Crowe v. Zeigler Coal Co. et al

• Decision Date: 21 August 2000
• Docket Number: No. 97-2381,97-2381
• Citation: 226 F.3d 609
• Parties: (7th Cir. 2000) HAROLD D. CROWE, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, and ZEIGLER COAL COMPANY, Respondents
• Court: U.S. Court of Appeals — Seventh Circuit

Page 609

226 F.3d 609 (7th Cir. 2000)

HAROLD D. CROWE, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, and ZEIGLER COAL COMPANY, Respondents.

No. 97-2381

In the United States Court of Appeals For the Seventh Circuit

Argued May 30, 2000

Decided August 21, 2000

Petition for Review of a Decision of the Benefits Review Board, United States Department of Labor. BRB No. 96-827 BLA

Before POSNER, COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

From 1975 until 1980, Petitioner Harold D. Crowe ("Crowe") was employed as a coal car operator for the Zeigler Coal Company ("Zeigler") in Des Plaines, Illinois. But due to respiratory problems which he claims resulted from inhaling coal and rock dust, Crowe has been unable to work since June 1980.¹ On January 22, 1981, Crowe filed an initial claim for benefits under the Black Lung Benefits Act, 30 U.S.C. sec.sec. 901-945. However, according to Crowe, his illiteracy prevented him from properly responding to repeated requests from the Department of Labor ("DOL") to submit documentation "required to process [his] claim." The DOL subsequently denied his 1981 claim on procedural grounds only and did not reach the merits of Crowe's application.

Nearly ten years later, Crowe filed a second claim for black lung benefits, in which he included medical records dating back to 1980. The DOL denied his 1990 claim, ruling that he had failed to demonstrate a material change in his health conditions since the denial of his first claim. The DOL also determined that Crowe failed to demonstrate that: (1) he had black lung disease; (2) his respiratory problems were caused, at least in part, by coal mine work; and (3) he was totally disabled due to black lung disease. Thereafter, an administrative law judge ("ALJ") denied his second claim, concluding that Sahara Coal Co. v. Office of Workers' Compensation Programs ("McNew"), 946 F.2d 554 (7th Cir. 1991) prevented him from reaching the merits of Crowe's application for black lung benefits. The ALJ's decision was affirmed by the Benefits Review Board ("Review Board").

Crowe now petitions this court for a review of the Review Board's final order denying him black lung benefits, arguing that the Review Board "failed to engage in reasoned decisionmaking" and "exceeded its statutory authority" in affirming the ALJ's findings. The petition for review is GRANTED, and the petition is REMANDED to the ALJ for proceedings consistent with this opinion.

I. BACKGROUND

In June 1980, Crowe was forced to leave his job as a coal car operator due to respiratory problems which he contends resulted from inhaling coal and rock dust and thereafter, on January 22, 1981, filed his initial claim for black lung benefits pro se. On February 5, 1981, the DOL advised Crowe in a letter that in order for his claim to proceed, he must submit documentation "required to process [his] claim," including "[p]roof of coal mine employment," birth certificates of his children and prior W-2 forms. The petitioner, possibly because of his illiteracy, did not respond and one month later on March 9, 1981, the DOL sent Crowe a second letter, again explaining that he had failed to provide the necessary documentation and that "[i]f you do not respond to this notice within 30 (thirty) days, your claim may be DENIED for failure to prove necessary facts in your case."

When the DOL did not receive the necessary information "required to process [his] claim," the DOL sent a third and final letter dated May 27, 1981, which recited

IF YOU DO NOT WRITE OR CALL WITHIN THIRTY (30) DAYS, YOUR CLAIM WILL BE DECLARED ABANDONED. IN THAT EVENT THIS LETTER WILL SERVE AS NOTICE OF DENIAL OF YOUR CLAIM FOR FAILURE TO PROVIDE EVIDENCE NECESSARY TO YOUR CLAIM.

The petitioner failed to respond to this letter and his 1981 claim for black lung disease benefits was denied on procedural grounds only without reaching the merits of his claim.

Crowe waited almost ten years and then filed a second claim for black lung benefits with the DOL on August 15, 1990. On January 9, 1991, the DOL denied Crowe's second claim after making a finding that he had failed to demonstrate that: (1) he ever had black lung disease; (2) it was caused, at least in part, by coal mine work; (3) he was totally disabled due to black lung disease; and (4) there was a "material change in conditions" since the denial of his 1981 claim. Thereafter, Crowe requested and was granted a hearing before an ALJ, who initially denied Crowe black lung disease benefits, but after a remand from the Review Board,² reversed himself and awarded benefits. But when Zeigler filed a motion for reconsideration, on a third kick at the cat, the ALJ reversed himself again, and, relying on Sahara Coal, denied benefits to Crowe

Mr. Crowe presented no evidence at all with his original [1981] application for benefits. He then reapplied after the first denial had become final and presented evidence which I concluded in the decision and order on remand is sufficient to establish that he is totally disabled due to pneumoconiosis arising from coal mine employment. Under the McNew [Sahara Coal Co.] reasoning, however, Mr. Crowe would be attempting to relitigate his original claim by submitting the new claim and additional evidence . . . .

. . .

I therefore find that the claim filed by Mr. Crowe [in 1990] must be denied because the claimant abandoned his previous claim . . . .

(Emphasis added).

Crowe appealed the ALJ's decision to the Review Board. In a March 18, 1997 letter (likely written with someone else's assistance), Crowe explained that inaccurate advice from an employee of the social security office compounded with his illiteracy, caused the problem with his 1981 application for benefits

[I]t was extremely difficult to find anyone to help me with my black lung claim. I contacted many lawyers both locally and within surrounding counties and none could give me any information about black lung. As I was trying to deal with my black lung claim I contacted the social security office where I had originally filed my black lung claim, hoping they would have some information to help me deal with the claim. After contacting them a few times one of the employees at the social security office told me that I shouldn't concern myself with the black lung claim so much, because if I qualified for disability social security I would automatically qualify for black lung benefits. Since I could get help with my disability claim, but could not find any help for my black lung claim I just went ahead pursuing my [social security] disability claim under the impression I was pursuing both claims. Since I am illiterate I have to take another person's word for everything. Since I did file both claims on the same day and the same place, with the same person this did make sense to me.

. . .

Now I would like to address the issue of non response [sic] from the claims examiner in May 1981. I do vaguely remember getting some mail from the claims examiner. At that time I thought I was pursuing both claims through social security but I have to add for the record the letter that they state was dated May 27, 1981, I do not know the reason but, I do not have any knowledge of the contents that they say was in the letter.

(Emphasis added).³ Despite Crowe's compelling explanation and the ALJ's flip-flopping, not to mention the ALJ's cursory analysis of Sahara Coal,⁴ the Review Board affirmed the ALJ's decision and denied Crowe's motion for reconsideration. Crowe subsequently filed a petition for review with this court.⁵

II. ISSUES

On appeal, Crowe, now represented by counsel, alleges that the Review Board "failed to engage in reasoned decisionmaking" and "exceeded its statutory authority" in affirming the ALJ's denial of black lung benefits.

III. DISCUSSION

Although the petitioner is appealing a decision of the Review Board, "[i]f the ALJ's decision passes muster, then the decision of the Board affirming the ALJ's determination likewise will be affirmed by this court." See Peabody Coal Co. v. Shonk, 906 F.2d 264, 267 (7th Cir. 1990). Because Crowe challenges the ALJ's application of this court's holding in Sahara Coal, we review the denial of his 1990 claim for black lung disease benefits de novo. See Keeling v. Peabody Coal Co., 984 F.2d 857, 862 (7th Cir. 1993); Shelton v. Old Ben Coal Co., 933 F.2d 504, 506 (7th Cir. 1991) ("With respect to questions of law, however, our standard of review is de novo.").

In Sahara Coal Co. v. Officer of Workers' Compensation Programs, 946 F.2d 554, 556 (7th Cir. 1991) (emphasis added), this court resolved a case involving a second claim for black lung benefits, explaining that:

[a] second application for black lung benefits, filed after the first application was finally denied, may be granted only (as far as relates to this case) if there has been "a material change in conditions." 20 C.F.R. sec. 725.309(d). Otherwise that first denial, having become final, is res judicata and bars a subsequent application. Lukman v. Director 896 F.2d 1248, 1253-54 (10th Cir. 1990); cf. Pittston Coal Group v. Sebben, 488 U.S. 105, 122-23, 109 S. Ct. 414, 424-25, 102 L. Ed. 2d 408 (1988). . . . It is not enough that the new application is supported by new evidence of disease or disability, because such evidence might show merely that the original denial was wrong, and would thereby constitute an impermissible collateral attack on that denial. Suppose for example that in his original application the miner had presented no evidence at all, and been turned down. He reapplies after the first denial has become final and this time presents an abundance of evidence. If the evidence shows not that his condition has worsened since the first application but merely that he should not have been turned down, he has failed to demonstrate a material change in his condition; he is merely attempting to relitigate his original claim.

Accordingly, under...