UNITED STATES DEPARTMENT OF LABOR
BENEFITS REVIEW BOARD
 

LONGSHORE DESKBOOK
 

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SECTIONS 19, 23 and 27 

Digests 

The claim 
The Board notes that the purpose behind the requirement in Section 13 that the claim be filed with the deputy commissioner is to ensure that employer will receive prompt notification of the claim through forwarding by the deputy commissioner of the written claim to employer. The Board did not strictly construe this reporting requirement in the instant case where its purpose was fulfilled. Employer received written notification of updated hearing loss at the formal hearing, and was given the opportunity post-hearing to submit evidence challenging the claim. Downey v. General Dynamics Corp., 22 BRBS 203 (1989). 

The Board limits Brown, 14 BRBS 460 (1981), to its specific facts, and holds that the administrative law judge did not abuse her discretion in dismissing the request for a hearing and the concurrent refusal to remand the case to the deputy commissioner resulted in a de facto dismissal of the claim, which was found to have been abandoned. The Board notes that Brown was decided prior to the promulgation of the 29 C.F.R. Part 18 regulations. Taylor v. B. Frank Joy Co., 22 BRBS 408 (1989). 

The administrative law judge has the authority to dismiss a claim with prejudice where claimant fails to prosecute his claim, given all the circumstances. Fed. R. Civ. P. 41(b) provides for the involuntary dismissal of a case for failure to prosecute or comply with the orders of the court only where there is a clear record of delay or contumacious conduct or when less drastic sanctions have been unsuccessful. The Board vacates the administrative law judge's dismissal and remands the case for the administrative law judge to consider whether less drastic sanctions, including those provided in Section 27 of the Act, are available and whether claimant's conduct was contumacious in light of the offered explanations as to why claimant did not attend depositions and medical examinations. The administrative law judge also must address whether claimant was represented by counsel and whether employer was prejudiced by the delay. Twigg v. Maryland Shipbuilding & Dry Dock Co., 23 BRBS 118 (1989). 

The Board vacates the dismissal of the claim and remands the case for a hearing on the merits. The Board notes that dismissal is an extreme sanction and the fact-finder must consider whether lesser sanctions would better serve the interests of justice. In this case, claimant missed only the last scheduled hearing and had been ready to proceed at prior scheduled hearings which were continued at employer's request and at claimant's request because of the unavailability of claimant's physician. Bogdis v. Marine Terminals Corp., 23 BRBS 136 (1989). 

The right to disability compensation survives the employee's death and the widow has standing to file a lifetime claim under the Act on the decedent's behalf. Maddon v. Western Asbestos Co., 23 BRBS 55 (1989). 

On the unique facts of this case, claimant, the widow of a deceased employee, had the option of filing under Section 9 as it existed prior to the 1984 Amendments based on either her husband's death from an asbestos-related condition or his having been permanently totally disabled at the time of his death due to a work-related back injury. She filed a timely claim, based on her husband's death due to an asbestos-related condition, and almost three years after her husband's death, indicated in writing that she also sought death benefits based on decedent's having been permanently totally disabled at the time of his death. The Board affirmed the administrative law judge's determination that claimant's raising of a new theory of recovery under Section 9 constituted a timely amendment of her original claim, noting that the amendment's timeliness is determined by that of the original claim and that the U.S. Supreme Court has indicated that liberal amendment of pleadings is to be allowed. Mikell v. Savannah Shipyard Co., 24 BRBS 100 (1990), aff'd on recon., 26 BRBS 32 (1992), aff'd mem. sub nom. Argonaut Ins. Co. v. Mikell, 14 F.3d 58 (11th Cir. 1994). 

The Board affirms the administrative law judge's decision to grant claimant's request to withdraw his claim under the Act pursuant to 20 C.F.R. §702.225, claimant having elected to exclusively pursue his claim under the state workers' compensation statute. Claimant is entitled to pursue his claim under either applicable federal or state statue, or both, where federal and state jurisdiction run concurrently; it is claimant's decision as to where to pursue his remedy. Langley v. Kellers' Peoria Harbor Fleeting, 27 BRBS 140 (1993) (Brown, J., concurring and dissenting). 

The Fifth Circuit reversed the Board's holding that the district director's granting claimant's motion to withdraw did not aggrieve employer, and the Board's consequent dismissal of employer's appeal. The district director's failure to forward the cases to the Office of Administrative Law Judges upon employer's request for a formal hearing is a ministerial and nondiscretionary duty. Once a party requests a hearing, the district director loses any authority to act on the claim. The court stated that after the claim was transferred, the administrative law judge could act on claimants' motions to withdraw their claims while safeguarding employer's procedural rights. Ingalls Shipbuilding, Inc. v. Director, OWCP, 102 F.3d 1385, 31 BRBS 1 (CRT)(5th Cir. 1996), vacating on reh'g 81 F.3d 561, 30 BRBS 39(CRT) (5th Cir. 1996)(court reached the same result based on district director's failure to follow mandamus order, later determined to be inapplicable to this group of cases), rev'g Boone v. Ingalls Shipbuilding, Inc., 28 BRBS 119 (1994) (en banc) (Brown, J., concurring), aff'g on recon. 27 BRBS 250 (1993)(en banc (Brown, J., concurring). 
 

Deputy Commissioner Proceedings 
The Board held that the deputy commissioner did not have authority to issue a compensation order subsequent to November 26, 1972, the effective date of the 1972 Amendments to the Act, pursuant to 33 U.S.C. §919(d), and Neal, 1 BRBS 279 (1974). Thus, the Board held that the compensation order issued in 1973 by the deputy commissioner was not valid, and employer's compensation payments made under that order must therefore be considered voluntary. O'Berry v. Jacksonville Shipyards, Inc., 21 BRBS 355 (1988), aff'd and modified on recon., 22 BRBS 430 (1989). 

On reconsideration, the Board rejects the Director's contention that the deputy commissioner's 1973 compensation order was valid because it became final and binding when it was not appealed within thirty days. Unlike in Downs, 803 F.2d 193, 19 BRBS 36 (CRT) (5th Cir. 1986), the deputy commissioner had no authority to issue a compensation order in 1973, so it was void from its inception. In Downs, the administrative law judge's authority to approve settlements was valid at the time the action was taken. O'Berry v. Jacksonville Shipyards, Inc., 22 BRBS 430 (1989), aff'g and modifying on recon. 21 BRBS 355 (1988). 

The deputy commissioner erred in modifying the administrative law judge's decision. The deputy commissioner does not have the power to modify the decisions of administrative law judges. The deputy commissioner performs only administrative and pre-hearing investigative matters. Thus, it was also error for the deputy commissioner to engage in factfinding regarding the responsible carrier issue. The deputy commissioner acted irrationally in assessing a Section 14(f) penalty against Hanover Insurance Company for failure to pay the administrative law judge's award within 10 days since Hanover was not even a party before the administrative law judge and was not found liable until the deputy commissioner's subsequent order. Sans v. Todd Shipyards Corp., 19 BRBS 24 (1986). 

The Board viewed the deputy commissioner's letter purporting to alter language contained in an administrative law judge's Decision and Order as an impermissible modification, pursuant to Sans, 19 BRBS 24 (1986), and Penoyer, 9 BLR 1-12 (1986). Accordingly, reasoning that the deputy commissioner possessed no authority to issue this letter, the Board held that both the letter and the administrative law judge's second Decision and Order issued in response to it were of no legal effect, and that the period for filing an appeal with the Board thus began when the administrative law judge's first Decision and Order was filed. The Director's appeal, submitted some six months after this Decision and Order was filed in the deputy commissioner's office, was thus dismissed as untimely. Hernandez v. Bethlehem Steel Corp., 20 BRBS 49 (1987). 

The deputy commissioner exceeded his authority by vacating the administrative law judge's Decision awarding permanent total disability benefits based on his apparent finding that claimant is not partially disabled. It was error for the deputy commissioner to engage in factfinding on the disability issue as no agreement had been reached between the parties. Carter v. Merritt Ship Repair, 19 BRBS 94 (1986). 

The Board affirms the administrative law judge's finding that the deputy commissioner had no authority to issue a Notice of Modification of an administrative law judge award in a black lung case. The Board sets out history of modification proceedings, through the Longshore Act, and reiterates its holdings that a deputy commissioner can only modify a decision of a deputy commissioner. The Board further notes that when, as here, no appeal is pending before the Board and new evidence is discovered, the deputy commissioner investigates the grounds for modification and forwards evidence to the administrative law judge. In this case, the administrative law judge did not consider the new evidence, and the case is accordingly remanded. Yates v. Armco Steel Corp., 10 BLR 1-132 (1987) (black lung case). 

When a party requests that the case be transferred to the OALJ for a hearing, the district director has a clear, ministerial and non-discretionary duty to transfer the case for a hearing under Section 19(c). In this case, where employer repeatedly requested transfer and there was little likelihood that the cases would be resolved through informal means, the district court did not err in granting a writ of mandamus ordering the district director to transfer the cases. Ingalls Shipbuilding, Inc. v. Asbestos Health Claimants, 17 F.3d 130, 28 BRBS 12 (CRT)(5th Cir. 1994). 

The Board noted that Section 19 specifically requires the district director to investigate claims and order hearings upon the request of a party, but the Act does not specify the time period for carrying out that duty or the consequences or effects of a delay by the district director's office. Relying on the Fifth Circuit's opinion in Asbestos Health Claimants, 17 F.3d 130, 28 BRBS 12 (CRT) as controlling, the Board determined that the district director's duty to transfer the case to the OALJ under Section 19 upon the request of a party is mandatory. Where the district director dismissed the case upon claimant's request for withdrawal three years after employer requested a hearing, the Board, relying on Asbestos Health Claimants, determined that the district director failed to perform her mandatory duty under Section 19 to transfer the case to the OALJ. However, despite the derogation of duty, and in the interest of judicial efficiency, the Board concluded that the failure to refer the case constituted harmless error, as claimant had no claim to pursue and could have withdrawn his case at any time subject to the regulations. Boone v. Ingalls Shipbuilding, Inc., 28 BRBS 119 (1994) (en banc) (Brown, J., concurring), aff'g on recon. 27 BRBS 250 (1993) (en banc) Brown, J., concurring), rev'd sub nom. Ingalls Shipbuilding, Inc. v. Director, OWCP, 102 F.3d 1385, 31 BRBS 1 (CRT), vacating on reh'g 81 F.3d 501, 30 BRBS 39 (CRT)(5th Cir. 1996). 

The Fifth Circuit reversed the Board's holding that the district director's granting claimant's motion to withdraw did not aggrieve employer, and the Board's consequent dismissal of employer's appeal. The district director's failure to forward the cases to the Office of Administrative Law Judges upon employer's request for a formal hearing is a ministerial and nondiscretionary duty. Once a party requests a hearing, the district director loses any authority to act on the claim. The court stated that after the claim was transferred, the administrative law judge could act on claimants' motions to withdraw their claims while safeguarding employer's procedural rights. Ingalls Shipbuilding, Inc. v. Director, OWCP, 102 F.3d 1385, 31 BRBS 1 (CRT)(5th Cir. 1996), vacating on reh'g 81 F.3d 561, 30 BRBS 39(CRT) (5th Cir. 1996)(court reached the same result based on district director's failure to follow mandamus order, later determined to be inapplicable to this group of cases), rev'g Boone v. Ingalls Shipbuilding, Inc., 28 BRBS 119 (1994) (en banc) (Brown, J., concurring), aff'g on recon. 27 BRBS 250 (1993)(en banc (Brown, J., concurring). 

In the instant case, claimant filed a claim in 1987 due to harmful exposure to asbestos, although no disability was alleged. In 1992, employer requested that the district director refer the case to the OALJ for a hearing. After the district director denied employer's request, employer appealed the district director's denial to the Board. Following the Fifth Circuit's holding in Asbestos Health Claimants, 17 F.3d 130, 28 BRBS 12 (CRT)(5th Cir. 1994), and its decision in Black, 16 BRBS 138 (1984), the Board held that Section 19(c) imposes a mandatory duty on the district director to order a hearing upon the application of any interested party. Eneberg v. Todd Pacific Shipyards, 30 BRBS 59 (1996) (McGranery, J., dissenting). 
 

Where the deputy commissioner had rendered a previous accounting of the amounts which employer still owed, the Board instructed employer to present any remaining issues pertaining to employer's alleged overpayments to the deputy commissioner, rather than to the Board. Williams v. Halter Marine Service, Inc., 19 BRBS 248 (1987). 
 

Administrative Law Judge Adjudication 
Powers of the Administrative Law Judge in General 

The regulations provide that, prior to the transfer of a case to the Office of Administrative Law Judges for hearing, each party must file a pre-hearing statement. Section 702.317(e) allows the administrative law judge to consider a party's failure to file a pre-hearing statement with the deputy commissioner where this failure is relevant. Scott v. S.E.L. Maduro, Inc., 22 BRBS 259 (1989). 

The Board holds the administrative law judge did not err in this case by considering updated evidence for hearing loss presented for the first time at the formal hearing, although the Act (Section 19(c) and regulations (Sections 702.301, 702.316) indicate that claims must first be referred to the deputy commissioner. Whether or not his new evidence constitutes a separate "claim," the administrative law judge did not prejudice employer's procedural and substantive rights, and the administrative law judge acted in the most judicially efficient manner in providing for claimant's interest in securing an award. Downey v. General Dynamics Corp., 22 BRBS 203 (1989). 

The administrative law judge properly allowed intervention of pension fund, which had paid out medical and loss of time benefits to claimant under the mistaken belief that his injuries were not work-related, to recover amounts paid. MacDonald v. Trailer Marine Transport Corp., 18 BRBS 259 (1986), aff'd mem. sub nom. Trailer Marine Transport Corp. v. Benefits Review Board, 819 F.2d 1148 (11th Cir. 1987). 

The Board declines to address the issue of whether the administrative law judge's failure to issue a decision within twenty days of the hearing, as required by 20 C.F.R. §702.349, constituted reversible error in light of the decision to remand the claim on other grounds. Leone v. Sealand Terminal Corp., 19 BRBS 100 (1986). 

The Board noted that the administrative law judge, in deciding a case on remand from the United States Court of Appeals, had not been bound by his previous findings, given that his earlier dispositions of the case had been reversed by the court. Geddes v. Washington Metropolitan Area Transit Authority, 19 BRBS 261 (1987), aff'd sub nom. Geddes v. Director, OWCP, 851 F.2d 440, 21 BRBS 103 (CRT)(D.C. Cir. 1988). 

An administrative law judge may remand a case to the deputy commissioner for consideration of a new issue only when evidence not considered by the deputy commissioner is likely to resolve the case without a hearing. 20 C.F.R. §702.336. In this case, the administrative law judge abdicated his responsibility to resolve disputed issues of fact regarding the responsible carrier issue by remanding the case, as the administrative law judge is empowered to resolve any issue arising at the hearing. The administrative law judge should have notified a potentially liable carrier of the proceedings, added the carrier as a party, and held the record open for further evidence regarding the date of last exposure and the carrier on the risk at that time. Sans v. Todd Shipyards Corp., 19 BRBS 24 (1986). 

The regulation at 29 C.F.R. §18.6(b) expressly provides ten days for a party to respond to a motion in administrative law judge proceedings before the Department of Labor. By issuing his Order to Compel prior to the expiration of the ten day period, the administrative law judge violated the due process rights of the petitioner. Niazy v. The Capitol Hilton Hotel, 19 BRBS 266 (1987). 

The Sixth Circuit stated that adverse rulings in the proceedings are not by themselves sufficient to show bias on the part of the administrative law judge. Orange v. Island Creek Coal Co., 786 F.2d 724, 8 BLR 2-192 (6th Cir. 1986). 

The Board held that claimant failed to show that the administrative law judge was biased. Adverse rulings, alone, are insufficient to show bias. Raimer v. Willamette Iron & Steel Co., 21 BRBS 98 (1988). 

In order to avoid piecemeal review, the administrative law judge was instructed that, in the future, he should obtain the facts necessary to resolve all issues prior to deciding the issue of jurisdiction, so that a single compensation order may issue. Jackson v. Straus Systems, Inc., 21 BRBS 266 (1988). 

The Board limits Brown, 14 BRBS 460 (1981), to its specific facts, and holds that the administrative law judge did not abuse her discretion in dismissing the request for a hearing and the concurrent refusal to remand the case to the deputy commissioner resulted in a de facto dismissal of the claim, which was found to have been abandoned. The Board notes that Brown was decided prior to the promulgation of the 29 C.F.R. Part 18 regulations. Taylor v. B. Frank Joy Co., 22 BRBS 408 (1989). 

The administrative law judge has the authority to dismiss a claim with prejudice where claimant fails to prosecute his claim, given all the circumstances. Fed. R. Civ. P. 41(b) provides for the involuntary dismissal of a case for failure to prosecute or comply with the orders of the court only where there is a clear record of delay or contumacious conduct or when less drastic sanctions have been unsuccessful. The Board vacates the administrative law judge's dismissal and remands the case for the administrative law judge to consider whether less drastic sanctions are available, including those in Section 27 of the Act, and whether claimant's conduct was contumacious in light of the offered explanations as to why claimant did not attend depositions and medical examinations. The administrative law judge also must address whether claimant was represented by counsel and whether employer was prejudiced by the delay. Twigg v. Maryland Shipbuilding & Dry Dock Co., 23 BRBS 118 (1989). 

The Board vacates the dismissal of the claim and remands the case for a hearing on the merits. The Board notes that dismissal is an extreme sanction and the fact-finder must consider whether lesser sanctions would better serve the interests of justice. In this case, claimant missed only the last scheduled hearing and had been ready to proceed at prior scheduled hearings which were continued at employer's request and at claimant's request because of the unavailability of claimant's physician. The Board further holds that there is no provision in the Act or regulations requiring service on the parties before a document is considered filed. Thus, claimant's motion for reconsideration was timely filed with the administrative law judge even though it was not served on employer within the ten-day filing limit. Bogdis v. Marine Terminals Corp., 23 BRBS 136 (1989). See also Hamilton v. Ingalls Shipbuilding, Inc., 30 BRBS 84 (1996)(time for filing motion for reconsideration with administrative law judge commences on the date district director certifies he filed the administrative law judge's decision. 33 U.S.C. §919(e); 20 C.F.R. §§702.349-350, 802.206). 

The administrative law judge acquired jurisdiction over the claim following the Board's denial of claimant's motion for reconsideration. The administrative law judge did not abuse his discretion in dismissing claimant's' claims with prejudice pursuant to 29 C.F.R. §18.29(a) based on claimant's repeated and numerous abuses of the administrative process over the entire course of the case including claimant's refusal to comply with discovery requests and to submit to a medical examination. The case sets forth the back letter law regarding the standards to be considered before an administrative law judge may dismiss a claim with prejudice, specifically FRCP 37, 41. Harrison v. Barrett Smith, Inc., 24 BRBS 257 (1991), aff'd mem. sub nom. Harrison v. Rogers, No. 92-1250 (D.C. Cir. March 19, 1993). 

The Board held that the administrative law judge's dismissal of a claim by Permanente Medical Group/Kaiser Foundation Hospital an intervenor-petitioner, constituted an abuse of discretion. Initially, the Board indicated that the administrative law judge erred in failing to state the grounds upon which he based his dismissal of the claim. Moreover, there was no indication that the administrative law judge based his dismissal on Kaiser's alleged failure to comply with his pre-trial order. The Board further held that Kaiser's failure to appear at the hearing was not a sufficient ground on which to base the dismissal of its claim. The Board noted that dismissal for failing to appear at a hearing, deposition, or medical appointment is an extreme sanction, and stated that the administrative law judge must consider whether lesser sanctions would better serve the interests of justice. The Board also found that the administrative law judge erred in dismissing Kaiser's claim in view of the misleading language used by the administrative law judge in his decision. French v. California Stevedore & Ballast, 27 BRBS 1 (1993). 

The Board affirms the administrative law judge's determination that 29 C.F.R. §18.36 grants him the authority to exclude a representative from appearing in a proceeding before him if that representative refuses to adhere to reasonable standards of ethical conduct. Furthermore, as claimant's counsel practices law in Washington state, and the rules at 29 C.F.R. Part 18 do not delineate what constitutes ethical conduct, the Board holds that the administrative law judge rationally relied on state rules of professional conduct to establish the ethical standard to be applied. However, the Board reverses the administrative law judge's decision to disqualify counsel, based upon the uncontradicted evidence of record that a "Chinese Wall" had been established to protect employer's confidences, and the administrative law judge's own findings that the record is devoid of evidence establishing that confidences were exchanged between employer's former counsel and claimant's counsel's firm. Baroumes v. Eagle Marine Services, 23 BRBS 80 (1989). 

Where an attorney who represents claimant also represents employer's insurance plan administrator, a conflict exists even though the attorney did not represent the administrator in a dispute between claimant and employer. An administrative law judge has the authority to disqualify counsel because of conflict of interest. In this case, the administrative law judge was fully aware of the conflict, and he failed to disqualify counsel. As claimant appealed the conflict issue as well as whether counsel represented her competently, the court reversed the administrative law judge's finding of no permanent disability and remanded the case for further fact-finding. Smiley v. Director, OWCP, 984 F.2d 278 (9th Cir. 1993), superseding 973 F.2d 1463, 26 BRBS 37 (CRT) (9th Cir. 1992). 

The Board rejects the argument that the administrative law judge erred by remanding this case to the deputy commissioner for calculating the amount of employer's Section 33(f) credit, and for entry of an award. The Board holds that in this case the administrative law judge made the necessary findings of fact and conclusions of law so that the deputy commissioner was charged with making purely ministerial calculations. Cretan v. Bethlehem Steel Corp., 24 BRBS 35 (1990), aff'd in part and rev'd in part, 1 F.3d 843, 27 BRBS 93 (CRT) (9th Cir. 1993), cert. denied, U.S. , 114 S.Ct. 2705 (1994). 

The Board holds that the administrative law judge was not bound by the "law of the case" doctrine from addressing the Director's Section 8(f)(3) contention inasmuch as the doctrine does not prevent review of the same tribunal's interlocutory order. As the administrative law judge clarified that he had not remanded the case to the deputy commissioner for dispositive findings on the Section 8(f)(3) bar, he properly addressed the issue in his second decision. Ortiz v. Todd Shipyards Corp., 25 BRBS 228 (1991). 

An administrative law judge's denial of reconsideration is reviewed to determine if there was an abuse of discretion. In this case, the administrative law judge did not abuse his discretion to deny employer's motions for reconsideration and discovery. Due to its admitted negligence, employer failed to participate in the resolution of this claim for over three and one-half years and it failed to attend the formal hearing. Duran v. Interport Maintenance Corp., 27 BRBS 8 (1993). 

The Board rejected employer's argument that, as Section 19(d) only vests in administrative law judges the authority contained in the Act, administrative law judges do not have the powers conferred on the district court by 28 U.S.C. §1961 and cannot award interest. The Board acknowledged that Section 1961 does not give the administrative law judge the authority to award interest, but it noted its previous reliance on Section 1961 was limited to using that section as a guide in setting the interest rate and not as authority to award interest. Brown v. Alabama Dry Dock & Shipbuilding Corp., 28 BRBS 160 (1994)(Dolder, C.J., concurring and dissenting). 

The Board rejected contention of the borrowing employer that the administrative law judge lacked the authority to order it to reimburse the lending employer for claimant's compensation because claimant did not file a claim against borrowing employer. Pursuant to Rule 14(c) of the FRCP in maritime and admiralty claims a defendant may implead another party against whom the claimant has not asserted a claim and demand that that party be found liable to both the original defendant and to the claimant. Moreover, the Board noted that an administrative law judge has all powers, duties and responsibilities necessary to resolve claims under the Act and that claims for reimbursement of an employer or carrier raise questions in respect to compensation claims. Vodanovich v. Fishing Vessel Owners Marine Ways, Inc., 27 BRBS 286 (1994). 

The Board holds that the administrative law judge erred in relying on Busby, 13 BRBS 222, and Rodman, 16 BRBS 123, to find that he did not have jurisdiction to determine whether Omega's carrier, INA, is entitled to reimbursement from the alleged borrowing employer, Elf, because claimant was no longer an active litigant, having settled a third-party suit and relinquishing any rights for compensation from Omega pursuant thereto. The Board holds that the administrative law judge erred in viewing this case as involving solely contractual issues between INA and Elf, when in fact it is a responsible employer case involving application of the borrowed employee principles. This is an issue arising under the Act which an administrative law judge is empowered to resolve; any contractual issues are ancillary issues raised by Elf in response to Omega's responsible employer claim. Moreover, the case is distinguishable from Busby and Rodman, as it involves a meritorious claim for benefits, as evidenced by the fact that claimant has been fully paid for his work-related injury to a scheduled member. Schaubert v. Omega Services Industries, Inc., 31 BRBS 24 (1997). 

The Board vacates as premature the administrative law judge's findings concerning the proper method of calculating the amount of employer's Section 33(f) setoff against any possible future third-party settlements, inasmuch as there have not yet been any settlements to credit. Chavez v. Todd Shipyards Corp., 24 BRBS 71 (1990), aff'd in part and rev'd in pert. part sub nom. Chavez v. Director, OWCP, 961 F.2d 1409, 25 BRBS 134 (CRT) (9th Cir. 1992). 

The Board rejected employer's contention that the administrative law judge erred in remanding a case to the district director without instructions to officially close or dismiss it. The Board held that a 1985 settlement constituted the final disposition of the only claim filed in this case and that employer's argument is one of semantics only, as, there is no pending claim to address and employer cannot be aggrieved unless or until claimant formally files a claim for medical benefits. Moreover, the Board held that as there are no issues to adjudicate, employer is not denied due process by the administrative law judge's denial of its request for a hearing. Parker v. Ingalls Shipbuilding, Inc., 28 BRBS 339 (1994). 

The Board rejected employer's contention that the administrative law judge erred in remanding a case to the district director without instructions to officially close or dismiss it. The Board held that a 1983 settlement constituted the final disposition of the only claim filed in this case and that employer's argument is one of semantics only, as, given the administrative law judge's finding that no future claims can be filed in this case due to claimant's death and to the failure of his survivors to file a timely claim for death benefits, there is no pending claim to address. Deakle v. Ingalls Shipbuilding, Inc., 28 BRBS 343 (1994). 

The administrative law judge erred in advising the parties at the hearing that he would not resolve the issue of LIGA's liability, and then ruling on the issue in the decision. The administrative law judge has the power to hear and resolve insurance issues which are necessary to the resolution of a claim under the Act. The Board holds, however, that a new hearing on LIGA's liability is unnecessary in this case as state law mandates its liability. Abbott v. Universal Iron Works, Inc., 23 BRBS 196 (1990), modified on other grounds on recon., 24 BRBS 169 (1991). 

The administrative law judge has the power to hear and resolve insurance issues which are necessary to the resolution of a claim under the Act, but the administrative law judge's failure to do so in this case is harmless error, as the contract here provides for liability consistent with the exposure rule of Cardillo. Barnes v. Alabama Dry Dock & Shipbuilding Corp., 27 BRBS 188 (1993). 

Issues at Hearings/Stipulations 

The administrative law judge erred in failing to resolve the disputed responsible carrier issue and in remanding the case to the deputy commissioner for findings of fact and to modify his decision. When an issue is in dispute, only the administrative law judge can hold a formal hearing and make findings to resolve the dispute. The responsible carrier issue was unresolved before the administrative law judge and there was no agreement between the parties as to the issue; therefore, the administrative law judge abdicated his responsibility to resolve disputed questions of fact by remanding the case to the deputy commissioner rather than resolving this issue himself. Sans v. Todd Shipyards Corp., 19 BRBS 24 (1986). 

The Board rejects claimant's argument that employer was precluded from raising Section 13 and Section 33(g) at the hearing before the administrative law judge, even though employer had not raised these issues before the deputy commissioner, on the rationale that both these issues were raised in employer's pre-hearing statement and at the hearing of the claim before the administrative law judge. See 20 C.F.R. §§702.317, 702.336. Lewis v. Norfolk Shipbuilding & Dry Dock Corp., 20 BRBS 126 (1987). 

Where employer attempted to withdraw its controversion at the hearing, but the parties were not in agreement, the administrative law judge properly retained jurisdiction and made findings on the disputed issues. Falcone v. General Dynamics Corp., 21 BRBS 145 (1988). 

The Board holds that administrative law judge erred in addressing, sua sponte, the issue of D.C. Act jurisdiction, given that the parties had previously achieved a Section 8(i) settlement of the substantive aspects of the claim and that the settlement had previously been approved by a deputy commissioner. Because the deputy commissioner's approval of the settlement had become final, the administrative law judge was empowered only to decide, pursuant to Section 18 of the Act and Section 702.372(a) of the regulations, a factual issue pertaining to employer's liability for paying certain medical expenses. The Board accordingly reverses the administrative law judge's finding of no D.C. Act jurisdiction. Kelley v. Bureau of National Affairs, 20 BRBS 169 (1988). 

Where employer's amended Form LS-18, listing Section 22 among the contested issues, was filed more than one month prior to the hearing, claimant was provided with timely notice of the new issue. Thus, it was an abuse of discretion for the administrative law judge to refuse to consider employer's request for modification. Claimant, who had been awarded permanent partial disability benefits for a 1978 injury, was seeking permanent total disability benefits for a second injury. Thus, the issue of claimant's residual wage-earning capacity subsequent to the 1978 injury was implicitly raised at the hearing. Finch v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 196 (1989). 

In a footnote, the Board upheld an administrative law judge's determination that 29 C.F.R. §18.20, which deems a matter addressed by a Request for Admissions conceded if a party fails to respond to the Request, did not divest the administrative law judge of authority to decide Section 8(f) issues in this case. The Board holds that the "law of the case" doctrine does not preclude an administrative law judge from reopening the previously-decided issue of Section 8(f) relief where the case is before him pursuant to a request for modification, even where Section 8(f) has not been specifically raised as an issue in the modification request, if the administrative law judge finds that a "mistake in fact" is contained in the previous Section 8(f) determination. Board nonetheless remands, since the administrative law judge did not afford the parties an adequate opportunity to present evidence and arguments relevant to Section 8(f) once he notified them that he would address this issue in his decision on modification. Coats v. Newport News Shipbuilding & Dry Dock Co., 21 BRBS 77 (1988). 

The First Circuit vacates Board's determination that issue of Section 8(f) applicability was improperly considered by the administrative law judge, reasoning that although the Section 8(f) issue was not raised by the parties, it was within the administrative law judge's discretion to consider this issue under 20 C.F.R. §702.336(b), which affords administrative law judges authority to raise issues on their own initiative. The court accordingly remands the case for reconsideration of the issue of Section 8(f) applicability, indicating that since the administrative law judge did not provide the parties with adequate notice that this issue would be addressed, the parties are entitled to submit evidence relevant to Section 8(f) on remand. Cornell University v. Velez, 856 F.2d 402, 21 BRBS 155 (CRT)(1st Cir. 1988). 

It is within the administrative law judge's discretion to allow parties to raise new issues at the hearing, 20 C.F.R. §702.336. The administrative law judge in this case, however, did not abuse his discretion by refusing to allow employer to raise the issue of Section 8(f) given the absence of notice to the Director, the representative of the Special Fund. Moreover, employer was given an opportunity to raise the Section 8(f) issue in a post-hearing motion which would have given Director notice, but employer failed to take advantage of this opportunity. Scott v. S.E.L. Maduro, Inc., 22 BRBS 259 (1989). 

An administrative law judge may expand the hearing to include new issues or new evidence provided the parties are provided with fair notice, under 20 C.F.R. §702.336. In this case, the parties were given adequate notice and the chance for a further evidentiary hearing on the issue of future medical benefits and thus due process rights were not violated. Cowart v. Nicklos Drilling Co., 23 BRBS 42 (1989), rev'd on other grounds, 907 F.2d 1552, 24 BRBS 1 (CRT) (5th Cir. 1990), aff'd, 927 F.2d 828, 24 BRBS 93 (CRT) (5th Cir. 1991) (en banc), aff'd, ___ U.S. ___, 112 S.Ct. 2589, 26 BRBS 49 (CRT) (1992). 

In an occupational disease case before the Board for the second time, the Board held it was proper for the administrative law judge to reevaluate the issue of claimant's awareness of the relationship between his disease, disability, and employment for purposes of determining whether the claim was timely since the issue of whether the claim was untimely had not been explicitly considered in the original Decision and Order, although raised by employer. Although the administrative law judge previously had made an awareness finding pursuant to Aduddell, employer had no basis for filing a cross-appeal of this finding since it had no significance with respect to the timeliness of the claim until the enactment of the 1984 Amendments. Board notes that first awareness finding was not "final" since the Decision and Order containing it had been appealed. Lombardi v. General Dynamics Corp., 22 BRBS 323 (1989). 

The Board held that because the issues of nature and extent of claimant's disability were properly before the administrative law judge, the administrative law judge erred by failing to make a determination regarding claimant's right to an award of "continuing" temporary total disability benefits. The Act and its regulations mandate that an administrative law judge set forth findings of fact and conclusions of law in his compensation order, and that the order either make an award to the claimant or reject the claim. See 33 U.S.C. §919(c); 20 C.F.R. §702.348. Hoodye v. Empire/United Stevedores, 23 BRBS 341 (1990). 

Although a deceased employee's claim for disability compensation had not yet been referred to the Office of Administrative Law Judges, and the only formal claim before the administrative law judge was for death benefits, the administrative law judge had jurisdiction to rule on the disability claim, since consideration of the extent of decedent's disability was integral to deciding the claim for death benefits pursuant to pre-amendment Section 9. The Board noted that declining to adjudicate the disability and death benefits claims together would have resulted in an unnecessary bifurcation of proceedings. Mikell v. Savannah Shipyard Co., 24 BRBS 100 (1990), aff'd on recon., 26 BRBS 32 (1992), aff'd mem. sub nom. Argonaut Ins. Co. v. Mikell, 14 F.3d 58 (1994). 

Failure to contest coverage under the Act at the deputy commissioner level does not preclude employer's raising jurisdiction as an issue after referral to the Office of Administrative Law Judges, as 20 C.F.R. §702.336 provides for the raising of new issues before the administrative law judge. Moreover, employer's voluntary payment of benefits does not estop it from raising jurisdiction as an issue. Hall v. Newport News Shipbuilding & Dry Dock Co., 24 BRBS 1 (1990). 

The Board rejects claimant's contention that the administrative law judge erred in allowing LIGA to raise Section 33(g), inasmuch as LIGA was not notified of its potential liability until after the first hearing on this case. The administrative law judge thus afforded LIGA its first opportunity for a fair hearing on this issue. Deville v. Oilfield Industries, 26 BRBS 123 (1992). 

Claimant was not denied due process when the Director raised post-hearing the affirmative defense that claimant failed to cooperate with OWCP's vocational rehabilitation efforts. Failure to cooperate is per se raised whenever termination of a vocational rehabilitation plan is contested. 20 C.F.R. §702.506(c). Claimant therefore should have been aware that his cooperation was at issue prior to the Director's post-hearing participation and he was afforded an opportunity to submit relevant evidence in response. Olsen v. Triple A Machine Shops, Inc., 25 BRBS 40 (1991), aff'd mem. sub nom. Olsen v. Director, OWCP, 996 F.2d 1226 (9th Cir. 1993). 

It was within the administrative law judge's discretion to address whether claimant's disability is permanent, which was raised for the first time at the formal hearing. Employer was not entitled to further notice of the new issue because claimant raised temporary total disability in his pre-hearing statement and there is no significant difference in the burdens of proof required to challenge a claim for permanent rather than temporary total disability. Moreover, the administrative law judge was not obliged to address the issue of jurisdiction, which was raised by claimant in his pre-hearing statement. When employer failed to appear at the formal hearing without good cause, the administrative law judge was authorized under 29 C.F.R. §18.5(b) to find facts as alleged by claimant - the appearing party. Furthermore, as claimant sought an award of benefits, he per se did not contest jurisdiction under the Act. Duran v. Interport Maintenance Corp., 27 BRBS 8 (1993). 
 

The Board concludes that the administrative law judge did not abuse his discretion in refusing to entertain claimant's post-hearing request for permanent total disability compensation based on claimant's failure to exercise diligence in developing this issue, which should have been anticipated prior to the hearing. Pimpinella v. Universal Maritime Service Inc., 27 BRBS 154 (1993). 

Where the administrative law judge accepts stipulations affecting the Special Fund's liability that were submitted by claimant and employer without Director's participation, the Board normally holds claimant and employer bound by their stipulations and remands for adjudication of the Special Fund's liability only. Under the circumstances of this case, however, where the stipulations affect the Special Fund's liability under Sections 8(f) and 10(h) and are based on the "last exposure" test of Dunn, which has been disapproved by Congress through the 1984 Amendments, the Board will permit a remand for readjudication of all issues, even those between claimant and employer. Truitt v. Newport News Shipbuilding & Dry Dock Co., 20 BRBS 79 (1987). 

The administrative law judge was not precluded from awarding permanent partial disability by the fact that OWCP ordered employer to pay claimant temporary total disability pending claimant's completion of a vocational rehabilitation program. Because the deputy commissioner possesses no fact-finding authority, OWCP's implicit temporary total disability determination is not binding on an administrative law judge. Although the nature and extent issues were not explicitly raised before or at the hearing, the parties' stipulation regarding date of permanency and employer's request for Section 8(f) relief, suggested that the issue could permissibly be addressed. Price v. Dravo Corp., 20 BRBS 94 (1987). 

Administrative Law Judge acted within his discretion in refusing to accept parties' stipulations agreed to at the informal conference where claimant was represented by a different attorney. 29 C.F.R. §18.51 provides that the stipulations are not binding on the parties until received in evidence. Warren v. National Steel & Shipbuilding Co., 21 BRBS 149 (1988). 

The administrative law judge's error in rejecting the parties' stipulation without giving them notice was harmless since the Director did not participate, and the stipulation affected the Special Fund. However, since the date of maximum medical improvement agreed to by the parties was supported by the evidence of record, the Board modified the date of permanency to that date. Phillips v. Marine Concrete Structures, Inc., 21 BRBS 233 (1988), aff'd, 877 F.2d 1231, 22 BRBS 83 (CRT)(5th Cir. 1989), vacated on other grounds, 895 F.2d 1033, 23 BRBS 36 (CRT) (5th Cir. 1990) (en banc). 

Board held that where a stipulation entered into by the parties in a former claim, that claimant had no viable disability claim at that time, manifested no intention by the parties to be bound in future cases, the administrative law judge erred by finding that the parties were bound by the stipulation. Donnell v. Bath Iron Works Corp., 22 BRBS 136 (1989). 
 

An administrative law judge may not reject stipulations without giving the parties prior notice that he will not automatically accept the stipulations. On remand, the administrative law judge must give the parties the opportunity to submit evidence in support of their positions on the average weekly wage issue. Dodd v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 245 (1989). 

The Board holds that the administrative law judge acted within his discretion in rejecting the parties' stipulation to Defense Base Act jurisdiction. Casey v. Chapman College, Pace Program, 23 BRBS 7 (1989). 

An administrative law judge may discount an alleged agreement regarding claimant's average weekly wage at the informal hearing because it could merely have been a factor in attempting to negotiate a settlement at the informal level. McCullough v. Marathon Letourneau Co., 22 BRBS 359 (1989). 

The Board permitted Director to challenge stipulations agreed to by claimant and employer because a) stipulations are non-binding where they evince an incorrect application of law; b) the stipulations potentially violated Section 15(b) because they constituted an agreement under which claimant was effectively waiving his right to compensation by accepting less compensation than that to which he was entitled; c) the issue contained in the stipulations, the proper maximum compensation rate, was a legal one and could therefore be raised at any time. Puccetti v. Ceres Gulf, 24 BRBS 25 (1990). 

The administrative law judge acted within his discretion in holding employer bound to its stipulation of claimant's annual earnings in the year prior to the injury for purposes of calculating average weekly wage. Simonds v. Pittman Mechanical Contractors, Inc., 27 BRBS 120 (1993), aff'd sub nom. Pittman Mechanical Contractors, Inc. v. Director, OWCP, 35 F.3d 122, 28 BRBS 89 (CRT) (4th Cir. 1994). 

At the hearing regarding claimant's death benefits case, employer conceded that claimant's failure obtain written approval of third-party settlements she entered into with decedent did not bar claimant's claim for death benefits under Section 33(g)(1). Subsequent to the hearing, and prior to the issuance of the administrative law judge's decision, the Ninth Circuit issued Cretan, 1 F.3d 843, 27 BRBS 93(CRT), wherein the court held that potential widows are subject to the provisions of Sections 33(f) and (g) of the Act. Thereafter, in a letter to the administrative law judge, employer stated that it had changed its position with regard to Section 33(g) and requested that the administrative law judge consider Section 33(g) as a new issue, pursuant to 20 C.F.R. §702.336(b). The administrative law judge denied employer's request. The Board held that it was reasonable for employer to raise the issue of Section 33(g) post-hearing based on the holding in Cretan, and that the administrative law judge's failure to consider the Section 33(g) issue post-hearing constituted an abuse of discretion under Section 702.336(b). Thus, the Board remanded the case for further findings. Taylor v. Plant Shipyards Corp., 30 BRBS 90, 94 (1996). 

The administrative law judge acted within his discretion under 20 C.F.R. §702.336(b), when he refused to consider the Section 33(g) issue raised by employer after the administrative law judge's adverse decision, where employer waited more than three months after the issuance of the applicable Supreme Court case, even though the decision was published prior to the issuance of the administrative law judge's decision. Moreover, the administrative law judge rationally found that as there were different interpretations of the section at issue by the courts at the time of the hearing and a Supreme Court decision was imminent, employer's failure to preserve the Section 33(g) defense for appeal was not excusable, justifiable or understandable. This case is thus distinguishable from Taylor, 30 BRBS 90 (1996). Lewis v. Todd Pacific Shipyards Corp., 30 BRBS 154, 157 (1992). 

If, during the course of a hearing, the evidence presented warrants consideration of an issue or issues not previously considered, the hearing may be expanded to include the new issue. 20 C.F.R. §702.366(a). In this case, the administrative law judge properly considered the issue of coverage inasmuch as employer listed this issue in its pre-hearing statement that was submitted to the administrative law judge and raised this issue at the formal hearing. Nelson v. American Dredging Co., 30 BRBS 205, 206 (1996). 

The Board rejected employer's contention that the administrative law judge improperly allowed claimant and the Director to raise a new issue at the hearing on remand. Initially, the administrative law judge found that claimant was not "a person entitled to compensation" under Section 33(g)(1), and therefore, his claim was not barred. Subsequently, the Supreme Court issued Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 26 BRBS 49 (CRT)(1992). Based on the change of law, claimant and the Director advanced a different theory before the Board as to why claimant's claim should not barred: that since claimant suffered two distinct injuries asbestosis, contracted while employed at Electric Boat, and chronic obstructive pulmonary disease while working for employer employer's written approval of the third-party settlements concerning his asbestosis was not required. Since the administrative law judge had not addressed this theory, the Board had specifically directed him to address this theory on remand, and the administrative law judge committed no error by doing so. Goody v. Thames Valley Steel Corp., 31 BRBS 29 (1997) 

Administrative Procedure Act, Section 23 and Section 27 

If claimant cannot be located because he has failed to notify the Office of Administrative Law Judges or his attorney of his whereabouts, it is not a violation of claimant's right to testify in his own behalf or to confront witnesses, 5 U.S.C. §556(d), for the administrative law judge to close the record more than five months after the second hearing without such testimony; claimant has waived his rights. Walker v. Sun Shipbuilding & Dry Dock Co., 19 BRBS 171 (1986). 

The administrative law judge's mere statement that each medical exhibit "although perhaps not specifically mentioned in this decision, has been carefully reviewed and given thoughtful consideration," does not satisfy the requirements of the APA. The administrative law judge must independently analyze and discuss the medical evidence; the administrative law judge's failure to explicitly accept or reject the medical evidence of record makes it impossible for the Board to apply its standard of review. Ballesteros v. Willamette Western Corp., 20 BRBS 184 (1988). 

Although employer allegedly discharged claimant for falsifying information on his pre-employment application, the administrative law judge's failure to consider that employer discharged claimant only a few weeks after he filed his workers compensation claim (possible violation of Section 49) violates the Administrative Procedure Act and requires remand. Jaros v. Nat'l Steel & Shipbuilding Co., 21 BRBS 26 (1988). 

Where administrative law judge provided only a cursory discussion of his determination that employer was not entitled to Section 8(f) relief, Board remanded for additional findings pertaining to the Section 8(f) issue. Dugas v. Durwood Dunn, Inc., 21 BRBS 277 (1988). 

Because the record contained conflicting evidence as to the cause of claimant's back problems and his chronic pain syndrome, which the administrative law judge failed to consider in concluding that these conditions were not work-related, the Board remanded for the administrative law judge to reconsider this evidence in light of the Section 20(a) presumption and the Administrative Procedure Act. Frye v. Potomac Electric Power Co., 21 BRBS 194 (1988). 

Where administrative law judge denied claimant medical benefits under the Longshore Act because he found no evidence upon which to determine whether the medical expenses paid under the state act were reasonable, and where it was not apparent from the administrative law judge's Decision and Order what evidence he considered and relied upon in reaching this determination, the Board remanded for reconsideration on Administrative Procedure Act grounds. McDougall v. E.P. Paup Co., 21 BRBS 204 (1988), aff'd and modified sub nom. E.P. Paup Co. v. Director, OWCP, 999 F.2d 1341, 27 BRBS 41 (CRT) (9th Cir. 1993). 

The Board holds that the administrative law judge erred in failing to address all of the medical evidence of record, as well as the post-hearing motions made by both parties. Such an omission violates the Administrative Procedure Act. McCurley v. Kiewest Co., 22 BRBS 115 (1989). 

The administrative law judge's disposition of a petition for modification must comport with the requirements of the Administrative Procedure Act. Wojtowicz v. Duquesne Light Co., 12 BLR 1-162 (1989). 

The Board remands the case for the administrative law judge to render new findings consistent with the APA where he summarily concluded that employer presented substantial evidence to rebut the Section 20(a) presumption. Dodd v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 245 (1989). 

The administrative law judge violated the APA by failing to discuss voluminous and relevant medical evidence relating to claimant's physical and mental conditions. Instead, the administrative law judge relied on the reports of two doctors whom he, without adequate discussion, found to be independent experts under Section 7(e). Cotton v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 380 (1990). 

While a work-related aggravation of a prior condition may establish contribution for Section 8(f) purposes, where administrative law judge found that claimant's continued exposure to asbestos at the workplace resulted in further impairment, but failed to analyze or discuss the relevant evidence and to identify the evidentiary basis for his conclusion, he violated the APA, 5 U.S.C. §557(c)(3)(A), and case must be remanded. Shrout v. General Dynamics Corp., 27 BRBS 160 (1993) (Brown, J., dissenting). 

The Board remands the case to the administrative law judge to address applicable average weekly wage for claimant's permanent benefits. Without explanation, in violation of the APA, the administrative law judge awarded permanent total disability for a 1986 knee injury on the average weekly wage applicable to a temporarily disabling 1988 ankle injury. Hawthorne v. Ingalls Shipbuilding, Inc., 28 BRBS 73 (1994), modified on other grounds on recon., 29 BRBS 103 (1995). 

The Board vacates the summary denial of Section 8(f) relief and remands the case for findings on all elements consistent with the requirements of the APA. Goody v. Thames Valley Steel Corp., 28 BRBS 167 (1994) (McGranery, J., dissenting). 

The Board holds that the administrative law judge erred in remanding the case to the deputy commissioner so that a direct appeal to the Board on the issue of Section 8(f) relief could be taken. The administrative law judge abdicated his responsibility to resolve disputed issues by remanding the case without making the required factual findings regarding claimant's entitlement as well as the applicability of Section 8(f) and liability of the Special Fund. Champagne v. Main Iron Works, Inc., 20 BRBS 84 (1987). 

The Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges do not apply to the extent they are inconsistent with a rule of special application as provided by statute or regulation. Adams v. Newport News Shipbuilding and Dry Dock Co., 22 BRBS 78 (1989). 

Section 23(a) of the Act and the regulations at 20 C.F.R. §§702.338, 702.339, provide that the administrative law judge is not bound by formal or technical rules of procedure except for those provided for in the Act. In this case, the administrative law judge did not abuse her discretion in using 29 C.F.R. Part 18 and Fed. R. Civ. P. 41(b) to, in effect, dismiss a case for failure to pursue the claim, as use of these provisions is not inconsistent with the Act. Taylor v. B. Frank Joy Co., 22 BRBS 408 (1989). 

The administrative law judge may rely on the Federal Rules where they do not conflict with the Act or regulations to dismiss a case where warranted by the specific circumstances. However, Rule 81(a)(6) of the Fed. R. Civ. P., which states that the Federal Rules are applicable, does not apply in this case as its application is limited to a proceeding for review or enforcement of compensation orders under the Act. As no compensation order was issued in this case because the case was dismissed, Rule 81(a)(6) does not apply. Twigg v. Maryland Shipbuilding & Dry Dock Co., 23 BRBS 118 (1989). 

The administrative law judge is not bound by formal rules of procedure except those provided for in the Act, and under certain circumstances, the administrative law judge may rely on the Federal Rules in taking an action. However, in this case, the Board reverses the administrative law judge's reliance on Rule 59(e) to find a motion for reconsideration untimely because it was not served on employer because use of the Federal Rules to provide for an additional requirement not required under the Act is inconsistent with Section 23, particularly where claimant is not represented by counsel. The Board also notes that Rule 81(a)(6) is inapplicable. Bogdis v. Marine Terminals Corp., 23 BRBS 136 (1989). 

The Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 C.F.R. Subtitle A, Part 18, §18.40(a), Motion for Summary Decision, are analogous to Rule 56 of the Federal Rules of Civil Procedure. The administrative law judge did not act prematurely in deciding the status issue in a summary decision. There was no dispute as to the nature of claimant's work duties, only as to the legal significance of those duties. Thus, as there was no genuine issue as to any material fact, the administrative law judge could rule on employer's motion for summary decision. Hall v. Newport News Shipbuilding & Dry Dock Co., 24 BRBS 1 (1990). 

The Eleventh Circuit grants the employer's motion for summary judgment under FRCP 56(c); the movant has established the absence of genuine issues of material fact when all reasonable inferences are made in favor of the nonmovant. In this case, the employer has established that the employee's connection with maritime employment was de minimis such that there is not coverage under the Longshore Act. Brockington v. Certified Electric, Inc., 903 F.2d 1523 (11th Cir. 1990), cert. denied, 498 U.S. 1026 (1991). 

The Board held that the administrative law judges erred in granting summary decisions in favor of the employers since the cases presented contested issues of material fact which affected the application of Section 33(g). Harris v. Todd Pacific Shipyards Corp., 28 BRBS 254 (1994), aff'd and modified on recon. en banc, 30 BRBS 5 (1996) (Brown and McGranery, J.J., concurring and dissenting). 

The Board affirmed the administrative law judge's denial of employer's motion for summary judgment. In this case, the compensation claims were settled under Section 8(i), and employer is contesting claimants' right to medical benefits in view of alleged third-party settlements entered into without employer's approval. As the administrative law judge found that there is no evidence in the case from which he could determine whether the claimants were entitled to medical benefits under the Act, a material issue of fact, or the amount of the third-party settlements, he properly denied the motion for summary judgment. Green v. Ingalls Shipbuilding, Inc., 29 BRBS 81 (1995). 

The Board holds that the administrative law judge did not violate the APA where he discussed only the relevant parts of vocational testimony in determining whether employer established suitable alternate employment. Similarly, the administrative law judge did not err in not discussing certain medical testimony as part of this Section 8(f) findings, since the substance of the testimony actually supported his denial of Section 8(f) relief, and the testimony was irrelevant towards determining whether the pre-existing disability was manifest, because the physician did not treat claimant until after the work injury. Hayes v. P & M Crane Co., 23 BRBS 389 (1990), rev'd on other grounds, 930 F.2d 424, 24 BRBS 116 (CRT), reh'g denied, 935 F.2d 1293 (5th Cir. 1991). 

In this case, before the Board after remand from the Supreme Court's decision in Greenwich Collieries, ___ U.S. ___, 114 S.Ct. 2251, 28 BRBS 43(CRT) (1994), the Board held that, as the administrative law judge discussed the only two pertinent medical opinions of record, he did not violate the APA by not discussing every medical opinion of record. Moreover, the Board determined that it was within the administrative law judge's discretion to credit Dr. Derby's opinion over that of Dr. Yazdan, and it was rational for him to conclude that decedent's condition and death were not work-related. Santoro v. Maher Terminals, Inc., 30 BRBS 171 (1996). 

Because claimant, who was employed to perform work under a contract between employer and Saudi Arabia, to service Saudi aircraft including C-130s, must prove that he was injured while performing services under a subcontract or subordinate contract entered into by the U.S. in order to establish Defense Base Act jurisdiction and because production of the sales contracts could conclusively establish the extent of U.S. Government involvement in the sales of C-130s, the administrative law judge's failure to compel production of this highly relevant evidence was so prejudicial as to result in a denial of due process by depriving him of the opportunity for a fair hearing. Cornell v. Lockheed Aircraft Int'l, 23 BRBS 253 (1990). 

The Board notes that the administrative law judge should fully instruct the deputy commissioner as to which rates should be utilized when calculating compensation rate adjustments pursuant to Sections 6 and 10(f) in order to avoid confusion and possibly default orders. The APA requires that the administrative law judge resolve all factual and legal issues necessary to an award. This insures that a deputy commissioner's actions are purely ministerial. Marko v. Morris Boney Co., 23 BRBS 353 (1990). 

The Board, citing SAIF Corp./Oregon Ship v. Johnson, 908 F.2d 1434, 23 BRBS 113 (CRT)(9th Cir. 1990) and Todd Shipyards Corp. v. Black, 717 F.2d 1280, 16 BRBS 13 (CRT)(9th Cir. 1983), cert. denied, 466 U.S. 937 (1984), held that the term "injury" as it is used in Section 23(a) of the Act refers to the harm manifested as the result of an occupational disease rather than to the exposure to the injurious stimuli which allegedly caused the disease. The Board therefore rejected employer's arguments that decedent's exposure to asbestos constituted his injury, and that pursuant to Section 23(a), the declaration of a decedent alone was insufficient to establish that he was exposed to asbestos in the course of his covered employment. Because the "injury" means the lung cancer that resulted from the exposure, and there is ample corroboration that decedent suffered from cancer, Section 23(a) does not defeat the claim. Martin v. Kaiser Co., Inc., 24 BRBS 112 (1990)(Dolder, J., concurring in the result only). 

The Board grants reconsideration regarding LIGA's right to a new hearing on the merits of the claim. The Board holds that the administrative law judge's actions at the hearing deprived LIGA of the opportunity to contest claimant's entitlement to benefits and accordingly remands the case to the administrative law judge to allow LIGA the opportunity to participate in a new hearing limited solely to consideration of issues regarding claimant's entitlement to benefits under the Act. Abbott v. Universal Iron Works, Inc., 24 BRBS 169 (1991), modifying in part on recon. 23 BRBS 196 (1990). 

The administrative law judge properly declined to recuse himself after he characterized claimant's letters to the Office of Administrative Law Judges criticizing him as "possibly defamatory." Written remarks regarding a judge's conduct are insufficient to establish judicial bias towards the author, as are adverse rulings. Moreover, the administrative law judge did not err by declining to advise claimant how to respond to the Director's post-hearing brief. The Act does not require the administrative law judge to provide legal advice to a pro se claimant. Olsen v. Triple A Machine Shops, Inc., 25 BRBS 40 (1991), aff'd mem. sub nom. Olsen v. Director, OWCP, 996 F.2d 1226 (9th Cir. 1993). 

Admission of Evidence 

Since Hanover Insurance Company was not a party before the administrative law judge, none of the administrative law judge's findings is binding on Hanover. Hanover must have the opportunity for a rehearing to present its own evidence on the issue of date of last exposure. Sans v. Todd Shipyards Corp., 19 BRBS 24 (1986). 

The Board holds that the administrative law judge abused his discretion in denying employer's motion to reopen the record where the court of appeals, in remanding the case, specifically stated the administrative law judge could admit evidence relating to the applicability of Section 8(f), but not to the issue of causation. Without reopening the record, the administrative law judge could not realistically consider the Section 8(f) issue. Champion v. S & M Traylor Bros., 19 BRBS 36 (1986). 

The administrative law judge's hearing is de novo, and he is not bound by the deputy commissioner's opinion or recommendation. Moreover, the administrative law judge has great discretion concerning the admission of evidence and his refusal to admit certain exhibits does not demonstrate prejudice or hostility. Raimer v. Willamette Iron & Steel Co., 21 BRBS 98 (1988). 

The administrative law judge has great discretion concerning the admission of evidence and any decisions regarding the admission or exclusion of evidence are reversible only if arbitrary, capricious, or an abuse of discretion. Here, the administrative law judge misapplied the terms of his own Pre-Hearing Order; the Board therefore vacated the administrative law judge's decision to exclude employer's videotapes and reports and remanded the case for the administrative law judge to consider the admissibility of this evidence. The administrative law judge also erred in utilizing an assistant deputy commissioner's compensation rate recommendation which was erroneously transferred to the Office of Administrative Law Judge in violation of 20 C.F.R. §702.317(c). McCurley v. Kiewest Co., 22 BRBS 115 (1989). 

The administrative law judge has discretion to exclude even relevant and material testimony for failure to comply with terms of pre-hearing order warning that failure to exchange names of witnesses at least 10 days before the hearing could result in their exclusion. This is true despite 20 C.F.R. §702.338, requiring the administrative law judge to receive relevant and material evidence. Durham v. Embassy Dairy, 19 BRBS 105 (1986). 

The Board affirms the administrative law judge's decision to admit evidence offered in violation of a pre-hearing discovery order. The order stated that evidence offered in violation of the order may be excluded. The administrative law judge therefore did not abuse his discretion in admitting the evidence. Administrative law judge's decision is further supported by 20 C.F.R. §702.338 which provides that administrative law judge has a duty to inquire fully into matters at issue and to receive all relevant evidence. Picinich v. Seattle Stevedore Co., 19 BRBS 63 (1986). 

Where employer has failed to exercise due diligence in obtaining evidence prior to the hearing, the Board held that the administrative law judge acted within his discretion in declining to hold the record open after the hearing for the receipt of that evidence. Sam v. Loffland Bros. Co., 19 BRBS 228 (1987). 

The Board holds that since Section 702.338 indicates that an administrative law judge may reopen a record at any time prior to issuing a compensation order, the administrative law judge in this case acted within his discretion in ordering claimant to submit new evidence. Although the extent of the discussion in the order suggests that the administrative law judge could have concluded his consideration of the claim at that time, his decision to instead supplement the existing record did not constitute reversible error. The Board also notes that 29 C.F.R. §18.54, which is more restrictive than 20 C.F.R. §§702.338, 702.339, is not applicable in reviewing the administrative law judge's determination pertaining to admission of evidence in this case, given that they are inconsistent with the more specialized regulatory provisions. Wayland v. Moore Dry Dock, 21 BRBS 177 (1988). 

The administrative law judge did not abuse his discretion by refusing admission of post-hearing evidence when counsel waited 2 1/2 months before requesting an extension of time in which to make its post-hearing submission. Brown v. Bethlehem Steel Corp., 19 BRBS 200, aff'd on recon., 20 BRBS 26 (1987), aff'd and rev'd on other grounds sub nom. Director, OWCP v. Bethlehem Steel Corp., 868 F.2d 759, 22 BRBS 47 (CRT)(5th Cir. 1989). 

Although the administrative law judge may hold the record open after the hearing for the receipt of additional evidence, the party seeking to admit evidence must exercise diligence in developing the claim prior to the hearing. The administrative law judge did not abuse his discretion by refusing to reopen the record for the submission of evidence regarding the extent of claimant's disability as he had previously held the record open and had granted two extensions of time for the submission of such evidence. Smith v. Ingalls Shipbuilding Div., Litton Systems Inc., 22 BRBS 46 (1989). 

The administrative law judge erroneously determined that he did not retain jurisdiction to admit or consider relevant evidence on reconsideration. While the Board would ordinarily remand to consider admitting this evidence, to avoid further delay, the Board interpreted submission of new evidence as a post-decision Motion for Modification and instructed the administrative law judge to consider all post-hearing evidence. Williams v. Nicole Enterprises, Inc., 19 BRBS 66 (1986). 

An administrative law judge may draw an adverse inference against a party, concluding that where a party does not submit evidence within his control, that evidence is unfavorable. In this case, the administrative law judge declined to draw such an inference regarding claimant's refusal to only partially waive the attorney-client privilege with regard to the attorney who handled her separation proceeding. The Board affirms the administrative law judge's finding that even if an adverse inference was drawn, there was substantial evidence that claimant and decedent were husband and wife at the time of his death. Denton v. Northrop Corp., 21 BRBS 37 (1988). 

It is well-established that when a party has relevant evidence within its control which it fails to produce, that failure gives rise to an inference that the evidence is unfavorable to it. The administrative law judge's denial of claimant's request for an adverse inference because it was not made at the beginning of the hearing as a preliminary matter is harmless error since claimant failed to establish facts which would indicate that the evidence requested provided relevant information to assist in the disposition of the issues in the case. Brown v. Pacific Dry Dock, 22 BRBS 284 (1989). 

The administrative law judge has the discretion to order counsel at the formal hearing to cease questioning a witness on a subject which is not relevant to the matter at issue. Newby v. Newport News Shipbuilding & Dry Dock Co., 20 BRBS 155 (1988). 

Administrative law judge may rely on hearsay testimony, as he is not bound by formal rules of evidence. Thus, the Board rejects the contention that the administrative law judge erred in awarding claimant back pay for a Section 49 violation for a number of days unsubstantiated by records submitted into evidence. Powell v. Nacirema Operating Co., Inc., 19 BRBS 124 (1986). 

The parol evidence rule provides that when the parties to a contract put their agreement in writing in a manner so that the terms of the agreement are certain, those terms cannot be varied on the basis of extrinsic evidence, unless the agreement is only partially integrated or is ambiguous. Then additional terms not inconsistent with the written terms or the construction of the terms may be established by extrinsic evidence. In this case, the Board affirmed the administrative law judge's resort to extrinsic evidence to determine if employer waived its Section 33(f) lien, as he rationally found that the third-party settlements were not fully integrated and were ambiguous. Sellman v. I.T.O. Corp. of Baltimore, 24 BRBS 11 (1990), aff'd in part and rev'd in part, 954 F.2d 239, 25 BRBS 101 (CRT) (4th Cir.), modified in part on reh'g, 967 F.2d 971, 26 BRBS 7 (CRT) (1992), cert. denied, U.S. , 113 S.Ct. 1579 (1993). 

The Board holds that it was within the administrative law judge's discretion to allow hearing testimony and declarations which were not offered in compliance with a pre-trial order requiring prior notice of proposed witnesses and documents, in that he properly found good cause for noncompliance based on the hearing witness's status as a rebuttal witness, and in that an opportunity to take post-hearing depositions of the declarant was provided. The Board further holds that the administrative law judge could properly rely on these declarations and testimony, which constituted parol evidence, to determine whether third-party settlements involving claimant had actually occurred. The parol evidence was used not to attack the legal effect of a state court judgment but, rather, to construe the effect of any settlement agreement for purposes of the Longshore Act. Chavez v. Todd Shipyards Corp., 24 BRBS 71 (1990), aff'd in part and rev'd in part sub nom. Chavez v. Director, OWCP, 961 F.2d 1409, 25 BRBS 134 (CRT)(9th Cir. 1992). 

The Board affirmed the administrative law judge's admission of employer's evidence where three of the exhibits objected to were records of the Department of Labor which were regularly kept in the course of its dealings with claimant, the author of a fourth exhibit was subject to cross-examination due to his presence at the hearing, and a fifth exhibit was not inconsistent on its face or authored by anyone with an interest in the case. Vonthronsohnhaus v. Ingalls Shipbuilding, Inc., 24 BRBS 154 (1990). 

While the Board has recognized that parol evidence may be used in construing settlements under Section 33, see, e.g., Chavez, 24 BRBS 71 (1990), the use of parol evidence appears to be proscribed under Section 702.242(a) in the case of Section 8(i) settlements applications. The administrative law judge violated 20 C.F.R. §702.242(a) by considering an affidavit submitted to him by an attorney from employer's legal department and relying on it to find that employer was represented by counsel. McPherson v. National Steel & Shipbuilding Co., 24 BRBS 224 (1991), aff'd on recon. en banc, 26 BRBS 71 (1992). 

The administrative law judge has the duty to fully inquire into matters at issue and receive into evidence all relevant and material testimony and documents, and he may reopen the hearing to accomplish this duty. Accordingly, the administrative law judge did not abridge claimant's due process rights by seeking post-hearing the Director's participation and submission of exhibits. The Director submitted relevant evidence, and claimant was afforded the opportunity to respond. Olsen v. Triple A Machine Shops, Inc., 25 BRBS 40 (1991), aff'd mem. sub nom Olsen v. Director, OWCP, 996 F.2d 1226 (9th Cir. 1993). 

The Board held that the administrative law judge abused his discretion and violated 20 C.F.R. §702.338 by refusing to reopen the record at the close of the hearing and to formally consider evidence offered by employer -- a labor market survey compiled by its vocational counselor -- and by refusing to allow the counselor to testify regarding his survey. The Board stated that the administrative law judge's denial precluded his consideration of relevant evidence concerning the salient issue in this case, post-injury wage-earning capacity, consisting of evidence of suitable alternate employment; in addition, the administrative law judge denial violated notions of fundamental fairness because he had previously allowed claimant to depose Dr. Cox post-hearing regarding new restrictions placed on claimant. Ramirez v. Southern Stevedores, 25 BRBS 260 (1992). 

In the context of discussing mistake in fact pursuant to Section 22, the Board holds that the administrative law judge violated 20 C.F.R. §§702.336, 702.338 when he failed to resolve the issue of responsible carrier. In the initial proceedings the administrative law judge dismissed Wausau, finding that decedent was not exposed to asbestos while it was on the risk. He thereafter did not resolve the issue, despite that employer was at all relevant times insured, and he held employer liable. The Board notes the similarity between this case and Sans, 19 BRBS 24 (1986), and, for this reason, and several others the Board remands the case to the administrative law judge for a new hearing on employer's petition for modification. Jourdan v. Equitable Equipment Co., 25 BRBS 317 (1992)(Dolder, J., dissenting). 

The Ninth Circuit rejected employer's contention that the administrative law judge erred in rejecting its offer of additional evidence on remand, as it held that the administrative law judge properly restricted the scope of the remand proceedings to the terms of the Board's remand order. E.P. Paup Co. v. Director, OWCP, 999 F.2d 1341, 27 BRBS 41 (CRT)(9th Cir. 1993), aff'g and modifying McDougall v. E.P. Paup Co., 21 BRBS 204 (1988). 
 

Discovery 

The D.C. Circuit holds that the administrative law judge did not abuse his discretion in denying a motion to produce certain reports, where the reports would have been of only limited probative value. Stark v. Washington Star Co., 833 F.2d 1025, 20 BRBS 40 (CRT)(D.C. Cir. 1987). 

Section 27(a) provides that a motion to compel maybe issued where a party refuses to be deposed or to answer interrogatories. If the order is resisted, Section 27(b) provides that the matter shall be referred to the appropriate U.S. district court for the imposition of sanctions. As this sanction is less drastic than the dismissal of the claim pursuant to Fed. R. Civ. P. 41(b), the administrative law judge erred in dismissing the claim without considering the availability of less drastic sanctions. Twigg v. Maryland Shipbuilding & Dry Dock Co., 23 BRBS 118 (1989). 

The Board states that a discovery ruling will constitute reversible error only if it is so prejudicial as to result in a denial of due process. In this case, the administrative law judge acted within his discretion in denying employer's motion to remand the case for claimant to undergo a second impartial medical examination where he found the report of the first such exam to be unambiguous, contrary to employer's contention. Martiniano v. Golten Marine Co., 23 BRBS 363 (1990). 

Claimant was employed to work under a contract between employer and the Kingdom of Saudi Arabia to service and maintain various aircraft of the Royal Saudi Air Force, including C-130s. Board hold that the administrative law judge erred in denying claimant's motion to compel production of the contracts of sale of the C-130s, in this case in which claimant sought to establish that his claim is covered under the Defense Base Act because he was injured while performing services under a subcontract or subordinate contract entered into by the United States. The administrative law judge's reliance on the testimony of employer's experts does not justify his denial of claimant's motion because neither expert was familiar with the sale of all of the C-130s. Cornell v. Lockheed Aircraft Int'l, 23 BRBS 253 (1990). 

The administrative law judge acted within his discretion when he declined to schedule a formal hearing because claimant had repeatedly refused to comply with outstanding discovery requests. The administrative law judge also acted within his discretion to dismiss claimant's claims with prejudice due to claimant's repeated and numerous abuses of the administrative process, including claimant's failure to comply with discovery. Harrison v. Barrett Smith, Inc., 24 BRBS 257 (1991), aff'd mem. sub nom. Harrison v. Rogers, No. 92-1250 (D.C. Cir. March 19, 1993). 

The administrative law judge's broad discretion to direct and authorize discovery includes the limiting of document requests and testimony based on relevance. The administrative law judge did not therefore abuse his discretion by limiting post-hearing discovery to evidence relevant to the sole issue in dispute. Furthermore, the administrative law judge acted within his discretion and did not violate claimant's due process rights by prohibiting claimant from testifying post-hearing, since the administrative law judge admitted claimant's post-hearing sworn affidavits, which addressed the relevant issue. Olsen v. Triple A Machine Shops, Inc., 25 BRBS 40 (1991), aff'd mem. sub nom. Olsen v. Director, OWCP, 996 F.2d 1226 (9th Cir. 1993). 

Claimant's Motion for Certification to the district court under Section 27(b) of the Act, based on employer's refusal to comply with the administrative law judge's discovery order is premature, as employer has appealed the order to the Board and, therefore, has not yet resisted a lawful order. Butler v. Ingalls Shipbuilding, Inc., 28 BRBS 114 (1994). 

The Board held that as employer's complaint was not an action to enforce compliance with a direct order of the administrative law judge, and claimant did not disobey a lawful process, as he did not resist the administrative law judge's jurisdiction or a discovery order, employer's attempt to recoup benefits allegedly obtained by fraud must fail. Section 31(a) provides the sole remedy for allegations of fraud. The Board therefore reversed the administrative law judge's finding that Section 27(b) is applicable and vacated his certification of facts to the district court and the recommendation that claimant be made to repay employer. Phillips v. A-Z Int'l, BRBS , BRB No. 96-564 (Dec. 23, 1996). 
 
 

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NOTICE: This Longshore Deskbook was created solely to assist the staff of the Benefits Review Board in researching cases arising under the Longshore Act, as amended. This Desk Book in no way constitutes the official opinion of the Board or any of its Members on any subject. The Desk Book does not necessarily contain an exhaustive or a current treatment of Board holdings, and should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. It is intended simply as a research tool; and is not intended as final legal authority and should not be cited or relied upon as such. See Notice, 20 CFR.§802.211(b)
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