UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1913

MARFORK COAL COMPANY,

Petitioner,

versus

ROGER L. WEIS; DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS,

Respondents.

On Petition for Review of an Order of the Benefits Review Board.

(05-0822-BLA)

Argued: May 22, 2007 Decided: October 18, 2007

Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge, and Benson

Everett LEGG, Chief United States District Judge for the District

of Maryland, sitting by designation.

Affirmed by unpublished opinion. Judge Legg wrote the majority

opinion, in which Judge Gregory concurred. Chief Judge Williams

wrote a dissenting opinion.

ARGUED: Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C., Charleston,

West Virginia, for Petitioner. S. F. Raymond Smith, RUNDLE &

RUNDLE, L.C., Pineville, West Virginia; Richard Anthony Seid,

UNITED STATES DEPARTMENT OF LABOR, Office of the Solicitor,

Washington, D.C., for Respondents. ON BRIEF: Kathy Lynn Snyder,

JACKSON & KELLY, P.L.L.C., Morgantown, West Virginia, for

Petitioner. Howard M. Radzely, Solicitor of Labor, Patricia M.

Nece, Counsel for Appellate Litigation, UNITED STATES DEPARTMENT OF
2

LABOR, Office of the Solicitor, Washington, D.C., for Respondent,

Director, Office of Workers’ Compensation Programs.

Unpublished opinions are not binding precedent in this circuit.
1Daniels Co., Inc. v. Mitchell, 479 F.3d 321, 329 (4th Cir.

2007) (quoting Armco, Inc. v. Martin, 277 F.3d 468, 473 (4th Cir.

2002).

3

LEGG, Chief District Judge:

In this case we address whether medical evidence offered for

the sole purpose of disproving liability constitutes “documentary

evidence” under § 725.456(b)(1) of the regulations implementing

the Black Lung Benefits Act. Relying on the plain language and

history of that regulation, we conclude that it does. Accordingly,

we affirm the order of the Benefits Review Board naming petitioner

Marfork Coal Co. as the responsible operator liable for the payment

of benefits to respondent Roger L. Weis. We also affirm the

Board’s conclusion that Weis’s benefits are payable as of April 1,

1996. 

I.

A.

Coal miners are prone to develop pneumoconiosis, commonly

known as black lung disease. The Black Lung Benefits Act (“the

Act”), 30 U.S.C. § 901 et. seq., provides benefits to coal miners

who have been totally disabled by pneumoconiosis, and to the

surviving dependents of miners who die of the disease. 

The Act places liability for the payment of benefits upon the

“responsible” coal operator.1 Under the regulations implementing

the Act, the “responsible operator” is usually the coal company
220 C.F.R. § 725.495(a)(1) (2007).

3Id. § 725.494(a). 

4

Id. § 725.495(c)(1).

5See, e.g., Truitt v. North American Coal Co., 2 BLR 1-199

(1979), aff’d sub nom. Director, OWCP v. North American Coal Co.,

626 F.2d 1137 (3d Cir. 1980). 

6See National Mining Ass’n v. Dept. of Labor, 292 F.3d 849,

854 (D.C. Cir. 2002) (citing 20 C.F.R. §§ 725.301-725.423). 

7

Id. (citing 20 C.F.R. §§ 725.450-725.480). 

4

that most recently employed the miner for at least one year. 2

There are a number of grounds, however, upon which the most recent

employer can avoid liability. For example, the operator may prove

that it did not cause, contribute to, or aggravate the miner’s

pneumoconiosis.3 The operator may establish that it lacks the

means to pay, in which case the Black Lung Disability Trust Fund

will pay.4 The operator may also prove that the miner was already

totally disabled by pneumoconiosis before he was hired.5 

The Department of Labor (“DOL”) is responsible for the

administrative adjudication of black lung cases. Generally

speaking, the litigation involves three stages. A miner or his

survivor first files a claim with a “district director” from the

DOL’s Office of Workers’ Compensation Programs. After

investigating the claim, the district director determines whether

the claimant is eligible for benefits, and, if so, which operator

is presumptively responsible.6

 Any party may appeal the district

director’s decision to the Office of Administrative Law Judges

(“OALJ”).7 Thereafter, appeals are to the DOL’s Benefits Review
8Id. (citing 20 C.F.R. § 725.481; § 725.482) (citation

omitted).

9

20 C.F.R. §§ 725.407(d); 725.418(d); 65 Fed. Reg. 79990;

79999-80000 (Dec. 20, 2000) (all citations will be to the Dec. 20,

2000 Federal Register). 

10Id.

1120 C.F.R. § 725.456(b)(1). 

5

Board (“the Board”), and then to the Court of Appeals for the

circuit in which the miner’s “injury” occurred.8

In 2000, the DOL revamped its rules to streamline the handling

of black lung cases. One thrust of the new rules is to make

conclusive a district director’s determination of the “responsible

operator” liable for payments. If the district director’s

determination is overturned on appeal, the case is not remanded to

correct the error. Instead, benefits are paid by the Black Lung

Disability Trust Fund (“the Fund”). This is the case even if the

actual responsible operator can be identified.9

 

To protect the Fund from unwarranted liability, the rules

require the parties to present to the district director all

documentary evidence concerning which operator is liable.10 Absent

exceptional circumstances, new documentary evidence pertaining to

liability may not be thereafter introduced into the record.11 With

this background in mind, we turn to the facts. 

B.

Roger L. Weis worked in the coal mines of West Virginia for

approximately thirty-six years. Most recently, Weis worked for
12Weis retired on August 1, 2006. 

13See 20 C.F.R. §§ 725.408; 725.494. 

14In support of its position, Marfork had ninety days in which

to submit evidence concerning its employment of Weis and its status

as a potentially liable operator. Id. § 725.408(a)(2). Marfork

did not submit any evidence.

15Coal worker’s pneumoconiosis is customarily classified as

either “simple” or “complicated.” Simple pneumoconiosis seldom

results in significant respiratory impairment. Complicated

pneumoconiosis, which is far more serious, involves progressive

massive fibrosis as a reaction to inhaled coal dust. Complicated

pneumoconiosis usually causes significant lung impairment and

breathing difficulties. It may induce death or contribute to death

by other causes. See Usery v. Turner Elkhorn Mining Co., 428 U.S.

1, 7 (1976) (footnotes omitted); N. Leroy Lapp, A Lawyer’s Medical

Guide to Black Lung Litigation, 83 W. Va. L. Rev. 721, 729-781

6

Marfork Coal Co. (“Marfork”), which employed him from November 1,

1994 to August 1, 2006.12

On July 9, 2002, Weis filed a claim for black lung benefits

with a DOL district director located in Charleston, West Virginia.

On August 23, 2002, the district director notified Marfork of

Weis’s claim and identified Marfork as a potentially liable coal

operator.13 20 C.F.R. § 725.407. The regulations required Marfork

to file a response in which it either accepted or contested that

identification. Id. § 725.408(a)(1). On September 4, 2002,

Marfork contested liability.14 

The district director ordered a complete pulmonary evaluation

of Weis. Id. §§ 725.405(b); 725.406(b). On September 24, 2002,

Dr. Manu Patel diagnosed Weis with complicated pneumoconiosis, a

rare and serious form of black lung disease.15 
(1981). 

16A miner with complicated pneumoconiosis is conclusively

presumed to be totally disabled. 20 C.F.R. §§ 718.203(b); 718.304.

17An operator that fails to respond to the Schedule is deemed

to have accepted its designation and to have waived its right to

contest liability in any future proceedings. J.A. 52.

7

On January 28, 2003, the district director issued a “Schedule

for the Submission of Additional Evidence” (“the Schedule”). Id.

§ 725.410(a). The Schedule laid out the district director’s

preliminary conclusion that Weis was entitled to benefits because

of his disease.16 It gave Marfork thirty days to accept or contest

that finding. J.A. 51. It also gave the parties sixty days to

submit additional medical evidence concerning Weis’s entitlement.

Under the regulations, the parties could submit entitlement

evidence either to the district director or thereafter to an ALJ if

a formal hearing was requested. J.A. 52. 

In the Schedule, the district director also preliminarily

designated Marfork as the responsible operator. J.A. 51. It gave

Marfork thirty days to accept or contest this finding.17 J.A. 52.

It also gave Marfork sixty days in which to submit any “documentary

evidence relevant to liability.” Id. Such evidence was to include

any evidence “relevant to whether another potentially liable

operator should have been designated the responsible operator.”

J.A. 53. The Schedule cautioned that “[a]bsent a showing of

extraordinary circumstances, no documentary evidence relevant to
18See Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358, 1359-60

(4th Cir. 1996) (en banc). 

19The district director prepared a list of contested issues for

the hearing. J.A. 111-113. The issues focused on entitlement.

“Responsible operator” is not marked as a contested issue. 

8

liability, or testimony of a witness not identified at this stage

of the proceedings, may be admitted into the record once a case is

referred to the [OALJ].” Id.

On February 11, 2003, Marfork submitted a DOL Operator

Response form to the district director in which it accepted its

designation as the responsible operator. J.A. 65. It contested,

however, that Weis was entitled to benefits. Id. Marfork did not

submit evidence of any kind to the district director. 

Weis, however, did submit additional entitlement evidence to

the district director. He proffered two x-ray interpretations by

Dr. John Parker, who compared x-rays of Weis’s lungs from 1971,

1974, 1980, 1996, 1999, 2000, and 2003. Parker diagnosed Weis with

“progressive massive fibrosis,” another name for complicated

pneumoconiosis.18 Parker noted that the disease had “progressed”

between 1996 and 2003. J.A. 14. 

On July 7, 2003, the district director issued a proposed order

awarding Weis benefits and holding Marfork liable. Marfork timely

requested a formal hearing before an ALJ. On September 18, 2003

the case was referred to the OALJ.19 
20See, e.g., Truitt v. North American Coal Co., 2 BLR 1-199

(1979), aff’d sub. nom. Director, OWCP v. North American Coal Co.,

626 F.2d 1137 (3d Cir. 1980).

21Weis and the OWCP Director are the two respondents in this

proceeding. The OWCP Director, who administers the Black Lung

Benefits Program, 20 C.F.R. § 701.202(f) (2007), entered the case

when Marfork notified him that it contested liability. J.A. 159.

22See, e.g., Truitt, 2 BLR 1-202.

9

In preparation for a hearing before the ALJ, Marfork had Weis

examined by Dr. Robert Crisalli. The examination suggested that

Weis was indeed suffering from complicated pneumoconiosis. J.A.

J.A. 354; 364. This revelation prompted Marfork to start “scouring

hospital admissions, [as well as] State claims, to find out if

there were any earlier x-rays, which is standard procedure in our

[Marfork’s attorneys’] office.” Id. As part of this search,

Marfork, in August 2004, discovered a 1992 x-ray of Weis’s lungs

indicating that Weis was then suffering from the disease, a full

two years before Marfork hired him. This medical evidence was

significant. If Weis had developed complicated pneumoconiosis

before Marfork hired him, another operator would be solely liable

for Weis’s benefits.20

On October 19, 2004, the ALJ held a hearing. In addition to

Weis and Marfork, the Director of the Office of Workers’

Compensation Programs (the “OWCP Director”) was a party.21 The OWCP

Director, who acts as trustee for the Black Lung Benefits Fund, is

responsible for conserving its assets.22 Marfork offered into
23Drs. Wiot, Meyer, and Hippensteel all read the x-ray for the

company. All three concluded that the x-ray was positive for

complicated pneumoconiosis. 

24The ALJ determined that Weis’s benefits are payable as of

April 1996, the date that admissible x-ray evidence showed that

Weis first suffered from complicated pneumoconiosis. Id. §

725.503(b). 

25The ALJ made two additional findings that we must briefly

address. The ALJ found that Marfork could not contest its status

as a potentially liable operator because it had failed to submit

evidence within ninety days of receiving notice of Weis’s claim.

J.A. 230; see 20 C.F.R. § 725.408(b)(1). The ALJ also found that

Marfork had waived its right to contest its liability under 20

C.F.R. § 725.412(a)(2) because it had accepted its designation as

responsible operator before the district director. J.A. 230. The

10

evidence reports from three doctors who opined, based on the x-ray,

that Weis was disabled before he came to work for Marfork.23 The

reports were admitted without objection. 

In light of the new evidence, the ALJ called for post-hearing

briefs. In his brief, the OWCP Director contended that the medical

reports should be excluded. Under 20 C.F.R. § 725.456(b)(1), he

argued, Marfork was required to have presented all evidence bearing

on liability to the district director. Accordingly, Marfork could

introduce the evidence now only by showing extraordinary

circumstances. Because the x-ray was waiting to be found, no such

circumstances existed.

The ALJ agreed. In a written opinion dated June 27, 2005, he

excluded Marfork’s evidence, awarded benefits to Weis,24 and held

Marfork liable. He further concluded that Marfork had failed to

develop its exculpatory evidence in a timely fashion.25 
Board did not rely on either ground as support for its decision,

however. Accordingly, neither finding is presently before us. See

Grigg v. Director, OWCP, 28 F.3d 416, 418 (4th Cir. 1994) (“We

confine our review to the grounds upon which the Board based its

decision.”). 

26Substantial evidence is “‘more than a mere scintilla.’”

Consolidation Coal Co. v. Williams, 453 F.3d 609, 614 (4th Cir.

2006) (citations omitted). Specifically, it is “such relevant

11

On August 19, 2005, Marfork appealed to the Board. On June

30, 2006, the Board affirmed in a split decision. The majority

held that medical records are included in the term “documentary

evidence” referenced in § 725.456(b)(1). J.A. 395. The Board also

affirmed the ALJ’s finding that Marfork had failed to prove

“extraordinary circumstances.” J.A. 397.

Marfork timely filed the instant petition for review. We have

jurisdiction under 33 U.S.C. § 921(c). For the reasons stated

below, we deny Marfork’s petition and affirm the decision of the

Board. 

II.

On a petition for review of an order of the Board, we

independently review the record. Daniels Co., Inc., v. Mitchell,

479 F.3d 321, 329 (4th Cir. 2007) (citations omitted). We review

the Board’s conclusions of law de novo. Id. We determine whether

substantial evidence exists to support the ALJ’s findings of fact.

Consolidation Coal Co. v. Williams, 453 F.3d 609, 614 (4th Cir.

2006).26
evidence as a reasonable mind might accept as adequate to support

a conclusion.” Id. at 615 (internal quotation marks and citations

omitted).

27Neither the regulations nor the regulatory history found in

the Federal Register define the term “documentary evidence.”

12

III.

This case involves the interpretation of § 725.456(b)(1),

which governs the admissibility of “documentary evidence pertaining

to the liability of a potentially liable operator and/or the

identification of a responsible operator.” Unless submitted to the

district director, such documentary evidence “shall not be

admitted...in the absence of extraordinary circumstances.” Id.

The full text of the section is as follows:

Documentary evidence pertaining to the liability of a

potentially liable operator and/or the identification of

a responsible operator which was not submitted to the

district director shall not be admitted into the hearing

record in the absence of extraordinary circumstances. 

Id.27 

Medical evidence concerning entitlement to benefits is treated

differently. Id. § 725.456(b)(2). Entitlement evidence may be

offered at either the district director or the ALJ stage. Id. The

controversy in the instant case arose because the medical opinions

concerning the 1992 x-ray are pertinent both to Weis’s entitlement

to benefits and to Marfork’s liability. 

Marfork would read into § 725.456(b)(1) an implied exception

for medical evidence that pertains to liability. According to
28Because the black lung regulations are administered by the

OWCP Director, his interpretation is entitled to “substantial

deference ‘unless it is plainly erroneous or inconsistent with the

regulation.’” Mullins Coal Co. v. Director, OWCP, 484 U.S. 135,

159 (1987) (citing Bowles v. Seminole Rock & Sand Co., 325 U.S.

410, 414 (1945)); see Doss v. Director, OWCP, 53 F.3d 654, 658 (4th

Cir. 1995) (citing and applying Mullins). This rule of deference

applies to an interpretation contained in a brief, including the

brief that the OWCP Director filed in the instant case. See, e.g.,

Auer v. Robbins, 519 U.S. 452, 461-62 (1997). As our discussion

above makes clear, we find the OWCP Director’s interpretation to be

neither plainly erroneous nor inconsistent with the regulation. 

29The draft regulation would have defined documentary evidence

as “evidence relevant to operator liability as well as all medical

evidence relevant to a claimant’s eligibility[.]”

13

Marfork, the regulation would now read, “documentary evidence

pertaining to...liability, except for medical evidence.” The OWCP

Director disagrees, maintaining that the regulation is not only

clear, but that the DOL intended it to apply to all evidence,

medical or otherwise, that bears upon liability.

We agree with the Director. His interpretation conforms to

the plain meaning of the regulation, which is unqualified.28 His

interpretation is also supported by the regulatory history. 

The DOL revised the Act’s regulations in 2000. One of the

Department’s objectives was to simplify and streamline the

processing of claims at the district director level. 65 Fed. Reg.

79990. 

An initial draft of the regulations would have required both

liability and entitlement evidence to be presented to the district

director.29 Id. at 79989. The Department observed that this
14

proposal would end the then-current practice of delaying the

development of evidence on both issues until the OALJ stage. Id.

Eventually, the DOL decided not to require all medical

eligibility evidence to be submitted to the district director. Id.

at 79990. The DOL did, however, implement its proposal with

respect to liability evidence. This decision is clearly stated in

the Federal Register: “Any such evidence that was not submitted to

the district director could be submitted to the ALJ only upon a

showing of extraordinary circumstances.” Id.

As the Federal Register explains, serious disputes about the

identity of the responsible operator arise in fewer than ten

percent of all claims. Id. at 79989; 79991; 79999-80000. When

such disputes do arise, however, the DOL expressly intended to

resolve them at the district director stage. Id. The district

director is required to select one and only one responsible

operator, and he is “permitted to refer a case to the [OALJ] with

only one designated responsible operator as a party to the claim.”

Id. at 79990.

It is important that the district director make the right

decision. In the event that the operator he designates is later

adjudicated not liable, the Fund will pay any benefit award. Id.

There is no remand. Id.

The Federal Register devotes considerable space to explaining

that under the 2000 changes the district director’s initial
15

determination is unassailable even if wrong. Id. “The Department

intends that once a claim is referred to the [OALJ], the Department

shall not be able to impose liability for that claim on any

operator other than the one formally designated by the district

director, whether through remand by the [ALJ] or through a

modification of a finally awarded claim.” Id.

For these reasons, the DOL obliged operators to develop

liability evidence at the district director stage, the earliest

stage of claims processing. Id. at 79999-80000. Operators must

“submit evidence regarding their [own] potential liability for the

claim.” Id. at 79999. Moreover, they must develop and submit “any

evidence relevant to the liability of another party.” Id.

(emphasis added). This arms the district director with sufficient

information to determine accurately which operator is liable,

before the case is referred to the OALJ and before all other

operators are dismissed from the case. Id. at 80000. 

Given this regulatory history, it is implausible to suppose

that the DOL crafted a system that deprives district directors of

critical documentary evidence on the issue of liability. Disputes

over the identification of the responsible operator may be

infrequent. Nonetheless, as the facts of this case demonstrate,

such disputes do arise and medical evidence can be dispositive.

Under Marfork’s interpretation, an operator would not be required

to investigate the medical issues pertinent to liability until
16

after the liability Rubicon had been crossed. The DOL clearly did

not intend such a result.

Marfork contends that the Director’s interpretation would

impose an unreasonable burden on mine owners. Because liability

and entitlement evidence can be intertwined, Marfork argues, mine

operators would be required to develop and present both types of

evidence to the district director in every case. Under the

Schedule, the operator is allowed only sixty days to present

liability evidence to the district director. Marfork contends that

this time period is insufficient because black lung cases can often

be medically complex.

This argument is unpersuasive. In the DOL’s experience, the

identity of the responsible operator is infrequently in dispute.

Thus, the operator would be required to present medical evidence to

the district director in only in a small number of cases.

As to the time pressure, the sixty day time limit can be

extended for good cause shown. 20 C.F.R. § 725.423. Nothing in

the record suggests that district directors would deny mine

operators ample time to develop relevant medical evidence

pertaining to liability. 

IV.
30On his application, Weis disclosed that West Virginia had

awarded him state benefits in 1992, 2000, and 2002. J.A. 2. 

31The Schedule contained Dr. Patel’s diagnosis of complicated

pneumoconiosis. Pursuant to the Schedule, Weis submitted the x-ray

readings by Drs. Parker and Proto. Dr. Parker’s report explicitly

stated that his examination of the x-rays dated 1971, 1974, 1980,

1996, 1999, 2000, and 2003 revealed “advanced dust related disease

- progressive massive fibrosis,” which was seen in 1996, 1999,

2000, 2003, and which “has progressed [from] 1996 [to] 2003.” J.A.

14. 

17

Marfork next argues that the ALJ committed error by finding

that Marfork had not shown extraordinary circumstances. We

disagree.

The ALJ carefully analyzed this issue. As he determined,

Marfork was on notice that Weis may have developed complicated

pneumoconiosis before 1994, when he was hired. Complicated

pneumoconiosis is a progressive disease that develops over time.

When Marfork hired Weis in 1994, he had been working in coal mines

for other operators for decades. When Weis applied for black lung

benefits, his application, which was sent to Marfork, stated that

he had previously received state workers’ compensation benefits for

black lung disease on three occasions.30 

At the district director stage, Weis produced evidence that he

had been diagnosed with complicated pneumoconiosis.31 Based on

these and other facts, the ALJ found that Marfork had failed to
32In affirming the ALJ’s decision, the Board correctly noted

that Marfork never provided any explanation to the ALJ why it had

failed to develop its evidence at the district director stage.

J.A. 397.

18

develop evidence clearly suggesting that another operator might be

liable. On appeal, the Board agreed.32 

We find nothing in the record to disturb the ALJ’s conclusion.

Marfork did not begin investigating the case until the ALJ stage.

When Dr. Crisalli all but confirmed the diagnosis of complicated

pneumoconiosis, Marfork belatedly sprang into action, scouring

hospitals for medical records and ultimately tracking down the

crucial 1992 x-ray. J.A. 354; 364. Extraordinary circumstances

might exist if the x-ray were hidden or could not have been located

at the district director stage. Such is not the case here. The xray was waiting to the found. Accordingly, we affirm the ALJ’s

finding that Marfork failed to show extraordinary circumstances.

V.

Marfork makes two additional arguments, each of which we need

address only briefly.
33Marfork cites § 932 of the Act, which provides that coal mine

operators are responsible for paying benefits to miners whose death

or total disability due to black lung disease arose out of

employment in the operator’s mine. 

34Marfork avers that Weis’s employer in 1992, Maben Energy

Corporation, went bankrupt, and that this is a case where the Fund

should be liable for benefits. See 20 C.F.R. § 725.495(a)(4). 

 

3520 C.F.R. § 725.495.

19

A.

In the Act, Congress stated its intent to impose liability

only on the responsible operator.33 Based on the 1992 x-ray, it now

appears that Weis contracted complicated pneumoconiosis while

employed by another mine operator.34 In light of this discovery,

Marfork contends that holding it liable would violate the intent of

Congress. 

This argument fails because it relies on evidence that was

properly excluded from the record. The department has the

authority to write regulations governing the orderly litigation of

black lung cases. Those regulations presume that the operator who

last employed the miner for more than a year is responsible.35

Operators are provided a fair chance, however, to introduce

exculpatory evidence into the record. Marfork missed its chance.

Because the medical evaluations of the 1992 x-ray were not

presented to the district director, the evidence Marfork relies

upon is outside the record. For purposes of this litigation it

does not exist. Based on the properly admitted administrative
36See Resp’t’s Br. at 2. (“The [Board] erred only in confirming

the ALJ’s determination that the onset of permanent disability in

this case was April 1, 1996.”)

20

record, Marfork is the responsible operator and the intent of the

Act has not been violated.

B.

Marfork next faults the ALJ for failing to admit the 1992

medical evidence for the purpose of establishing the date of onset

of Weis’s complicated pneumoconiosis. In order to properly

compensate Weis for his injuries, Marfork contends, a remand is

necessary to consider the newly discovered evidence. Because the

ALJ would necessarily consider the 1992 evidence to establish date

of onset, Marfork asserts that it would be irrational to ignore the

same evidence for the purpose of imposing liability. 

Weis’s entitlement to benefits, however, is an issue for Weis

- not Marfork - to raise. Indeed, Weis has attempted to challenge

the ALJ’s date of onset determination before this Court.36 He is

precluded from doing so, however, by the doctrine of administrative

waiver. Although named as a respondent when Marfork appealed the

ALJ’s liability determination to the Board, Weis failed to

challenge the ALJ’s subsidiary conclusion establishing month of

onset. Weis filed no brief and declined to appear at oral argument

before the Board. J.A. 335; 386. Accordingly, he has waived his
37In addition, Weis’s attempt to appeal to this Court is barred

by the regulations governing proceedings before the Board. Once

Marfork appealed the ALJ’s liability determination, Weis, as a

prevailing party, was required to file a cross-appeal in order to

alter or amend the result of the proceedings before the ALJ. See 20

C.F.R. § 802.201(a)(2); King v. Tennessee Consolidated Coal Co., 6

BLR 1-87 (Ben.Rev.Bd. 1983)(Cross-appeal required where “prevailing

party” seeks to alter judgment below); accord Malcomb v. Island

Creek Coal Co., 15 F.3d 364, 369 (Argument made without crossappeal must support ALJ’s decision, but not necessarily his

reasoning). Although Weis’s entitlement argument would have

precisely this effect, he declined file a cross-appeal to the

Board. Having failed to comply with the Board’s regulations, Weis

is therefore precluded from objecting to the ALJ’s conclusion

establishing date of onset. 

21

entitlement argument for consideration by this Court.37 See Beth

Energy Mines v. Cunningham, 104 F. Appx. 881 (4th Cir. 2004)

(Employer waived statute of limitations objection by failing to

present it to Board); Armco, Inc. v. Martin, 277 F.3d 468, 476

(Declining, on grounds of administrative waiver, to address

arguments not presented to Board). 

VI.

We conclude that the Board correctly determined that medical

evidence offered only to disprove liability constitutes

“documentary evidence” within the meaning of § 725.456(b)(1). We

also conclude that the Board properly affirmed the exclusion of

Marfork’s medical evidence from the administrative record.

Accordingly, we affirm the Board’s decision and deny Marfork’s

petition for review. 

 AFFIRMED
22

WILLIAMS, Chief Judge, dissenting:

The regulations governing applications for benefits under the

Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C.A. §§

901-945 (West 2007) (“the Black Lung Benefits Act” or “the Act”),

set forth detailed requirements governing the development of

evidence at each stage of the administrative process through which

such claims are adjudicated. Among these provisions is 20 C.F.R.

§ 725.456(b)(1), which provides as follows:

Documentary evidence pertaining to the liability of a

potentially liable operator and/or the identification of

a responsible operator which was not submitted to the

district director shall not be admitted into the hearing

record in the absence of extraordinary circumstances.

Medical evidence in excess of the limitations contained

in § 725.414 shall not be admitted into the hearing

record in the absence of good cause.

20 C.F.R. § 725.456(b)(1) (2007). The majority arrives at its

interpretation of § 725.456(b)(1) by taking the phrase

“[d]ocumentary evidence pertaining to [] liability” out of context

and concluding that, when viewed in isolation, the regulation’s

reference to “[d]ocumentary evidence pertaining to [] liability” is

“unqualified,” ante at 12, and therefore must encompass all

evidence submitted for the purpose of proving or disproving an

operator’s liability that is documentary in form. I disagree.

For the reasons that follow, I agree with Marfork Coal Co.

(“Marfork”) that the language and structure of § 725.456(b) (as

well as the “regulatory history” on which the majority relies)

reveal that the regulation delineates two distinct categories of
1

The majority states that an operator may avoid liability by,

among other things, “prov[ing] that it did not cause, contribute

to, or aggravate the miner’s pneumoconiosis” or “prov[ing] that the

miner was already totally disabled by pneumoconiosis before he was

hired.” Ante at 3. These alternatives, however, are one and the

same. Demonstrating that a miner was totally disabled from

pneumoconiosis prior to his employment with the operator is simply

one way of proving that the operator did not cause or contribute to

the miner’s total disability. See, e.g., Truitt v. N. Am. Coal

Co., 2 Black Lung Rep. 1-199, 1-204/05 (1979) (reasoning that

because a miner with complicated pneumoconiosis is irrebutably

presumed to be totally disabled due to pneumoconiosis, coal mine

employment subsequent to the development of the complicated

pneumoconiosis could not contribute to the disability).

23

documentary evidence -- “medical evidence” and “evidence pertaining

to the liability of a potentially liable operator and/or the

identification of a responsible operator,” which the Department of

Labor (“DOL”) did not anticipate would overlap. Moreover, cross

references between the regulations make clear that the category of

evidence pertaining to liability in § 725.456(b) encompasses only

that evidence which 20 C.F.R. §§ 725.408(b) and 725.414(b) (2007)

authorize parties to submit to the district director. I would

therefore conclude that, because the phrase “[d]ocumentary evidence

pertaining to [] liability” in § 725.456(b) references a narrow and

specific category of evidence identified elsewhere in the

regulations, the Benefits Review Board (“BRB”) erred in construing

the phrase as broadly encompassing any and all documentary evidence

used to disprove liability.1 Accordingly, I respectfully dissent.
24

I.

We review the BRB’s decision for errors of law and to ensure

that the BRB adhered to its statutory standard of review. Dehue

Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995). “To that

end, we undertake an independent review of the record, as in the

place of the BRB, to determine whether the ALJ’s factual findings

were based upon substantial evidence in the record.” Id. We

review the BRB’s legal conclusions de novo. Id.

Because the Director of the Office of Workers’ Compensation

(“the Director”) administers the regulations implementing the Black

Lung Benefits Act, we accord his interpretation of an ambiguous

regulatory provision “substantial deference unless it is plainly

erroneous or inconsistent with the regulation.” Mullins Coal Co.

v. Director, O.W.C.P., 484 U.S. 135, 159 (1987) (internal quotation

marks omitted). In this case, however, the majority relies on the

“plain language and history of the regulation,” ante at 2, in

embracing the Director’s view, not deference to its proponent. In

addition, the Director himself has asserted that because “the

regulatory language is clear and unambiguous,” no deference is due.

(J.A. at 355.) Although I read the regulations differently than

the Director, I agree that their meaning is plain. Accordingly, I

too would accord no deference to the Director’s interpretation.
25

A.

As with the interpretation of statutes, our interpretation of

federal regulations begins with their language. See Robinson v.

Shell Oil Co., 519 U.S. 337, 340 (1997) (“Our first step in

interpreting a statute is to determine whether the language at

issue has a plain and unambiguous meaning with regard to the

particular dispute in the case.”). Questions concerning the

plainness or the ambiguity of the statutory language are resolved

“by reference to the language itself, the specific context in which

that language is used, and the broader context of the statute as a

whole.” Id. at 341; see also Ayes v. U.S. Dept. of Veterans

Affairs, 473 F.3d 104, 108 (4th Cir. 2006) (“Of course, in looking

to the plain meaning, we must consider the context in which the

statutory words are used because we do not construe statutory

phrases in isolation; we read statutes as a whole.” (internal

quotation marks omitted)).

The language and structure of § 725.456(b) make clear that §

725.456(b)(1)’s reference to “[d]ocumentary evidence pertaining to

[] liability” does not encompass medical evidence. Section

725.456(b)(1) provides that: 

Documentary evidence pertaining to the liability of a

potentially liable operator and/or the identification of

a responsible operator which was not submitted to the

district director shall not be admitted into the hearing

record in the absence of extraordinary circumstances.

Medical evidence in excess of the limitations contained

in § 725.414 shall not be admitted into the hearing

record in the absence of good cause.
26

20 C.F.R. § 725.456(b)(1). Thus, § 725.456(b)(1) sets forth

separate requirements for “[d]ocumentary evidence pertaining to

the liability of a potentially liable operator and/or the

identification of a responsible operator” and “[m]edical evidence.”

Id. Section 725.456(b)(2), in contrast, provides that 

[s]ubject to the limitations in paragraph (b)(1) of this

section, any other documentary material, including

medical reports, which was not submitted to the district

director, may be received in evidence subject to the

objection of any party, if such evidence is sent to all

other parties at least 20 days before a hearing is held

in connection with the claim.

Id. § 725.456(b)(2) (emphasis added). In § 725.456(b)(2), the DOL

did not leave it to the reader to assume that “any other

documentary material” could include medical reports. Instead, that

subsection explicitly states that the reference to documentary

material included medical reports. Applying the rule of statutory

construction expressio unius est exclusio alterius (“the expression

of one thing implies the exclusion of another”), the omission of a

reference to medical evidence in § 725.456(b)(1)’s pronouncement

regarding “[d]ocumentary evidence pertaining to liability” is

properly understood as an exclusion of that evidence. See Ayes,

473 F.3d at 110-11 (“The time-honored maxim expressio unius est

exclusio alterius . . . applies with great force here.”); 2A Norman

J. Singer, Sutherland on Statutory Construction § 47.23 (6th ed.

2000). Thus, given the language of § 725.456(b)(2), it is clear
27

that the phrase “[d]ocumentary evidence pertaining to [] liability”

in § 725.456(b)(1) does not encompass medical evidence.

B.

Moreover, even absent the explicit language in §

725.456(b)(2), the interplay among the regulations governing the

adjudication of claims for benefits under the Black Lung Benefits

Act further demonstrates that the reference to “[d]ocumentary

evidence pertaining to [] liability” in § 725.456(b)(1) is not an

unqualified phrase encompassing all evidence having any bearing on

an operator’s liability. As explained below, that phrase merely

references specific evidence identified elsewhere in the regulatory

scheme.

The DOL’s regulations detail the mechanism through which an

operator’s liability and a claimant’s entitlement to benefits are

established. With regard to liability, the district director first

uses the information provided in an applicant’s claim form to

identify one or more potentially liable operators and sends those

operators a notice of claim. 20 C.F.R. § 725.407 (2007). An

operator receiving such a notice has thirty days within which to

file a response “indicating its intent to accept or contest its

identification as a potentially liable operator.” 20 C.F.R. §

725.408(a)(1) (2007). If the operator contests its identification,

it must, “on a form supplied by the district director, state the

precise nature of its disagreement by admitting or denying each of
2

Specifically, the five assertions that the operator must

admit or deny are: 

(I) That the named operator was an operator for any

period after June 30, 1973;

(ii) That the operator employed the miner as a miner for

a cumulative period of not less than one year;

(iii) That the miner was exposed to coal mine dust while

working for the operator;

(iv) That the miner’s employment with the operator

included at least one working day after December 31,

1969; and

(v) That the operator is capable of assuming liability

for the payment of benefits.

20 C.F.R. § 725.408(a)(2) (2007).

28

[the five] assertions” listed in 20 C.F.R. § 725.408(a)(2). 20

C.F.R. § 725.408(a)(2). The five assertions in § 725.408(a)(2)

relate only to the operator’s employment of the claimant and

ability to make payments.2

 The operator “may submit documentary

evidence in support of its position” within 90 days of the date on

which it received the notice of claim. 20 C.F.R. § 725.408(b)(1).

An operator that does not submit documentary evidence relevant to

the five assertions in § 725.408(a)(2) within the 90-day period is

precluded from introducing the evidence at a later date. 20 C.F.R.

§ 725.408(b)(2) (“No documentary evidence relevant to the grounds

set forth in [§ 725.408(a)(2)] may be admitted in any further

proceedings unless it is submitted within the time limits set forth

in this section.”).

After receiving the responses and evidence submitted pursuant

to § 725.408, the district director designates a “responsible

operator” liable for the payment of benefits and issues a schedule
3Section 725.414 distinguishes between documentary evidence

and testimony. Section 725.414(a) & (b) apply only to documentary

evidence. Section 725.414(c) addresses testimony. See 20 C.F.R.

§ 725.414 (2007). 

29

for the submission of additional evidence. 20 C.F.R. § 725.410

(2007). The schedule must allow the parties “not less than sixty

days within which to submit additional evidence, including evidence

. . . relevant to the liability of the designated responsible

operator.” 20 C.F.R. § 725.410(b). This additional evidence must,

however, “meet the requirements set forth in § 725.414 in order to

be admitted into the record.” 20 C.F.R. § 725.410(b).

Section 725.414, in turn, contains separate subsections

entitled “medical evidence” and “evidence pertaining to liability.”

See 20 C.F.R. § 725.414(a),(b).3 The subsection addressing

evidence pertaining to liability, § 725.414(b), provides that

“[e]xcept as provided by § 725.408(b)(2), the designated

responsible operator may submit evidence to demonstrate that it is

not the potentially liable operator that most recently employed the

claimant.” 20 C.F.R. § 725.414(b)(1). Thus, the only “evidence

pertaining to liability” that § 725.414 permits a designated

responsible operator to submit to the district director is evidence

that (1) demonstrates that it is not the potentially responsible

operator that most recently employed the claimant, and (2) does not

go to the five assertions in § 725.408(a)(2). See 20 C.F.R. §§

725.408(b)(2), 725.414(b)(1). Section 725.414 does not authorize
4

Section 725.310(b) addresses the submission of additional

medical evidence in modification proceedings (proceedings in which

the district director may reconsider the terms of an award or the

denial of benefits), and has no applicability to the introduction

of liability evidence while a claim is before the ALJ. See 20

C.F.R. § 725.310(b) (2007).

30

the designated responsible operator to submit any other type of

evidence pertaining to liability.

Pursuant to § 725.414(d), parties must submit the “evidence

pertaining to liability” detailed in § 725.414(b) within the time

period allotted in the schedule set by the district director; it

cannot be introduced into the record at a later stage of the

proceedings. See 20 C.F.R. § 725.414(d). Section 725.414(d) does

not apply to medical evidence submitted in accordance with §

725.414(a). In addition, § 725.414(d)’s limitation on the

submission of evidence pertaining to liability is not absolute --

it excepts evidence admissible under §§ 725.456 and 725.310(b). 20

C.F.R. § 725.414(d) (“Except to the extent permitted by § 725.456

and § 725.310(b), the limitations set forth in this section shall

apply to all proceedings conducted with respect to a claim, and no

documentary evidence pertaining to liability shall be admitted in

any further proceeding conducted with respect to a claim unless it

is submitted to the district director in accordance with this

section.”).4

Accordingly, evidence pertaining to liability that is

admissible under § 725.414(b) may be submitted after a case has
31

been transferred from the district director to the Office of

Administrative Law Judges (ALJs) only if it falls within an

exception contained in § 725.456. One such exception is §

725.456(b)(1), the provision discussed in Part A, which allows the

admission into the hearing record of “[d]ocumentary evidence

pertaining to liability” that was not submitted to the district

director in “extraordinary circumstances.” 20 C.F.R. §

725.456(b)(1) (stating that “[d]ocumentary evidence pertaining to

the liability of a potentially liable operator which was not

submitted to the district director shall not be admitted into the

hearing record in the absence of extraordinary circumstances”).

Thus, contrary to the majority’s view, § 725.456(b)(1) does

not represent an independent requirement governing a category of

“evidence pertaining to [] liability” broader than or otherwise

different from the “evidence pertaining to liability” described in

§§ 725.408(b) and 725.414(b). It simply places a qualified

limitation on the parties’ ability to introduce to the ALJ evidence

that they could have submitted to the district director pursuant to

§§ 725.408(b) and 725.414(b).

C.

Contrary to the majority’s assertion, the comments to the

regulations governing the adjudication of claims for Black Lung

benefits do not countenance an expansive interpretation of §

725.456(b)(1). To the contrary, an examination of these comments
32

further demonstrates that the DOL intended to allow potentially

liable operators to defer the development of medical evidence until

after a case was referred to the Office of ALJs.

The majority correctly notes that when the DOL revised the

regulations in 2000, it sought to streamline the processing of

claims. Regulations Implementing the Federal Coal Mine Health and

Safety Act of 1969, as Amended, 65 Fed. Reg. 79920, 79990 (Dec. 20,

2000). To this end, the revised regulations prohibit remand to the

district director for the designation of a new responsible operator

in the event that the ALJ determines the district director erred in

its original selection. Id. at 79986. This restriction reduces

delay in the adjudication of claims but also “places the risk that

the district director has not named the proper operator on the

Black Lung Disability Trust Fund [(the “Fund”)].” Id.

The Director argues that the DOL proved willing to place this

risk on the Fund because the DOL believed that the regulations

governing evidence pertaining to liability would provide the

district director with the information necessary to designate the

correct responsible operator and avoid subjecting the Fund to

unwarranted liability. The majority accepts this contention, and

reads the Federal Register commentary as evincing the DOL’s belief

that, in revising the regulations, it had provided for the

submission of all evidence relevant to liability to the district

director. That the DOL sought to provide the district director
5

The comments, like the regulations, recognize two types of

evidence relevant to liability “(1) [d]ocumentary evidence relevant

to an operator’s identification as a potentially liable operator,

governed by § 725.408; and (2) documentary evidence relevant to the

identity of the responsible operator, governed by § 725.414 and

725.456(b)(1).” Regulations Implementing the Federal Coal Mine

Health and Safety Act of 1969, as Amended, 65 Fed. Reg. 79920,

79976 (Dec. 20, 2000). The comments also describe the two types of

evidence. With regard to the documentary evidence relevant to the

identity of the responsible operator, they state that, “[u]nder §

725.414, an operator may submit documentary evidence to prove that

a company that more recently employed the miner should be the

responsible operator.” Id. They do not, however, reference any

other evidence as potentially relevant to liability.

33

with all of the information necessary to correctly identify

responsible operators, however, does not mean that the regulations

the DOL enacted in fact accomplished this goal.

In support of its view, the majority seizes on fragments of

the commentary stating that operators must “submit evidence

regarding their potential liability for the claim” and that the

regulations require the “submission of any evidence relevant to the

liability of another party during the district director's claims

processing.” Id. at 79999. To be sure, the comments do indicate

that “the evidentiary limitations of §§ 725.408 and 725.414 are

designed to provide the district director with all of the

documentary evidence relevant to the determination of the

responsible operator liable for the payment of benefits.” Id. at

79976.5 The DOL’s belief that it had identified all of the

documentary evidence relevant to an operator’s liability and

provided for its submission to the district director pursuant to §§
6

The DOL may have overlooked this possibility because cases in

which medical evidence is relevant to the identification of the

responsible operator are rare. Medical evidence is irrelevant in

cases involving simple pneumoconiosis, and these cases account for

the majority of claims under the Act. And, as the Director has

acknowledged, complicated pneumoconiosis cases in which liability

is disputed are rare. Rarer still are cases in which a miner is

presumed totally disabled from complicated pneumoconiosis but works

for several more years before filing for benefits. Moreover, even

in these unusual circumstances, the claimant would ordinarily seek

out evidence relevant to the onset date of his complicated

pneumoconiosis in order to obtain the full amount of benefits

available under the Act. 

34

725.408 and 725.414, however, has no bearing on whether § 725.456

properly can be construed as creating an independent requirement

that operators submit medical evidence bearing on liability to the

district director.6

Moreover, the commentary explicitly states that the revised

regulations “permit parties to maintain their current practice of

deferring the development of medical evidence until after a case

had been referred to the Office of Administrative Law Judges.” Id.

at 79984. The DOL addressed the anticipated costs of compliance

with the revised regulations in some detail, explaining that “while

potentially liable operators [would] be required to develop

evidence relevant to their liability while claims [were] pending

before district directors, they [would] no longer need to expend

money on the development of medical evidence in those cases . . .

that do not proceed beyond the district director level.” Id.

Accordingly, “in the small number of cases in which the Department

[did] not name the miner’s most recent employer as the responsible
35

operator,” the earlier employer might “incur additional costs in

attempting to establish that a more recent employer should be held

liable for the payment of benefits.” Id. The DOL believed,

however, that “[i]n comparison to the costs of developing medical

evidence . . . the additional costs imposed by the regulations

[would] not be significant.” Id. Thus, the comments reveal that

the DOL intended the revised regulations to allow operators to

defer the development of medical evidence until the case reached

the ALJ. 

D.

In sum, the language and structure of 20 C.F.R. § 725.456(b)

itself, the interplay among the regulations governing the

development of evidence at each stage of the administrative

process, and the Federal Register comments to the regulations make

clear that § 725.456(b) differentiates between “medical evidence”

and “evidence pertaining to liability.” These sources also reveal

that whether a particular piece of documentary evidence constitutes

medical evidence or evidence pertaining to liability depends on

what the evidence is, not the purpose for which it is offered.

Only evidence relevant to the five assertions in § 725.408(a)(2)

and evidence demonstrating that an operator was not the potentially

liable operator that most recently employed the claimant

constitutes “evidence pertaining to liability” within the meaning

of §§ 725.414(b)&(d) and 725.456(b)(1). The evidence that Marfork
7I also wish to note that, even were I to agree with my

colleagues’ interpretation of § 725.456(b), I would be inclined to

find that submission of the 1992 x-ray before the Administrative

Law Judge (“ALJ”) was proper because § 725.456(b)(1) permits

submission of documentary evidence to the ALJ in extraordinary

circumstances. Given that the comments to the regulations indicate

that the regulations “permit parties to maintain their current

practice of deferring the development of medical evidence until

after a case had been referred to the Office of Administrative Law

Judges,” 65 Fed. Reg. at 79984, and promise that the regulations

will not be a trap for the unwary litigant, see Fed. Reg. at 79986

(rejecting such criticism because “the nature of the evidence

required . . . and the time limits for submitting that evidence,

are clearly set forth in the regulations, and will be communicated

to potentially liable operators who are notified of a claim by the

district director”), it seems unduly harsh to presume Marfork had

notice that it needed to present the 1992 x-ray to the district

director. 

Moreover, in this case, permitting Marfork to introduce the

1992 x-ray would not have worked prejudice upon the Fund. The

record instead reveals that Weis’s employer in 1992, Maben Energy

Co., went bankrupt while self-insured and that its liability

transferred to the Fund. See C.F.R. § 725.495(a)(4)(2007). Thus,

the Fund would have been liable in any event and, if anything, is

now receiving a windfall in that a demonstrably innocent operator

is left to provide Weis’s benefits. 

36

sought to introduce to the ALJ -- interpretations of a 1992 x-ray

demonstrating that Weis suffered from complicated pneumoconiosis

prior to his employment with Marfork -- was neither. Accordingly,

the BRB erred in concluding that § 725.456(b)(1) precluded the

introduction into the record of the 1992 x-ray interpretations.7

II.

In sum, I believe that the BRB erred in concluding that

medical evidence may constitute “evidence pertaining to []

liability” within the meaning of § 725.456(b)(1). I would
37

therefore reverse the BRB’s determination that the ALJ properly

ignored the 1992 x-ray interpretations in adjudicating Marfork’s

liability for Weis’s Black Lung benefits and remand for further

proceedings. Accordingly, I respectfully dissent.