Board Holds in Published Case that Miners Cannot Be Compelled to Attend More than Two Operator Examinations (McClanahan v. Brem Coal Co.)

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Earlier this week, the Benefits Review Board designated one of its decisions from last month as published.

In McClanahan v. Brem Coal Co. (decision here), the Board held that, absent good cause, a coal miner seeking black lung benefits cannot be compelled to attend more than two medical examinations scheduled by the coal company challenging his claim for benefits.  Further, the Board held that, as a matter of law, good cause is not established merely by the passage of approximately three years since the previous examinations.

Because I was the attorney before the Board for Mr. McClanahan, I’ll keep my thoughts here short and just focus on the facts and context of the decision.  But I will say that I am glad that I could help Mr. McClanahan with his unique appeal.  It would have been easier for Mr. McClanahan to just attend the examination and get on with his claim, but Mr. McClanahan wanted to take a stand against something that made him feel disrespected during the claim process.  The Board’s decision achieves what Mr. McClanahan wanted and will provide further protection to the dignity of disabled coal miners.


Elster McClanahan is a disabled coal miner who filed a claim for federal black lung benefits in December 2011.

In 2012, Mr. McClanahan was examined by two physicians hired by Brem Coal Co., the coal company that was potentially responsible for Mr. McClanahan’s benefits.  (Mr. McClanahan was also examined by the Department of Labor’s physician.)

Brem Coal, however, only submitted the report of one of its examinations in defense of its claim.

In September 2012, the District Director’s office awarded Mr. McClanahan benefits and Brem Coal sought a formal hearing before an administrative law judge.

In 2013, Brem Coal scheduled a third examination with another physician that it hired (Dr. Jarboe), but Mr. McClanahan objected and did not attend.

In 2015, once an administrative law judge was assigned to Mr. McClanahan’s case, Brem Coal renewed its request for its third examination and filed a motion to compel Mr. McClanahan to attend.  In support of its motion, Brem Coal argued that the medical evidence in Mr. McClanahan’s case was then nearly three years old.

On May 11, 2015, the ALJ granted Brem Coal’s motion and ordered Mr. McClanahan to attend the examination by Dr. Jarboe.  In response, both Mr. McClanahan and the Department of Labor asked the ALJ to reconsider his order, arguing that because 20 C.F.R. § 725.414 only allows parties to “obtain and submit” two medical reports, that Dr. Jarboe’s report would be inadmissible.  On June 4, 2015, the ALJ denied the reconsideration motion and wrote that Mr. McClanahan and the Director, OWCP were confusing “regulatory limits on submission of evidence with the gathering of evidence by the Parties.”

In response, Mr. McClanahan filed a motion to stay the ALJ’s order and an interlocutory appeal of this order.  (An “interlocutory appeal” is a special appeal that is taken in the middle of a case.)  The ALJ granted the motion to stay the examination pending Mr. McClanahan’s interlocutory appeal.  (The Director, OWCP also filed its own interlocutory appeal as well.)

On October 20, 2015, the Board acknowledged Mr. McClanahan’s and the Director’s appeals and held that the standard for an interlocutory appeal was met.

Board Decision

The Board (Judges Hall, Buzzard, and Rolfe) reversed the ALJ’s order via a per curiam opinion dated July 7, 2016.  The key paragraphs of the Board’s decisions read as follow:

We agree with the Director that [20 C.F.R. § 725.414(a)(3)(i)] by its plain language limits employer to obtaining two pulmonary evaluations. As noted by the Director, the word “obtain” is defined as “to gain or attain [usually] by planned action or effort[,]” and clearly has a different meaning than “submit.” Director’s Brief at 8-9, citing Webster’s New Collegiate Dictionary 786 (1979). Allowing an employer to obtain more than two pulmonary evaluations of claimant, as long as it ultimately submits no more than two medical reports, would effectively read the word “obtain” out of the regulation. Id. We, therefore, reject employer’s contention that the regulation merely limits the amount of evidence that it may ultimately submit in support of its case.

The Board recognized that the standard evidentiary limits can be set aside for “good cause.”  The Board held, however, that Brem Coal’s justification—i.e., the three-year passage of time since the previous examinations—did not amount to good cause.

We hold that employer’s proffered basis for establishing “good cause” for exceeding the evidentiary limitations set forth at 20 C.F.R. §725.414 is insufficient as a matter of law.  Employer essentially asserts that it should be able to develop additional evidence based upon its relevance.  As the United States Court of Appeals for the Fourth Circuit has recognized, if good cause exists to permit all evidence that is relevant, the good cause exception found in 20 C.F.R. §725.456 would render the evidence-limiting rules of 20 C.F.R. §725.414 “meaningless.” See Elm Grove Coal Co. v. Director, OWCP [Blake], 480 F.3d 278, 297 n.18, 23 BLR 2-430, 2-460-61 n.18 (4th Cir. 2007).

Thus, the Board reversed the ALJ’s order compelling Mr. McClanahan to attend the examination and remanded so that the hearing in Mr. McClanahan’s case could be rescheduled.


McClanahan largely reaffirms the norm in black lung benefits litigation:  an operator can require a miner to attend two pulmonary examinations but, absent good cause, no more.

What was most surprising about the briefing of McClanahan was the fact that in more than fifteen years since the evidentiary limitations at 20 C.F.R. § 725.414 have become an everyday part of black lung benefits litigation, the Board had never ruled on this issue.  The Board had affirmed an ALJ’s decision to deny a motion to compel.  See Thomas v. National Mines Corp., No. 10-0271, 2011 WL 1089308, at *2–3 (BRB Feb. 16, 2011) (unpub.).  But the Board had never determined whether an ALJ abused his discretion by granting such a motion.

McClanahan also clarifies that passage of time alone does not amount to good cause.

The Board’s decision to publish McClanahan should mean that this issue does not arise again and that coal miners applying for black lung benefits can safely assume that they should only be subjected to two medical examinations by the operator.

Brem Coal Co. was represented by Paul Jones, Esq. and Denise Hall Scarberry, Esq. of Jones, Walters, Turner & Shelton PLLC of Pikeville, KY

The Director, OWCP was represented by Barry H. Joyner, Esq. and Michael J. Rutledge, Esq. of the Department of Labor’s Solicitor’s Office.  (Lucy C. Chiu, Esq. was involved before the ALJ).

As mentioned above, Elster McClanahan was represented by me at Appalachian Citizens’ Law Center, Inc. in Whitesburg, KY.  (Mr. McClanahan was represented before the ALJ by nonattorney representatives from Stone Mountain Health Services:  Bradley Johnson & Cindy Viers.)

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