PART IV

               ADMINISTRATIVE PROCESSING OF CLAIMS,
      POWERS AND DUTIES OF THE ADMINISTRATIVE LAW JUDGE


A.     THE CLAIMS PROCESS

     4.  PROCEDURAL ISSUES AT THE DISTRICT DIRECTOR OR THE
         HEARING LEVEL

          b.  Hearing Issues

     Section 725.421(b) provides that, prior to the hearing, the district director is required
to submit to the administrative law judge a document setting forth the contested and
uncontested issues in the claim.  20 C.F.R. §725.421(b); see Chaffins
v. Director, OWCP, 7 BLR 1-431 (1984).  The issues considered by an
administrative law judge at the hearing are generally restricted to those:  (1) identified by
the district director, (2) raised in writing before the district director, or (3) not "reasonably
ascertainable" by the parties at the time the claim was before the district director.
See 20 C.F.R. §725.463(a), (b); Mullins v. Director, OWCP,
11 BLR 1-132, 1-134 (1988)(en banc)(Ramsey, C.J., dissenting).  For discussion of
stipulations and conceded issues, see Part V.A.10. of the Desk Book.

     The purposes of Section 725.463 are to force the parties to develop evidence prior
to the hearing and to expedite cases by ensuring that the parties are not surprised by new
issues at the hearing. See Carpenter v. Eastern Associated Coal
Corp., 6 BLR 1-784 (1984).  When new issues are raised before the
administrative law judge, the administrative law judge has the discretion under Section
725.463(b) to remand the case to the district director, to hear and resolve the new issue,
or to refuse to consider the new issue. See Callor v. American Coal
Co., 4 BLR 1-687 (1982), aff'd sub nom. American Coal Co. v.
Benefits Review Board, 738 F.2d 387, 6 BLR 2-81 (10th Cir. 1984).  An issue
not previously considered before the district director may be adjudicated if the parties
consent; such consent may be inferred where the parties develop evidence and are aware
of each other's intent to litigate the issue. See Carpenter v. Eastern
Associated Coal Corp., 6 BLR 1-784 (1984); see also Grant v.
Director, OWCP, 6 BLR 1-619 (1983).

The Board held that the Director's second Motion for Reconsideration challenging
claimant's entitlement to benefits, which was filed more than thirty days after the
administrative law judge's original Decision and Order but within thirty days of the
administrative law judge's Supplemental Decision and Order, was not timely filed inasmuch
as the Director's second motion was filed more than thirty days after the issuance of the
Decision and Order it contested, namely the administrative law judge's original Decision
and Order.  The Board further noted that even if the Director's second motion were
considered timely, the Director would still be precluded from challenging the merits of
claimant's entitlement because his failure to raise the issue in his first motion resulted in
the issue being waived. Knight v. Director, OWCP, 14 BLR 1-166 (1991).



                CASE LISTINGS

[fact-finder erred in considering existence of pneumoconiosis: not listed as contested issue
by district director nor raised at hearing] Perry v. Director, OWCP, 5 BLR
1-527 (1982).

[adjudicator erred in considering issues not listed as contested by district director] 
Simpson v. Director, OWCP, 6 BLR 1-49 (1983).

[where parties stipulated at least ten years of coal mine employment at informal conference
and district director's did not list it as issue, adjudicator improperly considered issue;
fundamental fairness requires parties be advised of issues to be decided] Derry v.
Director, OWCP, 6 BLR 1-553 (1983).

[fact-finder erred in dismissing claim, finding that record failed to establish identity of
claimant; since issue raised for first time by fact-finder, he must hold record open for
parties to develop evidence on this point] Lewullis v. Lehigh Valley Anthracite,
Inc., 6 BLR 1-588 (1983)(Ramsey, CJ., dissenting).

[failure to object to adjudicator consideration of issues not listed as "contested" before
district director precludes raising point on appeal] Grant v. Director,
OWCP, 6 BLR 1-619 (1983).

[section 725.463 no bar to adjudicator's consideration of issues  not listed as "contested"
before district director since parties developed relevant evidence and were aware of each
other's intent to litigate issues in question] Carpenter v. Eastern Associated Coal
Corp., 6 BLR 1-784 (1984).

[Section 413(b) rereading prohibition may be raised on reconsideration before
administrative law judge] Martin v. Director, OWCP, 7 BLR 1-72 (1984).

[employer, by acknowledging it was responsible operator, did not waived right to contest
claimant's eligibility at hearing] Vance v. Eastern Associated Coal Corp.,
8 BLR 1-68 (1985).

[district director properly listed total disability as contested issue notwithstanding that pro
se claimant stated that he was not totally disabled; district director implicitly found
stipulation not in claimant's best interests] Wilson v. Youghiogheny and Ohio
Coal Co., 8 BLR 1-73 (1985).

[adjudicator erred in considering issues raised one week before hearing where easily
ascertainable and no excuse for failing to raise them before district director provided by
Director] Thornton v. Director, OWCP, 8 BLR 1-277 (1985).

[adjudicator should have considered relief under Section 26 of Longshore Act, 33 U.S.C.
§926, applicable to black lung claims by 30 U.S.C. §932(a), [allowing for
recovery of costs where opponent institutes or continues, without reasonable grounds,
proceedings] although employer failed to raise issue before the hearing; grounds could not
have been anticipated prior to hearing as they concern purported discrepancies in
claimant's testimony] Bolden v. U.S. Stevedores Corp., 8 BLR 1-398
(1985).



                   DIGESTS

The Board held that the failure of claimant's counsel, an associate in the same law firm as
claimant's employed counsel, to object at hearing to employer's motion to enlarge the
district director's list of contested issues or the introduction of evidence on these new
issues, resulted in a waiver of claimant's right to rely on the list and affirmed the
administrative law judge's enlargement of the list at the hearing. Prater v. Director,
OWCP, 8 BLR 1-461 (1986).

The Board held that claimant was not entitled to contest, in a separate proceeding,
employer's status as the designated responsible operator before being required to
establish his claim.  It was therefore within the administrative law judge's discretion to
dispose of the case by denying the claim on the merits without addressing the question of
whether employer qualified as a responsible operator. Seewald v. Imperial Coal
Co., 8 BLR 1-469 (1986).

The Board held that the Director had waived the right to present evidence on the issue of
entitlement where he failed to:  (1) contest entitlement at the administrative law judge's
original hearing; (2) to contest the substantive issues of entitlement in the motion for
reconsideration; and (3) to raise the issue of entitlement before the Board. Kincell
v. Consolidation Coal Co., 9 BLR 1-221, 1-223 (1986).

The Third Circuit held that claimant could not raise at the hearing the issue of the
operator's failure to timely controvert liability as that issue was reasonably ascertainable
while the case was before the district director. Linton v. Director, OWCP,
No. 85-3547 (3d Cir. Jun. 10, 1986)(unpub.).

The Board, overruling its decision in Mullins v. Director, OWCP, 7 BLR
1-561 (1984), held that the issue of eligibility of a claimant in a survivor's case is conceded
if it is easily ascertainable at the district director level but is not raised at the level by the
opposing party. Mullins v. Director, OWCP, 11 BLR 1-132 (1988)(en
banc)(Ramsey, C.J., dissenting).

The administrative law judge committed reversible error in denying benefits on the grounds
that claimant had failed to establish the existence of pneumoconiosis arising out of coal
mine employment inasmuch as neither issue was checked as contested on Form CM-1025
or raised in writing before the district director; thus, Director conceded that claimant has
pneumoconiosis related to coal mine employment. Kott v. Director,
OWCP, 17 BLR 1-9 (1992).

Because employer argued that the corporate officers should be personally liable for benefit
payments and requested that Mr. Varney and Mr. White be renamed as possible putative
responsible operators, the Board stated that it was proper for the administrative law judge
to address this issue. Lester v. Mack Coal Co., 21 BLR 1-126 (1999).

Claimant waived his right to rely on employer's alleged admission of the existence of
pneumoconiosis and the causation of claimant's total disability where claimant's counsel
at the hearing did not object to employer's contesting these issues and did not object to the
introduction of employer's evidence relating to these issues. Johnson v. Royal
Coal Co.,         BLR       , BRB No. 01-0388 BLA (Feb. 28, 2002)(Hall, J.,
dissenting).


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