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Old Ben Coal Company v. Director

May 31, 2002


Petition for Review of a Decision and Order of the Benefits Review Board, United States Department of Labor.

Before Ripple, Manion and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Ripple, Circuit Judge

ARGUED MAY 15, 2001

Old Ben Coal Company ("Old Ben") petitions this court to review a decision of the Benefits Review Board ("BRB" or "the Board") upholding an award of benefits under the Black Lung Benefits Act, 30 U.S.C. sec.sec. 901-945, to the claimant, James A. Hilliard. For the reasons set forth in the following opinion, the petition is granted, and the decision of the BRB is reversed.


This case, like so many other black lung cases, has a long and tortuous history. James Hilliard filed for black lung benefits on November 6, 1990. A claims examiner at the Department of Labor ("DOL") initially denied the claim on January 30, 1991. After receiving additional information, however, the DOL reversed its decision and awarded benefits. The claim proceeded to the Office of Administrative Law Judges for hearing. A hearing took place before Administrative Law Judge ("ALJ") Glenn R. Lawrence on June 9, 1992, and, on October 30, 1992, ALJ Lawrence issued a decision and order granting benefits. In issuing the award, ALJ Lawrence resolved the discrepancies in x-ray readings by employing the "true doubt" rule, whichrequired that the hearing officer, when faced with "equally probative but contradictory evidence[,] . . . resolve the issue in claimant's favor." App. at 3.

Old Ben initially appealed ALJ Lawrence's decision, but later requested dismissal of the appeal to pursue a modification of the award. The case was therefore remanded to the DOL.*fn1 During the modification proceedings, Old Ben submitted a deposition transcript of Dr. Glennon Paul, as well as pulmonary function studies belonging to a patient other than Mr. Hilliard. After examining the evidence, the district director denied modification, and Old Ben requested a hearing.

On May 12, 1994, the case returned to the Office of Administrative Law Judges for a hearing. A new ALJ *fn2 issued an order to show cause why the case should not be decided on the record. The record discloses no response by Old Ben. Indeed, no further activity was recorded on the case until April 22, 1995, when Old Ben informed the ALJ that Mr. Hilliard had passed away. Old Ben therefore requested a remand in anticipation of a survivor's claim. On May 25, 1995, the ALJ granted that request.

Eventually, the district director informed Old Ben's counsel that no survivor's claim had been filed, and the case returned to the Office of Administrative Law Judges. ALJ Thomas Burke was assigned the case and sent a notice of hearing to the parties. Mr. Hilliard's estate moved to have the modification petition decided on the record. ALJ Burke received no objection from Old Ben and therefore cancelled the hearing. He then denied the request for modification and explained that, even without the benefit of the discredited "true doubt" rule,*fn3 Mr. Hilliard's estate still had established pneumoconiosis and was entitled to benefits. Specifically, ALJ Burke was influenced by the fact that pneumoconiosis was listed as a cause of death thus "suggesting," according to the ALJ, "that its existence was confirmed on autopsy." App. at 12.

To further complicate matters, after ALJ Burke had issued his decision, Old Ben discovered that its lawyer had abandoned his law practice and had allowed multitudes of cases to go unattended. New counsel assumed responsibility for the representation and appealed the ALJ's decision. Again, however, Old Ben requested that the appeal be dismissed and that the case be remanded to the district director so that a request for modification could be processed. Mrs. Hilliard filed no objection, and the BRB granted the request on July 14, 1997.

While the case was pending before the DOL, Old Ben requested that Mrs. Hilliard sign an authorization to allow Old Ben's physicians to view Mr. Hilliard's autopsy slides. Mrs. Hilliard, however, refused to sign the authorization, and the DOL determined that Mrs. Hilliard was not under any obligation to do so. Old Ben again requested a hearing, and the DOL returned the case to the Office of Administrative Law Judges.

The case then was assigned to yet another ALJ, Linda Chapman. Prior to the hearing, Old Ben requested that ALJ Chapman order Mrs. Hilliard to sign the authorization allowing it access to the autopsy slides. ALJ Chapman denied the request. She held that

Mrs. Hilliard is under no duty to "cooperate" with the Employer in its attempt to have the award of benefits reversed. The record clearly reflects that Wayne Reynolds, the Employer's attorney at the time this matter was before Judge Burke, was aware of Mr. Hilliard's death; equally clearly, the autopsy report that the Employer now seeks was also available at that time. There is no indication in the record that the Employer, through Mr. Reynolds, ever sought to obtain this report or make it available to Judge Burke. App. at 14.

ALJ Chapman also denied a subsequent request to reconsider her decision.

After a hearing, ALJ Chapman ruled against Old Ben on its substantive application. In her order, the ALJ first recited the standard for determining whether a modification petition should be granted:

In reviewing a petition for modification based on a mistake of fact, the Supreme Court has stated that all evidence of record should be reviewed in determining whether a mistake in a determination of fact has been made, and that the factfinder has "broad discretion to correct mistakes of fact, whether demonstrated by wholly new evidence, cumulative evidence, or merely further reflection on the evidence initially submitted.["] App. at 33 (quoting O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 257 (1971)).

However, "[i]nitially," she stated, "it is appropriate to consider whether this claim should be reopened at all. Modification is discretionary, not automatic: [T]he statute and implementing regulations provide that the factfinder 'may' reconsider the terms of an award or denial of benefits." App. at 33. She further stated that "[i]n deciding whether to reopen a case under 33 U.S.C. sec. 922, the court must balance the need to render justice against the need for finality in decision making." Id. (internal quotation marks and citations omitted). According to ALJ Chapman,

[a]n allegation of mistake should not be allowed to become a back door route to retrying a case because one party thinks he can make a better showing on the second attempt. As the Supreme Court made clear in its reference to the legislative explanation for the 1934 broadening of the grounds for reopening under sec. 22, the basic criterion is whether reopening will "render justice" under the Act. App. at 33 (internal quotation marks and citations omitted).

ALJ Chapman then determined that modification in the present action would not render justice under the Act:

The modification provisions of the Act are not intended to allow a party to lay back, and, having received an adverse decision, take a second (or in this case, a third) bite at the apple by gearing up and presenting evidence that it could have presented at the first hearing on the claim. To do so would allow the Employer, under the guise of an allegation of mistake, to retry its case simply because it feels that it can make a better showing the next time around.

. . . To do so would make mincemeat of any principles of finality, and force a Claimant who has received afavorable decision to defend against the superior resources of an Employer who could conceivably come back year after year with "new" medical opinions, until the sheer weight of those opinions, all of which could have been presented during earlier proceedings, forced a decision in the Employer's favor. Surely that constitutes piecemeal litigation and forum shopping at its worst. App. at 35.

Consequently, the ALJ declined to reopen the award. The BRB upheld the ALJ's decision, and Old Benappealed to this court.


A. Standard of Review

"Although [Old Ben] appeals the final decision of the Board, our task is to review the ALJ's decision which the Board affirmed . . . ." Arnold v. Peabody Coal Co., 41 F.3d 1203, 1206 (7th Cir. 1994). We do so under a deferential standard of review: We will not overturn the ALJ's decision if it is rational, supported by substantial evidence and consistent with governing law. See Peabody Coal Co. v. OWCP, 116 F.3d 207, 211 (7th Cir. 1997). However, a failure by the ALJ to apply the correct legal standard presents a question of law which we review de novo. Id.; see also Crowe v. Director, OWCP, 226 F.3d 609, 612 (7th Cir. 2000). Furthermore, although we defer to the determination of an ALJ regarding a particular case, it is the DOL's interpretation, not the ALJ's or the BRB's ...

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