Affirmed in part and reversed in part by published opinion. Judge NIEMEYER
wrote the opinion, in which Judge WILKINS and Judge FRIEDMAN joined.
OPINION
Albert Borda was awarded black lung benefits on two merged claims, one filed in 1978 and the other filed in 1988. The Office of Workers’ Compensation Programs (“OWCP”) did not advise Consolidation Coal Company, the putative responsible coal mine operator, of the 1978 claim until after the 1988 claim was filed and never informed Consolidation Coal that the 1978 claim was still pending on reconsideration. Yet, in August 1996, the Administrative Law Judge awarded Borda benefits based in part on the conclusion that the 1978 claim remained viable. Consolidation Coal contends that it was denied due process by the OWCP’s delay.and failure to notify it of Borda’s claim and urges us to dismiss it as the responsible operator and to direct the Black Lung Disability Trust Fund to pay Borda’s benefits. Alternatively, Consolidation Coal challenges the award on the merits.
For the reasons that follow, we affirm the award of benefits, but, because the violation of Consolidation Coal’s due process rights requires that it be dismissed as the responsible operator, we direct that benefits be paid to Borda by the Black Lung Disability Trust Fund.
I
The procedural history of this case reveals an unflattering account of the government’s delay and mishandling in processing and adjudicating Albert Borda’s black lung claims over the course of 18 years.
Borda labored in the coal mines for roughly 40 years, working for Consolidation Coal between 1968 and 1972. In 1972, Borda left the private sector and began work for the federal government as a federal mine inspector. He worked in that
On January 30, 1978, while working for the federal government, Borda first filed a claim for black lung benefits, based on radiographs indicating that he had pneu-moconiosis. In April 1980, the OWCP denied Borda’s claim, indicating that it had received no evidence that established any element of eligibility for benefits. Shortly thereafter, still in April 1980, Borda submitted documentation of his coal mine employment history and his pneumoconiosis diagnosis — both of which he had submitted with his original application. He also made arrangements for a clinic to send additional medical evidence to the OWCP.
Without acknowledging Borda’s second submissions, the OWCP again denied Bor-da’s claim on August 4,1980, again indicating that it had no evidence that would establish eligibility for benefits. The OWCP’s standard denial letter informed Borda of his right to submit additional evidence or to request a formal hearing within 60 days. It also advised Borda of his right to request reconsideration of the denial within one year based upon a change in condition or a mistake in the determination of fact. The denial letter further included a hand-typed additional notation stating that the OWCP would “reconsider” Borda’s claim if he submitted certain medical and employment evidence.
On July 31,1981 — within one year of the OWCP’s August 4, 1980 denial of his claim — -Borda submitted documentation of his employment history and medical diagnosis, for the third time. His cover letter advised the OWCP as follows:
I’m sorry that you found no evidence of my having worked in the underground coal mines....
5k * * * * *
I am enclosing a xerox copy of the work record I originally mailed you in Jan. 1978, plus the zero copy of my work record from all of the Coal Mining Employers, which was also sent in with my original claim.
S*: Sj< ❖ # * ❖
Sir, this is ALL of my work record that had been mailed you, this was my record for all of my employable years, up to present. I have nothing more to send you. It is about 30 yrs. give or take a bit, all underground. Also, in the original claim, some medical evidence was sent also, stating that I do have Black Lung. I am sending you the xeroxed copies again, and have marked them with 3 red * * * asterisks, will be easily picked up. Since 1980, you should have received more evidence from Fair-mont Clinic.
In his letter, Borda also inquired whether, as a federal employee, he should file a federal workers’ compensation claim and what the consequences of filing such a claim would be on his ability to work and to receive black lung benefits.
Borda never received an acknowledgment of or response to his 1981 letter. Over a year later, however, he received a form letter from the OWCP, stating that his file had been transferred from Washington, D.C. to Parkersburg, West Virginia. For several years, Borda assumed— given the two year delay in the original decision on his 1978 claim — that because he had heard nothing from the OWCP, his claim was being reconsidered. By 1985, however, suspecting that the government may have lost his file, Borda requested a copy of his claim file under the Freedom of Information Act. To Borda’s dismay, the file that the OWCP sent him was nearly empty and did not contain his multiple submissions of documents evidencing his coal mine employment and pneumoconio-sis. . .
Believing that his file had been lost, Borda filed a second claim for black lung benefits on April 26, 1988. In May 1988, the OWCP notified Consolidation Coal that it was the putative responsible operator on that claim. This was the first notice that
Treating the 1988 claim as though the 1978 claim were closed, the OWCP denied Borda’s second claim on the same grounds that it had denied his first claim. Borda timely appealed, submitted additional medical evidence, and was given a hearing before an Administrative Law Judge (“ALJ”) on March 1,1994.
Until a day before the hearing, Consolidation Coal had been under the impression that it was contesting Borda’s eligibility for benefits based on his 1988 claim standing alone. When it learned that Borda was proceeding as if the 1978 claim were still viable and pending on reconsideration by virtue of Borda’s 1981 letter to the OWCP, Consolidation Coal objected on constitutional grounds, arguing that it had never received notice of the continued viability of Borda’s 1978 claim which had been filed 16 years earlier. With the agreement of counsel, the ALJ proceeded with the hearing and admitted all of the evidence, despite the disagreement as to the status and effect of the 1978 claim and the sufficiency of notice provided to Consolidation Coal. The OWCP was not represented at this hearing.
In August 1996, over two years after the hearing and 18 years after the original claim was filed, the ALJ issued a 32-page opinion awarding benefits to Borda on the basis of both his 1978 claim and his 1988 claim merged together. The ALJ found that Borda’s original claim was still alive because it concluded, for the first time, that Borda’s 1981 letter constituted a request for modification of the OWCP’s denial of the 1978 claim. In deciding the merits of Borda’s claims, the ALJ concluded that under the regulations generally applicable to claims filed in 1978, but not those filed in 1988, the medical evidence was insufficient to rebut the presumption of eligibility to which Borda was entitled by virtue of the length of his coal mine employment and the filing date of his original claim. In a footnote, the ALJ stated that Consolidation Coal was not prejudiced by the OWCP’s failure to notify it of the continued viability of the original 1978 claim. The ALJ noted that during the hearing “there was no observable prejudice reflective of surprise or lack of substantive preparation by Employer’s experienced and ■ manifestly competent counsel.” The ALJ noted further that both parties had agreed that the medical evidence “would be the same” whether or not the 1978 claim was still pending.
Consolidation Coal appealed the ALJ’s decision to the Benefits Review Board (the “Board”), which affirmed the ALJ’s ultimate conclusion on the merits of Borda’s claim but clarified the proper legal standard. The Board rejected Consolidation Coal’s claim that liability should transfer to the Black Lung Disability Trust Fund based on Consolidation Coal’s lack of notice of the continued vitality of the 1978 claim.
On appeal from the Board’s order dated December 10, 1997, Consolidation Coal makes four arguments: (1) because Borda was last employed by the federal government, he was required to seek workers’ compensation under the Federal Employees Compensation Act before seeking black lung benefits from a private employer; (2) both the ALJ and the Board erred in concluding that Borda’s 1981 letter constituted a valid request for reconsideration; (3) even if the 1978 claim remained open, the ALJ and the Board erred in concluding that the OWCP’s delay in adjudicating the claim and notifying Consolidation Coal did not deny Consolidation Coal due process; and (4) the ALJ erred in its analysis of the medical evidence. We address these arguments seriatim.
II
As a threshold matter, Consolidation Coal contends that because Borda’s most recent coal mine experience was his 15-year employment as a federal mine in
FECA provides that the United States will compensate a federal employee for disabilities “resulting from personal injury sustained while in the performance of his duty.” 5 U.S.C. § 8102(a). And “injury” is defined to include a “disease proximately caused by the employment.” 5 U.S.C. § 8101(5). Even if FECA provides benefits for pneumoconiosis, the statutory language does not mandate, or even suggest, that a potential FECA claimant must pursue a FECA claim before pursuing benefits under the Black Lung Benefits Act. While FECA does include an election of remedies section, see 5 U.S.C. § 8116(b), this provision only restricts a claimant’s choice of remedies against the federal government, not his choice of remedies as between the federal government and a private employer.
Moreover, our case law does not support Consolidation Coal’s contention that a claimant must seek recourse against the federal government under FECA before seeking recourse against a private employer under the Black Lung Benefits Act. Consolidation Coal has misconstrued the impact of
Eastern Associated Coal Corp. v. Director, OWCP (“Patrick
”),
It is true, as we noted in
Patrick,
that if an individual were entitled to benefits both from his private employer under the Black Lung Benefits Act and from the federal government under FECA, the FECA benefits would offset the amount owed by the private employer.
See Patrick,
Ill
We turn now to the question of whether Borda’s July 31, 1981 letter to the OWCP constituted a request for modification of the OWCP’s earlier denial of benefits. The procedures governing modification requests under the Black Lung Benefits Act are incorporated from the Longshore and Harbor Workers’ Compensation Act. See 30 U.S.C. § 932(a) (incorporating 33 U.S.C. § 922). Specifically, 20 C.F.R. § 725.310(a) provides:
Upon his or her own initiative, or upon the request of any party on grounds of a change in conditions or because of a mistake in a determination of fact, the deputy commissioner may, at any time before ... one year after the denial of a claim, reconsider the terms of an award or denial of benefits.
Courts have interpreted this inherently broad provision expansively, recognizing that black lung proceedings are by nature informal and that “the ‘principle of finality’ just does not apply to Longshore Act and black lung claims as it does in ordinary lawsuits.”
Jessee v. Director, OWCP,
We believe that Borda's 1981 letter meets this flexible standard. First, it was timely submitted, having been sent within one year of the August 4, 1980 denial of his claim. Second, it unmubiguously expressed dissatisfaction with the claim examiner's prior findings that Borda had not worked in a coal mine and did not have pneumoconiosis. Borda wrote, "I'm sorry that you found no evidence of my having worked in the underground coal mines, and also that no proof of Black Lung can be proven." To point out the examiner's errors and to request reconsideration of the denial of benefits, Borda again enclosed copies of "my work record from all of the Coal Mining Employers" and "some medical evidence stating that I do have Black Lung. I am sending you the xeroxed copies again, and have marked them with 3 red * * * asterisks." (Emphasis added). Borda attempted to draw attention to mistakes the examiner had made by marking the resubmittals with red pen and highlighthig the portions the examiner missed. Finally, Borda's letter enclosed evidence, albeit evidence that had been sent on prior occasions, which contradicted the OWCP's factual findings. A reasonable person reading Borda's 1981 letter with its enclosures would be put on notice that Borda was requesting reconsideration of the denial of his claim. See Jessee,
Consolidation Coal argues that the questions Borda posed at the end of the 1981 letter about whether to file a FECA claim and what effect such claim would have on his black lung claim indicate an intent to abandon his black lung claim. We cannot agree. On the contrary, those questions provide further evidence of Bor-da's intent to persist in pursuing his black lung claim; only someone interested in pursuing a black lung claim would care about how a workers' compensation claim coul~l affect black hing relief.
Finally, Consolidation Coal argues that the OWCP's procedural actions dictate conclusively that the 1981 letter was not a request for modification. First, the OWCP failed to respond in any way to Borda's 1981 letter, and second, it denied the 1988 claim as a "duplicate" claim, indicating that the first claim had been closed and was not being reconsidered. See 20 C.F.R. § 725.309(c). To justify his current position that the 1981 letter was indeed a request for modification, the Director explains that he did not have the 1981 letter in Borda's file (although no one contests that it was sent at the time indicated). While an inconsistency is apparent, we cannot conclude that the Director's inaction in response to a letter, which he claims he did not have and the absence of which he cannot explain, demonstrates that the Director did not consider the letter a request for modification. Even if the absence of the letter from the government's file is attributable to bureaucratic bungling, that cannot strip Borda of his claim. The content and context of the letter itself, and not the Director's reaction to it, must govern whether it was a request for modification.
Iv
With this understanding of the procedural status of Borda's claims, we now turn to the question of whether the OWCP's delay in processing Borda's request for modification and its failure to notify Consolidation Coal of the continued viability of Borda's 1978 claim operated to deny Consolidation Coal due process of law.
Consolidation Coal contends that the government's dawdling unconstitutionally prejudiced it in two ways. First, it asserts that the government's delays in claims processing and notification effectively deprived Consolidation Coal of its ability to rebut the interim presumption of eligibility for benefits by establishing that Borda was performing his usual coal mine employment or comparable, gainful work as a mine inspector. See 20 C.F.R. § 727.203(b)(1). Second, Consolidation Coal contends that the same adjudication and processing delays also caused an unexpected and substantial shift in the burden of proof. Compare 20 C.F.R. §~ 718.202-04 with 20 C.F.R. § 727.203.
Without any explanation for its mishandling and delay, the OWCP "acknowledge[s] that significant time elapsed between Borda's July 1981 request for modification and the ultimate adjudication of that request," but it maintains that Consolidation Coal "had every opportunity to mount a meaningful defense." Both Consolidation Coal and Borda disagree. They contend that Consolidation Coal's opportunity to defend itself was so severely compromised by the government's failures to act that it was deprived of due process and that liability should be transferred to the Black Lung Disability Trust Fund.
As a preliminary matter, we address the Director's contention that because Consolidation Coal did not adequately raise its constitutional issues before the AU, we should do as the Board did and refuse to consider Consolidation Coal's due process claim insofar as it is based on the loss of opportunity to establish a § 727.203(b)(1) rebuttal. The Board chose not to address this claim because Consolidation Coal "did not specifically raise before the [AU] any issue of prejudice"
Quite recently we found government delay to have caused a violation of an employer’s due process rights in a black lung proceeding.
See Lane Hollow Coal Co. v. Director, OWCP,
It is not the mere fact of the government’s delay that violates due process, but rather the prejudice resulting from such delay.
Cf. Grigg v. Director, OWCP,
Similarly, we believe that the government’s failure to notify Consolidation Coal, to act upon Borda’s 1981 request for modification, and to schedule a hearing on Borda’s 1978 claim in a timely manner deprived Consolidation Coal of a meaningful opportunity to defend itself under § 727.203(b)(1) by showing that Borda was still doing “comparable and gainful work” as a federal mine inspector.
3
Because Borda worked as a federal mine inspector until 1987, six years after making his 1981 request for modification, Consolidation Coal’s inability to assert that defense to the 1978 claim is traceable solely to the
The Director responds that because the ALJ only awarded benefits for the period after Borda retired completely in 1987, Consolidation Coal received the full benefit of the § 727.203(b)(1) rebuttal. This argument fails to account for all of the beneficial effects of the (b)(1) defense for Consolidation Coal. If Consolidation Coal had been able to avoid liability on the 1978 claim through the (b)(1) rebuttal, then that claim would no longer have been pending, and the second claim filed in 1988 would have been adjudicated under the Part 718 regulations rather than the Part 727 regulations. See 20 C.F.R. § 725.309(c);see also § 718.1(b). Part 718 regulations place the burden of establishing eligibility to receive benefits on the claimant, denying him the presumption given him. under Part 727 regulations. Consequently,Consolidation Coal was, in fact, further prejudiced by the delay-induced loss of its ability to defend against the 1978 claim with (b)(1) rebuttal.
The Director also attempts to minimize the prejudice suffered by Consolidation Coal by arguing that whether or not Borda would have continued to work if a timely hearing had been scheduled is speculative. But this invocation of possible outcomes is beside the point. As Lane Hollow makes clear, whether or not Consolidation Coal would actually have been able to prevail in employing a (b)(1) rebuttal is not dispositive:
[Speculation about the would-have-been and could-have-been misconstrues the focus of our inquiry. In this core due process context, we require a showing that the notice was received too late to provide a fair opportunity to mount a meaningful defense; 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. The Due Process Clause does not create a right to win litigation; it creates a right not to lose without a fair opportunity to defend oneself.
Lane Hollow,
V
Turning to the merits of the award of benefits to Borda, we affirm.
Consolidation Coal is correct in pointing out that the ALJ misapplied the standard for evaluating whether evidence establishes rebuttal of the interim presumption under § 727.203(b)(3). The ALJ required the employer to show that the miner had no respiratory or pulmonary impairment without permitting rebuttal on the alternative ground that any impairment was not
caused
by coal mine employment. The regulation provides that the presumption “shall be 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,” 20 C.F.R. § 727.203(b)(3), and we have held that, to rebut the interim presumption under this prong, an employer must “rule out the
causal
relationship be
The ALJ provided a detailed and organized summary of all of the doctors’ opinions, examining the flaws in each one. He also carefully explained why he attributed greater weight to certain medical opinions, and, citing to evidence in the record, he “specifically addressed each medical opinion which disagreed with his ultimate conclusion.”
Hobbs v. Clinchfield Coal Co.,
Consolidation Coal maintains that the ALJ “erred by interpreting medical data and substituting his own conclusions for those of a physician.” But this argument appears to misapprehend the ALJ’s role. As we have noted previously in delineating the function of the ALJ, “[a]n ALJ hearing a claim under the Black Lung Benefits Act is empowered to make credibility determinations and to weigh the evidence presented. Moreover, as trier of fact, the ALJ is not bound to accept the opinion or theory of any medical expert.”
Underwood v. Elkay Mining, Inc.,
It is well-established that “we must affirm the ALJ’s factual findings and weighing of the medical evidence where these conclusions of the ALJ are supported by substantial evidence.”
Hobbs,
VI
In summary, on Borda’s merged 1978 and 1988 claims, evaluated under the Part 727 regulations, we find no reason to overturn the Board’s conclusion that Borda is entitled to black lung benefits. However, because the government’s delay in processing Borda’s request for reconsideration and its concomitant delay in notifying Consolidation Coal of the pendency of Borda’s 1978 claim denied Consolidation Coal due process by severely impeding its ability to mount a meaningful defense, we vacate the designation of Consolidation Coal as the responsible operator. Because this leaves no responsible operator, we order the Black Lung Disability Trust Fund to pay Borda’s benefits as awarded by the ALJ.
IT IS SO ORDERED
Notes
. Consolidation Coal has stipulated that Bor-da is entitled to this presumption because chest x-ray evidence demonstrates that he suffers from simple coal workers' pneumoconio-sis. See 20 C.F.R. § 727.203(a)(1).
. Under § 727.203(b), an employer can rebut the presumption of eligibility by demonstrating that (1) the miner is still performing his usual coal mine work or comparable and gainful work; or (2) from a whole-man perspective, the miner is still capable of performing such work; or (3) the evidence rules out coal mine employment as a contributing cause of the miner's total disability; or (4) the miner does not have pneumoconiosis.
. The fact that the Department of Labor’s regulations do not require it to notify a responsible operator in a Part 727 case until an initial determination of eligibility is made, see 20 C.F.R. § 725.412, or the claimant requests a formal hearing after the initial denial of his claim, see 20 C.F.R. § 725.410(d), cannot insulate the Department from the independent, constitutional requirements of due process.