Petition for Review, Benefits Review Board, BRB Docket No. 86-2283 BLA.
Mansmann, Greenberg, and Scirica, Circuit Judges.
In this appeal from the awarding to William C. Miller of black lung benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969 as amended, 30 U.S.C. § 901 et seq., the North American Coal Company raises a single issue for our resolution: was North American denied its right to a fair hearing because the Administrative Law Judge refused North American's request to respond to the medical evidence relied upon by the ALJ in making his determination? We hold that because the ALJ provided no opportunity for North American to respond to the medical evidence the ALJ relied upon in awarding benefits, North American's due process rights were violated and, therefore, the Benefit Review Board's decision affirming the ALJ will be vacated and the case remanded.
William C. Miller was born in 1928 and began work in the nation's coal mines in 1947. In 1948 he began working for North American and continued working for them until he was laid off in 1982. Both parties stipulate, and the ALJ found, that Miller has thirty-four years of coal mine experience and has developed pneumoconiosis as a result of his coal mine employment. In addition, the ALJ found the evidence sufficient to establish Miller's total disability from pneumoconiosis pursuant to 20 C.F.R. § 718.204. Accordingly, benefits were awarded.
Medical evidence submitted prior to the hearing included three reports of examinations of Miller by Dr. Robert F. Klemens on October 26, 1982, November 16, 1982, and March 7, 1986. Dr. Klemens' examinations supported Miller's claim of total disability. North American submitted as evidence the examination of Miller by Dr. George W. Strother, dated January 14, 1983, which concluded that Miller's pneumoconiosis was not totally disabling. North American also submitted the March 12, 1986, report of Dr. Howard S. Van Ordstrand, which reviewed the 1982 reports of Dr. Klemens and Dr. Strother's report and which concluded that Dr. Strother was correct in his conclusion that Miller was not totally disabled. Dr. Van Ordstrand did not review Dr. Klemens' March 7, 1986, examination of Miller since that examination report had not been made available to North American as of the date of Dr. Van Ordstrand's report, March 12, 1986.
At the hearing, North American proffered the report of Dr. Murray D. Altose, dated March 26, 1986, which critiqued Dr. Klemens' March 7, 1986, report and concluded that Dr. Klemens' "tests were not adequately performed and the results are not acceptable for diagnostic purposes."
At the hearing held April 1, 1986, the ALJ refused to admit Dr. Altose's report, relying on 20 C.F.R. § 724.456(b)(1) which requires that "documentary material, including medical reports . . . may be received in evidence . . . if such evidence is sent to all other parties at least 20 days before a hearing." The twenty-day rule may be waived and evidence may be admitted at a hearing "upon a showing of good cause why such evidence was not exchanged" at least twenty days prior to the hearing. 20 C.F.R. § 725.456(b)(2). The ALJ found no such good cause and denied North American's request for a waiver.
The ALJ also denied North American's request that the record remain open for thirty days after the hearing so that North American could depose Dr. Klemens and undertake a further medical examination of Miller. The ALJ suggested to North American at the hearing that "if you do develop more medical evidence you can certainly request and to [sic] re-open the record and show good cause at that time." While suggesting that new medical evidence could be developed to re-open the record, the ALJ denied North American's requests for a new medical examination of Miller or a deposition of Dr. Klemens. These actions on the part of the ALJ, combined with his refusal to allow Dr. Altose's report into the record, left no opportunity for North American to rebut Dr. Klemens' 1986 report.
The only report cited by the ALJ for his determination that Miller was totally disabled was Dr. Klemens' 1986 examination report. The ALJ resolved the conflict between Dr. Klemens' 1982 reports and Dr. Strother's 1983 report by relying on the medical report of Dr. Van Ordstrand which agreed with Dr. Strother's findings. The ALJ credited Dr. Van Ordstrand's findings "insofar as they interpret the medical data available to him." However, since Dr. Van Ordstrand's analysis was not based on the 1986 examination performed by Dr. Klemens, that report not being available to Dr. Van Ordstrand at the time of his analysis, the ALJ credited "Dr. Klemens' finding of total disability due to pneumoconiosis based on his March 7, 1986 report over Dr. Van Ordstrand's finding of no disability based on earlier evidence." The ALJ acknowledged that "Dr. Klemens' physical examination revealed no significant abnormalities and the pulmonary function tests were non-qualifying." However, "Dr. Klemens had the opportunity to fully observe and examine the Claimant at the time of [the 1986] physical examination, and evaluate his respiratory/pulmonary condition in light of the extensive occupational history and symptomatology available to him." On this basis the ALJ accepted Dr. Klemens' finding and awarded benefits. The Benefits Review Board affirmed the ALJ's determination.
As this is an appeal from a final order of the Benefits Review Board of the United States Department of Labor concerning an injury which arose in the state of Pennsylvania, we have jurisdiction under Section 21(c) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 921(c), as incorporated by Section 422(a) of the Black Lung Benefits Act, 30 U.S.C. § 932(a).
We review the decisions of the Board for errors of law and to assure ourselves that it has adhered to its statutory scope of review. Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 162-63 (3d Cir. 1986); Walker v. Universal ...