Amax Coal Co. v. Franklin

• Decision Date: 24 February 1992
• Docket Number: No. 90-2095,90-2095
• Citation: 957 F.2d 355
• Parties: AMAX COAL COMPANY, Petitioner, v. James L. FRANKLIN and Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 355

957 F.2d 355

AMAX COAL COMPANY, Petitioner, v. James L. FRANKLIN and Director, Office of Workers'

Compensation Programs, United States Department of

Labor, Respondents.

No. 90-2095.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 28, 1992.

Decided Feb. 24, 1992.

W.C. Blanton (argued), James F. Bleeke, Ice, Miller, Donadio & Ryan, Indianapolis, Ind., for Amax Coal Co.

Leslie A. Jones (argued), Johnson, Schaaf, Jones & Snelling, Thomas E. Johnson, Chicago, Ill., James L. Franklin, Linton, Ind., for James L. Franklin.

Barbara J. Johnson, Cathryn C. Helm (argued), Dept. of Labor, Office of the Solicitor, Carla Chapman, Benefits Review Bd., Dept. of Labor, Melissa Reardon Henry, Dept. of Labor, Black Lung Div., Washington, D.C., for Office of Workers' Compensation Programs, and Benefits Review Bd.

Before BAUER, Chief Judge, and POSNER and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

A coal company appeals from an order directing it to pay disability benefits to a miner, James Franklin, under the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. Franklin's claim had at first been turned down by the agency and he had not pursued his administrative remedies; but within a year he requested that the proceeding be reopened, and eventually his request was granted and benefits awarded. The coal company challenges both the propriety of reopening the claim and the miner's substantive entitlement to benefits. As so often in black lung cases, the processing of the claim has been protracted scandalously. The original claim was filed in 1978 and the request for reopening in 1980--more than a decade ago. A hearing was not held until 1987, and appellate review within the Department of Labor consumed another three years. Such delay is not easy to understand. These are not big or complex cases (this one certainly is not). The monetary stakes are modest though not trivial, the medical reports and other documentary evidence (mainly depositions of physicians) are usually not voluminous, and the typical hearing lasts, we are told, no more than an hour. And there is not that extra layer of judicial review between us and the Benefits Review Board that there is in social security disability cases, where the appeal from the Appeals Council (the counterpart to the Benefits Review Board) goes to the district court first. The delay in processing these claims is especially regrettable because most black lung claimants are middle-aged or elderly and in poor health, and therefore quite likely to die before receiving benefits if their cases are spun out for years. We hope that Congress will consider streamlining the adjudication of disability benefits cases (not limited to black lung) along the lines suggested by the Federal Courts Study Committee. See the Committee's Report (April 2, 1990), at pp. 55-58.

A denial of black lung benefits can be reopened within one year upon a showing of a change in the miner's condition or a mistake in a determination of fact. Section 22 of the Longshore and Harbor Workers' Compensation Act so provides, 33 U.S.C. § 922, and this section is incorporated by reference in the Black Lung Benefits Act, 30 U.S.C. § 932(a), and repeated in a regulation under the latter Act, 20 C.F.R. § 725.310. (See Eifler v. Office of Workers' Compensation Programs, 926 F.2d 663, 665 (7th Cir.1991), on this genealogy.) When Mr. Franklin first applied for black lung benefits he submitted no medical evidence that he had black lung disease and his application was therefore turned down with the notation that he did not have the disease. When less than a year later he applied to reopen the proceeding, he attached a letter from his personal physician, Dr. M.E. Tomak. The letter explained that Tomak had been Franklin's physician for more than thirty years, had last examined him twelve days earlier and observed a variety of pulmonary symptoms, and had concluded that Franklin was disabled from gainful work in the mines as a result of his "many years of exposure to the environment and atmosphere of the coal ming [sic ] industry." The administrative law judge ruled that the letter established a change of condition and so warranted a reopening of the proceeding. It established nothing of the kind. Nothing in Dr. Tomak's letter indicated a deterioration in Franklin's condition since his first application. Granted, the deterioration in the miner's condition need not be great to allow a reopening within one year. We may assume, indeed, that it need only be perceptible, unlike the case where the request to reopen comes more than a year after the denial of benefits: for then the regulations require a material change in conditions, 20 C.F.R. § 725.309(d), and we have interpreted this to mean that between the time of the initial denial and the time of the motion the miner went from not being disabled to being disabled. Sahara Coal Co. v. Office of Workers' Compensation Programs, 946 F.2d 554, 556 (7th Cir.1991). (The difference in standards reflects the fact that the interest in the finality of a judgment--the interest that underlies statutes of limitations, the doctrine of res judicata, and cognate policies--varies with the amount of time that has elapsed between the denial of benefits and the request to reopen.) But however slight the required showing of deterioration when the request to reopen is made within a year of the denial of benefits, Franklin failed to make it. Nor can the requirement of a showing of deterioration be waved aside with the observation true though it is, that black lung disease is progressive, so that there must be deterioration between the denial and the motion to reopen, however brief the interval is. That would rewrite the regulation to allow reopening at will.

Although there was no demonstrated change in this miner's condition, there was arguably a mistake of fact--a mistake as to whether he had black lung disease--and no more is required to reopen the proceeding within a year of denial. We say "arguably" in order to hold separate the question of mistake from the ultimate question of entitlement to benefits. Suppose, as actually happened here, that within one year of the original denial of benefits on the ground that the claimant does not have black lung disease, he introduces evidence (the letter from Dr. Tomak) indicating that he may well have had the disease, after all, on the date of the original application. Years pass, during which additional medical evidence accumulates, and finally a hearing is held. Logically there are two issues for the hearing: First, did the evidence submitted within a year of the original denial demonstrate that the claimant had black lung disease all along? If not, the proceeding cannot be reopened, and the initial denial of benefits is final. Second, does all the evidence demonstrate that the claimant has the disease and has satisfied the other requirements for an award of benefits (notably that he is totally disabled as a result of the disease)?

It may be logical to proceed in this way, but it is not sensible. It requires that the claimant within one year of the original denial show not only that the denial may have been mistaken, but that it was mistaken, and if he has failed to get all his ducks in order, no evidence obtained later can save him. This is not how the reconsideration process normally works, and we can see no reason why it should be made to work abnormally in black lung cases. Normally when a losing litigant moves for reconsideration, he presents only enough evidence to show that reconsideration is warranted; he is not expected to prove at that point that the judgment he wishes to see set aside was mistaken. Estate of Kraus v. Commissioner, 875 F.2d 597, 602 (7th Cir.1989) ("the evidence is such that a new trial would probably produce a new result") (emphasis added); Mumford v. Bowen, 814 F.2d 328, 330 (7th Cir.1986) ("the new evidence is likely to change the outcome") (emphasis added); McKnight v. United States Steel Corp., 726 F.2d 333, 336 (7th Cir.1984). Definitive proof is for the hearing. It is enough if the movant's submission establishes a high enough probability of error to warrant a hearing--at which both parties will be allowed to make full evidentiary presentations. Dr. Tomak's letter was, as we shall see, far from conclusive on whether Franklin had black lung disease, but it was sufficiently probative to justify reopening the case.

If this is right it might seem merely a harmless error that the administrative law judge granted the motion to reopen on the erroneous ground that the miner had shown a change of condition. It is not harmless. Motions to reopen or reconsider are appeals to the discretion of the judicial or other officer to whom the motion is made. INS v. Abudu, 485 U.S. 94, 105-07, 108 S.Ct. 904, 911-13, 99 L.Ed.2d 90 (1988); In re Shondel, 950 F.2d 1301, 1304 (7th Cir.1991); May Department Stores Co. v. NLRB, 897 F.2d 221, 230 (7th Cir.1990); Mumford v. Bowen, supra, 814 F.2d at 329. So the Supreme Court expressly held with reference to 33 U.S.C. § 922--the basis, as we noted, for the statute and regulation...