave Henderson the right to conduct post-hearing depositions of Drs. Zaldivar, Kress, and Rasmussen. Bethlehem, at this time, requested permission to conduct post-hearing depositions of any doctor Henderson might choose not to depose. The ALJ denied this request. Ultimately, Henderson chose to conduct a post-hearing deposition only of Dr. Rasmussen. Bethlehem participated in this deposition and cross-examined Dr. Rasmussen.

Following the hearing and the post-hearing deposition of Dr. Rasmussen, the ALJ, on September 16, 1987, issued a Decision and Order awarding benefits to Henderson. The ALJ found that the parties agreed to the existence of pneumoconiosis, thereby triggering the regulatory interim presumption of total disability. See 20 C.F.R. Sec. 727.203(a). The ALJ next considered whether Bethlehem had rebutted this presumption. In this regard, the ALJ found that Bethlehem failed to meet its burden of showing either that Henderson could still perform his usual coal mine or other comparable work or that his pneumoconiosis arose out of anything other than his coal mine employment. Because Bethlehem had failed to rebut the presumption, the ALJ found that Henderson had established entitlement to benefits. Bethlehem appealed the decision to the Board, arguing that the ALJ erred (i) in denying its motion to have Henderson examined by a physician of its own choosing, (ii) by prohibiting Bethlehem from conducting post-hearing depositions, and (iii) in finding the evidence insufficient to support rebuttal of the interim presumption under 20 C.F.R. Sec. 727.203(b)(2) and (b)(3).

The Board affirmed the award of benefits. It found that the ALJ did not deny Bethlehem a full and fair hearing by rejecting its request that Henderson undergo an examination by a doctor chosen by Bethlehem. The Board concluded that the ALJ's application of 20 C.F.R. Sec. 725.456(b)(1) (the "twenty-day rule") and rejection of Bethlehem's motions was tantamount to a finding that good cause was not shown for the submission of what would have been an untimely examination and medical report. The Board further found that the ALJ's refusal of Bethlehem's request for post-hearing depositions was a proper exercise of discretion because Bethlehem had ample opportunity to address any deficiencies in the reports of its own physicians prior to the hearing.

With respect to the merits of the claim, the Board, following Sykes v. Director, OWCP, 812 F.2d 890 (4th Cir.1987), held that Bethlehem failed to establish rebuttal under 20 C.F.R. Sec. 727.203(b)(2) because (i) the opinions of the physicians who examined Henderson or reviewed the medical evidence of record addressed only the extent of Henderson's respiratory impairment and did not show that he was not disabled for any reason, and (ii) because the physicians' opinions did not show that Henderson was capable of doing his usual coal mine work or comparable and gainful work. In addition, because these opinions did not establish that Henderson's primary condition was not aggravated to the point of total disability by prolonged exposure to coal dust, the Board held that they were also insufficient to establish rebuttal pursuant to 20 C.F.R. Sec. 727.203(b)(3). The Board therefore affirmed the ALJ's award of benefits. Bethlehem then filed a timely motion for reconsideration of the Board's decision, which the Board, sitting en banc, denied. This appeal followed.

II.

The twenty-day rule governing the introduction of documentary evidence in hearings under the Act provides that materials not submitted to the deputy commissioner of the Department of Labor "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." 20 C.F.R. Sec. 725.456(b)(1). ¹ Henderson complied with this rule; he submitted the reports of Drs. Rasmussen and Bassali more than twenty-five days prior to the hearing. In admitting the reports, the ALJ correctly applied the rule, and in denying Bethlehem's continuance motion, the ALJ properly exercised her discretion. Bethlehem's medical submissions, unlike Henderson's, were untimely under the rule. Absent the parties' consent or a showing of good cause, the tardy submissions should have been excluded pursuant to the second sentence of Sec. 725.456(b)(2). Yet the ALJ chose not to exclude them. Instead, as reflected in the hearing transcript, the ALJ felt compelled to follow the Board's decision in Shedlock v. Bethlehem Mines Corp., 9 Black Lung Rep. (MB) 1-195 (1986), aff'd on reconsideration, 9 Black Lung Rep. (MB) 1-236 (1987) (en banc ). ² The ALJ therefore admitted the tardy submissions, but gave Henderson an opportunity to take post-hearing depositions of any of the physicians involved. Both parties were thus fairly heard. Consequently, we agree with the Board's conclusions that the admission of the Henderson...