Island Creek Coal Co v. Holdman

RECOMMENDED FOR FULL-TEXT PUBLICATION

20 Island Creek Coal Co. v. Holdman, et al. No. 97-4065 Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0037P (6th Cir.)

File Name: 00a0037p.06

(4th Cir. 1999); cf. Director, OWCP v. Hileman, 897 F.2d

1277, 1280-81 (4th Cir. 1990) (upholding the propriety of

Board’s dismissal of OWCP’s appeal after the Director failed

to guarantee the transmittal of the administrative record to the UNITED STATES COURT OF APPEALS

Board). Thus, in light of the process due, Island Creek would FOR THE SIXTH CIRCUIT

suffer prejudice were we to affirm its designation as a _________________

“responsible operator.” “If there has been no fair day in court,

the reliability of the result is irrelevant, because a fair day in

;

court is how we assure the reliability of results.” Lane



Hollow Coal Co., 137 F.3d at 808. In the absence of a ISLAND CREEK COAL



responsible operator, the Black Lung Disability Trust Fund COMPANY,



will pay Holdman’s benefits.5 Petitioner,



No. 97-4065

IV. Conclusion



v. >

The judgment of the Benefits Review Board is 

REVERSED, and the matter is REMANDED for 



ARTHUR W. HOLDMAN,

reinstatement of the October 7, 1994 order of ALJ Gilday.



(Deceased); DIRECTOR,

Our disposition of the matter renders MOOT the Board’s



holding that Island Creek may not introduce new medical OFFICE OF WORKERS’



evidence in future remands. See supra at 12-14. COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT 



Respondents. 

OF LABOR,



1

On Petition for Review of an Order

of the Benefits Review Board.

5 No. 95-0578 BLA

The Federal Respondent bears the blame for the past fourteen years

of litigation in this matter. A record entrusted by law to OWCP has Argued: December 11, 1998

vanished. Cf. Hileman, 897 F.2d at 1280-81. The Director ignored

repeated requests of the Benefits Review Board to reconstruct the record.

When ALJ Gilday attempted to resolve matters, he reported that the Decided and Filed: January 27, 2000

Director did not attend or send counsel to the hearing scheduled on

September 13, 1994, and that his response to the show cause order did not

address some of the material issues. Finally, in its correspondence to

Island Creek following the October 30, 1995 Board order, OWCP

exhibited misunderstandings of its governing regulations. It appears that

the Director and his staff have flirted with incompetence, although we do

not have a record establishing that they acted in bad faith.

1

2 Island Creek Coal Co. v. Holdman, et al. No. 97-4065 No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 19

Before: BOGGS and *MOORE, Circuit Judges; and Second, Island Creek believes that it suffered because of the

DOWD, District Judge. incomplete record. Apparently, Island Creek and Holdman

reconstructed the record except for a transcript of Holdman’s

_________________ 1980 testimony before ALJ Rippey, and two of Holdman’s

exhibits. Island Creek observes that no party knows what the

COUNSEL lost evidence would prove. This case places Island Creek in

the difficult position of rebutting OWCP by proving the

ARGUED: Douglas A. Smoot, JACKSON & KELLY, contents of twenty-year-old documents lost by OWCP. For

Charleston, West Virginia, for Petitioner. Thomas M. seven years, the Board considered the lost materials necessary

Rhoads, RHOADS & RHOADS, Madisonville, Kentucky, to the disposition of Island Creek’s 1985 appeal: in 1989,

Rita Roppolo, U.S. DEPARTMENT OF LABOR, OFFICE January 1992, and May 1992, the Board issued orders

OF THE SOLICITOR, Washington, D.C., for Respondents. explaining that it could not resolve the appeal without the

ON BRIEF: Martin E. Hall, JACKSON & KELLY, completed record, and ordering OWCP to supply or

Lexington, Kentucky, for Petitioner. Thomas M. Rhoads, reconstruct the record. In 1993, the Board dismissed the 1985

RHOADS & RHOADS, Madisonville, Kentucky, Rita appeal, stating that it “must have the complete record of the

Roppolo, Patricia Nece, U.S. DEPARTMENT OF LABOR, proceedings below before considering the merits of this

OFFICE OF THE SOLICITOR, Washington, D.C., for appeal.” After ALJ Gilday received the assignment to

Respondents. reconstruct the record, he also agreed that the case could not

fairly be resolved without the missing evidence. ALJ

_________________ Gilday’s 1994 order reflects that Holdman’s

OPINION counsel—securely in the possession of an entitlement to

_________________ benefits—agreed with Island Creek that the missing evidence

was “critical.”

BOGGS, Circuit Judge. In a case with a lengthy procedural

history, Island Creek Coal Company appeals a decision of the Substantial evidence—the orders of the Board from 1985-

Benefits Review Board of the United States Department of 1993, ALJ Gilday’s opinion, and the difficulty in proving a

Labor. The decision required Island Creek to pay Black Lung negative—supports ALJ Gilday’s reasoned conclusion that

benefits to a coal miner’s widow. We reverse the decision of the missing exhibits were important to the resolution of

the Board and reinstate the 1994 order of the administrative Holdman’s contested claim. The missing documents could

law judge transferring responsibility for the payments to the refute, confirm, or shed light on the opinions expressed in the

Black Lung Disability Trust Fund. preserved evidence. “Moreover, speculation about the would-

have-been and could-have-been misconstrues the focus of our

inquiry. In this core due process context . . . we do not

require a showing of ‘actual prejudice’ in the sense that there

is a reasonable likelihood that the result of this claim would

have been different absent the violation.” Lane Hollow Coal

Co. v. Director, OWCP, 137 F.3d 799, 807 (4th Cir. 1998)

(ruling that delay in notifying an employer of a claim deprived

*

it of due process, and transferring liability to the Trust Fund);

The Honorable David D. Dowd, Jr., United States District Judge for see also Consolidation Coal Co. v. Borda, 171 F.3d 175, 184

the Northern District of Ohio, sitting by designation.

18 Island Creek Coal Co. v. Holdman, et al. No. 97-4065 No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 3

20 C.F.R. § 727.203(b)(3) does not concern itself with the I. Jurisdiction

degree of a medical disability; rather, it requires the employer

to prove that coal mining played no role in the miner’s A. Background to the Jurisdictional Dispute

disability. See Warman v. Pittsburg & Midway Coal Mining

Co., 839 F.2d 257, 260 (6th Cir. 1988); see also In 1980, an Administrative Law Judge (ALJ) ordered Island

Youghiogheny & Ohio Coal Co. v. Webb, 49 F.3d 244, 250 Creek Coal Company to pay black lung benefits to Arthur

(6th Cir. 1995). Island Creek failed to meet its burden of Holdman. Island Creek moved for reconsideration and later

proof. After reviewing the record that we have available, we appealed to the Benefits Review Board. For various reasons,

hold that ALJ Rippey did not err in finding an entitlement of discussed infra at 7-12, the Board did not rule definitively for

benefits. 15 years. The Board issued its order on October 30, 1995.

The Board mailed its order (not by certified mail) to Island

C. Whether the Board Erred by Re-transferring Liability to Creek’s counsel at an incorrect address, sending it to

Island Creek Charleston, West Virginia, rather than to Lexington,

Kentucky. On August 2, 1996, Island Creek’s counsel

ALJ Gilday found that, because he could not completely inquired about the status of the appeal. That day, either the

reconstruct the record, the “best interests of justice [were] Board or the Office of Workers’ Compensation Programs

served by” granting benefits while transferring liability from (OWCP) faxed a copy of the October 30 order, which was

Island Creek to the Black Lung Disability Trust Fund. He received by Island Creek that day.1 The final footnote of the

reasoned that, because OWCP was at fault for the years of Board’s order read: “We note that employer may file a

delay, neither Island Creek nor Holdman’s widow should petition for modification [of the terms of an award] with the

suffer from the incomplete record. The Board reversed his district director under the provisions of 20 C.F.R. § 725.310.”

order insofar as it transferred liability to the Trust Fund, in On September 11, 1996, in a petition to OWCP for

spite of the fact that OWCP lost the record before ALJ Rippey modification of the 1980 order, Island Creek’s counsel cited

ruled on the motion for reconsideration in early 1985. Island some newly-discovered medical evidence as support for

Creek observes that the statute might permit the transfer, as it modification.

permits payment by the Trust Fund where, inter alia, “there

is no operator who is liable for the payment of such benefits.” On September 23, 1996, Bobby Chaffins, a senior claims

26 U.S.C. § 9501(d)(1)(B). Island Creek contends that, examiner with OWCP, responded, informing counsel that the

because OWCP’s actions resulted in a denial of due process Board told Chaffins that “the appropriate course of action is

in the 14 years of proceedings following the disappearance of for you to file the appeal with the Board, not the District

the record, it cannot be held liable where the violation Director” (emphasis added). On September 27, counsel asked

undermined its ability to present its case fairly. Chaffins for clarification, explaining that counsel wished to

First, it notes that OWCP, not employers, has the duty to

safeguard legal records (especially, we imagine, those in cases 1

where the employer loses before OWCP and the ALJ). Cf. 20 The parties disagree about the source. Compare Director’s Motion

C.F.R. § 725.102(a) (making OWCP the official custodian of to Dismiss for Lack of Jurisdiction at 3 (“OWCP sent a copy of the

all documents related to claims of entitlement to benefits). decision to [counsel] by facsimile.”) (filed Dec. 17, 1997) (emphasis

added) with Island Creek Coal Company’s Response to Director’s Motion

We agree that this responsibility rests with OWCP. to Dismiss for Lack of Jurisdiction at 2 (“Only then did the Board fax a

copy . . . .”) (filed Dec. 29, 1997) (emphasis added); see also Island

Creek’s Petition for Modification at 1 (filed Sept. 11, 1996).

4 Island Creek Coal Co. v. Holdman, et al. No. 97-4065 No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 17

pursue a petition for modification with the Director, and not Anderson’s testimony is not sufficient to establish that the

an appeal to the Sixth Circuit. Counsel stated his belief that Claimant’s disability did not arise in whole or in part out of

the only appeal from an order by the Board was to the Sixth his coal mine employment.” The Board correctly upheld ALJ

Circuit. Rippey on these grounds. An ALJ overseeing Black Lung

Act claims may discredit medical expert testimony that

On November 7, 1996, Harry Skidmore, the OWCP District contains equivocations about the etiology of a disease. See

Director, responded via certified mail. Without citing Griffith v. Director, OWCP, 49 F.3d 184, 186-87 (6th Cir.

authority or mentioning the final footnote in the Board’s 1995) (stating this proposition and citing cases in support);

order, he claimed that, because the Board currently had the see also Lane Hollow Coal Co. v. Director, OWCP, 137 F.3d

record in the Holdman case, the Board, and not OWCP, had 799, 804 (4th Cir. 1998) (“[A] physician may opine that a

jurisdiction over the motion for modification. Skidmore given miner has no pulmonary impairment attributable to coal

enclosed a copy of the October 30 order by the Board and mine employment because simple pneumoconiosis does not

stated that “this correspondence represents your official notice generally cause any pulmonary impairment. The interim

of the Board’s decision. Absent an appeal being filed by your regulations presume precisely the opposite, and the

office within thirty (30) days from the date of this notice with presumption must be rebutted with proof rather than

either the Benefits Review Board or Circuit Court, the award disagreement.”). The Board may uphold an ALJ’s ruling on

will become final . . . .” (emphasis added). one ground if the ALJ errs in a separate basis for a ruling.

See, e.g., Zeigler Coal Co. v. Kelley, 112 F.3d 839, 843 (7th

On December 4, 1996, counsel mailed to the Board a Cir. 1997).

motion for reconsideration. On August 21, 1997, the Board

denied the motion for reconsideration. Within 60 days, on Finally, Island Creek contends that ALJ Rippey failed to

September 22, Island Creek petitioned this court for review of comply with the Administrative Procedure Act, which

the Board’s orders of October 30, 1995, and August 21, 1997. requires an adequate “statement of . . . findings and

On December 17, 1997, the Director moved to dismiss the conclusions, and the reasons or basis therefor, on all the

petition for lack of jurisdiction. The Director claimed that the material issues of fact, law, or discretion presented on the

time for action began to run when OWCP faxed the decision record . . . .” 5 U.S.C. § 557(c)(3)(A); see Morehead Marine

to Island Creek’s counsel on August 2, 1996. After that date, Servs., Inc. v. Washnock, 135 F.3d 366, 375 (6th Cir. 1998)

the Director alleged, Island Creek had two options: file a (“Absent a specific, and accurate, reference to the evidence

motion with the Board for reconsideration of the October supporting an ALJ’s decision, we hold that the ALJ has failed

1995 order, or petition this court for review. Island Creek did to fulfill his duty as required by § 557(c)(3)(A), and we must

not move for reconsideration until December 4, 1996, and it remand for a proper explanation.”). Granted, ALJ Rippey did

did not petition for review until September 22, 1997. Thus, not discuss at length the evidence supporting Holdman’s

claimed the Director, this court lacked jurisdiction over the claim. However, the parties stipulated that Holdman

petition. benefitted from the interim presumption. As Island Creek had

the burden of rebutting the presumption, ALJ Rippey had only

Island Creek responded to OWCP’s motion by observing to explain why he found its three medical experts failed to

that the OWCP Director informed counsel on November 7, rebut the presumption. He addressed the three medical

1996, that his letter constituted “official notice,” and that experts that Island Creek offered, thereby adequately

Island Creek had thirty days to file a motion for explaining why he found that Island Creek failed to rebut the

reconsideration with the Board. Within thirty days of the presumption.

16 Island Creek Coal Co. v. Holdman, et al. No. 97-4065 No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 5

Nevertheless, on reconsideration, he found that the report did Director’s letter (sent by certified mail), Island Creek filed

not rebut the presumption: with the Board its motion for reconsideration. Within 60 days

of the Board’s denial of the motion, Island Creek petitioned

[H]owever [Dr. Gallo’s] opinion is not credible in light this court for review. Therefore, according to Island Creek,

of the fact that Claimant could not even complete the we have jurisdiction over this appeal.

pulmonary function tests because of chest pain. Dr.

Gallo attributes these chest pains to suggest angina B. Analysis of Jurisdictional Issue

pectoris but never comments on whether Claimant’s lung

condition, which he diagnosed as pneumoconiosis, 20 C.F.R. § 802.410(a) provides that, “Within 60 days after

contributes to the chest pains. Moreover, Dr. Gallo’s a decision by the Board has been filed pursuant to

report was silent as to whether he considered Claimant to § 802.403(b), any party adversely affected or aggrieved by

be totally disabled or not and if Claimant is totally such decision may file a petition for review with the

disabled whether his disability arises in whole or in part appropriate U.S. Court of Appeals . . . .” 20 C.F.R.

out of coal mine employment. § 802.403(b) provides that, inter alia, “[t]he original of the

decision shall be filed with the Clerk of the Board,” and that

The Board ruled that ALJ Rippey “acted within his discretion “[a] copy of the Board’s decision shall be sent by certified

as fact-finder in determining that Dr. Gallo’s opinion was mail or otherwise presented to all parties to the appeal and the

insufficient to rule out pneumoconiosis as a cause of the Director.”

miner’s disability.” The Board did not err. ALJ Rippey

properly found that Dr. Gallo did not rule out pneumoconiosis The parties agree that the Board sent Island Creek’s copy of

as a contributing cause of the disability. Cf. Gibas v. Saginaw the 1995 order to the wrong address, and that, in 1995, Island

Mining Co., 748 F.2d 1112, 1120 (6th Cir. 1984) (placing the Creek did not receive a copy of the Board’s 2order. Once it

burden on the employer to show that “pneumoconiosis played somehow learned of the Board’s decision, Island Creek

no part in causing a miner’s disability”), cert. denied, 471 attempted to obtain a modification of the ALJ’s order, but the

U.S. 1116 (1985). OWCP informed Island Creek in a letter dated September 23,

1996 that the Board advised that “the appropriate course of

Second, Island Creek contends that, in his 1980 order, ALJ action is for you to file the appeal with the Board, not the

Rippey improperly discredited Dr. Anderson’s testimony District Director.” The November 7, 1996 certified mail letter

solely because ALJ Rippey found the testimony contrary to from the OWCP to Island Creek included a copy of the

the spirit and assumptions underlying the Black Lung Benefits Board’s order and informed Island Creek that “this

Act. Dr. Anderson testified that simple pneumoconiosis will correspondence represents your official notice of the Board’s

not usually disrupt pulmonary function. The Board ruled that, decision,” and that “[a]bsent an appeal being filed by your

because Dr. Anderson did not rule out the possibility that office within thirty (30) days from the date of this notice with

simple pneumoconiosis may cause pulmonary dysfunction, either the Benefits Review Board or Circuit Court, the award

ALJ Rippey erred by finding the Anderson report inconsistent will become final . . . .” This letter was consistent with the

with the Act. The Board upheld ALJ Rippey’s order on other earlier advice by the Board, relayed by Chaffins in the

grounds, noting that ALJ Rippey discounted Dr. Anderson’s September 23 letter, that no action could be taken on Island

credibility because the doctor used words such as “probably.”

ALJ Rippey described the testimony as “hedg[ing],” and

wrote that, “When viewed in its entirety . . . I find that Dr.

2

See fn. 1

6 Island Creek Coal Co. v. Holdman, et al. No. 97-4065 No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 15

Creek’s petition for modification. The Board has never B. Whether Island Creek Failed to Rebut the Interim

denied this position. Presumption of Entitlement to Benefits

After the Board and OWCP apparently unlawfully In its October 1995 order, the Board treated Island Creek’s

foreclosed Island Creek’s attempt to obtain redress via a cross-appeal as a request to reinstate its prior appeal of 1985

petition for modification (pursuant to 20 C.F.R. § 725.310, a that challenged ALJ Rippey’s finding that Island Creek failed

procedure with attendant avenues for hearings and appeal in to rebut Holdman’s presumption of entitlement to benefits.

the event that a party is dissatisfied with the OWCP’s The Board interpreted the appeal in this manner because ALJ

resolution of the petition, see 20 C.F.R. § 725.419), Island Gilday made no findings regarding the initial presumption of

Creek filed with the Board a motion for reconsideration on entitlement and Island Creek’s failure to rebut the

December 4, 1996 (within thirty days of the November 7 presumption. Instead, without elaboration, ALJ Gilday

letter sent by certified mail). See 20 C.F.R. § 802.407(a) reinstated the benefits and dismissed Island Creek solely

(“Any party-in-interest may, within 30 days from the filing of because he felt the company suffered a due process violation

a decision or non-interlocutory order by a panel or the Board from OWCP’s behavior in the litigation.

pursuant to § 802.403(b), request reconsideration of such

decision by those members who rendered the decision.”). On appeal, Island Creek appears to have abandoned its

claim that ALJ Rippey erred in finding that Island Creek

The Board treated the motion as timely and denied it on failed to rebut the presumption pursuant to 20 C.F.R.

August 21, 1997. Within sixty days, on September 22, Island § 727.203(b)(2) (which allows rebuttal with evidence that

Creek petitioned this court for review of the Board’s orders. shows that the claimant has the ability to perform his “usual

“[A] petition for review under § 921(c) is timely if filed coal mine work or comparable and gainful work”). Island

within sixty days of the Board’s denial of a timely motion for Creek contends that ALJ Rippey mistakenly found that Island

reconsideration.” Peabody Coal Co. v. Abner, 118 F.3d 1106, Creek had not rebutted the presumption pursuant to

1108 (6th Cir. 1997). In light of the timely motion for § 727.203(b)(3), permitting rebuttal where evidence shows

reconsideration, our jurisdiction stems from 33 U.S.C. “that the total disability or death of the miner did not arise in

§ 921(c), which provides that, “Any person adversely affected whole or in part out of coal mine employment . . . .” The

or aggrieved by a final order of the Board may obtain a review company isolates three alleged errors, none of which merit

of that order in the United States court of appeals for the reversal.

circuit in which the injury occurred, by filing in such court

within sixty days following the issuance of such Board order First, Island Creek contends that ALJ Rippey

a written petition praying that the order be modified or set inappropriately discounted Dr. Gallo’s medical opinion. In

aside.” The Department of Labor has, by regulation, clarified his 1985 order denying Island Creek’s motion for

the various avenues governing the measurement of the date of reconsideration, ALJ Rippey admitted that he erred in

the start of the 60-day period, see, e.g., 20 C.F.R. § 802.406 overlooking Dr. Gallo’s evaluation of pulmonary test results.

(“If a timely request for reconsideration has been filed, the 60-

day period for filing such petition for review [with a circuit

court of appeals] will run from the issuance of the Board’s

decision on reconsideration.”). In this case, the government (b)(3) to focus on (b)(2)). Here, ALJ Rippey twice emphasized that

similarly clarified that the letter it mailed on November 7, Island Creek focused “primarily” on (b)(3). Therefore, (b)(2)’s formerly-

1996 “represents [Island Creek’s] official notice of the lax standard did not “lull” Island Creek into focusing its efforts on (b)(2)

rebuttal to the detriment of its case for (b)(3) rebuttal.

14 Island Creek Coal Co. v. Holdman, et al. No. 97-4065 No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 7

most plausible, interpretation. Presumably, however, the Board’s decision” and that “[a]bsent an appeal being filed . . .

Board may interpret the scope of its ambiguous orders. within thirty days from the date of this notice . . ., the award

will become final . . . .”

Island Creek contends that, because legal standards have

changed since 1980, it may, at a new hearing, present new The crux of the jurisdictional question is what constitutes

evidence in its defense against the claim of entitlement. Since “issuance of such order” under the statute and regulation. The

1980, the legal interpretation has changed regarding two seemingly relevant regulation, § 802.407(a), does not use

subsections governing means of rebutting the presumption. “issuance” but instead refers to “a decision by the Board [that]

See Part II.A supra (discussing methods of rebuttal). Island has been filed pursuant to § 802.403(b),” to start the thirty

Creek contends that the standards for satisfying the “(b)(3)” days for filing a request for reconsideration. The referenced

rebuttal standard have become more stringent since 1980. See § 802.403(b) makes two statements: “that the original of the

20 C.F.R. § 727.203(b)(3) (permitting rebuttal if the employer decision shall be filed with the clerk of the Board,” and that

proves that “total disability . . . did not arise in whole or in “a copy . . . shall be sent by certified mail or otherwise

part out of coal mine employment”). Island Creek contends presented” to all parties. A very literal interpretation would

that, in 1980, it had to prove only that “no significant” mean that giving the decision to the clerk is sufficient to start

relationship existed between a coal miner’s employment and the time period, and it doesn’t matter whether the parties ever

his disability, while the new standard requires the employer get notice. Not even the Board and the Director take this

to rule out “any” relationship whatsoever between position, as they contend that the time began to run with the

employment and the disability. The Director asserts that the faxing of the opinion on August 2. Thus, the effect on the

Board followed the “no significant relationship”standard only time limit of the Board’s treatment of its own decision is a

between 1981 and 1989, so that, if a new hearing occurs, matter that is subject to some interpretation.

Island Creek would face the same standard it faced in 1980.

The Director accurately describes the evolution of Board Island Creek attempted to undertake a specific lawful and

precedent. Island Creek has no right to introduce new timely procedure for obtaining further review of its claims by

evidence. See Faries v. Director, OWCP, 909 F.2d 170, 175 a petition for modification. It was specifically informed by

(6th Cir. 1990) (finding no due process violation in Black OWCP, speaking for the Board and presenting a position that

Lung Benefits Act hearings where “the applicable legal has never been repudiated by the Board, that such a procedure

standard travelled a full circle beginning and ending at the was not possible, and it was then specifically sent a copy of

same place”).4 the Board’s decision and specifically told that that copy had

the timeliness consequences that were specified for a filing of

the opinion under § 802.410(a) and § 802.403(b). Island

4 Creek’s December 4 filing thus served as a timely motion for

Island Creek also cites the decision in York v. Benefits Review Bd.,

819 F.2d 134 (6th Cir. 1987), which changed the standard for reconsideration, permitting us to turn to the merits of Island

§ 727.203(b)(2) rebuttal. Island Creek contends that the York decision Creek’s petition for review.

also changed the standard for § 727.203(b)(3) rebuttal. This is incorrect.

See Peabody Coal Co. v. White, 135 F.3d 416, 419 (6th Cir. 1998). Also, II. Factual and Procedural Background

Island Creek contends that, because the (b)(2) standard changed, it may

introduce new evidence in its (b)(3) challenge. We permit such evidence A. Initial Award of Black Lung Benefits

only if the formerly-lax (b)(2) standard lulled employers into attempting

primarily to rebut the presumption via (b)(2). See Island Creek Coal Co.

v. Hammonds, No. 94-4110, 1996 WL 135019, at *4 (6th Cir. Mar. 25, In 1978, Arthur W. Holdman filed a claim with the United

1996) (unpublished) (denying remand where Island Creek did not ignore States Department of Labor (DOL) for benefits under the

8 Island Creek Coal Co. v. Holdman, et al. No. 97-4065 No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 13

Black Lung Benefits Act, 30 U.S.C. §§ 901-930. As of 1978, Creek’s appeal to the OALJ “for further proceedings,

Holdman was 57 years old and had worked in coal mines for including reconstruction of the record and, if necessary, a new

30 years, the last ten of which he had spent working for Island hearing [footnote].” The footnote read, “We note that Mr.

Creek. He stopped working in June 1978. DOL’s Office of Holdman died on July 6, 1987.” ALJ Gilday’s order states

Workers’ Compensation Programs (OWCP) awarded benefits that he held no hearing, but that he received evidence into the

to Holdman, and it ordered Island Creek to pay them. Island (new) record. The parties produced copies of whatever old

Creek disputed this result and requested a hearing. exhibits they had in their files, and Island Creek produced

several new depositions and reports taken or created in 1994.

On June 24, 1980, ALJ Charles P. Rippey presided over a It is unclear whether ALJ Gilday entered the new evidence in

hearing involving Holdman and Island Creek. The parties the record, because ALJ Gilday based his ruling on perceived

stipulated that the medical evidence showed that Holdman due process violations by the Director rather than on the

benefitted from the “interim presumption” of 20 C.F.R. evidence of Holdman’s disability. ALJ Gilday’s order

§ 727.203(a). The April 1998 version of 20 C.F.R. reinstated benefits while dismissing Island Creek from the

§ 727.203(a) reads, in part, “A miner who engaged in coal case; nothing suggests that he reviewed the new evidence or

mine employment for at least 10 years will be presumed to be made any new findings about entitlement. “It readily

totally disabled due to pneumoconiosis . . . if one of [several appeared that the record cannot be recreated or reconstructed

enumerated] medical requirements is met.” ALJ Rippey’s and that, once again, the Board has ordered an Administrative

decision shows that the medical experts came to different Law Judge to perform an exercise of utter futility,” he wrote.

conclusions, and ALJ Rippey found that Holdman suffered

from “simple pneumoconiosis,” as opposed to complex When Island Creek cross-appealed after ALJ Gilday’s

pneumoconiosis or none at all. ruling, the Board noted that the company had asserted in the

cross-appeal that, if the Board reinstated Island Creek as the

While it since has been amended, the 1980 version of 20 responsible operator, “employer ‘retains the right to contest

C.F.R. § 727.203(b) listed four means of rebutting the interim entitlement.’” The Board refused to permit ALJ Gilday to

presumption. Subsections 727.203(b)(1) & (2) state that the reconsider entitlement in the event that the Board remanded

presumption is rebutted if the employer shows that the the case. The Board stated that, “Judge Gilday erred in

claimant is doing, or is able to do, “his usual coal mine work admitting newly developed evidence into the record inasmuch

or comparable and gainful work.” Subsection 727.203(b)(4) as he was confined to the scope of proceedings dictated by the

allows rebuttal of the presumption when a party shows that Board’s remand order,” which it interpreted as remanding the

“[t]he evidence establishes that the miner does not . . . have case “for the specific purpose of reconstructing an incomplete

pneumoconiosis.” ALJ Rippey found “no analysis which record and holding a new hearing if necessary.”

even approaches the possibility of rebutting the presumption

under any of those subsections.” Given that the Board knew that Holdman had died, its

remand order appears to have anticipated the introduction of

ALJ Rippey twice remarked that Island Creek “primarily” new evidence if ALJ Gilday found that he could not

relied on 20 C.F.R. § 727.203(b)(3), which declares the reconstruct the original record. One can read the original

presumption rebutted if the “evidence establishes that the total order to permit a hearing only to reconstruct, not supplement,

disability or death of the miner did not arise in whole or in the record (e.g., the order remanded “for further proceedings,

part out of coal mine employment . . . .” ALJ Rippey rejected including reconstruction of the record and, if necessary, a new

the reports of Island Creek’s three medical experts, finding hearing”), but this does not appear to be the only, or even the

12 Island Creek Coal Co. v. Holdman, et al. No. 97-4065 No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 9

the Director of OWCP responsible for OWCP’s failure to the reports lacking in credibility and insufficient to rebut the

transmit the record, and for ignoring the Board’s orders to presumption in light of § 727.203(b)(3)’s requirement that the

produce the record and to remand the case for reconstruction employer show that the disability “did not arise in whole or in

of the record. Finding the record inadequate to resolve the part out of coal mine employment” (emphasis added). ALJ

legal issues, the order reinstated the benefits, ordered them Rippey concluded by ordering Island Creek to pay benefits to

paid to Holdman’s widow from the Black Lung Trust Fund, Holdman, augmenting the benefits because Holdman had a

and dismissed Island Creek from the case. dependent, his wife Hallie.

E. The Only Consummated Appeal of Island Creek to the B. Reconsideration of the ALJ’s Order

Board

On October 20, 1980, Island Creek moved for

After ALJ Gilday issued his order, the Director appealed reconsideration. It observed that ALJ Rippey had dismissed

and Island Creek cross-appealed. The Director claimed that the report of one expert, Dr. Gallo, because ALJ Rippey

ALJ Gilday erred in transferring liability from Island Creek to found it lacked credibility because he thought Dr. Gallo was

the Trust Fund, and Island Creek challenged the finding of an “without the benefit of any pulmonary function tests results.”

entitlement to benefits. The Board found in the Director’s Island Creek referred to Dr. Gallo’s report, wherein Dr. Gallo

favor, ruling that ALJ Gilday erred in transferring liability. apparently wrote that “[p]ulmonary function test demonstrates

The Board treated Island Creek’s cross-appeal as a request to a normal spirogram.”

re-open the 1985 appeal to the Board for review of ALJ

Rippey’s finding that Island Creek failed to rebut the On March 1, 1982, ALJ Rippey issued an order. In it, he

presumption of entitlement. The Board held that ALJ Rippey stayed his prior award of attorney fees against Island Creek,

did not err in finding that Island Creek failed to rebut the pending the resolution of the motion for reconsideration. He

presumption of entitlement. Finally, the Board held that ALJ explained: “That motion [for reconsideration], which was

Gilday erred by admitting newly-developed evidence into the inadvertently misplaced, necessitates the recalling of the full

record; the Board contended that it had authorized OALJ only record a process that will take approximately three to four

to reconstruct the old record and to hold a hearing if weeks.” Two years passed.

necessary. Island Creek petitioned this court for relief.

On April 24, 1984, the Office of Administrative Law

III. Substantive Issues Judges, 3DOL, requested that OWCP return the record to ALJ

Rippey. The Director of OWCP, the Federal Respondent,

This court reviews decisions of the Board to determine asserts that an illegible receipt shows that OWCP sent the

whether substantial evidence supports the Board’s holding. record by certified mail on April 30, 1984. The Office of

See Cal-Glo Coal Co. v. Yeager, 104 F.3d 827, 830 (6th Cir. Administrative Law Judges (OALJ) never received the record;

1997). This court reviews de novo the Board’s legal internal handwritten OWCP memoranda, mostly illegible,

conclusions. See ibid. suggest that the post office erred. The Pikeville, Kentucky

Post Office issued a Mail Nondelivery Report which shows

A. Whether the Board Erred By Ruling that ALJ Gilday that DOL complained about the non-delivery.

Mistakenly Admitted New Evidence

In 1993, after repeated and fruitless requests to the OWCP 3

Support for this paragraph comes from material not in the record,

to produce the missing record, the Board remanded Island but helpful to explain the chronology of this appeal.

10 Island Creek Coal Co. v. Holdman, et al. No. 97-4065 No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 11

In 1985, ALJ Rippey contacted Holdman and Island Creek had failed to respond to any of the four Board orders

and asked them to reconstruct from their own files the demanding the reconstruction of the record. “The Board must

pertinent medical evidence. Holdman’s attorney mailed a have the complete record of the proceedings below before

letter to ALJ Rippey that claimed to enclose copies of several considering the merits of this appeal,” wrote the Board. The

of the original exhibits and reports, including “Dr. Gallo’s Board remanded the case to OALJ for further proceedings,

two-page pulmonary evaluation report.” OWCP provided “including reconstruction of the record and, if necessary, a

only administrative documents, offering no documents new hearing.”

“relative to the merits of the case.” ALJ Rippey issued an

order denying the motion for reconsideration. He said he D. Proceedings Before ALJ Gilday

found the reconstructed record “sufficient to base this opinion

on”; he admitted that his 1980 order overlooked Dr. Gallo’s OALJ assigned the case to ALJ Bernard J. Gilday, and the

pulmonary function study, but he found that Dr. Gallo’s parties attempted to re-construct the record. ALJ Gilday

pulmonary evaluation report did not rebut the interim scheduled a hearing on September 13, 1994, in Madisonville,

presumption. Kentucky. Island Creek appeared, the Director for OWCP did

not attend or send counsel, and Holdman’s widow’s attorney

C. Island Creek’s Abortive Appeal to the Benefits Review appeared. ALJ Gilday limited the scope of the hearing and

Board accepted newly-developed evidence from Island Creek and

Holdman’s widow, including 1994 depositions of some of the

In June 1985, Island Creek appealed to the Benefits Review medical experts from the 1980 hearing. The parties did not

Board (“Board”) the denial of the motion for reconsideration. have a transcript of the June 24, 1980 hearing (at which

Holdman died on July 6, 1987. Four years after Island Creek Holdman testified), and the parties could not reconstruct all

filed its appeal, the Board issued an order on April 14, 1989. the exhibits.

In the order, the Board remarked that the record lacked

several items, including a transcript of the June 24, 1980 Apparently, ALJ Gilday was displeased by the Director and

hearing, and ten exhibits. The Board ordered the Director of OWCP, as he felt that they had repeatedly ignored Board

OWCP to forward the missing documents to the Board by orders; had held Holdman, his wife, and Island Creek “in

June 1, 1989. On June 1, 1989, the OWCP responded by limbo” for almost ten years; and also did not appear (as

claiming that it had already sent all the documents it had, and requested) at the September 13, 1994, hearing before ALJ

that, “[a]fter diligent search, the undersigned has been unable Gilday. ALJ Gilday ordered the Director to show cause why

to locate the litigation file for this case, and, consequently, the Gilday should not reinstate benefits to Holdman’s widow and

Director cannot comply with the Board’s order.” After three order the benefits paid from the Black Lung Trust Fund. The

more years, on May 22, 1992, the Board remanded the case Director filed a three-paragraph answer, disclaiming fault for

to OWCP “for re-creation of the record. When the record has the loss of the record and tersely remarking that, “it is not in

been re-created, the deputy commissioner shall, as the best interest of justice to require the Trust Fund to pay

expeditiously as possible, forward the case record to the these benefits.”

Board so the appeal may be heard on its merits.” Apparently,

OWCP took no action in response to this order. On October 7, 1994, ALJ Gilday filed an order, lamenting

that “once again, the Board has ordered an Administrative

In July 1993, eight years after Island Creek appealed, the Law Judge to perform an exercise of utter futility”. In it, he

Board issued yet another order, remarking that the Director lambasted the OWCP for its legalistic response that failed to

address whether to reinstate the benefits. ALJ Gilday found