U.S. Department of Labor Benefits Review Board P.O. Box 37501 Washington, DC 20213-7601 BRB NO. 95-0503 BLA 8-LR 6% OCT 17 I997 CALVIN E. CLINE, SR. Claimant-Petitioner v. DATE ISSUED: WESTMORELAND COAL COMPANY Employer--Respondent i DIRECTOR, OFFICE OF COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR Party-in-Interest DECISION AND ORDER Appeal of the Order Denying Motion to Compel, Decision and Order - Denying Benefits and Order Denying Motion for Reconsideration of George A. Fath, Administrative Law Judge, United States Department of Labor. Robert F. Cohen (Cohen, Abate Cohen, L.C.), Fairmont, West Virginia, for claimant. Douglas A. Smoot and Ann B. Rembrandt (Jackson Kelly), Charleston, West Virginia, for employer. Jeff Goldberg and Helen H. Cox (J. Davitt McAteer, Acting Solicitor of Labor; Donald S. Shire, Associate Solicitor; Rae Ellen Frank James, Deputy Associate Solicitor; Richard A. Seid and Michael J. Rutledge, Counsel for Administrative Litigation and Legal Advice), Washington, D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor. Before: HALL, Chief Administrative Appeals Judge, BROWN and Administrative Appeals Judges. PER CURIAM: Claimant appeals the Order Denying Motion to Compel, Decision and Order- Denying Benefits and Order Denying Motion for Reconsideration (94-BLA-1240) of Administrative Law Judge George A. Fath on a claim filed pursuant to the provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. ?901 et seq. (the Act). On February 27, 1997, the Board granted employer's request to schedule oral argument on this case. The Director, Office of Workers' Compensation Programs (the Director), submitted the Director's Oral Argument Brief. Claimant, who recently acquired counsel, submitted Claimant's Supplemental Brief in Support of Petition for Review. Oral argument was held in Charleston, West Virginia on July 16, 1997. The procedural background of this case is as follows: Claimant filed for black lung benefits on January 28, 1980. Director's Exhibit 33. The district director awarded benefits. Director's Exhibit 28. Employer contested the award. The case ultimately came before Administrative Law Judge Victor J. Chao who denied benefits on July 5, 1990. Applying the 20 C.F.R. Part 727 regulations, Judge Chao found the interim presumption invoked at 20 C.F.R. but found rebuttal established at Section Accordingly, he denied benefits. C|aimant's appeal to the Board was dismissed as untimely on February 13, 1991. Cline v. Westmoreland Coal Co., BRB No. 90-2207 BLA (Feb. 13, 1991) (unpublished Claimant submitted a petition for modification on July 1, 1991 which was denied by the district director on October 11, 1991. Director's Exhibit 33. Claimant took no further action on his 1980 claim. On July 27, 1993, claimant filed the instant duplicate claim for benefits. Director's Exhibit 1. The district director awarded benefits on January 6, 1994. Director's Exhibit 20. The case was forwarded to the Office of Administrative Law Judges on May 2, 1994, for a formal hearing. Director's Exhibit 35. Prior to the hearing, Administrative Law Judge George A. Fath (the administrative law judge) issued an Order Denying Motion to,Compe| disclosure of medical opinions of employer's experts who were not expected to testify at the hearing. In his Decision and Order - Denying Benefits, the administrative law judge found that the responsible operator issue was not subject to review and reaffirmed Judge Chao's finding that employer is the responsible operator. The administrative lawjudge credited claimant with thirty years' of coal mine employment, based on stipulation. 'As the duplicateeclaim - was filed after March 31, 1980, the administrative law judge properly applied the regulations at 20 C.F.R. Part 718. See 20 C.F.R. ??718.1, 725.309. He considered the evidence submitted since the prior adjudication and found that claimant failed to establish the existence of pneumoconiosis under 20 C.F.R. and, thus, failed to establish a material change in conditions pursuant to 20 C.F.R. ?725.309. Accordingly, the administrative law judge denied benefits on the duplicate claim. He subsequently summarily denied claimant's Motion for Reconsideration. On appeal, claimant and the Director urge, inter alia, that the Board vacate the administrative law judge's Order Denying Motion to Compel, Decision and Order-Denying Benefits' and Order Denying Motion for Reconsideration and remand the case to the administrative Iawjudge with instructions to obtain the medical evidence which employer has suppressed, before reconsidering the claim on its merits. Employer urges affirmance of the administrative |awjudge's Motion to Compel, Decision and Order-Denying Benefits and Order Denying Motion for Reconsideration. The Board's scope of review is defined by statute. The administrative law judge's Decision and Order must be affirmed if it is supported by substantial evidence, is rational, and is in accordance with applicable law. 33 U.S.C. as incorporated into the Act by 30 U.S.C. ?932(a); O'Keeffe v. Smith, Hinchman Associates, Inc., 380 U.S. 359 (1965). We note initially that, subsequent to issuance of the administrative law judge's Decision and Order - Denying Benefits, the United States Court of Appeals for the Fourth Circuit, within whose jurisdiction this case arises, adopted in Lisa Lee Mines v. Director, OWCP [Rutter], 86 F.3d 1358, 20 BLR 2-227 (4th Cir. 1996), rev'g en banc, 57 F.3d 402, 19 BLR 2-223 (4th Cir. 1995 cert. denied, 117 S. Ct. 763 (1997), the Director's "one element" standard for determining whether a material change in conditions has been established pursuant to Section 725.309.' The administrative Iawjudge in the instant case did not address the question of whether the newly submitted evidence established a totally disabling respiratory impairment. Judge Chao, in the first claim, which was governed by the 20 C.F.R. Part 727 regulations, found rebuttal was established at Section Therefore, because Judge Chao found no total respiratory disability established in the prior decision and order, claimant may prove total respiratory disability based on the evidence developed since the prior claim to establish a material change in conditions at Section 725.309 under Rutter.' On remand, if the administrative Iawjudge finds that the newly submitted evidence has established an element of entitlement not previously established, the administrative law judge should weigh all the evidence of record and consider the claim on the merits. We therefore remand the case 'The Directors "one-element" standard requires the claimant to prove, in light of all of the probative m'e'dical"evidencer of-his condition of elements of entitlement previously adjudicated against him. Lisa Lee Mines v. Director, OWCP [Rutter], 86 F.3d 1358, 20 BLR 2-227 (4th Cir. 1996), rev'g en banc, 57 F.3d 402, 19 BLR 2-223 (4th Cir. 1995 cert. denied, 117 S. Ct. 763 (1997). making his findings at Section the administrative law judge must determine claimant's usual coal mine employment and compare the exertional requirements of that job with his impairment. See Scott v. Mason Coal Co., 60 F.3d 1138, 19 BLR 2-257 (4th Cir. 1995), rev'g on other grds, 14 BLR 1-37 (1990) (en banc); Budash v. Bethlehem Mines Corp., 9 BLR 1-48 (1986), aff'd on recon. en banc, 9 BLR 1-104 (1986). to the administrative lawjudge to make a finding on the issue of a material change in conditions pursuant to Rutter. Next addressed are those evidentiary issues raised by the parties. Claimant initially urges the Board to reopen the first claim which was filed on January 28, 1980, for consideration of Dr. Zaldivar's report, Director's Exhibit 11. Dr. Zaldivar's report was generated during the period when the first claim was viable, but was introduced into evidence during the pendency of the second claim.' In making his threshold determination of whether there was a material change in conditions pursuant to Section 725.309, the administrative law judge properly declined to consider any evidence that was in existence at the time the first claim was decided on the grounds that such evidence "is not applicable in determining whether there has been a change in condition since the denial." Decision and Order at 4; see Rutter, supra. Claimant's argument that the first claim should be reopened since employer withheld the results of Dr. Zaldivar's report in violation of 20 C.F.R. ?725.414, which requires that all evidence be submitted to the district director when the case is pending before the district director, see infra, has no merit since Dr. Zaldivar's report was generated on April 19, 1989 when the case was before Judge Patton, not before the district director. We agree with the Director's position on this issue, that neither the Act nor the regulations provides grounds for reopening the first claim.' We, therefore, affirm the administrative law judge's exclusion from consideration of Dr. Zaldivar's report with respect to the first claim 3On April 11, 1989, when the first claim was before Administrative Law Judge John S. Patton, employer advised c|aimant's lay representative, Jack McVey, that an examination was scheduled with Dr. Zaldivar for April 19, 1989. Director's Exhibit 58. On that date, Dr. Zaldivar examined claimant at employers behest and authored a report diagnosing, inter alia, simple pneumoconiosis and complicated pneumoconiosis. Director's Exhibit 58. Claimant did not request a copy of Dr. Zaldivafs report at that time as he was entitled to do. See 29 C.F.R. which references FED. R. CIV. P. 35(b). Nor did employer submit a copy of Dr. Za|divar's report into evidence. After the --1-filing-of thevsecond request=ed--and receivedfrom employer-*, 'a=copy'of Dr: Zaldivar's report which he submitted into evidence. Employer also did not submit into evidence with the first claim Dr. Fino's May 6, 1989 report, which referred to, and rebutted, Dr. Zaldivar's diagnoses of simple and complicated pneumoconiosis. While employer admitted other reports generated by Dr. Fino with the first claim, it did not submit the May 6, 1989 report until the second claim was filed. 'Claimant agrees that the administrative law judge's handling of Dr. Zaldivar's examination report was proper under Rutter, supra, and concedes he is unable to cite any legal authority for reopening the first claim so that the administrative law judge might revisit the evidence. Claimant's Supplemental Brief at 11; Oral Argument Transcript at 6. 4 and decline to reopen that claim.5 We next address claimant's challenges to the administrative law judge's Order Denying Motion to Compel. Claimant filed his second claim on July 27, 1993. An abbreviated history of communications between employer and claimant with respect to the second claim is as follows: On September 2, 1994, employer filed a set of interrogatories and request for production of documents in which employer asked claimant, inter alia, whether he or his attorney were "in possession of any chest x-ray interpretations including have not been submitted into evidence into this case". Employer asked for a description of such reports and asked claimant to produce such reports. interrogatories 16, 17, 26. Claimant, without counsel, responded to the interrogatories. On October 3, 1994 claimant's lay representative, John Cline, "by way of discovery' requested all medical records and production of documents in employer's possession. On January 4, 1995, employer declined to turn over reports of certain experts as "privileged information" and not subject to discovery under the Federal Rules of Civil Procedure. On January 10, 1995, claimant, through recently acquired counsel, requested production of documents, includ_ing "expert opinions." On January 13, 1995, employer turned over the April 21,1989 report of Dr. Zaldivar and declined to submit other medical evidence as privileged under the expert provision of Rule of the Federal Rules of Civil Procedure. On January 24, 1995, claimant's attorney filed a "Motion to Compel Discovery on Behalf of all medical reports in the related matter in employer's possession." On February 8, 1995, the administrative law judge denied the Motion to Compel which is now at issue. Claimant through the Motion to Compel Discovery, sought production of medical information obtained by employer which employer did not intend to introduce into evidence and considered "privileged". Employer advised the administrative law judge, inter alia, that in its investigation of the instant claim and in preparation for the hearing, it had several x-rays and CT scans read by roentgenographic experts to determine whether these films reveal the presence or absence ofcomplicated pneumoconiosis. Employer considered this evidence to be privileged. [1995] Emp|oyer's Response to Claimant's Motion to Compel Discovery and Request for Protective Order at 1. Claimant contends, inter alia, that by sending only negative x-rays or reports that favor its position to other experts<