OPINION
Bethlehem Mines Corp. (“Bethlehem”) petitions for review of a decision of the Benefits Review Board (“Board”) affirming an administrative law judge’s (“AU”) award of benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. (the “Act”). Bethlehem contends that it was denied a full and fair hearing when the AU denied its requests to develop post-hearing evidence and have the claimant examined by a physician of its own choosing. Bethlehem also claims that the Board erred in affirming the AU’s decision that rebuttal under 20 C.F.R. § 727.203(b) was not established. Finding no error, we affirm the Board’s decision.
I.
James M. Henderson worked as a coal miner for more than twenty years, principally as a motorman hauling coal in underground mines. On February 1, 1980, Henderson filed a claim for benefits under the Act. A review of the chronology of events following the claim filing is central to an assessment of Bethlehem’s contention that it was denied a fair hearing.
Approximately one year after the claim was filed, the Department of Labor provided Henderson with a physical examination by Dr. George L. Zaldivar. As a result of the examination, Dr. Zaldivar concluded that Henderson had “no impairment.” On this basis, the Department of Labor denied Henderson’s claim for benefits. Next, on March 13, 1981, Henderson requested that his claim be referred to the Office of Administrative Law Judges for a formal hearing. Almost four years later, the Department of Labor referred the claim to the Office of Administrative Law Judges for a hearing and also notified Bethlehem, Henderson’s immediate past employer, of its potential liability. After the passage of another 18 months, the Office of Administrative Law Judges, on November 16, 1986, set the claim for hearing on January 13, 1987. As of this time, the record contained only one medical report concerning Henderson, namely Dr. Zaldivar’s report from the 1980 examination, concluding that Henderson suffered from “no impairment.”
On December 17, 1986, more than twenty days before the scheduled hearing, Henderson submitted and served on Bethlehem’s counsel a medical report by Dr. D.L. Rasmussen. This report, inter alia, concluded that Henderson had “minimal to moderate impairment in respiratory function as reflected by the resting blood gas studies.” Thereafter, on December 19, 1986, still more than twenty days prior to the scheduled hearing, Henderson submitted and served a further report, this one by Dr. Maurice Bassali concluding that x-rays of Henderson indicated the presence of pneumoconiosis. Bethlehem responded to these submissions by moving for a continuance of the hearing and requesting that Henderson be required to submit to an examination by a physician chosen by Bethlehem. Alternatively, Bethlehem sought a post-hearing physical examination of Henderson, coupled with post-hearing depositions of the physicians. The AU denied this motion and proceeded with the hearing as scheduled.
At the hearing, the AU admitted the reports of Drs. Rasmussen and Bassali over Bethlehem’s objection. Bethlehem then renewed its motion for a continuance or, alternatively, for a post-hearing examination of Henderson. The AU denied the motion, noting that these reports had been timely submitted in compliance with the twenty-day rule. See 20 C.F.R. § 725.456(b)(1) (1990). At this point, Bethlehem counter-attacked by offering two letters from Dr. Zaldivar (both of which had been exchanged in a timely manner) and, for the first time, two additional exhibits: (1) a letter from Dr. Rasmussen stating that resting blood gases — the test on which his conclusion of mild to moderate impairment had been based — were of limited value in assessing overall lung function; (2) a report from Dr. George Kress concluding, *146 solely on the basis of a review of the medical reports, that Henderson had no significant pulmonary or respiratory impairment. Henderson objected to these new exhibits on the ground that they were submitted in violation of the twenty-day rule. The ALT overruled the objection and admitted the exhibits, but gave Henderson the right to conduct post-hearing depositions of Drs. Zaldivar, Kress, and Rasmussen. Bethlehem, at this time, requested permission to conduct post-hearing depositions of any doctor Henderson might choose not to depose. The ALT denied this request. Ultimately, Henderson chose to conduct a post-hearing deposition only of Dr. Rasmussen. Bethlehem participated in this deposition and cross-examined Dr. Rasmussen.
Following the hearing and the post-hearing deposition of Dr. Rasmussen, the ALT, on September 16, 1987, issued a Decision and Order awarding benefits to Henderson. The ALT found that the parties agreed to the existence of pneumoconiosis, thereby triggering the regulatory interim presumption of total disability. See 20 C.F.R. § 727.203(a). The ALT next considered whether Bethlehem had rebutted this presumption. In this regard, the ALT found that Bethlehem failed to meet its burden of showing either that Henderson could still perform his usual coal mine or other comparable work or that his pneumoconiosis arose out of anything other than his coal mine employment. Because Bethlehem had failed to rebut the presumption, the ALT found that Henderson had established entitlement to benefits. Bethlehem appealed the decision to the Board, arguing that the ALJ erred (i) in denying its motion to have Henderson examined by a physician of its own choosing, (ii) by prohibiting Bethlehem from conducting post-hearing depositions, and (iii) in finding the evidence insufficient to support rebuttal of the interim presumption under 20 C.F.R. § 727.203(b)(2) and (b)(3).
The Board affirmed the award of benefits. It found that the ALT did not deny Bethlehem a full and fair hearing by rejecting its request that Henderson undergo an examination by a doctor chosen by Bethlehem. The Board concluded that the AU’s application of 20 C.F.R. § 725.456(b)(1) (the “twenty-day rule”) and rejection of Bethlehem’s motions was tantamount to a finding that good cause was not shown for the submission of what would have been an untimely examination and medical report. The Board further found that the ALJ’s refusal of Bethlehem’s request for post-hearing depositions was a proper exercise of discretion because Bethlehem had ample opportunity to address any deficiencies in the reports of its own physicians prior to the hearing.
With respect to the merits of the claim, the Board, following
Sykes v. Director, OWCP,
II.
The twenty-day rule governing the introduction of documentary evidence in hearings under the Act provides that materials not submitted to the deputy commissioner of the Department of Labor “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 *147 claim.” 20 C.F.R. § 725.456(b)(1). 1 Henderson complied with this rule; he submitted the reports of Drs. Rasmussen and Bassali more than twenty-five days prior to the hearing. In admitting the reports, the AU correctly applied the rule, and in denying Bethlehem’s continuance motion, the AU properly exercised her discretion. Bethlehem’s medical submissions, unlike Henderson’s, were untimely under the rule. Absent the parties’ consent or a showing of good cause, the tardy submissions should have been excluded pursuant to the second sentence of § 725.456(b)(2). Yet the AU chose not to exclude them. Instead, as reflected in the hearing transcript, the AU felt compelled to follow the Board’s decision in Shedlock v. Bethlehem Mines Corp., 9 Black Lung Rep. (MB) 1-195 (1986), aff'd on reconsideration, 9 Black Lung Rep. (MB) 1-236 (1987) (en banc). 2 The AU therefore admitted the tardy submissions, but gave Henderson an opportunity to take post-hearing depositions of any of the physicians involved. Both parties were thus fairly heard. Consequently, we agree with the Board's conclusions that the admission of the Henderson submissions was correct under the twenty-day rule, that the denial of the continuance sought by Bethlehem was appropriate, and that the admission of the Bethlehem submissions, coupled with allowing certain post-hearing depositions, did not deprive Bethlehem of a full and fair hearing.
The sequence of events belies Bethlehem’s claims that it was denied a fair hearing. Any disadvantage Bethlehem faced at the time of the hearing was at best a self-inflicted wound. To begin with, Bethlehem cannot persuasively claim that it was unfairly denied the opportunity to have Henderson examined. As early as March 1985 Bethlehem was given notice of its potential liability in connection with Henderson’s claim. Then, in November 1986, Bethlehem was given notice of the January 1987 hearing. Thus, it was afforded ample opportunity to have Henderson examined by another physician prior to the hearing. Indeed, given the passage of six years since Henderson’s first examination, a prudent employer would have taken timely steps to arrange a new examination, rather than gamble that Henderson would not develop any evidence. Moreover, nothing in the regulations confers on any party a right to post-hearing examinations. Significantly, however, the AU did more than merely apply the letter of the regulations; she took steps to ensure a fair hearing for Bethlehem by admitting its untimely medical submissions and permitting Bethlehem to cross-examine Dr. Rasmussen by written questions and orally in a post-hearing deposition. Board precedent and analogous Supreme Court decisions support the sensible conclusion that these steps provided Bethlehem with a fair hearing.
See Owens v. Jewell Smokeless Coal Corp. and Director, OWCP,
14 Black Lung Rep. (MB)
*148
1-47, 1-49 (1990)
(Skedlock
does not require that employer be allowed to have claimant re-examined);
cf. Richardson v. Perales,
Nor was Bethlehem denied a fair hearing by the AU’s refusal to permit it to take post-hearing depositions of Drs. Zaldivar, Kress, and Rasmussen. An employer need not be permitted to depose its own physicians (i.e., physicians whose opinions are the subject of the employer’s untimely evidence) in order to ensure a fair hearing. The AU granted Henderson’s request to depose the physicians only as a means of rebutting Bethlehem’s untimely evidence. The physician on whose opinion Henderson relied, Dr. Rasmussen, was deposed and Bethlehem took part. In sum, Bethlehem simply failed to undertake timely development of its own affirmative evidence.
Even so, Bethlehem claims it had a right to conduct post-hearing depositions of Drs. Kress and Zaldivar in response to the deposition testimony of Dr. Rasmussen. In support, Bethlehem cites § 556(d) of the Administrative Procedure Act (“APA”) and 20 C.F.R. § 725.456(b)(3). Neither is convincing in the context of this case.
The requirements of the APA are made applicable to Department of Labor black lung adjudications by the Longshoremen’s and Harbor Workers’ Compensation Act. See 33 U.S.C. § 919(d), as incorporated by 30 U.S.C. § 932(a). See also 20 C.F.R. §§ 725.455(b) and 725.477(b). The APA provides in relevant part that
A party is entitled to present his ease or defense by oral and documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.
5 U.S.C. § 556(d). From this, Bethlehem argues that the AU was required to permit the development of rebuttal evidence to Dr. Rasmussen’s post-hearing deposition.
We agree with the general principle that due process as incorporated into the APA may override the twenty-day rule or require the development of post-hearing evidence in circumstances where the employer is denied any opportunity to respond to evidence submitted by the claimant which the decisionmaker considers dispositive. Thus, in
North American Coal Co. v. Miller,
On the facts presented here we conclude that Bethlehem was not denied a fair hearing by the AU’s refusal to permit post-hearing depositions. Rebuttal by means of post-hearing depositions of physicians who already had submitted medical reports was not necessary to the full presentation of Bethlehem’s case. Unlike the situation in
North American Coal,
where the employer was given
no
opportunity to respond to the medical evidence relied on by the AU to award benefits, see
20 C.F.R. § 725.456(b)(3), upon which Bethlehem also relies, provides:
A medical report which is not made available to the parties in accordance with paragraph (b)(1) of this section [i.e., the twenty-day rule] shall not be admitted into evidence in any case unless the hearing record is kept open for at least 30 days after such hearing to permit the parties to take such action as each considers appropriate in response to such evidence. 5
*150 From this, Bethlehem argues, curiously, that its own untimely submissions triggered a right to develop post-hearing evidence. This argument is unpersuasive. We construe this subsection to provide a thirty-day post-hearing period only for the party that needs to take action “in response to” the late evidence. More particularly, a party does not need to “respond” to its own evidence. Any other reading of this perhaps inartfully drafted regulation would lead to absurd results. As the Director correctly points out, it is illogical to suggest that the party offering late evidence should automatically receive a post-hearing opportunity to amplify its own submissions. Such a reading of the regulation would eviscerate the twenty-day rule; it would allow parties, paradoxically, to avoid the rule’s effect simply by submitting tardy evidence and claiming that it is responsive to an opponent’s evidence submitted close to, but still in compliance with, the twenty-day deadline. Accordingly, we conclude that the AU properly found that only Henderson was entitled to conduct post-hearing depositions in response to Bethlehem’s late evidence.
III.
20 C.F.R. § 727.203 provides in pertinent part that the interim presumption of total disability due to pneumoconiosis arising out of coal mine employment will be rebutted if the relevant evidence establishes either (i) “that the individual is able to do his usual coal mine work or comparable and gainful work,” § 727.203(b)(2), or (ii) “that the total disability or death of the miner did not arise in whole or in part out of coal mine employment,” § 727.203(b)(3). Bethlehem advances arguments under each provision. Neither is persuasive.
Bethlehem first contends that the evidence is sufficient to support rebuttal under subsection (b)(2). In
Sykes v. Director, OWCP,
Bethlehem asks this Court to overturn or revise
Sykes.
We decline this invitation. To begin with, only the Court
en banc
normally reconsiders the ruling of any particular panel.
See North Carolina Utilities Comm ’n v. F. C. C,
Bethlehem also contends that the Board must be reversed because the AU applied an incorrect standard to rebuttal under § 727.203(b)(3). In light of several recent decisions, however, Bethlehem’s (b)(3) argument is irrelevant. To begin with, in
Pittston Coal Group v. Sebben,
Even if subsection (b)(3) were available, however, we agree with the Board’s conclusion that Bethlehem failed to establish the requisite rebuttal. Subsection (b)(3) requires the party opposing entitlement to demonstrate that the miner’s total disability or death did not arise in whole or in part out of coal mine employment. In
Bethlehem Mines Corp. v. Massey,
Finally, Bethlehem suggests that if Henderson’s claim is governed by 20 C.F.R. § 410.490, due process requires some form of causation rebuttal. We addressed this concern in
Taylor,
where we noted that the Supreme Court in
Sebben
pointed out that
*152
causation is a necessary element for a successful claim for benefits and that the presumption of causation arising because of ten years’ coal mine employment and found at 20 C.F.R. § 410.416 was subject to rebuttal.
See
IV.
The sole remaining question is the proper scope of the remand. In
Sebben,
the Supreme Court affirmed the decision of this court in
Broyles v. Director, OWCP,
AFFIRMED AND REMANDED.
Notes
. 20 C.F.R. § 725.456(b)(2) provides a good cause exception to the twenty-day rule:
Documentary evidence, which is not exchanged with the parties in accordance with this paragraph, may be admitted at the hearing with the written consent of the parties or on the record at the hearing, or upon a showing of good cause why such evidence was not exchanged in accordance with this paragraph.
If documentary evidence is submitted in violation of the twenty-day rule, and the exceptions do not apply, the AU must either exclude the late evidence from the record or remand the claim to the deputy commissioner for consideration of the evidence. See id.
. We share the AU’s concerns over the due process aspect of Shedlock. See Joint Appendix at 48-50, 53-54. That decision appears to hold that whenever a claimant submits evidence just prior to the twenty-day deadline, such evidence constitutes a “surprise” to which the employer must be permitted to respond, even though the evidence was timely and the deadline for submissions has passed. See Joint Appendix at 105; Owens v. Jewell Smokeless Coal Corp. and Director, OWCP, 14 Black Lung Rep. (MB) 1-47, 1-49 (1990) (Shedlock "requires that employer be given some opportunity to respond to evidence submitted immediately prior to the 20 day deadline"). At the same time, however, we agree that under certain narrow circumstances not present here, due process considerations may override the twenty-day rule. See discussion infra. Broadly construed, however, Shed-lock would eviscerate the twenty-day rule. The Board itself may have recognized this problem by suggesting in its opinion in this case that Shedlock did not set forth a specific holding regarding 20 C.F.R. § 725.456(b)(2), but "simply propounded a decision based on the particular facts of that case.” Joint Appendix at 10, note 3.
.
Harlan Bell
echoes the reasoning of
North American Coal.
On its facts, however,
Harlan Bell
is inapposite. There, after the claimant's AU hearing but before review by the Board, the Sixth Circuit issued an opinion in another case that changed the legal standard of rebuttal under 20 C.F.R. § 727.203(b)(2). The court held that the Board’s decision to deny the employer an AU hearing under the new legal standard violated the employer’s due process right to rebuttal because evidence of non-respiratory impairments, of little relevance under the old standard, became outcome determinative under the new one.
See id.
at 1049. In the instant case, by contrast, the AU found that Bethlehem had failed to negate even respiratory impairment, and thus failed to establish a (b)(2) rebuttal; there was no new evidence or claim of non-respiratory impairments that Bethlehem had not had an opportunity to rebut.
Cf. Faries v. Director, OWCP,
. This case reflects the problems sometimes generated by the current twenty-day rule. Given this, the Department of Labor may wish to consider replacing this rule with one that provides for seriatim submissions by the parties. A procedure requiring the claimant to file first, followed by the employer’s response and then by the claimant’s rebuttal, might better serve the goals of focusing the issues and avoiding unfair surprise.
. The Board has construed this subsection’s thirty-day open record requirement to apply only when evidence has been properly admitted, by consent or on a showing of good cause, under § 725.456(b)(2). See Baggett v. Island Creek Coal Co., 6 Black Lung Rep. (MB) 1-1311, 1-1314 (1984) ("Once evidence has been properly admitted under Section 725.456(b)(2), the record must be kept open for at least thirty days to permit the parties to respond to the later submitted evidence.”) (emphasis omitted). In this case, the Board concluded that the AU found good cause for the submission of Bethlehem’s late reports based on the rationale that they were in response to Henderson's submission of a medical report just prior to the twenty-day deadline. While we might have decided the question of good cause differently, we are not *150 prepared to say that the Board’s decision was erroneous as a matter of law.
. Sixth Circuit precedent would require that claims filed before March 31, 1980, but adjudicated by an AU after that date, be considered, at least as to the affirmative factors for establishing entitlement to benefits, under the permanent Department of Labor regulations of 20 C.F.R. Part 718 as well as the interim regulations of Part 727.
See Couch v. Director, OWCP,
. We recognize that this result conflicts with the views of some other circuits.
See Bethenergy Mines, Inc. v. Director, OWCP,
.We thus find, contrary to Bethlehem’s suggestion, that the AU made an appropriate inquiry into causation and not into subsection (b)(4) rebuttal. Subsection (b)(4) concerns only whether the miner in fact has pneumoconiosis.
See Sykes,
.
See Sebben,
. In particular, for the reasons stated above with respect to § 727.203(b)(3) rebuttal, Bethlehem's evidence would not negate the presumption of causation in § 410.416 that is a component of the larger presumption of total disability.
See Sebben,