Crowe v. Zeigler Coal Co.

• Citation: 646 F.3d 435
• Decision Date: 01 June 2011
• Docket Number: No. 10–2174.,10–2174.
• Parties: Florence (Carolyn) CROWE, on behalf of Harold D. CROWE, Petitioner,v.ZEIGLER COAL COMPANY, et al., Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

646 F.3d 435

Florence (Carolyn) CROWE, on behalf of Harold D. CROWE, Petitioner,

v.ZEIGLER COAL COMPANY, et al., Respondents.

No. 10–2174.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 20, 2011.Decided June 1, 2011.

James B. Speta (argued), Attorney, Chicago, IL, for Petitioner.Laura M. Klaus (argued), Attorney, Greenberg Traurig, LLP, Rita A. Roppolo, Attorney, Department of Labor Office of the Solicitor, Washington, DC, for Respondents.Thomas O. Shepherd, Jr., Attorney, Benefits Review Board, Washington, DC, for Party-in-Interest.Before RIPPLE and HAMILTON, Circuit Judges, and MURPHY, District Judge.^*MURPHY, District Judge.

I. Introduction

In this case, Petitioner Florence Crowe, the widow of Harold D. Crowe, a coal miner formerly employed by Respondent Zeigler Coal Company (“Zeigler”), seeks review of a decision of the Benefits Review Board (“BRB”) of the United States Department of Labor (“DOL”) affirming a decision of an Administrative Law Judge (“ALJ”) to modify an award of benefits to Mr. Crowe under the Black Lung Benefits Act (“BLBA”), 30 U.S.C. §§ 901–45. Named as Respondents in addition to Zeigler are Travelers Companies (“Travelers”), the owner of a surety bond that covers Mr. and Mrs. Crowe's claim against Zeigler, and the Director of the DOL's Office of Workers' Compensation Programs (“OWCP”). In 2004 Zeigler was liquidated in bankruptcy, but Travelers made no application to intervene in the modification proceeding giving rise to the petition in this case until 2008, despite having been on notice of its interest in the proceeding since 2005. The modification proceeding should have been dismissed when Zeigler ceased to be a real party in interest to serve as the proponent of modification, and Zeigler's surety, Travelers, which might have served as a real party in interest in support of modification, failed to seek timely intervention in the modification proceeding. Accordingly, we reverse the BRB's decision and remand this case for reinstatement of the award of benefits to Mr. Crowe.

II. Background and Procedural History

As is not infrequently the case in proceedings under the BLBA, the procedural history of this matter is both lengthy and convoluted. See, e.g., Peabody Coal Co. v. Director, OWCP, 165 F.3d 1126, 1127 (7th Cir.1999) (describing a twenty-four-year-old black lung case as “typically protracted”). In 1981, shortly after retiring from his job with Zeigler, Mr. Crowe filed a claim for benefits with the DOL in which he asserted that he suffered from pneumoconiosis, commonly known as “black lung” disease. At the time Mr. Crowe filed his 1981 claim he was thirty-six years old and had worked as a miner for approximately five years. Subsequently the claim was denied by the DOL as having been abandoned.

In 1990 Mr. Crowe filed a new application for black lung benefits. The medical evidence supporting Mr. Crowe's 1990 claim included: the deposition testimony and treatment history of Dr. Curtis Krock, who had been Mr. Crowe's treating physician in the late 1970s and early 1980s; medical records of various physicians who treated Mr. Crowe in the 1980s and 1990s for respiratory ailments; and evidence specifically developed in connection with the claim. Dr. Krock, a board-certified practitioner in internal medicine and pulmonary disease, gave a deposition in connection with a previous claim by Mr. Crowe against Zeigler with the Illinois Industrial Commission in which Dr. Krock testified that Mr. Crowe had a history of recurrent exposure to rock dust. Dr. Krock's main diagnosis was bronchitis related to exposure to rock dust, although Dr. Krock also found that Mr. Crowe was an occult asthmatic.

Dr. Krock acknowledged that, although it was clear that Mr. Crowe had bronchitis, the diagnosis of asthma was somewhat more problematical because such a diagnosis typically requires a showing of reversibility, meaning that the patient's pulmonary deficit can be improved through medical intervention. However, Dr. Krock testified that he was satisfied with his diagnosis of asthma because, in examining Mr. Crowe, sometimes Dr. Krock heard Mr. Crowe wheezing and sometimes he did not. Dr. Krock also testified that Mr. Crowe's bronchitis and asthma were industrially-related and that Mr. Crowe was disabled.

In 1994, on appeal from the denial of Mr. Crowe's claim for benefits by a deputy commissioner, ALJ Donald Mosser affirmed the denial of Mr. Crowe's claim. In his order denying benefits, ALJ Mosser denied a request by Zeigler for remand of the case to the District Director for the purpose of developing additional evidence, noting that the record in the case had been left open for a considerable time to allow Zeigler to develop additional medical evidence, yet Zeigler had failed to develop any such additional evidence. On appeal to the BRB, the BRB reversed ALJ Mosser's denial of benefits, finding that Dr. Krock's diagnosis of Mr. Crowe as suffering from industrially-related disabling asthmatic bronchitis with an incapacitating cough may have constituted a diagnosis of legal pneumoconiosis.

On remand from the BRB, ALJ Mosser found in a 1995 opinion that Mr. Crowe was entitled to black lung benefits dated from July 1, 1981, the onset of Mr. Crowe's total disability due to black lung, and that such benefits should be augmented for Mr. Crowe's wife and daughter for the periods during which Mr. Crowe's wife and daughter qualified as dependents. Zeigler then moved for reconsideration, asserting that Mr. Crowe's 1990 claim was barred because Mr. Crowe's 1981 claim for benefits had been dismissed and because Mr. Crowe had failed to prove a material change in his condition such as to permit him to bring a new claim for benefits. In 1996 ALJ Mosser vacated the award of benefits to Mr. Crowe, and the 1996 order was affirmed by the BRB. Accordingly, Mr. Crowe petitioned this Court for review of the BRB's decision.

This Court held that because the dismissal of Mr. Crowe's 1981 claim for benefit was procedural and not a decision on the merits, Mr. Crowe did not need to prove a material change in his condition between his 1981 claim and his 1990 claim. See Crowe v. Director, OWCP, 226 F.3d 609, 613–14 (7th Cir.2000). The Court pointed out that res judicata or claim preclusion typically does not bar a claim where a finding of preclusion is manifestly unjust. See id. Also, the Court noted that Mr. Crowe's failure to prosecute his 1981 claim may have been prompted by advice he received from an employee of the Social Security Administration (“SSA”) to the effect that he “shouldn't concern [him]self with the black lung claim so much, because if [he] qualified for disability social security [he] would automatically qualify for black lung benefits.” Id. at 612 (emphasis omitted).

The Court concluded that, when Mr. Crowe's illiteracy was considered in conjunction with his lack of representation and the misinformation given to him by the SSA, “it would be unfair and improper to hold that the procedural denial of the petitioner's initial claim is sufficient to deprive him of an opportunity with assistance of counsel to advance his 1990 claim on the merits of his health condition.” Crowe, 226 F.3d at 613. The Court said also that “it seems clear that there exists significant evidence of Crowe's debilitating lung condition,” and urged that the case be resolved “as expeditiously as possible” on remand. Id. at 615. The Court therefore remanded the case to the ALJ for further proceedings.

On remand, Zeigler sought to reopen the record or to remand the case to the District Director for the development of additional evidence. In January 2001 ALJ Mosser denied Zeigler's request on the grounds that the company should have been able to anticipate the type of evidence to be developed in the case, regardless of whether it was considered a duplicate claim or an original claim, and because Zeigler had enjoyed ample opportunity to develop evidence and there was no need unnecessarily to prolong the proceedings. In March 2001 ALJ Mosser entered a new order awarding benefits to Mr. Crowe. Thereafter, Zeigler initiated a proceeding for a modification of ALJ Mosser's award of benefits and advised the DOL by letter that it refused to pay the benefits awarded to Mr. Crowe.

In the course of the modification proceeding, which by that time had been assigned to a new ALJ, Robert L. Hillyard, the parties deposed four physicians, Dr. Abdul Dahhan, Dr. Lawrence Repsher, Dr. Joseph Renn, and Dr. Gregory Fino, who were presented by Zeigler as witnesses. Each of the four witnesses concluded that Mr. Crowe was not suffering from black lung disease because the objective evidence, that is, x-rays and other medical tests, did not support such a diagnosis. In 2003 ALJ Hillyard denied Zeigler's modification petition. In August 2004 the BRB reversed ALJ Hillyard's denial of modification, finding that ALJ Hillyard had placed undue weight on the testimony of Dr. Krock as Mr. Crowe's treating physician, and remanded the case to ALJ Hillyard for further proceedings.

In October 2004, while a motion by Mr. Crowe for reconsideration of the BRB's decision was pending before the BRB, Zeigler's counsel moved to withdraw from the modification proceeding because Horizon Natural Resources (“Horizon”), which was the successor in interest to Zeigler and had been in bankruptcy proceedings since 2002, had been liquidated. In December 2004, following denial of Mr. Crowe's motion for reconsideration, the BRB entered an order “not [ing]” the withdrawal of Zeigler's counsel from the modification proceeding. The DOL, through the Office of the Solicitor of Labor, moved both the BRB and ALJ Hillyard to hold Mr. Crowe's claim in abeyance, stating that time was needed in order to determine whether a surety bond covered the claim and, if no such bond existed, how the Director of the OWCP wished to proceed. In February 2005 the Office of the Solicitor wrote to...