rnent Of Labor Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 544-5754 (412) 544-5005 (FAX) Issue Date: 28 April 2008 CASE NO.: 2007-BLA-5984 In the Matter of: GARY FOX Claimant v. ELK RUN COAL COMPANY Employer and DIRECTOR, OFFICE OF COMPENSATION PROGRAMS Party--in-Interest ORDER GRANTING MOTION TO COMPEL DISCOVERY Claimant files a Motion to Compel Discovery in this claim for benefits under the Black Lung Benefits Act, 20 U.S.C. 901-945. Claimant's motion, received February 19, 2008, seeks to compel the production of interpretations of any radiographs or pathology slides that have been generated by Employer but not previously submitted or exchanged with Claimant. Employer has filed an opposition to the Claimant's motion, received on March 17, 2008. A hearing is scheduled for May 13, 2008, in Beckley, West Virginia. Claimant served on Employer Interrogatories and Requests for Production of Documents. Included in the Request for Production of Documents is a request for Employer to produce copies of all interpretations of radiographs and pathology slides generated by Employer but not exchanged with the Claimant. Employer responded to the request: The Employer and its attorneys are not in possession of any reports of x-ray readings, arterial blood gas studies, or other diagnostic tests of any kind generated by the Employer, which have not been previously submitted or provided to Claimant's counsel in his claim. In federal black lung claims, the Employer regularly obtains medical records from sources identified by claimants in response to the Employer's Interrogatories. Such medical records have been procured in the instant case, but, since the records were not generated at the Employer's request and are readily obtainable by the Claimant, the Employer is not obliged to secure and forward the medical records to the Claimant. The Claimant may procure all of such information from his own medical providers as identified in his responses to the Employer's Interrogatories. Medical evidence which consists of expert opinions requested by the Employer in evaluating a claim, and which was requested in the Employer's preparation of its defense but is not the opinion of any expert expected to "testify" (including the submission of a report in this matter) is a privileged information and is not subject to discovery under the Federal Rules of Civil Procedure or the Rules. of Practice and Procedure for administrative hearings before the Office of Administrative Law Judges. Such evidence includes reports of medical consultations and readings of x-ravs or CT scans. (emphasis added) Employer's response is ambiguous, but it appears that Employer does have in its possession "rereadings of x-rays or CT scans." I In support ofits motion Claimant refers to 29 C.F.R. 18.19 ofthe Rules of Practice of Office of Administrative Law Judges, and Rule 35(b) of the Federal Rules of Civil Procedure. Claimant also cites l8.14(a) which provides that the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, including the existence, description, nature, custody, condition, and location of things, and l8.29(a) which provides that the general powers of administrative law judges includes the ability to compel the production of documents in control of the parties. Employer argues in opposition to the motion that Claimant is not entitled to discover any medical report produced in the defense of a claim not submitted into evidence, except a report of a physical examination. The Employer contends that the rereadings of x-rays and CT scans are privileged, and it cites the Fourth Circuit Court of Appeals decision in Elm Grove Coal Company v. OWCP, Director, and the Benefits Review Board's decision in Keener v. Peerless Eagle Coal Co 23 BLR 1-229 (2007), as support for its argument that the reports are not discoverable. Initially, Employer has not shown that the readings of x-rays and CT scans are privileged. The readings don't meet the criteria for the attorney work product privilege as they are the work product of physicians, not attorneys. Hickman v. Taylor, 329 U.S. 495 (1947); Keener v. Peerless Eagle Coal Co, supra. Employer's reference to Elm Grove Coal Company v. OWCP, Director, 480 F.3d 278 (4th Cir. 2007), is also misplaced. In Elm Grove, the Fourth Circuit considered whether the privilege against disclosure of attorney work-product extends to materials provided by counsel to a testifying expert witness concerning the relevant facts and expert's opinions and reports. The Court held that "draft expert opinion prepared by counsel and provided to testifying experts, and attorney-expert communications that explain the lawyer's concept of the underlying facts, or his view of the opinions expected from such experts, are not entitled to protection under the work product doctrine." In a footnote, the Court observed, "it is important to distinguish between testifying experts, on the one hand, and non-testifying or consulting experts, on the other. Any such draft reports or attorney communications made or provided to non-testifying or consulting experts should be entitled to protection under the work product doctrine." Id. at 303. However, Elm Grove is distinguishable, as the information sought in Elm Grove is different from that sought here. In Elm Grove, the information sought consisted of draft expert opinions prepared by counsel and provided to testifying experts, and attorney-expert communications that explain the lawyer's concept of the facts. Here, the information sought consists of reports prepared by physicians. Fed. R. Civ. 35(b) provides that reports of physical examinations are discoverable. In Keener, the claimant argued that he was entitled to discover medical evidence from the employer that the employer did not intend to offer into evidence. The Board agreed with the claimant that he was entitled under Fed. R. Civ. P. 35(b) to reports of examining physicians but found that the claimant was not entitled to the requested documents because "the employer has asserted that all documents resulting from the physical examination of the miner have already been duly exchanged." The Board's decision does not stand for the proposition that medical reports resulting fiom a physical exam are limited to a certain aspect of the examination, such as the actual physical. The Board merely accepted the employer's assertion that it had exchanged documents. It's decision does not characterize readings of chest x-rays or CT scans as not a consequence of a physical examination and thus not discoverable.' 29 C.F.R. l8.l4(a) provides that "the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, including the existence, description, nature, custody, condition, and location of things." 18.l4(c) limits discovery permitted under subsection by providing that materials prepared in anticipation of the hearing may be obtained only, "upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his or her case and that he or she is unable without undue hardship to obtain the substantial equivalent of the materials by other means." The Keener decision also considered whether the claimant was entitled under l8.l4(a) to the discovery of medical evidence developed by the employer, but which the employer did not intend to introduce into evidence. The Board held that it was not unreasonable for the administrative law judge to find that the claimant had not established the requisite substantial need for the requested documents or that substantial hardship would result from not obtaining them. The Board found that the administrative law judge had acted within his discretion in finding that the required showing of substantial need and undue hardship had not been established, when the claimant had well-prosecuted his claim, he was able to obtain substantially equivalent documents, and the materials sought would be inadmissible in excess of the evidentiary limitations. Claimant's Motion to Compel cites Keener as support. His motion argues that Keener stands for the proposition that the reports of examining physicians who evaluated claimant and the results of all tests performed are discoverable pursuant to 29 C.F.R ?18.19 and Rule 35(b). He subsequently followed up his motion with a letter stating that his reread of Keener suggests to him that the Board may have already decided this issue, if the additional evidence sought by the claimant refered to all x-ray readings. However, there is no indication in Keener that the Board was referencing x-rays. It would be a crimped interpretation of "physical examination" if the reports of the physical are not considered to include readings of x-rays taken during the physical examination. -3- Here, the Claimant argues that he has a substantial need to know if the Employer has withheld pertinent radiographic or pathology interpretations, and the "only way for him to obtain this information would [be] to depose or poll all of the non-testifying radiologists, which would impose an undue financial hardship on the claimant." Claimant's motion references cases where medical evidence produced by an employer in response to a discovery order has shown entitlement? Claimant's argument that he has a substantial need to know all readings of x-rays and CT-scans of himself, and that it would impose a financial hardship to attempt to discover this information without it being disclosed by employer is accepted. Claimant also has a substantial interest in the issuance of a decision on his claim that considers all available relevant evidence, and he has an interest in receiving a decision on his claim that is based on a physician's report that is not skewed because the report did not consider evidence available but not presented to the physician. The Board has recently in Huggins v. Windsor Coal BRB No. 06-0710 (Aug. 15, 2007) accepted an administrative law judge's determination that the Claimant met his burden of showing substantial need and undue hardship for reasons similar to those here, and thus was entitled to discovery under In Huggins, the Board held that the administrative law judge "reasonably found that claimant showed a substantial need for the information that he sought on discovery, because claimant would not have been able to subpoena Dr. Fino, Bush and Wolfe to dross-examine Dr. Renn at the hearing without it." Slip opinion p. 3. The administrative law judge's grant of the Claimant's motion to compel the discovery of reports of employer's non-testifying experts was sustained by the Board. Claimant's argument that his motion to compel should be granted under 29 C.F.R. l8.29(a) is also accepted. provides that the general powers of administrative law judges include "all powers necessary to the conduct of fair and impartial hearings, including, but not limited to, the following: (3) [c]ompel the production of documents and appearance of witnesses in control of the parties." Claimant's right to a fair hearing is more likely to be realized by the full production ofthe reports of Claimant's medical condition, including the chest x--rays and CT scan readings. In Cline v. Westmoreland Coal C0., 21 BLR 1-71 (1997), the claimant and the director urged the Board to vacate the administrative law judge's Order Denying Motion to Compel and remand the case to the administrative law judge with instructions to obtain the medical evidence which employer had suppressed. In response, the Board did overturn the administrative law judge's denial of the Claimant's Motion to Compel Discovery. The Claimant's Motion to Compel Discovery sought to compel the employer to produce several x-rays and CT scan readings. The motion contended that the employer, by sending only negative x--rays or reports that favor its position to other experts for an evaluation of its evidence, skews or "pyramids" the evidence because the reviewing expert predicates his report on an incomplete record. In vacating the administrative law judge's denial of the Claimant's motion to compel, the Board ordered the reconsideration of the order denying discovery in accord with 29 C.F.R. 18.14 and in conjunction with 20 C.F.R. 725.455 which provides that the administrative law judge at the 2 One ofthe cases referenced by Claimant is Cline v. Wesrmoreland Coal C0., 21 BLR 1-71 (1997), where the Board noted at footnote 4 that the employer did not turn over to an unrepresented claimant, or offer into evidence, a report by Dr. Zaldivar diagnosing simple pneumoconiosis and complicated pneumoconiosis. -4- hearing shall inquire fully into all matters at issue. Although the Board expressed its disagreement with the claimant's position that the administrative law judge has an obligation under 725.455 "to fiilly develop the record, develop the evidence, get all the evidence in," the Board remarked that it was not unmindful of the administrative law judge discretionary authority provided at 29 C.F.R. 18.14 and 20 C.F.R. 725.455. It also instructed the administrative law judge to take into consideration 30 U.S.C. 923(b) which provides: "In determining the validity of claims under this part all relevant evidence shall be considered. . Accordingly, Claimant's Motion to Compel Discovery, is decided in light of the Board's observation in Cline v. Wesrmoreland Coal C0, supra, that I must take into consideration 30 U.S.C. ?923(b), and must consider my discretionary authority to inquire into all matters at issue provided by at 20 C.F.R. 725.455. The Claimant's Motion to Compel Discovery is granted as the requested documents are discoverable under Fed. R. Civ. 35(b) and 29 C.F.R. 18.14, and ORDER It is hereby ordered that Claimant's Motion to Compel is granted. Employer shall within seven (7) days of receipt of this Order Granting Motion to Compel Discovery produce those documents requested by C1aimant's Interrogatories to Employer and Requests for Production of Documents dated January 20, 2007. THOMAS M. BURKE Administrative Law Judge SERVICE SHEET Case Name: Case Number: Document Title: ORDER GRANTING MOTION TO COMPEL DISCOVERY I hereby certify that a copy of the above-referenced document was sent to the following this 28th day ofApril, 2008: IMADELINE RINGLING LEW-GAL TECHNICIAN District Director Chief. Branch ofClaims and Systems U. S. Department of Labor Room C-3521. FPB 200 Constitution Ave, NW. Washington, IJC 20210 {.Hi::rd Copy - Regrtfar Mcn'l')' Associate Regional Solicitor US. Department of Labor 22nd Floor West 1 I00 Wilson Boul:-zvard VA 2220') {Hard Com' - F-six} John Cline, l'isq_ PO Box 4? I'iney View, 25906 {Hard Copy - Elk Run Coal Company, Inc. do Wells IJisability Management P. O. Box 3389 Charleston, WV 25333-3339 {l'1'cIrr:" Copy - Mail} Ann Rembrandt, Esq. Jackson Kelly PO Box 553 Charleston, WV 25322 {Hanf C'rJ_ny -- Fem} (Jury Fox 134 Crestwood Drive WV 258111 {H53-rd -- A Massey do Wells Fargo Disability P. O. Box 33 39 WV 25333-3339 {Hard -- Regm'm- i'l-in-i'U