Island Creek Coal Company v. ARTHUR W. HOLDMAN , (Deceased)

20 Island Creek Coal Co. v. Holdman, et al. No. 97-4065
5The Federal Respondent bears the blame for the past fourteen years
of litigation in this matter. A record entrusted by law to OWCP has
vanished. Cf. Hileman, 897 F.2d at 1280-81. The Director ignored
repeated requests of the Benefits Review Board to reconstruct the record.
When ALJ Gilday attempted to resolve matters, he reported that the
Director did not attend or send counsel to the hearing scheduled on
September 13, 1994, and that his response to the show cause order did not
address some of the material issues. Finally, in its correspondence to
Island Creek following the October 30, 1995 Board order, OWCP
exhibited misunderstandings of its governing regulations. It appears that
the Director and his staff have flirted with incompetence, although we do
not have a record establishing that they acted in bad faith.
(4th Cir. 1999); cf. Director, OWCP v. Hileman, 897 F.2d
1277, 1280-81 (4th Cir. 1990) (upholding the propriety of
Board’s dismissal of OWCP’s appeal after the Director failed
to guarantee the transmittal of the administrative record to the
Board). Thus, in light of the process due, Island Creek would
suffer prejudice were we to affirm its designation as a
“responsible operator.” “If there has been no fair day in court,
the reliability of the result is irrelevant, because a fair day in
court is how we assure the reliability of results.” Lane
Hollow Coal Co., 137 F.3d at 808. In the absence of a
responsible operator, the Black Lung Disability Trust Fund
will pay Holdman’s benefits.5
IV. Conclusion
The judgment of the Benefits Review Board is
REVERSED, and the matter is REMANDED for
reinstatement of the October 7, 1994 order of ALJ Gilday.
Our disposition of the matter renders MOOT the Board’s
holding that Island Creek may not introduce new medical
evidence in future remands. See supra at 12-14.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0037P (6th Cir.)
File Name: 00a0037p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ISLAND C REEK C OAL
C OMPANY ,
Petitioner,
v.
ARTHUR W. HOLDMAN ,
(Deceased); DIRECTOR,
OFFICE OF W ORKERS’
C OMPENSATION P ROGRAMS,
UNITED S TATES DEPARTMENT
OF LABOR,
Respondents.
;>

1
No. 97-4065
On Petition for Review of an Order
of the Benefits Review Board.
No. 95-0578 BLA
Argued: December 11, 1998
Decided and Filed: January 27, 2000

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2 Island Creek Coal Co. v. Holdman, et al. No. 97-4065
*The Honorable David D. Dowd, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
Before: BOGGS and MOORE, Circuit Judges; and
DOWD,* District Judge.
_________________
COUNSEL
ARGUED: Douglas A. Smoot, JACKSON & KELLY,
Charleston, West Virginia, for Petitioner. Thomas M.
Rhoads, RHOADS & RHOADS, Madisonville, Kentucky,
Rita Roppolo, U.S. DEPARTMENT OF LABOR, OFFICE
OF THE SOLICITOR, Washington, D.C., for Respondents.
ON BRIEF: Martin E. Hall, JACKSON & KELLY,
Lexington, Kentucky, for Petitioner. Thomas M. Rhoads,
RHOADS & RHOADS, Madisonville, Kentucky, Rita
Roppolo, Patricia Nece, U.S. DEPARTMENT OF LABOR,
OFFICE OF THE SOLICITOR, Washington, D.C., for
Respondents.
_________________
OPINION
_________________
BOGGS, Circuit Judge. In a case with a lengthy procedural
history, Island Creek Coal Company appeals a decision of the
Benefits Review Board of the United States Department of
Labor. The decision required Island Creek to pay Black Lung
benefits to a coal miner’s widow. We reverse the decision of
the Board and reinstate the 1994 order of the administrative
law judge transferring responsibility for the payments to the
Black Lung Disability Trust Fund.
No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 19
Second, Island Creek believes that it suffered because of the
incomplete record. Apparently, Island Creek and Holdman
reconstructed the record except for a transcript of Holdman’s
1980 testimony before ALJ Rippey, and two of Holdman’s
exhibits. Island Creek observes that no party knows what the
lost evidence would prove. This case places Island Creek in
the difficult position of rebutting OWCP by proving the
contents of twenty-year-old documents lost by OWCP. For
seven years, the Board considered the lost materials necessary
to the disposition of Island Creek’s 1985 appeal: in 1989,
January 1992, and May 1992, the Board issued orders
explaining that it could not resolve the appeal without the
completed record, and ordering OWCP to supply or
reconstruct the record. In 1993, the Board dismissed the 1985
appeal, stating that it “must have the complete record of the
proceedings below before considering the merits of this
appeal.” After ALJ Gilday received the assignment to
reconstruct the record, he also agreed that the case could not
fairly be resolved without the missing evidence. ALJ
Gilday’s 1994 order reflects that Holdman’s
counsel—securely in the possession of an entitlement to
benefits—agreed with Island Creek that the missing evidence
was “critical.”
Substantial evidence—the orders of the Board from 1985-
1993, ALJ Gilday’s opinion, and the difficulty in proving a
negative—supports ALJ Gilday’s reasoned conclusion that
the missing exhibits were important to the resolution of
Holdman’s contested claim. The missing documents could
refute, confirm, or shed light on the opinions expressed in the
preserved evidence. “Moreover, speculation about the would-
have-been and could-have-been misconstrues the focus of our
inquiry. In this core due process context . . . we do not
require a showing of ‘actual prejudice’ in the sense that there
is a reasonable likelihood that the result of this claim would
have been different absent the violation.” Lane Hollow Coal
Co. v. Director, OWCP, 137 F.3d 799, 807 (4th Cir. 1998)
(ruling that delay in notifying an employer of a claim deprived
it of due process, and transferring liability to the Trust Fund);
see also Consolidation Coal Co. v. Borda, 171 F.3d 175, 184

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18 Island Creek Coal Co. v. Holdman, et al. No. 97-4065
20 C.F.R. § 727.203(b)(3) does not concern itself with the
degree of a medical disability; rather, it requires the employer
to prove that coal mining played no role in the miner’s
disability. See Warman v. Pittsburg & Midway Coal Mining
Co., 839 F.2d 257, 260 (6th Cir. 1988); see also
Youghiogheny & Ohio Coal Co. v. Webb, 49 F.3d 244, 250
(6th Cir. 1995). Island Creek failed to meet its burden of
proof. After reviewing the record that we have available, we
hold that ALJ Rippey did not err in finding an entitlement of
benefits.
C. Whether the Board Erred by Re-transferring Liability to
Island Creek
ALJ Gilday found that, because he could not completely
reconstruct the record, the “best interests of justice [were]
served by” granting benefits while transferring liability from
Island Creek to the Black Lung Disability Trust Fund. He
reasoned that, because OWCP was at fault for the years of
delay, neither Island Creek nor Holdman’s widow should
suffer from the incomplete record. The Board reversed his
order insofar as it transferred liability to the Trust Fund, in
spite of the fact that OWCP lost the record before ALJ Rippey
ruled on the motion for reconsideration in early 1985. Island
Creek observes that the statute might permit the transfer, as it
permits payment by the Trust Fund where, inter alia, “there
is no operator who is liable for the payment of such benefits.”
26 U.S.C. § 9501(d)(1)(B). Island Creek contends that,
because OWCP’s actions resulted in a denial of due process
in the 14 years of proceedings following the disappearance of
the record, it cannot be held liable where the violation
undermined its ability to present its case fairly.
First, it notes that OWCP, not employers, has the duty to
safeguard legal records (especially, we imagine, those in cases
where the employer loses before OWCP and the ALJ). Cf. 20
C.F.R. § 725.102(a) (making OWCP the official custodian of
all documents related to claims of entitlement to benefits).
We agree that this responsibility rests with OWCP.
No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 3
1The parties disagree about the source. Compare Director’s Motion
to Dismiss for Lack of Jurisdiction at 3 (“OWCP sent a copy of the
decision to [counsel] by facsimile.”) (filed Dec. 17, 1997) (emphasis
added) with Island Creek Coal Company’s Response to Director’s Motion
to Dismiss for Lack of Jurisdiction at 2 (“Only then did the Board fax a
copy . . . .”) (filed Dec. 29, 1997) (emphasis added); see also Island
Creek’s Petition for Modification at 1 (filed Sept. 11, 1996).
I. Jurisdiction
A. Background to the Jurisdictional Dispute
In 1980, an Administrative Law Judge (ALJ) ordered Island
Creek Coal Company to pay black lung benefits to Arthur
Holdman. Island Creek moved for reconsideration and later
appealed to the Benefits Review Board. For various reasons,
discussed infra at 7-12, the Board did not rule definitively for
15 years. The Board issued its order on October 30, 1995.
The Board mailed its order (not by certified mail) to Island
Creek’s counsel at an incorrect address, sending it to
Charleston, West Virginia, rather than to Lexington,
Kentucky. On August 2, 1996, Island Creek’s counsel
inquired about the status of the appeal. That day, either the
Board or the Office of Workers’ Compensation Programs
(OWCP) faxed a copy of the October 30 order, which was
received by Island Creek that day.1 The final footnote of the
Board’s order read: “We note that employer may file a
petition for modification [of the terms of an award] with the
district director under the provisions of 20 C.F.R. § 725.310.”
On September 11, 1996, in a petition to OWCP for
modification of the 1980 order, Island Creek’s counsel cited
some newly-discovered medical evidence as support for
modification.
On September 23, 1996, Bobby Chaffins, a senior claims
examiner with OWCP, responded, informing counsel that the
Board told Chaffins that “the appropriate course of action is
for you to file the appeal with the Board, not the District
Director” (emphasis added). On September 27, counsel asked
Chaffins for clarification, explaining that counsel wished to

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4 Island Creek Coal Co. v. Holdman, et al. No. 97-4065
pursue a petition for modification with the Director, and not
an appeal to the Sixth Circuit. Counsel stated his belief that
the only appeal from an order by the Board was to the Sixth
Circuit.
On November 7, 1996, Harry Skidmore, the OWCP District
Director, responded via certified mail. Without citing
authority or mentioning the final footnote in the Board’s
order, he claimed that, because the Board currently had the
record in the Holdman case, the Board, and not OWCP, had
jurisdiction over the motion for modification. Skidmore
enclosed a copy of the October 30 order by the Board and
stated that “this correspondence represents your official notice
of the Board’s decision. Absent an appeal being filed by your
office within thirty (30) days from the date of this notice with
either the Benefits Review Board or Circuit Court, the award
will become final . . . .” (emphasis added).
On December 4, 1996, counsel mailed to the Board a
motion for reconsideration. On August 21, 1997, the Board
denied the motion for reconsideration. Within 60 days, on
September 22, Island Creek petitioned this court for review of
the Board’s orders of October 30, 1995, and August 21, 1997.
On December 17, 1997, the Director moved to dismiss the
petition for lack of jurisdiction. The Director claimed that the
time for action began to run when OWCP faxed the decision
to Island Creek’s counsel on August 2, 1996. After that date,
the Director alleged, Island Creek had two options: file a
motion with the Board for reconsideration of the October
1995 order, or petition this court for review. Island Creek did
not move for reconsideration until December 4, 1996, and it
did not petition for review until September 22, 1997. Thus,
claimed the Director, this court lacked jurisdiction over the
petition.
Island Creek responded to OWCP’s motion by observing
that the OWCP Director informed counsel on November 7,
1996, that his letter constituted “official notice,” and that
Island Creek had thirty days to file a motion for
reconsideration with the Board. Within thirty days of the
No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 17
Anderson’s testimony is not sufficient to establish that the
Claimant’s disability did not arise in whole or in part out of
his coal mine employment.” The Board correctly upheld ALJ
Rippey on these grounds. An ALJ overseeing Black Lung
Act claims may discredit medical expert testimony that
contains equivocations about the etiology of a disease. See
Griffith v. Director, OWCP, 49 F.3d 184, 186-87 (6th Cir.
1995) (stating this proposition and citing cases in support);
see also Lane Hollow Coal Co. v. Director, OWCP, 137 F.3d
799, 804 (4th Cir. 1998) (“[A] physician may opine that a
given miner has no pulmonary impairment attributable to coal
mine employment because simple pneumoconiosis does not
generally cause any pulmonary impairment. The interim
regulations presume precisely the opposite, and the
presumption must be rebutted with proof rather than
disagreement.”). The Board may uphold an ALJ’s ruling on
one ground if the ALJ errs in a separate basis for a ruling.
See, e.g., Zeigler Coal Co. v. Kelley, 112 F.3d 839, 843 (7th
Cir. 1997).
Finally, Island Creek contends that ALJ Rippey failed to
comply with the Administrative Procedure Act, which
requires an adequate “statement of . . . findings and
conclusions, and the reasons or basis therefor, on all the
material issues of fact, law, or discretion presented on the
record . . . .” 5 U.S.C. § 557(c)(3)(A); see Morehead Marine
Servs., Inc. v. Washnock, 135 F.3d 366, 375 (6th Cir. 1998)
(“Absent a specific, and accurate, reference to the evidence
supporting an ALJ’s decision, we hold that the ALJ has failed
to fulfill his duty as required by § 557(c)(3)(A), and we must
remand for a proper explanation.”). Granted, ALJ Rippey did
not discuss at length the evidence supporting Holdman’s
claim. However, the parties stipulated that Holdman
benefitted from the interim presumption. As Island Creek had
the burden of rebutting the presumption, ALJ Rippey had only
to explain why he found its three medical experts failed to
rebut the presumption. He addressed the three medical
experts that Island Creek offered, thereby adequately
explaining why he found that Island Creek failed to rebut the
presumption.

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16 Island Creek Coal Co. v. Holdman, et al. No. 97-4065
Nevertheless, on reconsideration, he found that the report did
not rebut the presumption:
[H]owever [Dr. Gallo’s] opinion is not credible in light
of the fact that Claimant could not even complete the
pulmonary function tests because of chest pain. Dr.
Gallo attributes these chest pains to suggest angina
pectoris but never comments on whether Claimant’s lung
condition, which he diagnosed as pneumoconiosis,
contributes to the chest pains. Moreover, Dr. Gallo’s
report was silent as to whether he considered Claimant to
be totally disabled or not and if Claimant is totally
disabled whether his disability arises in whole or in part
out of coal mine employment.
The Board ruled that ALJ Rippey “acted within his discretion
as fact-finder in determining that Dr. Gallo’s opinion was
insufficient to rule out pneumoconiosis as a cause of the
miner’s disability.” The Board did not err. ALJ Rippey
properly found that Dr. Gallo did not rule out pneumoconiosis
as a contributing cause of the disability. Cf. Gibas v. Saginaw
Mining Co., 748 F.2d 1112, 1120 (6th Cir. 1984) (placing the
burden on the employer to show that “pneumoconiosis played
no part in causing a miner’s disability”), cert. denied, 471
U.S. 1116 (1985).
Second, Island Creek contends that, in his 1980 order, ALJ
Rippey improperly discredited Dr. Anderson’s testimony
solely because ALJ Rippey found the testimony contrary to
the spirit and assumptions underlying the Black Lung Benefits
Act. Dr. Anderson testified that simple pneumoconiosis will
not usually disrupt pulmonary function. The Board ruled that,
because Dr. Anderson did not rule out the possibility that
simple pneumoconiosis may cause pulmonary dysfunction,
ALJ Rippey erred by finding the Anderson report inconsistent
with the Act. The Board upheld ALJ Rippey’s order on other
grounds, noting that ALJ Rippey discounted Dr. Anderson’s
credibility because the doctor used words such as “probably.”
ALJ Rippey described the testimony as “hedg[ing],” and
wrote that, “When viewed in its entirety . . . I find that Dr.
No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 5
2See fn. 1
Director’s letter (sent by certified mail), Island Creek filed
with the Board its motion for reconsideration. Within 60 days
of the Board’s denial of the motion, Island Creek petitioned
this court for review. Therefore, according to Island Creek,
we have jurisdiction over this appeal.
B. Analysis of Jurisdictional Issue
20 C.F.R. § 802.410(a) provides that, “Within 60 days after
a decision by the Board has been filed pursuant to
§ 802.403(b), any party adversely affected or aggrieved by
such decision may file a petition for review with the
appropriate U.S. Court of Appeals . . . .” 20 C.F.R.
§ 802.403(b) provides that, inter alia, “[t]he original of the
decision shall be filed with the Clerk of the Board,” and that
“[a] copy of the Board’s decision shall be sent by certified
mail or otherwise presented to all parties to the appeal and the
Director.”
The parties agree that the Board sent Island Creek’s copy of
the 1995 order to the wrong address, and that, in 1995, Island
Creek did not receive a copy of the Board’s order. Once it
somehow learned of the Board’s decision,2 Island Creek
attempted to obtain a modification of the ALJ’s order, but the
OWCP informed Island Creek in a letter dated September 23,
1996 that the Board advised that “the appropriate course of
action is for you to file the appeal with the Board, not the
District Director.” The November 7, 1996 certified mail letter
from the OWCP to Island Creek included a copy of the
Board’s order and informed Island Creek that “this
correspondence represents your official notice of the Board’s
decision,” and that “[a]bsent an appeal being filed by your
office within thirty (30) days from the date of this notice with
either the Benefits Review Board or Circuit Court, the award
will become final . . . .” This letter was consistent with the
earlier advice by the Board, relayed by Chaffins in the
September 23 letter, that no action could be taken on Island

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6 Island Creek Coal Co. v. Holdman, et al. No. 97-4065
Creek’s petition for modification. The Board has never
denied this position.
After the Board and OWCP apparently unlawfully
foreclosed Island Creek’s attempt to obtain redress via a
petition for modification (pursuant to 20 C.F.R. § 725.310, a
procedure with attendant avenues for hearings and appeal in
the event that a party is dissatisfied with the OWCP’s
resolution of the petition, see 20 C.F.R. § 725.419), Island
Creek filed with the Board a motion for reconsideration on
December 4, 1996 (within thirty days of the November 7
letter sent by certified mail). See 20 C.F.R. § 802.407(a)
(“Any party-in-interest may, within 30 days from the filing of
a decision or non-interlocutory order by a panel or the Board
pursuant to § 802.403(b), request reconsideration of such
decision by those members who rendered the decision.”).
The Board treated the motion as timely and denied it on
August 21, 1997. Within sixty days, on September 22, Island
Creek petitioned this court for review of the Board’s orders.
“[A] petition for review under § 921(c) is timely if filed
within sixty days of the Board’s denial of a timely motion for
reconsideration.” Peabody Coal Co. v. Abner, 118 F.3d 1106,
1108 (6th Cir. 1997). In light of the timely motion for
reconsideration, our jurisdiction stems from 33 U.S.C.
§ 921(c), which provides that, “Any person adversely affected
or aggrieved by a final order of the Board may obtain a review
of that order in the United States court of appeals for the
circuit in which the injury occurred, by filing in such court
within sixty days following the issuance of such Board order
a written petition praying that the order be modified or set
aside.” The Department of Labor has, by regulation, clarified
the various avenues governing the measurement of the date of
the start of the 60-day period, see, e.g., 20 C.F.R. § 802.406
(“If a timely request for reconsideration has been filed, the 60-
day period for filing such petition for review [with a circuit
court of appeals] will run from the issuance of the Board’s
decision on reconsideration.”). In this case, the government
similarly clarified that the letter it mailed on November 7,
1996 “represents [Island Creek’s] official notice of the
No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 15
(b)(3) to focus on (b)(2)). Here, ALJ Rippey twice emphasized that
Island Creek focused “primarily” on (b)(3). Therefore, (b)(2)’s formerly-
lax standard did not “lull” Island Creek into focusing its efforts on (b)(2)
rebuttal to the detriment of its case for (b)(3) rebuttal.
B. Whether Island Creek Failed to Rebut the Interim
Presumption of Entitlement to Benefits
In its October 1995 order, the Board treated Island Creek’s
cross-appeal as a request to reinstate its prior appeal of 1985
that challenged ALJ Rippey’s finding that Island Creek failed
to rebut Holdman’s presumption of entitlement to benefits.
The Board interpreted the appeal in this manner because ALJ
Gilday made no findings regarding the initial presumption of
entitlement and Island Creek’s failure to rebut the
presumption. Instead, without elaboration, ALJ Gilday
reinstated the benefits and dismissed Island Creek solely
because he felt the company suffered a due process violation
from OWCP’s behavior in the litigation.
On appeal, Island Creek appears to have abandoned its
claim that ALJ Rippey erred in finding that Island Creek
failed to rebut the presumption pursuant to 20 C.F.R.
§ 727.203(b)(2) (which allows rebuttal with evidence that
shows that the claimant has the ability to perform his “usual
coal mine work or comparable and gainful work”). Island
Creek contends that ALJ Rippey mistakenly found that Island
Creek had not rebutted the presumption pursuant to
§ 727.203(b)(3), permitting rebuttal where evidence shows
“that the total disability or death of the miner did not arise in
whole or in part out of coal mine employment . . . .” The
company isolates three alleged errors, none of which merit
reversal.
First, Island Creek contends that ALJ Rippey
inappropriately discounted Dr. Gallo’s medical opinion. In
his 1985 order denying Island Creek’s motion for
reconsideration, ALJ Rippey admitted that he erred in
overlooking Dr. Gallo’s evaluation of pulmonary test results.

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14 Island Creek Coal Co. v. Holdman, et al. No. 97-4065
4Island Creek also cites the decision in York v. Benefits Review Bd.,
819 F.2d 134 (6th Cir. 1987), which changed the standard for
§ 727.203(b)(2) rebuttal. Island Creek contends that the York decision
also changed the standard for § 727.203(b)(3) rebuttal. This is incorrect.
See Peabody Coal Co. v. White, 135 F.3d 416, 419 (6th Cir. 1998). Also,
Island Creek contends that, because the (b)(2) standard changed, it may
introduce new evidence in its (b)(3) challenge. We permit such evidence
only if the formerly-lax (b)(2) standard lulled employers into attempting
primarily to rebut the presumption via (b)(2). See Island Creek Coal Co.
v. Hammonds, No. 94-4110, 1996 WL 135019, at *4 (6th Cir. Mar. 25,
1996) (unpublished) (denying remand where Island Creek did not ignore
most plausible, interpretation. Presumably, however, the
Board may interpret the scope of its ambiguous orders.
Island Creek contends that, because legal standards have
changed since 1980, it may, at a new hearing, present new
evidence in its defense against the claim of entitlement. Since
1980, the legal interpretation has changed regarding two
subsections governing means of rebutting the presumption.
See Part II.A supra (discussing methods of rebuttal). Island
Creek contends that the standards for satisfying the “(b)(3)”
rebuttal standard have become more stringent since 1980. See
20 C.F.R. § 727.203(b)(3) (permitting rebuttal if the employer
proves that “total disability . . . did not arise in whole or in
part out of coal mine employment”). Island Creek contends
that, in 1980, it had to prove only that “no significant”
relationship existed between a coal miner’s employment and
his disability, while the new standard requires the employer
to rule out “any” relationship whatsoever between
employment and the disability. The Director asserts that the
Board followed the “no significant relationship”standard only
between 1981 and 1989, so that, if a new hearing occurs,
Island Creek would face the same standard it faced in 1980.
The Director accurately describes the evolution of Board
precedent. Island Creek has no right to introduce new
evidence. See Faries v. Director, OWCP, 909 F.2d 170, 175
(6th Cir. 1990) (finding no due process violation in Black
Lung Benefits Act hearings where “the applicable legal
standard travelled a full circle beginning and ending at the
same place”).4
No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 7
Board’s decision” and that “[a]bsent an appeal being filed . . .
within thirty days from the date of this notice . . ., the award
will become final . . . .”
The crux of the jurisdictional question is what constitutes
“issuance of such order” under the statute and regulation. The
seemingly relevant regulation, § 802.407(a), does not use
“issuance” but instead refers to “a decision by the Board [that]
has been filed pursuant to § 802.403(b),” to start the thirty
days for filing a request for reconsideration. The referenced
§ 802.403(b) makes two statements: “that the original of the
decision shall be filed with the clerk of the Board,” and that
“a copy . . . shall be sent by certified mail or otherwise
presented” to all parties. A very literal interpretation would
mean that giving the decision to the clerk is sufficient to start
the time period, and it doesn’t matter whether the parties ever
get notice. Not even the Board and the Director take this
position, as they contend that the time began to run with the
faxing of the opinion on August 2. Thus, the effect on the
time limit of the Board’s treatment of its own decision is a
matter that is subject to some interpretation.
Island Creek attempted to undertake a specific lawful and
timely procedure for obtaining further review of its claims by
a petition for modification. It was specifically informed by
OWCP, speaking for the Board and presenting a position that
has never been repudiated by the Board, that such a procedure
was not possible, and it was then specifically sent a copy of
the Board’s decision and specifically told that that copy had
the timeliness consequences that were specified for a filing of
the opinion under § 802.410(a) and § 802.403(b). Island
Creek’s December 4 filing thus served as a timely motion for
reconsideration, permitting us to turn to the merits of Island
Creek’s petition for review.
II. Factual and Procedural Background
A. Initial Award of Black Lung Benefits
In 1978, Arthur W. Holdman filed a claim with the United
States Department of Labor (DOL) for benefits under the

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8 Island Creek Coal Co. v. Holdman, et al. No. 97-4065
Black Lung Benefits Act, 30 U.S.C. §§ 901-930. As of 1978,
Holdman was 57 years old and had worked in coal mines for
30 years, the last ten of which he had spent working for Island
Creek. He stopped working in June 1978. DOL’s Office of
Workers’ Compensation Programs (OWCP) awarded benefits
to Holdman, and it ordered Island Creek to pay them. Island
Creek disputed this result and requested a hearing.
On June 24, 1980, ALJ Charles P. Rippey presided over a
hearing involving Holdman and Island Creek. The parties
stipulated that the medical evidence showed that Holdman
benefitted from the “interim presumption” of 20 C.F.R.
§ 727.203(a). The April 1998 version of 20 C.F.R.
§ 727.203(a) reads, in part, “A miner who engaged in coal
mine employment for at least 10 years will be presumed to be
totally disabled due to pneumoconiosis . . . if one of [several
enumerated] medical requirements is met.” ALJ Rippey’s
decision shows that the medical experts came to different
conclusions, and ALJ Rippey found that Holdman suffered
from “simple pneumoconiosis,” as opposed to complex
pneumoconiosis or none at all.
While it since has been amended, the 1980 version of 20
C.F.R. § 727.203(b) listed four means of rebutting the interim
presumption. Subsections 727.203(b)(1) & (2) state that the
presumption is rebutted if the employer shows that the
claimant is doing, or is able to do, “his usual coal mine work
or comparable and gainful work.” Subsection 727.203(b)(4)
allows rebuttal of the presumption when a party shows that
“[t]he evidence establishes that the miner does not . . . have
pneumoconiosis.” ALJ Rippey found “no analysis which
even approaches the possibility of rebutting the presumption
under any of those subsections.”
ALJ Rippey twice remarked that Island Creek “primarily”
relied on 20 C.F.R. § 727.203(b)(3), which declares the
presumption rebutted if the “evidence establishes that the total
disability or death of the miner did not arise in whole or in
part out of coal mine employment . . . .” ALJ Rippey rejected
the reports of Island Creek’s three medical experts, finding
No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 13
Creek’s appeal to the OALJ “for further proceedings,
including reconstruction of the record and, if necessary, a new
hearing [footnote].” The footnote read, “We note that Mr.
Holdman died on July 6, 1987.” ALJ Gilday’s order states
that he held no hearing, but that he received evidence into the
(new) record. The parties produced copies of whatever old
exhibits they had in their files, and Island Creek produced
several new depositions and reports taken or created in 1994.
It is unclear whether ALJ Gilday entered the new evidence in
the record, because ALJ Gilday based his ruling on perceived
due process violations by the Director rather than on the
evidence of Holdman’s disability. ALJ Gilday’s order
reinstated benefits while dismissing Island Creek from the
case; nothing suggests that he reviewed the new evidence or
made any new findings about entitlement. “It readily
appeared that the record cannot be recreated or reconstructed
and that, once again, the Board has ordered an Administrative
Law Judge to perform an exercise of utter futility,” he wrote.
When Island Creek cross-appealed after ALJ Gilday’s
ruling, the Board noted that the company had asserted in the
cross-appeal that, if the Board reinstated Island Creek as the
responsible operator, “employer ‘retains the right to contest
entitlement.’” The Board refused to permit ALJ Gilday to
reconsider entitlement in the event that the Board remanded
the case. The Board stated that, “Judge Gilday erred in
admitting newly developed evidence into the record inasmuch
as he was confined to the scope of proceedings dictated by the
Board’s remand order,” which it interpreted as remanding the
case “for the specific purpose of reconstructing an incomplete
record and holding a new hearing if necessary.”
Given that the Board knew that Holdman had died, its
remand order appears to have anticipated the introduction of
new evidence if ALJ Gilday found that he could not
reconstruct the original record. One can read the original
order to permit a hearing only to reconstruct, not supplement,
the record (e.g., the order remanded “for further proceedings,
including reconstruction of the record and, if necessary, a new
hearing”), but this does not appear to be the only, or even the

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12 Island Creek Coal Co. v. Holdman, et al. No. 97-4065
the Director of OWCP responsible for OWCP’s failure to
transmit the record, and for ignoring the Board’s orders to
produce the record and to remand the case for reconstruction
of the record. Finding the record inadequate to resolve the
legal issues, the order reinstated the benefits, ordered them
paid to Holdman’s widow from the Black Lung Trust Fund,
and dismissed Island Creek from the case.
E. The Only Consummated Appeal of Island Creek to the
Board
After ALJ Gilday issued his order, the Director appealed
and Island Creek cross-appealed. The Director claimed that
ALJ Gilday erred in transferring liability from Island Creek to
the Trust Fund, and Island Creek challenged the finding of an
entitlement to benefits. The Board found in the Director’s
favor, ruling that ALJ Gilday erred in transferring liability.
The Board treated Island Creek’s cross-appeal as a request to
re-open the 1985 appeal to the Board for review of ALJ
Rippey’s finding that Island Creek failed to rebut the
presumption of entitlement. The Board held that ALJ Rippey
did not err in finding that Island Creek failed to rebut the
presumption of entitlement. Finally, the Board held that ALJ
Gilday erred by admitting newly-developed evidence into the
record; the Board contended that it had authorized OALJ only
to reconstruct the old record and to hold a hearing if
necessary. Island Creek petitioned this court for relief.
III. Substantive Issues
This court reviews decisions of the Board to determine
whether substantial evidence supports the Board’s holding.
See Cal-Glo Coal Co. v. Yeager, 104 F.3d 827, 830 (6th Cir.
1997). This court reviews de novo the Board’s legal
conclusions. See ibid.
A. Whether the Board Erred By Ruling that ALJ Gilday
Mistakenly Admitted New Evidence
In 1993, after repeated and fruitless requests to the OWCP
to produce the missing record, the Board remanded Island
No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 9
3Support for this paragraph comes from material not in the record,
but helpful to explain the chronology of this appeal.
the reports lacking in credibility and insufficient to rebut the
presumption in light of § 727.203(b)(3)’s requirement that the
employer show that the disability “did not arise in whole or in
part out of coal mine employment” (emphasis added). ALJ
Rippey concluded by ordering Island Creek to pay benefits to
Holdman, augmenting the benefits because Holdman had a
dependent, his wife Hallie.
B. Reconsideration of the ALJ’s Order
On October 20, 1980, Island Creek moved for
reconsideration. It observed that ALJ Rippey had dismissed
the report of one expert, Dr. Gallo, because ALJ Rippey
found it lacked credibility because he thought Dr. Gallo was
“without the benefit of any pulmonary function tests results.”
Island Creek referred to Dr. Gallo’s report, wherein Dr. Gallo
apparently wrote that “[p]ulmonary function test demonstrates
a normal spirogram.”
On March 1, 1982, ALJ Rippey issued an order. In it, he
stayed his prior award of attorney fees against Island Creek,
pending the resolution of the motion for reconsideration. He
explained: “That motion [for reconsideration], which was
inadvertently misplaced, necessitates the recalling of the full
record a process that will take approximately three to four
weeks.” Two years passed.
On April 24, 1984, the Office of Administrative Law
Judges, DOL, requested that OWCP return the record to ALJ
Rippey.3 The Director of OWCP, the Federal Respondent,
asserts that an illegible receipt shows that OWCP sent the
record by certified mail on April 30, 1984. The Office of
Administrative Law Judges (OALJ) never received the record;
internal handwritten OWCP memoranda, mostly illegible,
suggest that the post office erred. The Pikeville, Kentucky
Post Office issued a Mail Nondelivery Report which shows
that DOL complained about the non-delivery.

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10 Island Creek Coal Co. v. Holdman, et al. No. 97-4065
In 1985, ALJ Rippey contacted Holdman and Island Creek
and asked them to reconstruct from their own files the
pertinent medical evidence. Holdman’s attorney mailed a
letter to ALJ Rippey that claimed to enclose copies of several
of the original exhibits and reports, including “Dr. Gallo’s
two-page pulmonary evaluation report.” OWCP provided
only administrative documents, offering no documents
“relative to the merits of the case.” ALJ Rippey issued an
order denying the motion for reconsideration. He said he
found the reconstructed record “sufficient to base this opinion
on”; he admitted that his 1980 order overlooked Dr. Gallo’s
pulmonary function study, but he found that Dr. Gallo’s
pulmonary evaluation report did not rebut the interim
presumption.
C. Island Creek’s Abortive Appeal to the Benefits Review
Board
In June 1985, Island Creek appealed to the Benefits Review
Board (“Board”) the denial of the motion for reconsideration.
Holdman died on July 6, 1987. Four years after Island Creek
filed its appeal, the Board issued an order on April 14, 1989.
In the order, the Board remarked that the record lacked
several items, including a transcript of the June 24, 1980
hearing, and ten exhibits. The Board ordered the Director of
OWCP to forward the missing documents to the Board by
June 1, 1989. On June 1, 1989, the OWCP responded by
claiming that it had already sent all the documents it had, and
that, “[a]fter diligent search, the undersigned has been unable
to locate the litigation file for this case, and, consequently, the
Director cannot comply with the Board’s order.” After three
more years, on May 22, 1992, the Board remanded the case
to OWCP “for re-creation of the record. When the record has
been re-created, the deputy commissioner shall, as
expeditiously as possible, forward the case record to the
Board so the appeal may be heard on its merits.” Apparently,
OWCP took no action in response to this order.
In July 1993, eight years after Island Creek appealed, the
Board issued yet another order, remarking that the Director
No. 97-4065 Island Creek Coal Co. v. Holdman, et al. 11
had failed to respond to any of the four Board orders
demanding the reconstruction of the record. “The Board must
have the complete record of the proceedings below before
considering the merits of this appeal,” wrote the Board. The
Board remanded the case to OALJ for further proceedings,
“including reconstruction of the record and, if necessary, a
new hearing.”
D. Proceedings Before ALJ Gilday
OALJ assigned the case to ALJ Bernard J. Gilday, and the
parties attempted to re-construct the record. ALJ Gilday
scheduled a hearing on September 13, 1994, in Madisonville,
Kentucky. Island Creek appeared, the Director for OWCP did
not attend or send counsel, and Holdman’s widow’s attorney
appeared. ALJ Gilday limited the scope of the hearing and
accepted newly-developed evidence from Island Creek and
Holdman’s widow, including 1994 depositions of some of the
medical experts from the 1980 hearing. The parties did not
have a transcript of the June 24, 1980 hearing (at which
Holdman testified), and the parties could not reconstruct all
the exhibits.
Apparently, ALJ Gilday was displeased by the Director and
OWCP, as he felt that they had repeatedly ignored Board
orders; had held Holdman, his wife, and Island Creek “in
limbo” for almost ten years; and also did not appear (as
requested) at the September 13, 1994, hearing before ALJ
Gilday. ALJ Gilday ordered the Director to show cause why
Gilday should not reinstate benefits to Holdman’s widow and
order the benefits paid from the Black Lung Trust Fund. The
Director filed a three-paragraph answer, disclaiming fault for
the loss of the record and tersely remarking that, “it is not in
the best interest of justice to require the Trust Fund to pay
these benefits.”
On October 7, 1994, ALJ Gilday filed an order, lamenting
that “once again, the Board has ordered an Administrative
Law Judge to perform an exercise of utter futility”. In it, he
lambasted the OWCP for its legalistic response that failed to
address whether to reinstate the benefits. ALJ Gilday found

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