concurring.
Although I concur in this opinion, I write separately only to convey my view that our resolution does not violate the Benefits Review Board’s concerns expressed in Crabtree v. Bethlehem Steel Corp., 7 B.L.R. 1-354 (1984). In Crabtree, the Board reversed an AU’s finding that Bethlehem Steel was the responsible operator and refused to remand the case to redetermine the identity of the true responsible employer. Consequently, the Board transferred liability to the Black Lung Disability Trust Fund after finding that due process and the efficient administration of the Act require that “the Department ... resolve the operator issue in a preliminary proceeding, and/or proceed against all putative responsible operators at every state of the claims adjudication.” 7 B.L.R. at 1-357 (citation omitted).
It seems to me that the AU and Board erred in finding Crabtree outcome determinative in this case. In its election not to remand for reconsideration of the operator issue, the Crabtree Board expressed the following two concerns:
First, a claimant who has established entitlement in the first round of proceedings may lose his award in a later round against another operator. A first finding of entitlement, even though fully developed and litigated, can be defeated in subsequent proceedings by a different operator, and not always on the merits. Second, piecemeal litigation obviously is not compatible with the efficient administration of the Act and expeditious processing of claims.
7 B.L.R. at 1-357.
In Crabtree, the case had been fully litigated on the merits before it was determined that the claimant was an independent contractor vis-a-vis the named employer, thereby insulating that employer from liability as the responsible operator. In contrast, in the instant case there was not so much as a hearing involving the initially named responsible employer (Y & 0).
Although Goddard received a “Notice of Initial Finding” of entitlement to benefits, that initial finding was not a “fully developed and litigated” finding of entitlement. Rather, it was an initial administrative determination made by a Department of Labor claims examiner. That initial determination sets in motion the procedural machinery for claims adjudication, which permits entitlement to be contested and fully litigated before an AU. Although, in contesting its liability for benefit payments, Y & O submitted medical evidence refuting claimant’s entitlement and sought a hearing on both this issue and on its designa*1306tion as the responsible operator, the issue of entitlement was never fully developed or litigated before an AU. Instead, without more, the matter was disposed of on summary judgment dismissing Y & 0 as the responsible operator. Hence, because the claimant never had to defend the initial entitlement determination against Y & O, I find no due process rights implicated or other injustice in exposing the claimant to the possibility of having to defend the initial determination against Oglebay. Likewise, as noted in the majority opinion, Oglebay has access to evidence developed by others before and after Goddard’s death, as well as its own developed evidence with which to defend against the claim on remand.
Moreover, I view the Board’s concern in Crabtree about piecemeal litigation and efficient administration of the Act as intrinsically tied to the Board’s desire to avoid the inconvenience and delay inherent in relit-igation of claims. In fact, in concluding that the operator issue must be resolved in a preliminary proceeding and/or a proceeding against all putative responsible operators at each stage of processing the claim, the Board noted that “[even a separate preliminary proceeding on the operator issue alone is more desirable than fully litigating the claim against each operator individually].” 7 B.L.R. at 1-357 (emphasis added). Here, the claim was never fully litigated against anyone by anyone. Thus, the prospect of relitigation that the Board found repugnant in Crabtree is absent here.
Accordingly, I concur in the reversal of the Board’s decision and find that such resolution is neither inconsistent with nor contraindicated by the concerns expressed in Crabtree.